Public Bodies Bill [HL]

Lord Newton of Braintree Excerpts

Wednesday 9th March 2011 Lords Chamber

[Lord Walton of Detchant]

My Lords, when I came into this House almost 22 years ago, my baptism of fire was the consideration of the Human Fertilisation and Embryology Bill. I spent a great deal of time considering its provisions, based upon that splendid report produced by the noble Baroness, Lady Warnock.

The purpose of the Act, as it became, was to license experiments on the human embryo up to 14 days after fertilisation, first, for improvement of the management of infertility and, secondly, to help in the prevention of the birth of children with fatal and seriously damaging disease.

Those objectives were, very largely, fulfilled. We got to a stage of being able, through licences from the HFEA, to embark upon a programme of pre-implantation diagnosis of some of the severest diseases like cystic fibrosis and muscular dystrophy. It did a wonderful job.

It became quite clear, however, that, because of the developments in human embryology and the enormous advances in research, it was necessary that the Act should be further amended, not only in order to prevent the birth of people with severe diseases but also to be able to use human embryo material and the stem cells derived from it for the treatment of human disease. That resulted in a number of other amendments and regulations being introduced.

We then went even further with additional developments. As many in this House will know, one of the great developments recently under a licence from the HFEA has been the ability to prevent the birth of children—not yet feasible but on the verge of becoming so—with a devastating form of mitochondrial disease. I will not go into the scientific detail because it is extremely complex.

I mention the word complexity because I cannot conceive that the role and responsibility of the HFEA—I entirely agree that it is not perfect; it may be slimmed down, streamlined or modified—could possibly be carried out by the Care Quality Commission, which is, under its major new responsibilities, required to inspect hospitals, care homes, general practices and all bodies concerned with the supervision of health work of all kinds. To try to carry out those responsibilities under the Care Quality Commission is simply not feasible.

Last week, as the noble Earl will remember, we debated a Question on the role of the Academy of Medical Science’s report on the governance of medical research. I agree entirely with what the noble Lord, Lord Warner, said: this is a very exciting and important development, particularly in the conduct of clinical trials and the supervision of research in general. It certainly does not cover the responsibility which the HFEA is carrying out, and I therefore cannot accept the Government's proposals to put that body within the Care Quality Commission.

I move on to the HTA for a moment. When I was a medical student in the early 1940s, on the top floor of my medical school there was a museum which was full of organs held in formalin in plastic bottles. They were a wonderful teaching resource, because they were organs showing the signs of disease and, for the teaching of medical students, they fulfilled a major responsibility. No one had asked the patients involved before those organs were retained for teaching purposes.

The problem of the Alder Hey so-called scandal was that the permission of the individuals from whom the organs were removed had not been taken. What nobody recognised at the time was that if you were to carry out a post-mortem examination to try to determine the nature and causation of the disease from which the individual had died, there was no way in which the simple carrying out of the post mortem and visual inspection of the organs could give you the answer. The organs had to be removed; they had to be pickled in formalin; they had to be studied under the microscope, to give the answers which everyone wanted to know as the outcome of that post-mortem examination.

Where members of my profession were mistaken was that it became almost accepted by doctors, pathologists and clinicians that once permission for a post mortem had been given they could assume that permission had been granted to retain the organs for such an examination. They were wrong. Hence, the Human Tissue Authority was created to control that process. It has been very successful not only in that regard but also in issues related to the retention of tissues obtained for diagnostic purposes by biopsy. It has also been extremely successful in controlling the use of anatomical material for teaching purposes. It has fulfilled a whole series of other functions. My view is that it is so necessary that that function should be continued that I do not believe, for the same reasons, that the Care Quality Commission could feasibly absorb that task. It could do so only if it took on board the scientific experts on human fertilisation and embryology on the one hand, to deal with the responsibilities of the HFEA, and the scientific experts in pathology, anatomy, molecular biology and other branches of medicine, to look at the human tissue issues and also to be able to deal with issues relating to the donation of organs for transplantation. Those complex issues are so broad in their responsibility that I do not believe that the Care Quality Commission could conceivably handle them all. That is why I give warm support to the amendments.

[Lord Newton of Braintree]

My Lords, my reason for not pressing my case earlier was that I knew I was going to be out-gunned by the noble Lord, Lord Walton. He has demonstrated that conclusively, and I am certainly not going to try to compete with him. I ought in passing to declare an interest I had at the time of the passage of the Human Tissue Act: I was then chairman of the Royal Brompton and Harefield, a major transplant centre which clearly had an interest in this matter.

I ought to confess, in what is going to be a brief intervention, that I am getting to be rather worried about the number of occasions on which I find myself in some sympathy with the noble Lord, Lord Warner. He indicated earlier that he had hopes of enticing me to a different part of the Chamber, if I understood his remarks correctly—but his hopes will be frustrated. I want to make some simple remarks from what I call the coal face, as I am chair of another health trust in the mental health field, on the issue of the CQC. The CQC was asked to do a huge new task by the previous Government, and is doing it valiantly, not least in the mental health area that I know. However, it is struggling to fulfil in the originally intended timescale the jobs that were put upon it. I wonder whether the CQC actually wants yet more tasks, whatever the argument might be in an intellectual sense. Even if we agree in the end to go down this path, and that is some way ahead yet, I hope it will not be too quick and that the CQC will be in a position to digest the meals it is being asked to take in before being asked to consume them. As a specific question: does the CQC actually want this work?

[Baroness Deech]

I support this amendment, and I declare an interest as a former chair of the HFEA. In other words, I was a gamekeeper, and there were poachers on the other side, if I may use that term in respect of some very eminent clinicians and embryologists in this country. They may tell you that IVF reproductive work embryology is now routine. Yet at the same time, they will say—or at least not deny—that the work they are doing is ground-breaking. So it remains: every day brings something new.

I have spoken about this topic many times in this Chamber and elsewhere, and I will not repeat myself, save to say that my admiration for the Minister is such that I share his pain on each occasion when I feel that he is trying to defend the indefensible. He would be grateful, I think, if we could somehow get him off the hook. One of the ways of doing that is cost. The principle underlying the abolition and retention of various quangos in this Bill is, of course, streamlining, efficiency and cost. The HFEA currently costs £7 million, of which all but £2 million comes from the patients. No one who cares about the patients could possibly imagine that they will be charged any less—or not charged at all—if these functions are absorbed into an existing or new body. The poachers, who are very keen to get rid of the HFEA, seem to think, when you listen to them, that there will be no regulation, that there will be a free-for-all. They are under the misapprehension that if this amendment fails, which I hope very much it will not, a merger of the HFEA will mean no regulation; as I say, a free-for-all. But that is not so. Primary legislation remains and no one has suggested that we would cease to have regulation for which this country is world renowned, having followed the lead of the noble Baroness, Lady Warnock, in her esteemed report written more than 20 years ago, which remains to this day the very best report on the issue.

Those who really dislike the whole concept of embryology and in vitro fertilisation because of their religious beliefs have, as others have said, still shown respect for the HFEA because they regard it as something of a shield against the wholesale misuse of embryos, as has happened in some other countries. Before it had regulation, Italy was the place everyone went to if they could not get what they wanted elsewhere. It was where you would go if you were white and wanted a black baby or vice versa, or if you were 64 or 70 and wanted a baby. Italy now has regulation, albeit in my view too strict. America has a patchwork of regulation, but has seen more scandals than we have. As my noble and learned friend Lady Butler-Sloss said, things go wrong sometimes as a result of simple human error, which in the end is probably not preventable. But at least we do not have the birth of octuplets, as has happened in the United States. We do not have those websites which noble Lords may enjoy googling one evening. They can look up “California Cryobank” and see lists of apparently brilliant Californian PhD students, all of them six foot six and sporty with IQs to match, offering their sperm for sale, and indeed the female equivalents their eggs. This is not the route that we wish to go down. We wish to retain regulation.

If we are going to keep regulation, there is absolutely no reason for dismembering the HFEA and putting functions that are plainly closely linked together and of utmost importance to parents, babies and sick people into different bodies, some of which are untried. Again, I echo my noble and learned friend Lady Butler-Sloss in saying, “If it ain’t broke, don’t fix it”.

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Moved by

[Lord Newton of Braintree]

106A: Clause 8, page 4, line 8, at end insert—
“( ) fairness, openness, transparency and justice;”

[Lord Newton of Braintree]

I wish to move this amendment briefly. I have ended up a bit confused on one point. Until the latest selection of amendments, my little amendment was sailing on its own and I might have regarded it as a sort of beacon of light—a light ship. Somehow, in the course of the past couple of days, it has acquired nine barnacles, and I am not quite sure whether they are benign barnacles or hostile barnacles. I have not studied them sufficiently to know whether I have a view on all of them. I think I am agnostic about some, hostile to some, and supportive of others, but I will sort that out when I have heard what noble Lords have to say.

What I do know is that since there are those who appear to think that I have been a bit troublesome on this Bill, I want to make the point that this is the first amendment I have actually moved, so all the trouble has been made by other noble Lords. My amendment is entirely benign. The only thing I have done that is unkind is to write my notes on the back of an envelope to match the Bill, but perhaps that was unkind. My speech will be short. I trailed it on Monday when something similar cropped up in a speech made by the noble Baroness, Lady Hayter. I gave my main thinking at col. 1409 of the Official Report.

The background is that I looked at Clause 8 and wondered what it is that Ministers have to take into account in making orders under these sections—efficiency, effectiveness, economy and securing appropriate accountability. I indicated on Monday that the accountability argument is pretty fair nonsense. Ministers are accountable for all this, so the issue is about how that accountability is exercised. Leaving that aside, all the other criteria strike me as utilitarian. I would claim as a mere humble former practising Member of Parliament to be interested in values. All I have done is put down an amendment that says they have also got to take account of,

“fairness, openness, transparency and justice”.

That is pretty close to asking the Government to accept motherhood, and if they doubt it, let me say that during some train travelling today—I should say that I used four trains, three of which were at least 15 minutes late—I had plenty of idle moments. What I do in my idle moments is study the document that I carry close to my heart. It is the coalition’s programme for Government. I am a faithful supporter. Its subtitle is, “Freedom, Fairness, Responsibility”. The foreword on pages 7 and 8 was written by my right honourable friends the Prime Minister and the Deputy Prime Minister. It says that,

“we will ensure that fairness is at the heart of those decisions … we will extend transparency to every area of public life”.

In respect of consumer protection the document states:

“We need to promote more responsible corporate and consumer behaviour through greater transparency”.

I think that that should apply to the Government as well. The document goes on to make reference to,

“changes to our political system to make it far more transparent and accountable”.

The only thing I cannot find a reference to is openness.

If Ministers do not like all these words or if the draftsmen say that they are not the sort of thing you put in Bills, I can live with that, but I do think that something along these lines ought to be incorporated. On the basis of the evidence I have just quoted, I claim to be the true believer, and if the Minister resists me, I think that he declares himself a heretic, so I look forward to hearing what he has to say. I beg to move.

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[Lord Newton of Braintree]

Perhaps I may just indicate briefly that, although I said slightly flippantly that I had not had a chance to look at all the other amendments, I had a glance through them. I had some of the same reservations about the amendment in the name of the noble Lord, Lord Goodhart, as the noble Lord, Lord Hunt of Kings Heath, has just adumbrated. The two that I found myself most drawn to were that you cannot have an omnibus order but must deal with things one by one, which seems well worth considering, and this business about hybridity. If there was manifestly something that picked out an individual interest and treated it differently from other interests—if I might do my non-lawyer’s translation of the hybridity problem—that would be a real question to be considered in certain circumstances. I hope that my noble friend will at least be able to reflect on these points.

[Lord Mackay of Clashfern]

On the amendment in the name of the noble Lord, Lord Goodhart, as the noble Lord, Lord Hunt, said, there is a question of a chilling factor in relation to bodies or organisations once they are named in a Bill. There is something to be said for having a closure in respect of bodies named now but also, if we get the Bill through in a satisfactory way, for it being a model for future reviews of these public bodies. One difficulty has been to provide a definition of what is meant by a public body. If the Bill passes into law as a sound piece of review legislation then, after, for example, the end of this Parliament and the beginning of the next one, there is a good deal to be said for the next Government coming forward with a list of bodies that would be suggested as amendments to this Bill, which would then possibly be subject to review under the powers that we have stipulated in the Bill.

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[Lord Taylor of Holbeach]

Of course and I would like to feel that the noble Lord would know that I wish to continue the very useful dialogue we have had on this Bill. I felt it would help the noble Lord if I defined the areas where I feel there is going to be more scope for improving the Bill—as we would both describe it—and areas where I think it is not going to be possible. I thought it was better to be upfront and frank about it and I hope that the noble Lord will understand that. We want to maintain our dialogue because, despite the difficulties the Bill had in its early days, I believe this could be a very useful piece of legislation and one which suits both Government and Parliament in its operation provided we put the proper work into the foundations. We will have a chance to talk about that when we come to other amendments in this now slightly enhanced grouping.

As I said, this is why I cannot accept Amendment 118B or Amendment 176 in the name of the noble Lord, Lord Dubs, which makes provision regarding the commencement date of amending orders using wording which appears to be drawn from the Civil Contingencies Act. That Act was designed to create a framework for dealing with emergency regulations, which, by their extreme nature, circumvent the usual channels of parliamentary scrutiny. I do not accept that there is a parallel between such orders and those which would be made under this Bill.

Originally my speaking note at this point mentioned sunsetting; then my speaking note did not mention sunsetting because the amendment of the noble Lord, Lord Goodhart, was going to be taken separately. If the noble Lord does not mind I will put it at the end because I think it is quite important that I can say a few words on it.

Amendment 176 would prevent an order being made under this Act from applying to more than one body or office. I understand the thinking behind the amendment which seeks to ensure proper parliamentary scrutiny of these important orders. However, I am also anxious that the Bill is not amended in such a way that will restrict the sensible decision-making of departments or overburden Parliament with a requirement to consider separately multiple orders of a similar class. I am thinking, for example, of the multiplicity of drainage boards which might have similar requirements for secondary legislation. I hope that any wording covering this would not exclude that because it would not be in the interests of efficient use of parliamentary time, particularly given that the changes to be taken forward by the said orders will in most cases have been debated thoroughly in primary legislation.

We do not accept the argument that in all cases the use of omnibus orders would necessarily reduce the level of parliamentary scrutiny. I should also say to the noble Lord that the particular amendments under discussion would have what I believe are unintended consequences by preventing any orders to merge bodies using the power in Clause 2 as such orders would by their nature apply to more than one body or office. However, I am willing to consider again whether some form of restriction on the use of omnibus orders might be appropriate. I would be happy to discuss that with the noble Lord prior to Report stage. So that is another item for our agenda.

Amendment 177 would remove the provision in Clause 27 that aims to give certainty to the order-making procedure and to avoid lengthy debates on hybridity that could unnecessarily delay reforms from being taken forward by Ministers. This sort of provision is not without precedent; nor does it broaden the powers of Ministers in any significant way. Indeed, similar provisions form parts of a number of Acts passed by the previous Administration, including the Regional Development Agencies Act 1998, the Freedom of Information Act 2000, the Charities Act 2006, the Climate Change Act 2008 and the Equality Act 2010. In addition, I am happy to assure the Committee that the Government’s initial assessment was that none of the proposed orders to take forward the reform of bodies listed in Schedules 1 to 6 could be considered hybrid.

Amendment 178 would require an annual report from a Minister regarding the use of order-making powers. I understand that the intention of this amendment is to ensure that the Government are properly held to account for their use of these powers, which is of course right and proper. However, the exercise of the powers will be a matter of public record, as is the case in the exercise of any powers made by statutory instrument. In addition, parliamentarians have a variety of means by which to question the Government on all aspects of policy relating to public bodies via Parliamentary Questions and the Select Committee process. I am unclear what is expected to be gained by the creation of a new reporting burden.

It is also the case that these powers will not be exercised centrally via the Cabinet Office but elsewhere by individual Ministers in departments, who will each have set out their own approach to public body reform in their departmental business plans. It is by reference to those documents that the Government have committed to be held to account and departments will report quarterly on them as a matter of course.

I turn to my noble friend Lord Goodhart’s amendments, which seek to sunset the order-making powers contained in Clauses 1 to 6, 13, 17 and 18 so that they could no longer be used after the dissolution of the present Parliament. As noble Lords will know, perhaps all too well, this is not the first time that we have debated this issue. Since our first day in Committee, the architecture of the Bill has changed as the Government have listened and responded to concerns raised by noble Lords. Most recently, that has resulted in the removal of Clause 11 and Schedule 7. For that reason, this is a timely debate as it allows the Committee to consider the issue in the new context in which we find ourselves.

The issue of sunsetting all the parts of the Bill is a complex one. I can see logic in not leaving bodies in schedules in perpetuity; I think that the noble Lord, Lord Hunt, and my noble and learned friend Lord Mackay made a similar point. Although this is something that the Government are still considering, there is perhaps more merit in the option proposed recently by the noble Baroness, Lady Royall, of sunsetting the contents of the schedules to the Bill rather than the powers themselves. That is all the more persuasive in the light of the removal of Schedule 7, which has drastically limited the scope of these powers, something that had not happened when my noble friend Lord Goodhart tabled his amendment.

Inserting a sunset clause that would limit the period in which powers could be used could now be counterproductive and potentially leave us in the same position as we are in today—that is, without a mechanism to take forward reforms following the regular review of public bodies that the Government will take forward, which I hope will continue in future. By contrast, leaving the powers on the statute book would leave open the possibility for Parliament to debate and consent to the repopulation of the Bill’s schedules through later primary legislation, without having to cover what would be well trodden ground. However, as I made clear to the noble Lord, the Government have already committed to consider this issue further prior to Report stage. I do not intend to renege on that agreement. I am happy to engage on this issue with my noble friend Lord Goodhart and other noble Lords. In that spirit, I hope that he will not press his amendment.

I thank all noble Lords who have contributed to this debate and who have engaged in discussions at earlier stages as this is a culmination of other debates on mechanisms in this Bill. I have made it clear that we continue to look at Clause 8. I hope that my responses today and the amendments and the commitments that the Government have already made reassure the Committee that this Government will ensure that the procedure applicable to orders made under this Bill is proportionate and sensible and allows for proper parliamentary scrutiny of Ministers’ actions. In light of those assurances, I invite my noble friend Lord Newton of Braintree to withdraw his amendment.

[Lord Newton of Braintree]

My Lords, I need hardly say that I intend to withdraw the amendment. However, I wish to make a few observations. If I understood my noble friend aright, he said that there was no possibility that any order made in relation to any of these bodies could be hybrid.

[Lord Taylor of Holbeach]

That was our assessment.

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[Lord Newton of Braintree]

In that case, why does subsection (4) of Clause 27 need to be in the Bill? I do not expect an answer to that now but given that a large part of my noble friend’s argument was about whether or not things needed to be in the Bill, to put in the Bill something against a risk that does not exist—or is said not to exist—seems to me superfluous. My other point is more friendly. I rather agree: I cannot see much point in the annual reporting requirement.

Beyond that I will not comment except on my own amendment. As I have already said, I could have predicted the “don’t think it ought to be in the Bill” stuff. I could have predicted the line of argument that all these values are so engraved on the hearts and minds—and no doubt other parts of the anatomy—of Ministers that there is no need to engrave them in the legislation, which gives them the powers to do what they can. However, given that they should be committed to the declarations in the coalition’s programme, they should be bound to observe those declarations in the legislation which the coalition passes. I cannot think that that is unreasonable.

My next observation increases my puzzlement. As I said on Monday, when I raised somewhat comparable points with the noble Baroness, Lady Ashton of Upholland, in relation to the terms of reference of a justice council in the Tribunals, Courts and Enforcement Bill, she went away and produced an amendment which wrote in some of these values. I have not been able to consult the noble Baroness as she has rather different responsibilities on her plate in other climes, but my guess is—I hope that I do not upset my noble friend by saying this—that she took my amendment away from a Committee in the Moses Room and went back to the department and it said, “We don’t think this needs to be in the Bill”, and then she said words to the effect of, “Get stuffed. I think this is reasonable and I think Lord Newton is a decent bloke. Let’s put it in the Bill”. I hope that something similar will happen between now and Report. But for the moment, such is my docility and my dedication to the coalition that I beg leave to withdraw my amendment.

Amendment 106A withdrawn.