Mr. Burns: Will the Minister clarify one point? I fully understand what he is saying and I am grateful for it, but, although he concedes that the regulations should be made under the affirmative resolution procedure, he says that our amendment is not acceptable and that he will reflect on the matter. Where will the matter go from here? Is our drafting wrong, and will the Minister draft a better, relevant amendment on Report?
Mr. Hutton: The amendment can be better drafted. The amendment should affect clause 36 and not clause 26, so I hope that we will be able to sort this out in Committee. It depends on when the Committee finishes its business. We hope to table a suitable amendment to clause 36 today, but if it proves impossible to do that in Committee, we shall do so on Report.
Mr. Heald: On a point order, Mr. Hurst. In the light of this happy event, if time proves pressing, would you accept a manuscript amendment?
The Chairman: If that were the wish of the Committee, I should be happy so to do.
Mr. Hutton: I shall reciprocate in kind by trying to ensure that a manuscript amendment is available before we finish today's business. Unfortunately, however, I cannot guarantee that—indeed, I do not even know at what time we will finish. None the less, in the rather surprising spirit of co-operation that has been engendered by this morning's debate, we shall do our best to meet the Committee's wish that the matter be dealt with in Committee. I do not know what the precise procedure is in such cases, but given that I hijacked an Opposition amendment with Government amendment No. 187, I am happy for the hon. Gentleman and my hon. Friend the Member for Crawley to add their names to it. Having engendered a pre-Christmas sense of warmth and hospitality, I had better not blow it.
Mr. Burns: I do not want to push my luck, but may I assume from the Minister's comments that if parliamentary draftsmen cannot prepare the relevant amendment in time, the Government will table it on Report?
Mr. Hutton: Yes. That is what I said, and I am happy to reconfirm it. Hon. Members are clearly concerned that we should deal with the issue, and that is what we want to do. In the light of the importance of the issues covered by clause 26, a very convincing argument has been made for the need for the affirmative resolution procedure. I am prepared to co-operate fully with the will of the Committee by engineering an amendment for consideration later today, or if that is not possible by ensuring that we amend the Bill on Report.
Mr. Heald: This is a joyful moment. The Opposition are genuinely grateful to the Minister for giving our amendments and remarks full and due consideration. At the end of the previous sitting, I said that not just the Government but parliamentarians should decide on such matters, and that accepting amendment No. 246 would provide
''a proper guardian for the independence of the council.''—[Official Report, Standing Committee A, 11 December 2001; c. 408.]
I am pleased that the Minister agrees.
The other amendments were probing. There is an argument as to whether the procedures of an independent council such as this should be established by the council or by parliamentarians, but they should not be established by the Government alone. I am prepared to withdraw amendment No. 239 if the Minister will accept amendment No. 246, and on that basis I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Heald: On a point of order, Mr. Hurst. In response to my earlier point of order, you kindly pointed out that the Programming Sub-Committee could have a short meeting to discuss issues arising from the loss of some of our business through the untimely action of the guillotine. Would it be appropriate to have a short suspension now and for the Sub-Committee to meet for that purpose?
The Chairman: That is a matter for my discretion. If I were to receive a short note requesting a meeting of the Programming Sub-Committee, I would give it due consideration. However, I do not intend to suspend the Committee at this point.
Mr. Heald: Further to my point of order, Mr. Hurst. One does not know how fast the Committee will move, but if such a written request were made, whatever the state of the Committee's work, could a meeting of the Programming Sub-Committee be interposed? The Programming Sub-Committee would have to meet prior to Report.
The Chairman: The Programming Sub-Committee cannot meet after the conclusion of the Committee stage of the Bill, so the request would have to be made at an appropriate time prior to that date.
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.
Question agreed to.
Clause 26 ordered to stand part of the Bill.
Reference of disciplinary cases
by Council to court
Amendment made: No. 202, in page 32, line 6, at end insert—
'( ) a direction of the Statutory Committee of the Pharmaceutical Society of Northern Ireland under Article 20 of the Pharmacy (Northern Ireland) Order 1976 (S.I. 1976/1213 (N.I. 22)) (control of registrations by Statutory Committee) or section 80 of the Medicines Act 1968 (c.67),'.—[Mr. Hutton.]
Question proposed, That the clause, as amended, stand part of the Bill.
Mr. Heald: Clause 27 gives the council the right to refer a fitness to practise decision to the High Court, where the court would have the power to substitute its decision for that of the regulatory body, which is a controversial power. The Royal College of Nursing has sought assurances that cases against clinicians will continue to be heard using the criminal, rather than the civil, burden of proof. It points out that the impact of losing a licence to practise a profession is so serious that this standard of proof, which ensures that the professions retain their confidence in the regulatory process, is justified. Will the Minister assure the RCN that cases against clinicians will continue to be heard using the criminal burden of proof?
The RCN also has concerns about the effect of overturning the decisions of its regulatory body. The council's view will obviously be important because it will deal with protecting the public, but the RCN is concerned about the effect that the clause would have on the standing of the Nursing and Midwifery Council. A party who believes that the correct process has not been followed by a regulatory body can use the current judicial review mechanisms, and there have been many recent examples of that.
Clause 27(4) proposes new powers allowing the courts to review the decision rather than the process. The RCN does not think that the courts would have greater expertise than the regulatory body in deciding the appropriate penalty. It is seeking clarification about the type of cases to which the council may wish to refer, and some strong assurances that the power would be used only in exceptional circumstances. It also points out that the court can make orders regarding the cost of the referral. It is concerned that this could act as a disincentive for regulatory bodies to exercise the full breadth of their powers, and might lead to the suggestion that striking off would be the preferred option in more cases than would be in either the profession's or the public's interest.
The BMA feels that the provision must be narrowly restricted to exceptional circumstances. It would agree to it if it were absolutely clear that it would be used only in exceptional circumstances, and that it would not become routine for GMC decisions to be appealed.
The Chartered Society of Physiotherapists has concerns, pointing out that the health professions order allows for a right of appeal and that, to make a decision on whether something should be referred to the High Court, the council itself will have to undergo an investigatory procedure. Its point is that there could be much added bureaucracy and expense, and more opportunities and processes for investigation than are strictly necessary. In effect, it says that a procedure in which the regulatory body makes a decision, then the council makes a decision and then the court makes a decision should be restricted to the most exceptional cases.
The eight regulators have expressed their concern that there is nothing to ensure that the power to appeal would be used only sparingly. A theme runs through the concerns of all the various bodies. Some are in a position not dissimilar from that of the council. Regulatory bodies with experience of dealing with such matters are all saying, ''Look, this may be all right, but let's keep it restricted to the cases that are the most serious and exceptional.''
Can the Minister reassure me further on the meaning of clause 27? Subsection (1) contains a list of determinations and findings that can be made. It is clear that a relevant decision falling under that subsection will be able to be referred to the High Court if it is unduly lenient. What concerns me is the wording,
''whether as to any finding of professional misconduct or fitness to practise . . . or as to any penalty''.
Paragraphs (a) to (i) seem to contain decisions on sentence. I have not looked at every single one but, to give an example, section 20 of the Osteopaths Act 1993, a standard provision of the kind, makes it clear that there are various types of allegation that can be investigated, and they are listed as
''guilty of conduct which falls short of the standard required of a registered osteopath . . . guilty of professional incompetence . . . convicted . . . of a criminal offence . . . ability to practise is seriously impaired because of . . . physical or mental condition.''
Those are standard allegations for all the professions.
Section 22 of the Osteopaths Act 1993, referred to in clause 27(1)(g) of the Bill says, in subsection (1), that
''it shall be the duty of the Committee to consider''
any of the allegations made under section 20, to which I just referred. Section 22(2) continues:
''If, having considered it, the Committee is satisfied that the allegation is well founded it shall proceed as follows.''
Section 22(4) then lists the penalties, including admonishing, striking off and imposing conditions on practice.
The decision referred to in clause 27(1)(g) is the penalty. That is any step taken under section 22(4) of the Osteopaths Act 1993. The context of that will be that the finding of guilt has been made and what may be appealed or referred to the High Court is the decision on the penalty. As I understand it, that is what the council may find to be unduly lenient, in which case it would refer it.
I do not understand, then, why the words,
''whether as to any finding of professional misconduct or fitness to practise''
are in clause 27(4)(a). The finding in, for example, subsection (1)(g)—relating to section 22(4) of the Osteopaths Act—is the penalty, which might be to
''admonish . . . make an order imposing conditions . . . suspend the osteopath's registration . . . order the Registrar to remove the osteopath's name from the register . . . A conditions of practice order''
and so on.