Health and Social Care Bill

Lord Hennessy of Nympsfield Excerpts

Wednesday 16th November 2011 Lords Chamber

Moved by

[Lord Hennessy of Nympsfield]

90: Clause 17, page 12, line 32, leave out “Regulations may” and insert “The Secretary of State must draft regulations not less than annually, and shall submit them to the relevant committee of the House of Commons not less than two months before the regulations are to be laid before Parliament.
(1A) Such regulations shall”

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[Lord Hennessy of Nympsfield]

My Lords, in the unavoidable absence of my noble friend Lady Williams of Crosby and the noble Lord, Lord Marks of Henley-on-Thames, who send their apologies, I will speak to this amendment, which has my wholehearted support. I attempted to add my name to it, but it was already replete with noble Lords by the time I arrived.

The core purpose of the amendment is to make it a requirement for the Secretary of State to make regulations under Clause 17 and to ensure that they are kept up to date and reviewed regularly. The Bill is heavily laden throughout with powers for the Secretary of State to lay down regulations, not least for the huge matter of the functions and powers of the national Commissioning Board, of Monitor and of the CCGs—and even for the special health authorities that have not been set up.

Throughout our debate, many noble Lords expressed deep concern about the character and ethos of the health service that will be sculpted by the Bill. Therefore, scrutiny of the regulations is a matter of profound importance. My noble friend Lady Williams and I have often discussed the degree to which accountability for secondary legislation will become scarcely visible in the case of the negative procedure for statutory instruments, and only slightly more visible in the case of affirmative resolutions. There is a third procedure called super-affirmation, but it is rarely used. In effect, secondary legislation slips through Parliament scarcely scrutinised.

However, there have been some improvements lately in terms of committees. In addition to your Lordships’ Statutory Instruments Select Committee and its sister, the Joint Committee on Statutory Instruments, which have considered the vires of secondary legislation, there has been a very welcome Merits of Statutory Instruments Committee since 2003, but that, too, does not establish a sufficiently robust scrutiny procedure.

Health is a particularly difficult and complicated issue, as this Bill displays in neon lights. We have a duty to our people to make sure we get it right. In the all-party House of Commons Health Select Committee, we have a tried, tested and knowledgeable body, which has produced a stream of fine and well received reports. In the view of my noble friends and myself, that committee should have all the regulations placed before it in plenty of time to offer its wisdom as to whether or not they should be agreed to. The Health Select Committee already carries a considerable responsibility for advising on health policy and should not be overburdened. Therefore, my noble friends and I would suggest to the Government that the committee should be given the resources to employ an extra clerk and an adviser to select those regulations which in their view would have a substantial impact on the capacity of the health service to meet the needs of all its patients in England and the needs of society as a whole.

This amendment also fits with the Minister’s very welcome campaign of reassurance on the constitutional front, to which he has devoted so much time and effort since Second Reading, and for which I am truly grateful. I hope, therefore, that he will be able to accept the spirit, the detail and the practical value of this amendment. I beg to move.

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[Earl Howe]

I can undertake to meet my noble friend, whom I am always pleased to talk to. I hope that I am not unfairly denying the Committee the pleasure of listening to my noble friend, with what I am sure would have been some eloquent words.

[Lord Hennessy of Nympsfield]

I am very grateful to the Minister for his, as always, very thoughtful reply. I am grateful, too, to the noble Baroness, Lady Barker, for her point, which I fully accept, about the collective gift of this Chamber when it comes to detailed scrutiny. Quite naturally, I also note her point about the sovereignty of Select Committees in the other place. In some ways it sounds an innovative suggestion that the Health Select Committee should take on this scrutiny regulatory task, but there are some precedents—remedial orders under the Human Rights Act, following declarations of incompatibility, and orders under the Legislative and Regulatory Reform Act 2006, are all made only after scrutiny in draft by the relevant Select Committees.

I think that this matter is too important to the accountability question as a whole for it to be abandoned at this stage. Therefore, I am confident that several noble Lords will wish it to be re-examined once more on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment 90 withdrawn.