Deregulation Bill

Baroness Thornton Excerpts

Thursday 20th November 2014 Grand Committee

[Lord Kennedy of Southwark (Lab)]

My Lords, I support my noble friend’s amendments and I concur with the comments of my noble friends Lord Rooker, Lord Rosser and Lord Grantchester. I would like the noble Lord, Lord Wallace of Saltaire, when he responds, to clarify how the clause applies to the Legal Services Board, which came into force in 2009. Its overriding mandate is to ensure that regulation in the legal services sector is carried out in the public interest and that the interests of consumers are placed at the heart of the system. It oversees 10 separate bodies, the approved regulators which directly regulate practising lawyers.

The board oversees the organisation that handles consumer complaints about lawyers, the Office for Legal Complaints. It works to eight regulatory objectives, which are: protecting and promoting the public interest; supporting the constitutional principle of the rule of law; improving access to justice; protecting and promoting the interests of consumers; promoting competition in the provision of services in the legal sector; encouraging an independent, strong, diverse and effective legal profession; increasing public understanding of citizens’ legal rights and duties; and promoting and maintaining adherence to the professional principles of independence and integrity, proper standards of work, observing the best interests of the client, complying with the duty to the court and maintaining client confidentiality. Will the Minister confirm that, whatever comes out of this, the Government do not see that this new duty in any way overrides the regulatory objectives to which I referred, that nothing would change in that respect, and that all that it would do is re-emphasise competition in the provision of service in the legal sector?

We are talking about growth, but I hope that at the end of all this we are not just creating more work for lawyers. As other noble Lords have said, it is certainly confusing, and that cannot be the Government’s intention. I hope that the Minister, if he cannot accept my noble friend’s amendment, will respond very carefully to the points raised. These are serious matters, and it cannot be the Government’s intention to create more work for lawyers and more expense for business.

[Baroness Thornton (Lab)]

My Lords, I support my noble friend’s amendment. My noble friend Lord Hunt cannot be with us this afternoon, so I shall expand on the issues around the CQC which he raised in Grand Committee last time. He asked for an explanation of why the CQC would not respond to a request that sought its views on this matter. We asked it for its views on the clause and were informed by the Department of Health that it had told that CQC that it was not appropriate for it to respond to our inquiry. Indeed, my noble friend forwarded to me a copy of the letter that he received from the department as a result of his exchange with the noble Earl, Lord Howe. The letter says:

“CQC sought views from the Department of Health and Cabinet Office before responding to the request. The CQC is a non-departmental public body, and is part of the Government landscape”—

whatever that means. It goes on,

“As such, it was not considered appropriate for the organisation to give its views to the Opposition on a piece of legislation. This is in line with the civil service code. I understand that the CQC replied to confirm it would not be appropriate for them to comment and suggested that the Office of the Leader of the Opposition contact the Department directly should there be any further queries”.

So we might take that one up anyway.

This letter raises more questions and concerns than it answers. Given that today marks the publication of guidance for NHS organisations on the duty of candour and the fit and proper persons requirement, it seems rather ironic that a press release from the CQC says:

“One week to go before new NHS regulations to improve openness and transparency”.

Well, yes.

I shall ask the Minister for some further points of clarification in this context. If the CQC cannot answer the questions directly that we want to put, I would like to know what we should do. These are the questions that we think that it would be legitimate to ask. I quote from the CQC’s website on the principles of that body. It says:

“Throughout everything we do, we always … put people who use services at the heart of our work … have an open and accessible culture … are independent, rigorous, fair and consistent … work in partnership across the health and social care system … are committed to being a high-performing organisation … promote equality, diversity and human rights”.

As those of us who were involved in the legislation two or three years ago know, the CQC is accountable to the public, Parliament and the Secretary of State for Health for the regulation of most of England’s healthcare provision, including hospitals, both NHS and private, GPs, dentists, care homes and other institutions. It does a very important job. Surely we have to be confident of the CQC’s independence and that it will have only patients’ interests in mind in all the work that it does. How will this work alongside the duty to consider economic growth? I really do not expect to hear soothing sounds from the Minister about this because the House needs to know that this has been tested in some way and that questions have been asked and hypothetical cases have been put, such as a care home whose business interests are at risk because of the work of the CQC, with a loss of jobs, meaning that economic growth is therefore in jeopardy. Those are totally legitimate questions to put about the duty being imposed on the CQC. Those are the unintended consequences that my noble friend referred to in his opening remarks. We need to know whether the CQC would find itself in a policy clash situation. Does the Minister accept that any danger that the economic growth regulation might have a chilling effect is actually disastrous when talking about the country’s foremost health regulator? It is completely legitimate that the Committee should want to know the answers to these questions before the CQC is included in this legislation.

I was not at all comforted by reading the draft guidance. Point 5 on page 7 says:

“The impact that regulators can have on sector-level economic growth will depend on the context and/or sector(s) within which they operate. In order to understand sector level impacts, where possible regulators should consider how their actions impact on indicators such as consumer confidence and fair competition”.

In the context of the health service, where competition is being put at the heart of service delivery by the Government, that seems to be an extremely important point and raises questions about the problems that the CQC might face. We know that the health service—which we face having to save yet again after the general election—is already a lawyers’ playground. How much more of a lawyer’s playground will it be if these issues are not resolved?

--- Later in debate ---

[Lord Wallace of Saltaire]

Writing common sense into law is one of the most difficult things that we all spend our time on, however.

[Baroness Thornton]

I was not particularly surprised at the Minister’s response on the CQC. Given that we know that the CQC cannot answer the Opposition’s questions about this, why would we be surprised to hear that the CQC said that it is fine? The Department of Health has said that it has to say that it is fine. We now know that it is being told what to do by the department, which is worrying. As for the questions I asked, which are those that need to be asked in order to test this legislation, the Minister cannot tell me that those questions have been asked and what the answers were, and we therefore need to pursue that further.

[Lord Wallace of Saltaire]

My Lords, we are all very conscious that we are talking about a range of regulatory bodies which, as has already been said, have different relationships with Governments. Some are entirely independent, some are agencies of departments, and that is part of the universe with which we need to deal. I have already offered to discuss this between Committee and Report and I recognise, as I have already said, the concerns which have been expressed in this debate.

--- Later in debate ---

[Lord McNally]

Of course it is not mentioned in the Bill. Only one of the regulators is in fact part of an international scrutiny and accreditation process. The longer the noble Lord, Lord Rooker, stayed in office and had responsibility, the more a stickler he became for the rules. I am saying that this is an exception. I have already heard one argument that this would open the floodgates, but this is an exception, and a very important one. My amendment makes it very clear that it may be the only organisation mentioned in the Bill, but I assure the Committee that it is the only organisation where a great deal of work was done to get its A status accreditation with the UN. That A status accreditation is very important for the status of the organisation.

The letter from BIS is very welcome and very timely. I urge the Minister to consider accepting the amendment, although it concerns the exception that the noble Lord, Lord Rooker, referred to. Indeed, it is almost the kind of declaration that I want: that we are determined to declare beyond peradventure that this important international body, with its A status in the UN, is not part of this domestic legislation. That would most certainly remove any unintended consequences. I fully accept from conversations with my noble friend that these are unintended consequences, but those who are involved in this area believe that it is a real threat and could cause real damage, and I believe that my amendment is a very simple, quick, clean way of handling the situation. I beg to move.

[Baroness Thornton]

My Lords, I have put my name to this amendment for the obvious reasons outlined by the noble Lord, Lord McNally. I very gently say to the noble Lord that it was my Government who set up the EHRC. In fact, the threats to it have come from his Government from time to time, the first time being in 2010. The review of the EHRC as an A status body is next year. The noble Lord is completely right to say that its inclusion in the list of regulators which have to have regard to economic growth in their regulatory functions would jeopardise its independence. There is no doubt about that.

The United Nations International Coordinating Committee, which is responsible for the accreditation of human rights bodies, wrote to the Minister for Equalities. It said that independence from government is an essential element of an NHRI—a national human rights institution. In considering whether an NHRI is independent, the ICC looked at all the ways in which the NHRI is subject to control or direction. The Bill may not intend to affect the independence of the EHRC but attaching an additional duty which could be seen as competing with or limiting its existing duties or core functions would have a direct effect on its decision-making. Being subject to ministerial direction and the possibility of legal challenge to its work could have a detrimental effect on its ability to make decisions in relation to upholding human rights. These clauses, combined with the existing connections and accountabilities to the British Government, would raise questions about the compliance of the EHRC with the Paris principles. That is absolutely right.

I shall add only one other matter to this debate. There is another reason why you would not want to have the EHRC included in this list, which is not just to do with its international status as a unique body. Part of its reason for existence is to make businesses behave better and make people behave better towards each other. That is good for business and you would not want to jeopardise that.

I am pleased to support the amendment. I realise that the Government have a dilemma. Do they include the amendment in the Bill and therefore mention the body or do something in another way? Whatever they do, they need to remove the EHRC from that list.