AMENDMENT OF PROVISIONS ABOUT REGISTRATION OF NURSING HOMES AND PRIVATE HOSPITALS (Hansard, 12 October 1976)

§ The Secretary of State for Social Services (Mr. David Ennals)
I beg to 260 move, That the clause be read a Second time.

§ Mr. Speaker
With this clause we may take Government Amendment No. 59.

§ Mr. Ennals
This clause removes from the Bill the powers of the Secretary of State to amend by regulations Acts under which registration is a prerequisite for the carrying on of a nursing home, mental nursing home or private hospital so as to make contravention of Clause 12 of the Bill an additional ground on which registration may or must be refused or cancelled.
New Clause 1 amends the Nursing Homes Act 1975, the Nursing Homes Registration (Scotland) Act 1938 and the Mental Health (Scotland) Act 1960 so as to introduce an additional ground for refusing to register or for cancelling the registration of the manager of a nursing home. The grounds would be that the home or hospital or premises in question consists of or includes works executed in contravention of Section 12(1) of the Health Services Act 1976. The amendment would increase the maximum penalty for carrying on a nursing home, mental nursing home or private hospital without registration to a fine not exceeding £400 or on conviction on indictment to a fine of unlimited amount.
During debate in Committee on the regulation-making powers under Clause 16 there was considerable discussion of whether it was proper to include in a Bill a power such as that contained in Clause 16(4)(b) to amend other Acts by regulation. The right hon. Member for Wanstead and Woodford (Mr. Jenkin) quoted the views of the Donoughmore Committee—

§ Mr. Patrick Jenkin (Wanstead and Woodford)
May we establish whether we are to refer to the column numbers of our Committee proceedings in the daily parts or in the bound volume? They are quite different. It would be helpful if at this stage we could make a decision. Otherwise we may be in some difficulty.

§ Mr. Ennals
At the moment I am operating on the daily part. I am perfectly prepared to have private discussions, through the usual channels, so that we 261 may talk the same language. I am quoting what the right hon. Gentleman said. He said, quoting Donoughmore: It cannot but be regarded as inconsistent with the principles of Parliamentary government that the subordinate law-making authority should be given by the superior law-making authority power to amend a statute which has been passed by the superior authority."— [Official Report, Standing Committee D, 27th July 1976, c. 1575.] I thought that was a tremendous sentence.
The Government have reconsidered Clause 16(3)(b) in the light of the views of the Donoughmore Committee and also of the Renton Committee's agreement with the opinion of the Law Society that: only details which may require comparatively frequent modification should be delegated to statutory instruments". We now accept that the intended amendments to the nursing homes legislation should be incorporated in the Health Services Bill. That is what this proposal does and I hope that the House will agree to it.

§ Mr. Patrick Jenkin
I do not think we need waste too much time on the new clause. I am very much obliged to the Secretary of State for having taken so completely the point that we addressed to him in Committee. I rise only to say that I hope that those who are responsible for drafting Bills will take note of the fact that we had to spend considerable time in Committee arguing against this "Henry VIII Clause", which was what the Donoughmore Committee called the power to amend other legislation and in the end the Government have decided that it is right to table a new clause at this stage.
I do not say that the Conservative Party can stand here in a white sheet and say we never did it; yet, it is a highly unsatisfactory way of legislating. If we want to amend Acts, they should be amended by another Act. One should not take a generalised power to do this by regulation. We cannot amend regulations; we can only reject them or accept them. Often they do not come before the House at all, because there is no time and if there is time they can be taken in Committee upstairs. It is not right that legislation should be amended in that way.
262 I therefore urge the Secretary of State, while thanking him for meeting our points so completely today, to see that those responsible for drafting Bills do not do it again.