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Standing Committee Debates

Draft National Health Service (Pre-Consolidation Amendments) Order 2006

The Committee consisted of the following Members:

Chairman: John Cummings
Blizzard, Mr. Bob (Waveney) (Lab)
Blunt, Mr. Crispin (Reigate) (Con)
Cruddas, Jon (Dagenham) (Lab)
Flint, Caroline (Minister of State, Department of Health)
George, Mr. Bruce (Walsall, South) (Lab)
Gray, Mr. James (North Wiltshire) (Con)
Hall, Patrick (Bedford) (Lab)
Kilfoyle, Mr. Peter (Liverpool, Walton) (Lab)
Murrison, Dr. Andrew (Westbury) (Con)
Newmark, Mr. Brooks (Braintree) (Con)
Pelling, Mr. Andrew (Croydon, Central) (Con)
Pugh, John (Southport) (LD)
Salter, Martin (Reading, West) (Lab)
Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
Snelgrove, Anne (South Swindon) (Lab)
Ward, Claire (Lord Commissioner of Her Majesty's Treasury)
Webb, Steve (Northavon) (LD)
Geoffrey Farrar, Committee Clerk
† attended the Committee

Sixth Standing Committee on Delegated Legislation

Thursday 18 May 2006

[Mr. John Cummings in the Chair]

Draft National Health Service (Pre-Consolidation Amendments) Order 2006

8.55 am
The Minister of State, Department of Health (Caroline Flint): I beg to move,
That the Committee has considered the draft National Health Service (Pre-Consolidation Amendments) Order 2006.
This order for pre-consolidation is made under sections 36 and 38 of the National Health Service Reform and Health Care Professions Act 2002. That provision enables the Secretary of State to make by order amendments to legislation relating to the health service in England and Wales which facilitate, or are otherwise desirable in connection with, the consolidation of NHS law. This order allows minor, technical changes to the law prior to its consolidation. It affects the National Health Service Act 1977 and other health service legislation. The 1977 Act itself consolidated prior health legislation. There followed numerous statutory changes that have made applying the law a much more complex task, which calls for consolidation.
My noble Friend Lord Hunt of Kings Heath pointed out in 2002 that the 1977 Act had been amended by 57 further statutes. The Department intends in June to introduce three Bills to consolidate NHS law in England and Wales: the National Health Service Bill (England) the National Health Service Bill (Wales); and the National Health Service (Consequential Provisions) Bill. The three Bills have been prepared by the Law Commission. They represent many years hard work by the draftsmen at the Law Commission and I am very grateful for their work. I am very pleased that the parliamentary stages are now under way with this pre-consolidation order being the first stage of the process.
In my view, the provisions of the pre-consolidation order are compatible with the European convention on human rights. Furthermore, we have had nothing but supportive feedback from stakeholders within our 12-week consultation period. The order makes minor amendments to the National Health Service Act 1977 and other health service legislation. The amendments can be broadly summarised as desirable to clarify the legislation or remove an element of ambiguity from it; necessary to remedy missed consequential provisions; incorporating modifications; dealing with local health boards in Wales; removing certain requirements for Treasury consent before certain payments can be made; relating to remuneration of practitioners; and repealing provisions which are either spent or unnecessary.
In a legal dispute in July last year—R (Keating) v. Cardiff Local Health Board—the Court of Appeal, on intervention by the Department of Health, reversed a court decision narrowly to construe the term “facilities”. The court was asked to consider whether the word “facilities” in section 3(1)(e) of the 1977 Act included services. A welfare benefits advice service in Cardiff had its funding withdrawn by the local health board on the basis that it did not have the power under the 1977 Act to fund a welfare rights project for clients experiencing mental health difficulties. The Court of Appeal held that the local health board did have powers to fund such services. The order amends section 3 to reflect more clearly the finding of the court, which is helpful for local health boards when they are supporting such activities in their local communities.
The order also addresses a number of missed consequential amendments. The first example concerns the NHS and Community Care Act 1990 and the Health and Social Care (Community Health and Standards) Act 2003. NHS trusts are constituted under the 1990 Act and NHS foundation trusts are constituted under the 2003 Act. It was never intended that the power of a local social services authority to permit the use of premises, furniture or equipment for the purposes of the 1977 Act should not be applicable to those bodies.
Another example is that the order makes amendments to reflect changes in the way in which dental corporate bodies are regulated, under the Dentists Act 1984 (Amendment) Order 2005. Accordingly, the order makes changes to the definition of dental corporations.
A large part of the order incorporates provisions in relation to local pharmaceutical services. The National Health Service Local Pharmaceutical Services Regulations 2006, known as the LPS regulations, recently made a number of modifications to the 1977 Act. The order incorporates these modifications into the 1977 Act, thereby making the legislation more accessible. The order also clarifies the current power in section 41 of the Health and Social Care Act 2001 to make amendments and modifications to other legislation relating to local pharmaceutical services. It is useful in the context of the consolidation for this power to be expressly stated as it is in paragraph 7 of part 2 of schedule 1.
That brings me to the amendments that are necessary because of the powers of the National Assembly for Wales. The Assembly has directed local health boards to exercise some of the functions that were transferred to it on the abolition of health authorities in Wales in April 2003. The consolidation reflects the effect of the function regulations by substituting references to local health boards for references to health authorities in all relevant sections in the 1977 Act. The order clarifies those arrangements accordingly.
Mr. James Gray (North Wiltshire) (Con): Could the Minister let us know the maximum figure that would be passed by that means without being approved by the Treasury?
Caroline Flint: I am happy to let the hon. Gentleman know the answer to his question. I will get the details of that. Obviously, they will change from one case to another.
The largest amendment, paragraph 19 of schedule 1 to the order, inserts sections 43A and 43B into the 1977 Act, which provide for determinations in relation to remuneration for general ophthalmic services and pharmaceutical services. There is a long and complicated background to that. Suffice it to say that versions of those sections were inserted into the 1977 Act by the Health Act 1999, but were not commenced. Instead, determinations have been made up to now under other powers and provisions. The consolidation will be more comprehensible if it is possible to reproduce sections 43A and 43B in a simple form, and this amendment, together with the consequential repeals, will enable that to be done.
Furthermore, by amending other legislation, the order will provide for a less complex consolidation exercise. For example, the Ministry of Health Act 1919 is spent and is therefore repealed. That avoids the need to reproduce a spent enactment in the consolidation.
We have been attempting to consolidate the legislation over a long period; it has taken four years of hard work to enable us to reach this point. The order is an important step in the consolidation of NHS legislation introduced under many Governments. I commend it to the Committee.
9.2 am
Dr. Andrew Murrison (Westbury) (Con): I am grateful to the Minister for rattling through the background to the order at such a pace and for answering in advance some of the questions that I wanted to pose. I accept her explanation that the order largely involves minor technical amendments, so I do not intend to detain the Committee long.
My understanding is that the order is a prelude to legislation that will be put before the House. I would be grateful if the Minister confirmed that and outlined the timetable that she has in mind. Consolidation means all sorts of things, and sadly the official Opposition do not have at their disposal the resources necessary to plough through the detailed legislation that will be amended or repealed by all these measures, so we have to relyon the Minister’s reassurance that nothing of great consequence is changed by the order. However, we hope very much that when we see the Bill to which this measure relates, we will have adequate time to scrutinise it to ensure that we are happy with the contents and the impact that it will have on the health service.
The Minister referred to ambiguity and said that the explanatory notes were helpful; I have to say that they are not particularly. She has very graciously given us a description of the various areas that will be changed by the order, which is helpful, and has resolved some of the confusion that was in my mind when I went through that last night. However, I would be grateful if she said specifically whether the area of ambiguity in the matter of R (Keating) v. Cardiff Local Health Board is the only one that will be covered by this measure or whether other areas of ambiguity will be covered.
I want to deal briefly with the lack of a regulatory impact assessment. If I may say so, we have a fairly typical civil service brush-off at paragraph 8 of the explanatory memorandum to the order, which says that there are no implications for regulation because the measure
“has no impact on business, charities or voluntary bodies.”
If that were the case when some of the legislation to which the measure refers was enacted, it is certainly not the case now, as the health service and the health economy has far greater plurality than it once had. It beggars belief that it has no impact on voluntary, not-for-profit and commercial organisations that have an impact on the national health service today.
I invite the Minister to revisit her officials’ assurances that the proposal has no implications in respect of regulation for other bodies. The NHS most certainly does not exist in a vacuum, and I would be extremely surprised if the order had no implications for the organisations that it mentions. I urge the Minister to reconsider the proposal.
9.4 am
John Pugh (Southport) (LD): The order is a bit of a dog’s dinner. It affects Wales and rectifies defects in primary legislation which perhaps should have been picked up in previous scrutiny. I suspect that it is understood only by some very learned draftsmen deep in the bowels of the Department of Health.
When I discovered that it affected 24 pieces of primary legislation, repealed a 1919 Act and amended an Act passed in 1977, in spite of the distractions of the football game last night I speculated on whether I should read all that legislation. However, I was much reassured by the explanatory note, which stated that these were only minor consequential amendments removing ambiguity.
I was more reassured by the explanatory memorandum, which used the word “consolidation”—a nice word to hear these days in respect of the national health service. When we hear the words “reform” or “step change” we quake in our boots, but the national health service could do with a period of consolidation.
However, I have two concerns about the proposal. It would appear from the explanatory memorandum, if from nowhere else, that it is not just a way of consolidating or including in legislation various consequential amendments; it is also preparatory to doing a little more than consolidation, and it is necessary for it to be passed at this stage in order for that little bit more than consolidation to take place. I should like the Minister to enlarge on that.
I want to follow up a point made by thehon. Member for Westbury (Dr. Murrison). The explanatory memorandum does indeed state in paragraph 8 that the regulatory impact assessment has no impact on business, charities or voluntary bodies, but paragraph 26 of the order says:
“Omit section 89 (power of voluntary organisations to transfer property).”
Presumably, it has a fairly important consequence for voluntary bodies. I want the Minister to clarify that paragraph, because it is possible that it has no appreciable impact, rather than no impact at all.
9.8 am
Mr. James Gray (North Wiltshire) (Con): I rise to expand briefly on a point I made earlier in an intervention. First, I agree with my hon. Friend the Member for Westbury (Dr. Murrison) that we have no particular objection to the proposal, although it is so incredibly complex and opaque that it would be almost impossible for any normal Opposition to tell whether there is something obnoxious hidden in the small print.
As my hon. Friend said, I hope that we will have adequate opportunity in the weeks to come for detailed study of the order and the Bill for which it prepares the ground, to discover precisely how it will affect the delivery of health to our constituents.
One point in the order leaps out of the page. I was surprised that the Minister was unable to answer my earlier question on the matter and, having read the order, I was unable to spot the proposal to which paragraph 7.3.3 of the explanatory memorandum refers. It states that the order will remove
“certain requirements for Treasury consent before certain payments can be made”.
I asked the Minister whether she could give us a figure above which that would no longer be the case. Is it £5 or £10 here and there for odd bits of petty cash, a few hundreds or thousands of pounds, or tens of thousands, or hundreds of millions? We do not know. On first principles, it seems that the Treasury must have had good reason in setting up the original requirement that it should approve these payments. It must have chosen to do so believing that if it delegated that authority to other organisations or bodies, or ministers or other people, then there might be occasions when those organisations could spend the money but would not otherwise have to do so. If that were not the case, it is hard to imagine why the Treasury chose to keep those powers to itself.
Now, we discover that the Government are choosing to remove the ability to approve these payments from the Treasury. It may be, Mr. Cummings, that this de minimis provision about which we are talking is for petty cash and that the Treasury’s administration in approving these payments is greatly more complex and expensive that the value of the payments themselves. Nevertheless, as a Parliament examining what the Executive are up to, we should know either why the Treasury originally required approval of these payments and is now apparently giving up that right—was it a worthless power in the first place, or one that goes back a long way?—or whether it is an important power which the Department of Health has chosen to abrogate to itself. Is the Treasury entirely happy with removal of that power, or is it simply a question of a negotiation between the two Secretaries of State?
So, it is a bit odd for the Minister to come here asking to remove these powers from the Treasury, saying, “We no longer want the Treasury to approve payments”, yet not to have the slightest idea what size of payments we are talking about. The Committee might benefit from knowing whether we are talking about petty cash or significant amounts of public money.
9.11 am
Caroline Flint: The order that we are dealing with is the first part in a process leading to the consolidation Bills the timetable for which the hon. Member for Westbury (Dr. Murrison) asked about. To provide a bit more detail of the timetable, the introduction in the week beginning 5 June and the consolidation Committee consideration for 27 June have, I understand, been confirmed. It is projected that there will be a Lords Report stage and Third Reading in the week commencing 17 July, with the Commons First Reading and the remaining stages to come in October. I am happy to put further detail on that issue in writing for the hon. Gentleman.
The hon. Member for North Wiltshire (Mr. Gray) raised again the point on the Treasury that he made on an intervention. I will write to him about the maximum amounts. As I said in my opening contribution, this change is in line with Treasury policy to review—and repeal where appropriate—the need for its consents. All this has been done, not just between the Chancellor and the Secretary of State but through discussion involving officials from both Departments. I am happy to write to the hon. Gentleman with more detail in that regard, and to copy in other members of the Committee.
The hon. Member for Westbury asked particularly about the effect on other NHS bodies, especially given section 89 of the National Health Service Act 1977. As we have said, the order has no regulatory impact on business, charities or voluntary bodies. I am happy to write in more detail about why we have come to that conclusion. Further, there is no record of any reliance on section 89 of the Act. I am happy to write to the hon. Gentleman in relation to other areas of ambiguity, although I tried to give some examples in my contribution.
The hon. Member for Southport (John Pugh) made a particular point about the voluntary sector but, as I said, we have consulted with a wide range of stakeholders and received nothing back to indicate concern. However, I am happy to return to officials to ask whether we have missed anything out regarding impact on the voluntary sector.
I hope that the Committee will see this as a first step in the process. All of us should agree as parliamentarians that, as I said in opening, a number of the areas that we are trying to consolidate and rationalise are the products of many Governments of different political complexions. Four years ago, there was a consensus that this was a body of work needing to be worked upon. This is the first step in achieving that, and a sensible measure. I hope that the end result will be NHS legislation that will be simpler yetmore comprehensive, straightforward and easy to understand. I am sure we would all agree that that isa worthwhile end.
Question put and agreed to.
That the Committee has considered the draft National Health Service (Pre-Consolidation Amendments) Order 2006.
Committee rose at fifteen minutes past Nine o’clock.

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