Plenary, 22 Nov 2001

Meeting date: Thursday, November 22, 2001

Official Report 537KB pdf

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NHS Reform and Health Care Professions Bill

The next item of business is a debate on motion S1M-2458, in the name of Susan Deacon, on the NHS Reform and Health Care Professions Bill, which is UK legislation.

On a point of order, Presiding Officer. I have seen that we may start question time at 11:30. The NHS Reform and Health Care Professionals Bill is an important issue, so I hope that you will allow us more time than the 20 minutes remaining.

I do not think that I have any latitude on that. However, I have not so far been inundated with speakers for this debate, so I suspect that I shall not have too much of a problem. I will bear your comment in mind, Mr Wallace.

The motion relates to the NHS Reform and Health Care Professions Bill, which has received its second reading in the House of Commons, where it will commence its committee stage on 27 November.

Clauses 23 to 27, together with schedule 7, propose the establishment of a council for the regulation of health care professionals and set out its functions and powers. The Scotland Act 1998 defines the regulation of the health professions as a matter that is reserved to Westminster. However, some powers in this policy area are potentially devolved. That is why we are debating the motion.

Before I come to the devolved issues, let me say briefly what the proposed council will do and why we support its establishment. The council will be an overarching body to oversee the various bodies that carry out professional self-regulation. It is designed to improve the effectiveness of self-regulation to enhance public protection. It will do that by bringing greater consistency and spreading good practice. If necessary, it will exercise its powers to require changes to the rules of a regulatory body. The council will not deal with the fitness of individuals for professional practice, but it will have a power to appeal to the courts against individual regulatory decisions, where it thinks that it is in the public interest to do so.

The proposals for the council for the regulation of health care professionals in essence follow the recommendations of the Kennedy report of the Bristol inquiry. The council's remit will extend across the United Kingdom. That is entirely appropriate to ensure consistent standards and to reflect and encourage the mobility of health professionals. The council is designed to be independent of Government. We look forward to the benefits that it will bring to Scotland and the rest of the United Kingdom.

I shall now explain the devolved issues. The Scotland Act 1998 reserved regulation of the health professions that were covered by the eight regulatory bodies that existed at that time. Scotland cannot legislate for those bodies nor, by extension, for a body to oversee them. However, the Health Act 1999 gave powers for further regulatory bodies for other health professionals to be created by an order in council. An order could be made to provide a separate regulatory body for Scotland. If new Scottish regulators were thus established, it would in theory be possible for the Scottish Parliament to create its own body to oversee them, which would be a Scottish equivalent of the council for the regulation of health care professionals. That is the main reason why there is a devolved aspect to the bill.

From what I have said, members will appreciate that I value the United Kingdom dimension to the body that the bill proposes. For that reason and because it is important that the same body should oversee both the eight reserved regulatory bodies and any new regulators, I do not favour the creation of a separate body to oversee any Scottish regulators, which in theory could be created.

Two other aspects of the bill affect devolved competence. They flow from the intention that the remit of the new council should cover the United Kingdom. First, Scottish ministers will be given the power to appoint one of the members of the council. That is to be welcomed. That power will, of course, be exercised in accordance with the Nolan principles. Secondly, Scottish ministers will have the power to fund the body through payments or loans. That will allow the commissioning of work from the council; it does not affect the fact that the costs of the council will be met by Westminster.

I commend the motion to members and ask them to consent to Westminster's legislating for a body that will bring considerable improvements to the regulation of health care professionals in Scotland and throughout the United Kingdom.

I move,

That the Parliament endorses the principle that the Council for the Regulation of Healthcare Professionals, which is to be created to oversee the regulatory bodies for healthcare professionals under the NHS Reform and Health Care Professions Bill, should also have power to oversee any regulatory bodies which might be established in future and which fall within the devolved competence of the Scottish Parliament; agrees that the Council be made accountable to the Scottish Parliament in respect of such of its functions as fall within devolved competence; agrees that the function should be conferred upon Scottish ministers of appointing one of the members of the Council, agrees that power should be conferred on Scottish ministers to make payments and loans to the Council, and finally agrees that the relevant provisions to achieve this end in the Bill should be considered by the UK Parliament.

Important though this issue is, I suspect that it is not what most people in Scotland were talking about over their cornflakes this morning. However, it is important that the Parliament closely scrutinises all Sewel motions. We have few enough powers in some areas, so we should not abdicate those that we do have without very good reason.

The council for the regulation of health care professionals will, as the minister has said, oversee the work only of those regulatory bodies that are listed in clause 23 of the UK bill, powers over all of which are currently reserved to Westminster. The Scottish Parliament has the power to set up new bodies. One of the effects of this Sewel motion will be to ensure that any body that is established by this Parliament falls under the aegis of the new council. On the face of it, that seems a pretty minor matter. According to the Executive, having a Sewel motion is the sensible way to proceed. The argument that the minister puts forward is that it is important to ensure that the regulation of health professionals is consistent across the UK.

For the purposes of this debate, let us put to one side the substance of that argument—which is that even though we do not have a UK health service, even though we have different systems of education and training for many health professionals and, indeed, even though we have a different system of clinical governance, we should nevertheless have a UK system of regulation. Even if we put that to one side, there is a false logic in the argument that the Executive is putting forward. If this Parliament decides, in future, to set up a new regulatory body, it will mean that the Parliament has decided—for whatever reasons and in whatever circumstances—that a UK approach is not appropriate and that a Scotland-only body suits a particular set of circumstances that pertain at a particular time. All that may seem highly theoretical, but the Executive itself says in the memorandum that goes with the motion that it cannot envisage the circumstances in which it would want to set up a separate Scottish regulatory body. That begs the question why there is any need for legislation for something that the Executive does not think will ever happen.

A far more important question is this: if the Executive cannot envisage the circumstances in which it would want to set up a new body, how does it know, at this stage, that if such circumstances did arise, it would be appropriate for a distinct Scottish body—no doubt established for distinct Scottish reasons—to be part of a UK framework? Is this not just a case of tying the Parliament's hands unnecessarily? Why do we not wait until circumstances arise in which we might want to establish a separate Scottish body and then decide whether it would be appropriate for that body to fall under the aegis of the UK regulatory council?

Shona Robison will address other areas of concern to do with the Sewel motion. I do not think that the Executive is trying to do anything devious this morning. To be frank, on the evidence of yesterday's meeting of the Health and Community Care Committee, I do not think that the Executive understands what it is trying to do or why. The best explanation given yesterday was that it was important to allow Westminster to legislate on a devolved matter for a set of circumstances that the Executive thinks will never arise. I do not think that that is an especially good reason for ceding power to the Westminster Parliament—unless, when summing up, the minister can convince me otherwise.

Scottish Conservatives welcome the chance to offer our support for a council to regulate health care professionals in the United Kingdom. We acknowledge the extra reassurance that such a body will bring to patients and relatives, as well as to some health care professionals themselves.

However, before we give our permission—for that, simply, is what a Sewel motion does—for Westminster to deal with some regulatory powers on our behalf, we seek answers to a few questions. I watched the Deputy Minister for Health and Community Care give evidence at the Health and Community Care Committee yesterday, and many of those questions were not properly answered. I hope that he will take this opportunity to give clearer answers.

On a procedural matter, given the devolved aspects of the bill, it is a bit rich to have this motion before us when Westminster has already completed its first reading. I ask that the Presiding Officer keep an eye on such things—we in this Parliament should not be taken for granted.

On the functions of the new council, the Scottish Conservatives seek answers that are clearer than the ones that the minister gave yesterday. For example, how will the new council fit in with the health service ombudsman for Scotland? What measures does the Executive intend to take to ensure that the public are fully informed and understand what the council can and cannot do.

On the composition of the council, it must be asked why the political appointees outweigh those from the professions. Can the minister guarantee a transparent and open procedure in appointments?

The policy memorandum that accompanies the bill is somewhat contradictory throughout. The memorandum makes clear that any future appointment will be accountable to Parliament—it does not make clear which Parliament that means—rather than the secretary of state. Perhaps the minister would consider allowing the Health and Community Care Committee to choose Scotland's appointment to the council. I hope that he will consider that idea.

For any regulatory body to have real power, it must have real teeth. I have examined the detail of the bill and found that the new council can do plenty of recommending but little directing. That could cause problems in the future, particularly given that the council's birth is a result of the difficulties that arose between patients and the administration at Bristol royal infirmary.

We live in a Scotland that is striving to achieve better joined-up government and the on-going community care debate has shown just how important that is. I seek an assurance from the minister that he will lobby his counterparts in the UK Government to ensure that the council will encompass social services and take a more joined-up approach.

The Scottish Conservatives will support the motion. Our concerns and the minister's answers will be communicated to our counterparts at Westminster.

The Liberal Democrats support the Sewel motion and welcome the establishment of the council for the regulation of health care professionals. We note particularly that it was a recommendation of the Kennedy report on the Bristol inquiry.

The council for the regulation of health care professionals will oversee the work of the current regulatory bodies and ensure that they function in the public interest and co-operate with each other. We agree with the establishment of an overarching body that will bring consistency and monitoring to the eight regulatory bodies across the UK that are covered and hope that it will lead to the sharing of best practice.

The regulation of the professions is a reserved matter, but under the Scotland Act 1998 the Scottish Parliament has the power to create an overseeing body. Today we need to decide whether we are happy to cede that power to Westminster. For the sake of consistency we are happy to do so.

We support the fact that the majority of council members will be lay people, rather than professionals. That will go some way towards allaying growing public concern about recent events such as the Shipman case and the situation in Bristol. We also welcome the fact that the appeals procedures will be harmonised across professions and that appeals against decisions on fitness to practice would go to the courts rather than to the Judicial Committee of the Privy Council. However, like earlier speakers, I have concerns, some of which we debated at yesterday's meeting of the Health and Community Care Committee.

My main concern relates to accountability. Any new regulatory body set up in Scotland would be a devolved matter. We need clarification on how the new council, and who from the council, would be accountable to the Scottish Parliament. My understanding, based on comments made yesterday by Malcolm Chisholm, is that in relation to the existing regulatory bodies, the annual report and accounts of the council would be set before the Westminster Parliament and that only the Scottish representative on the council could be held accountable to the Health and Community Care Committee of the Scottish Parliament. However if our scrutiny was in connection with a new body that had been set up by the Scottish Parliament, we would be entitled to scrutinise the chief executive of the council.

Further clarity is needed in respect of accountability. Where will the power to scrutinise the workings of the council lie? Will its report and accounts be laid before both Parliaments? What powers will the general public have in bringing concerns to the council? We understand that the council will not have the power to intervene in specific cases and understand why. However, what powers will members of the public or their representatives have if they have a genuine concern that a regulatory body is dragging its heels over an issue of general public concern?

We also have some concern about how decisions will be taken about whether Scottish bodies will be covered by the bill. For example, the Executive has decided not to include the Scottish social services council, which was recently established under the Regulation of Care (Scotland) Act 2001.

In conclusion, I echo Ben Wallace's comments on Sewel motions and timing in general. At no time should the Scottish Parliament's support be taken for granted. We would expect the concerns raised yesterday at the Health and Community Care Committee and during today's debate to be taken forward by the minister as part of the on-going consideration of the bill at Westminster.

This Parliament should scrutinise all Sewel motions. I put on record my concern at the number of Sewel motions that the Executive is bringing to the Parliament. We all recognise the need for effective regulation and promotion of the public interest. There is a strong argument that that could best be achieved at a Scottish level, but I will leave that argument to one side for now.

My concern is accountability. The council for the regulation of health care professionals will be accountable to the UK Parliament. The CRHP will also have the power to regulate any future regulatory bodies that are established by the Scottish Parliament, even if such new bodies regulate activity in a devolved area. The motion says that the council will

"be made accountable to the Scottish Parliament in respect of such of its functions as fall within devolved competence"

but it does not say how that will be achieved. We accept that provision is made for reports from the CRHP to be laid before this Parliament, but there appear to be no powers to compel the chair of the CRHP to appear before the Parliament. In essence, we will see the reports but we will have no power to hold the council to account. That is a major weakness.

I highlight an issue of general concern, which is that we expect one representative from Scotland to represent the interests of eight professional bodies. Given that there will be specific Scottish interests, I am not sure how that will work in practice. Perhaps the Deputy Minister for Health and Community Care will address that in summing up.

To conclude, the Executive has not thought through this legislation properly and has not answered the key question that was posed by Nicola Sturgeon: why does the Executive think it is important to allow Westminster to legislate on a devolved matter for a set of circumstances that the Executive does not think will arise? Perhaps the minister will have another go at answering that question in his summing up.

I assure Nicola Sturgeon and Shona Robison that we understand entirely what we are trying to do and why. In contrast to the content of their speeches, which once again showed us the SNP attempting to dance on the head of a constitutional pin, an overarching body was strongly recommended by the Kennedy report, which I suggest they read. I quote one sentence:

"In addition, a single body should be charged with the overall co-ordination of the various professional bodies and with integrating the various systems of regulation."

There is a strong case for consistency and oversight. If that is the objective, it would be illogical to increase inconsistency, which is what the SNP is proposing. It would be nonsense to have a separate Scottish co-ordinating body that could not oversee the reserved regulatory bodies in Scotland. We would have the ridiculous situation of having two bodies. The objective of consistency would be sabotaged.

Ben Wallace asked about informing the public. I agree that it is important that that should be done so that the public understand the role of the body and know that there is a new strong route for dealing with public complaints and concerns. As I said in my opening speech, the council could appeal to the courts about decisions by regulatory bodies, and will also have an ombudsman role with reference to those bodies. Ben Wallace also asked about the appointment procedure; I assure him that it will be transparent and open. It is a good thing that members of the public will be in the majority over the health professionals on that body.

Margaret Smith asked about accountability. Reports and accounts will be laid before the Scottish Parliament as well as the Westminster Parliament. Clearly, the council will deal substantially with reserved areas, but the Health and Community Care Committee will be able to question the Scottish member of the council and, if the council takes on devolved areas, the Health and Community Care Committee will be able to question the chair of the council. On the timing of the motion, to which Margaret Smith referred, the agreement is that the debate on the motion should take place before the committee stage, which is precisely what is happening.

Will the minister give way?

I am almost out of time, so I am unable to do so.

I conclude by saying that we value and wish to empower front-line public service workers, but we also wish to protect the public in the few cases where something goes wrong. There is a need for an open and transparent regulatory framework that puts the needs and interests of patients and the public first. We have made a judgment based on those enduring principles, while the SNP once again shows its preference for constitutional nit-picking and a single ideological obsession.