Invitations from Committees of Devolved Legislatures:
the legal position
1. This note is an outline of the legal
position as regards the acceptance of invitations from Committees
of the devolved legislatures. It is not comprehensive, particularly
with regard to the Scottish Parliament, and in all cases of doubt
legal advice should be sought.
2. The powers of the Scottish Parliament
to call for witnesses and documents are in section 23 of the Scotland
Act 1998. The general power permits the Scottish Parliament to
require persons to attend and give evidence concerning any subject
for which the Scottish Executive has "general responsibility".
"General responsibility" is undefined and potentially
covers a very large number of subjects, including, functions transferred
under or by virtue of section 53 (general transfer of functions
to Scottish Ministers), section 63 (executive devolution) and
section 89 (cross border bodies). It should be noted that the
power is exercisable in relation to subjects and not merely in
relation to functions. In addition, it should be noted that a
member of the Scottish Executive has general responsibility only
in or as regards Scotland.
3. However, the power is then qualified
in a number of ways. Most importantly, in the current context,
Ministers and officials cannot be required to attend in relation
to the exercise of their functions if they are functions which
can also be exercised by Scottish Ministers (ie concurrent functions)
or are exercisable only after obtaining the agreement of or after
consultation with Scottish Ministers (subsection 4). The result
appears to be that where the Scottish Ministers have some influence
over the exercise of functions UK Ministers and officials cannot
be required to attend in relation to those functionsthus
maintaining an appropriate division of accountability. However,
the limitation on functions exercised with agreement or after
consultation is limited to reserved matters (subsection 5). So
for a devolved subject where a Minister exercises functions with
the agreement of or after consultation with Scottish Ministers
then a requirement to attend may be imposed. Taking all the above
into account, the power of the Scottish Parliament to summon Ministers
and civil servants appears to be quite limited.
4. In some cases the other qualifications
of the general power may be relevant. For example, witnesses cannot
be required to answer questions or produce documents which they
would be able to refuse to answer or to produce in court proceedings
in Scotland (subsection 9).
5. Section 25 establishes that failure to
comply with the requirements of the Scottish Parliament constitutes
a criminal offence.
6. The powers of the National Assembly for
Wales to call for witnesses and documents are in section 74 of
the Government of Wales Act 1998. The powers are limited to bodies
specified in Schedules 4 and 5 of the Act. UK Ministers and their
departments are not included in those schedules and Ministers
and officials cannot therefore be required to attend. A number
of public bodies (some UK-wide) are, however, included. The Secretary
of State can amend Schedule 5 so the position may change. Failure
to comply is again a criminal offence (subsection 75(2)).
7. The powers of the Northern Ireland Assembly
to call for witnesses and documents are in section 44 of the Northern
Ireland Act 1998. The matters on which witnesses may be required
to attend and give evidence or on which documents may be required
are set out in subsection (2) (transferred matters and other matters
in relation to which statutory functions are exercisable by Northern
Ireland Ministers or departments). UK Ministers or officials outside
Northern Ireland can only be summoned in connection with the discharge
of functions relating to matters falling within subsection (2).
A further important exclusion from the requirement is the discharge
of functions by Ministers and officials prior to the appointed
dayie in advance of devolution to Northern Ireland taking
place (subsection 4). Failure to comply is again a criminal offence
Question 59: Where there any factors involving
risk to the public associated with the dismissal of the previous
The decision of the then Secretary of State
that it was not in the interests of the NHS for Sir Colin Walker
to remain as Chairman of the NBA was taken on the basis of his
judgement that Sir Colin had mismanaged organisational change
within the Blood Service. In his view, in doing so Sir Colin had
lost the confidence of the Service's medical and other staff,
donors and the public and had done considerable damage to the
reputation and good standing of the Service. There was never at
any time a question that action taken by Sir Colin had had a detrimental
effect on safety or caused risk to the public.
Question 191: Can you explain the apparent inconsistency
between Figure 11 showing significant net in-flows of blood to
London and the South East from the other NBS regions in 1999,
and the finding in NAO's attitude survey that, compared with the
general population, recent donors are more likely to be Londoners
than people in other regions?
There is no necessary or direct relationship
between stock movements (Figure 11) and donor potential and collections,
and stock movements vary year on year. In 2000, for example, the
net flow into the London and South East Zone was only slightly
greater than into the Northern Zone. Historically in Midlands
and South West the donor potential and collection capability has
always exceeded local demand.
We have not seen the figures on which NAO base
their finding ie we do not know the extent to which Londoners
are disproportionately represented among recent donors. However,
London is also a disproportionately heavy consumer of blood because
of the preponderance of large acute hospitals.
Question 195: Can you explain the £1.9
million "Clinical Negligence" figure in Appendix 10?
The £1.9 million does not represent the
cost of clinical negligence settlements in 1998-99. The figure
is taken from the NBA's audited accounts for the year, which by
accounting convention have to include "provisions" for
any future payments which might arise from events happening in
that year. The bulk of the £1.9 million reported in 1998-99
was in respect of provisions, £1.7 million in respect of
a single on-going class action by people who claim to have been
infected with the Hepatitis C virus from contaminated blood received
in the early 1990s. 1998-99 was the first year in which the NBA
was advised by its lawyers that the likelihood of eventually having
to pay this sum had increased to over 50 per centthe point
at which, by the then current accounting convention, the provision
had to be shown in the accounts. In previous years the likelihood
of having to pay was deemed to be less than 50 per cent, so the
potential liability had previously been shown as a "contingent
The £1.7 million was represented by 56
cases at a payment of £14,000 net of the estimated cost of
settlement contribution from the centrally (Vote) funded Existing
Liabilities Scheme, of which all NHS bodies are members; and eight
cases at an estimated cost of £56,000 net of the ELS contribution.
A further £400,000 represented the anticipated legal costs
of defending the claims.
A further £77,000 was provisions in respect
of an outstanding claim from a patient who received a transfusion
of blood contaminated by bacteria.
Of the remainder, £130,000 does represent
actual in-year payments, mainly for small claims by donors for
bruising. In addition £28,000 was paid as the NBA's contribution
to the NHS Litigation Authorityadministered Clinical Negligence
Scheme for Trusts, ie the NHS's own risk pooling scheme for clinical
negligence events occurring after 31 March 1995.