2. GENERAL
Scope of Bill
- The Queen's Speech on 20 June 2001 included the announcement that "legislation will be drafted to reform the provision of health services in Wales". The accompanying note from the Wales Office described the draft Bill as providing "a legislative framework for the development of health policy in Wales.... This Bill would reform the NHS in Wales in line with the NHS plan for Wales agreed by the National Assembly". In addition to the establishment of HPW and WCH, as in the draft Bill now published, it was announced that the Bill would establish Local Health Boards and strategic partnerships: both significant pieces of the jigsaw of NHS reform in Wales. There was no reference to provisions on CHCs.
- In the event, the clauses creating Local Health Boards and strategic partnerships were included in the National Health Service Reform and Health Care Professions Bill, introduced in November 2001, which received Royal Assent on 25 June 2002. The Ministers told us that space had been found in the NHS Reform Bill for those provisions originally destined for the draft Bill which required relatively swift enactment.[5] Local Health Boards can therefore be set up to operate from April 2003, whereas the draft Bill is unlikely to be an Act until July 2003.[6] The CHC provisions were evidently added so that Welsh CHCs could be given additional powers and responsibilities to those provided under the 1977 Act. The draft Bill which appeared in May 2002 is therefore substantially different to that apparently envisaged a year earlier, and somewhat thinner.
Timing
- Time for examination has been short. The Department's consultation period has run from 17 May 2002 to 5 July 2002, slightly below the standard 2 month minimum period allowed for in central guidance to Departments. Stakeholders were not directly consulted prior to publication, but the substance of the principal proposals have been extensively discussed over recent years.[7]
Wales Office and NAW sponsorship
- The Bill was presented to Parliament by the Secretary of State for Wales. We established in oral evidence that the drafting instructions to Parliamentary Counsel had come from NAW officials acting in theory on behalf of the Wales Office. Both Ministers involved—henceforth referred to in this Report as " the Ministers"—confirmed that they and the officials concerned had an excellent working relationship.[8] It was apparent throughout the oral evidence session that a joint view had been taken on issues of significance, no doubt helped by the shared objectives of both sides.
Process of legislation
- The 17 May "Dear Colleague" letter from the Wales Office announced that the Welsh Grand Committee would "convene to discuss the draft Bill and the Report (if it is available) of the WAC", hopefully in mid-July 2002. We have regarded it as our prime responsibility to have a Report ready for that debate, to be held on 16 July. Mr Touhig told us that Ministerial decisions would be taken in early August 2002 on how to amend the Bill. In October 2002 the Legislation Committee of the Cabinet can thus be offered a Bill ready and waiting to be presented as early as possible in the new session.[9] The intention is that it would then go through the standard legislative process at Westminster.[10]
Nature of our scrutiny
- The draft Bill is essentially an enabling measure: much of the crucial detail will be in secondary legislation to be made by the NAW. Our detailed scrutiny of the text of the draft Bill has focused on seeking to be able to assure the House of Commons, to whom we report, that
- the primary legislation is appropriate and effective
- the balance of primary and secondary legislation is right
- the powers given to the NAW are broad enough to ensure that their objectives, and the reasonable aspirations of stakeholders, are met, while not giving scope for unexpected or unreasonable exercise of those powers
- there is no readily foreseeable requirement for the NAW to have to return to Westminster to seek a slight amendment of statute because of oversight or excessively restrictive drafting .
Regulations
- It is now standard practice for a draft of significant secondary legislation to be made under a draft Bill (or a Bill once presented) to be exposed for public consultation during the passage of the Bill. In this case, it is for the NAW to make such secondary legislation, and it must therefore be for them to publish it. Although the House of Commons can have no role in criticising or seeking to amend such draft secondary legislation, the passage of the founding primary legislation may well be smoother if those involved have a clear idea as to how regulation-making powers are likely to be used. Publication can also reveal hitherto unobserved failings or drafting weaknesses in the primary legislation. In evidence to us, the Ministers agreed to seek to have draft regulations available for consultation at Standing Committee stage in Westminster, while a parallel process of consultation was being conducted by the NAW.[11] We welcome the commitment by the NAW to provide for public consultation on the regulations to be made under the Bill prior to its eventual enactment.
Long and short titles
- The short title of the Bill is "National Health Service (Wales) Bill". The long title begins with the phrase "to amend the law about the National Health Service in Wales" before reciting the three principal components of the draft Bill; and ends with the time-honoured phrase "and for connected purposes". As at present drafted, it has to be said that the Bill does not amend the law about the NHS in Wales other than in relation to the three areas covered, and that there are no "connected purposes". It has also been pointed out that the provisions go beyond the NHS in Wales and have an impact on the private health sector as well.[12] We recommend reconsideration of the long and short titles of the draft Bill.
Diversity of provision
- It is noticeable in examining the Bill from the perspective of the UK Parliament at Westminster how, not unexpectedly, the constituent parts of the UK are finding different ways of meeting largely common objectives.[13]
- Wales is retaining CHCs, with extended powers and responsibilities: Scotland has Health Councils, similar to CHCs but different: England will have Patients Forums, local authority scrutiny and separate advocacy services: Northern Ireland retains its network of regional Health and Social Services Councils.
- in Wales, there is to be a statutory Assembly Sponsored Public Body (ASPB) covering all healthcare professions and support workers except doctors; in Scotland, professional regulatory functions are carried out by a Special Health Board which covers doctors as well as nurses and midwives, but not other healthcare professions or healthcare support workers; in Northern Ireland, there is to be a Non Departmental Public Body (NDPB), Northern Ireland Practice and Education Council, which will cover only nursing and midwifery; in England there is no national body and quality assurance work is carried out by individual visitors.
- Such diversity offers ideal opportunities for discovering what works best where and why. But proactive steps are required to ensure that it does not simply lead to each country going its own sweet way in blissful ignorance of what others are doing. We were pleased to hear from both Ministers of the extent to which UK and other Ministers meet to discuss such matters.[14] There may in due course be a case for some mechanism to ensure that the full potential benefits are realised of the diversity of provision among the nations of the UK.
5 Q 103 Back
6 RIA, para 15 Back
7 Q 105 Back
8 Q 104 Back
9 Q 107 Back
10 Q 108: see Ev 25 and Q 83 Back
11 Qq 109-110 Back
12 Qq 31-32 Back
13 Qq 12, 111-112, 114, 146, 167: Ev 57 Back
14 Qq 111-112 Back
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