Health and Care Bill

Lord Kamall Excerpts

Committee stage
Friday 4th February 2022 Lords Chamber

[Baroness Walmsley (LD)]

My Lords, last week, when we debated the call for a separate list of properly qualified cosmetic surgeons, I received a briefing from the GMC about the forthcoming new system of professional regulation. I asked the Minister when this would be forthcoming, but I fear that he was not able to give me a clear answer. This matter has been hanging around for a very long time, but, when I scrutinised Clause 142, I saw that there was another problem: in future, the regulation of healthcare professionals can be made through secondary legislation—and whether this would be agreed by the negative or affirmative procedure is not clear.

The Explanatory Notes make clear that subsection (2)(e) —the powers to remove certain professions from regulation—

“includes the currently unenacted provisions concerning social care workers”.

Like the noble Lord, Lord Young of Cookham, I want to ask the Minister about this, because many noble Lords, including me, have been asking that social care workers have the opportunity to obtain qualifications that would provide them with registration and a career path to better pay and conditions—but this sounds like the opposite to me. Perhaps the Minister can explain this and tell the House when the new regulatory system will be ready. The 2017 report of your Lordships’ House’s Select Committee on the long-term sustainability of the NHS said:

“The current regulatory landscape is not fit for purpose. In the short term, we urge the Government to bring forward legislation in this Parliament to modernise the system of regulation of health and social care professionals”—


I emphasise “social care professionals”—

“and place them under a single legal framework as envisaged by the 2014 draft Law Commission Bill.”

That was five years ago.

I have also received a briefing from the Health and Care Professions Council. It appears from this that the HCPC has a rather different view from the GMC: it wants the new professional regulation of health and care professionals to be collaborative and innovation focused. It believes that the current system is “siloed”, and it is looking for multiprofessional regulation, which, it believes, better reflects current working practices in the NHS. I am not an expert in this matter, so I express no opinion on that, but I am looking for some clarity from the Minister on which direction the new regulation system will take and the evidence that this will be better than before and contribute to better quality and safety of care for patients. I would also like to know when it will happen, because Clause 142 appears to me to open the door to a fight between different regulators, which would not be helpful.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

I thank all noble Lords who spoke in this debate. As a number of noble Lords have acknowledged, the case for reforming professional regulation has long been acknowledged, and stakeholders have long expressed concern that having nine separate professional regulatory bodies is confusing for the public. So our response in 2019 to the public consultation on regulatory reform reflected the desire for fewer regulatory bodies to deliver benefits to the professional regulation system.

In the 2020 consultation Regulating Healthcare Professionals, Protecting the Public, we committed to a review of professions that are currently regulated in the UK to consider whether statutory regulation remains appropriate for these professions. A consultation seeking views has been published, and it will close at the end of March this year. We also commissioned KPMG to carry out an independent review of the regulatory landscape, and it submitted its report at the end of last year. Officials and others are now poring over the findings to consider how best to respond. However, as with any use of Section 60, a public consultation will be carried out on any legislation made under these powers, and this would face scrutiny through the affirmative parliamentary process.

On the core criteria and principles, the professions protected in law must be the right ones, and the level of regulatory oversight must be appropriate and proportionate to the risks to the public. This is why we have sought a number of views on the criteria for determining whether statutory regulation is appropriate. As I said, we will wait for the outcomes.

These proposals have been developed in partnership with the devolved Administrations, and we will continue to work in partnership with Scotland, Wales and Northern Ireland in taking forward any proposals for using these powers. This will also be subject to affirmative parliamentary approval.

Clause 142 provides additional powers that would widen the scope of Section 60 of the Health Act 1999 and enable the Privy Council to make additional changes through secondary legislation, as was acknowledged. Subject to consultation, we are aiming to enable the professional regulatory landscape to become more streamlined and work more flexibly. We think that this clause will make it easier to ensure that the professions protected in law are the right ones and that the level of regulatory oversight is proportionate to the risks to the public. The Government keep the professions subject to statutory regulation under review. As I said, as part of our work to reform healthcare professional regulation, we are continuing to consult.

As I said, any secondary legislation made using the new powers would be subject to Schedule 3 of the Health Act 1999, public consultation and the affirmative parliamentary procedure, thus ensuring that there is clear parliamentary scrutiny and transparency in relation to any changes made by secondary legislation in this area.

I also refer back to the questions on the social care register, which I discussed at length, both before and after the recent Oral Question. When I spoke to officials about why the register cannot be compulsory, they said that this was fair, given the demographics of some of the people in the skilled sector, who quite often have some suspicions of authority and a lack of trust—we have seen that with vaccine take-up, for example—and so there were concerns about making it compulsory at this stage. It is voluntary. They want to understand the range of qualifications across the sector. There are a number of different qualifications, and, in professionalising the sector better, they want to make sure that they are consistent at all the various levels in our education system—levels 2, 3, 4, 5, 6 and upwards—to make sure that those qualifications are mutually accepted and recognised to make social care an attractive career and vocation.

For these reasons, I ask that Clause 142 stand part of the Bill.

[Baroness Thornton (Lab)]

My Lords, I thank the Minister, but that was not a satisfactory response, I am afraid. The only word I heard that justified these extra powers being taken was “streamlining”, and, frankly, that is not good enough. It seems to me that the Secretary of State should not be taking powers to put forward the abolition of regulatory bodies on the basis of a public consultation and statutory regulation. The Minister must understand the difference between primary legislation and statutory instruments—that is the crux.

The reason for that is about the independence of the bodies we have, such as the General Medical Council and the General Dental Council. Those bodies need to feel that they cannot be subject to abolition at the whim of a Secretary of State. They have to be sure that they are protected by primary legislation in Parliament, and the Minister has not given me or the Committee an explanation as to why that should change. That independence is very important and precious.

On the issue of social care, I found the Minister’s explanation a bit patronising. It seems to me that, if we are to value social care and the people who work in it, we need to strive to give them the equality of regulation and supervision that the medical professions have. I realise that there is a journey and a process but, to me, that has to be the aim because it is the only way we can give that profession and the people who work in it the equality of regard that they deserve.

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Moved by

[Lord Kamall]

243A: After Clause 143, insert the following new Clause—
“Human fertilisation and embryologyStorage of gametes and embryos
Schedule (Storage of gametes and embryos)—(a) contains amendments to the Human Fertilisation and Embryology Act 1990 which make provision relating to the storage of gametes and embryos, and(b) makes transitional provision in relation to those amendments.”Member’s explanatory statement
This new Clause introduces a new Schedule relating to the storage of gametes and embryos.

[Lord Kamall (Con)]

My Lords, in moving this amendment I will also speak to the Amendments 313A, 314A and 315A standing in my name. Before I start, I thank the noble Baroness, Lady Deech, for her many years of advocacy on reproductive health and look forward to hearing the points she will raise today. I am grateful for the productive meeting that we had a few weeks previously and welcome the noble Baroness’s support of the government amendments tabled in my name.

As many noble Lords will be aware, fertility preservation is achieved through the freezing and storage of gametes or embryos; it is an increasingly common procedure in the UK. The Human Fertilisation and Embryology Act sets limits on the length of time that frozen gametes and embryos can be stored for. The current statutory storage limit is 10 years, with the possibility of an extension up to a maximum of 55 years for those who are certified as prematurely infertile. Extended storage limits were introduced to help those people who became prematurely infertile preserve their fertility, with the hope of starting a family in the future. This would include children who may have undergone treatment for childhood cancers.

However, this approach appears to discriminate between those who have a medical need to freeze their gametes and embryos, and those who do not. This message was clear in response to our 2020 public consultation, and we accept that the current approach creates unfairness. Therefore, we are introducing a new scheme for all who currently freeze or wish to freeze their gametes or embryos. The new scheme will consist of 10-year renewable storage periods up to a maximum of 55 years for everyone, regardless of medical need. It is for these reasons that I ask noble Lords from across the House to support the government Amendments 243A, 313A, 314A and 315A in my name.

[Baroness Deech (CB)]

My Lords, Amendment 280 stands in my name and that of the noble Baroness, Lady Barker. I declare an interest as former chair of the HFEA.

Let me start by offering the Government what must be a rare and welcome tribute in these troubled days for bringing forward an amendment that reflects compassion and efficiency. They listened to the consultation and have picked up the result of at least two years of campaigning, in a way that I can only admire. As the Committee can see, my own miserable little drafting of Amendment 280 was really only an entry to allow the Government to do their own complicated drafting, which of course I will accede to—and there will be no need for my amendment.

I am profoundly grateful to the noble Lord, Lord Kamall, and, before him, the noble Lord, Lord Bethell, and the noble Baroness, Lady Blackwood, all of whom helped this along. It has the support of the Royal College of Obstetricians and Gynaecologists, the British Fertility Society, Progress Educational Trust and the specialist lawyers Natalie Gamble and Emily Jackson. Everyone is behind this amendment, and I am profoundly relieved that it has come forward just in the nick of time, because there was a possibility that later this summer women whose eggs were frozen for 10 years, and who took advantage of the two years’ extra time given them, might have run out of time.

This amendment will bring the UK’s law in line with advances in science and changes in modern society, and it will give individuals greater reproductive choices. It will also give patients more time to make important decisions about planning their family. On behalf of hundreds, maybe thousands, of women, let me express my gratitude to the Government for something that will be helpful in many years to come. I give my wholehearted support to the amendments in this group.

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[Baroness Thornton (Lab)]

When the Minister and I were discussing government amendments, on this issue I said: “If Baroness Deech is happy with this, then I am happy with this,” and indeed I am.

[Lord Kamall (Con)]

I can confirm that that conversation did take place. When we were dividing up the groups for today, I thought about offering this to someone else. One of my noble friends turned to me and said, “You’re going to be bashed around enough today, Syed, at least take something you’ll get a bit of credit for.” But I cannot take credit: that has to go to the noble Baroness, Lady Deech, and the many noble Lords who have pressed this issue. The noble Baroness has also demonstrated the power of persistence and continuing the argument in a constructive way. On many of the other issues noble Lords believe in strongly—even if they feel that the Government may not be listening today, or that we are not sympathetic—I hope they will continue to be persistent.

On the general point that the noble Baroness, Lady Barker, made about reproductive health, I ask her to be more persistent. One of the great things about technology, not only digital but science and biology, is that often, it challenges the basis on which legislation was made. That is one thing we always have to be open to. Thanks to advances in technology, we are able to bring forward this amendment today. I will not say much more; I just hope that noble Lords agree that the time is right to change the legislation because of the progress made since the 2008 Act. I beg to move.

Amendment 243A agreed.