The
Committee consisted of the following
Members:†
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
LegislationThursday
18 May
2006[Mr.
John Cummings in the
Chair]Draft National Health Service (Pre-Consolidation Amendments) Order 20068.55
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. The
explanatory memorandum to the order gives a detailed explanation of
each of its provisions. I hope
that hon. Members have found the annex helpful in understanding the
changes that are being proposed. The order enables consolidation to
remove ambiguity. One example of that is paragraph 2 of schedule 1 to
the order which amends section 3 of the National Health Service Act
1977. 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. Another
group of amendments relates to Treasury consent provisions. The order
removes the requirement
for Treasury consent to certain payments that may be
made by the Secretary of State, including those in respect of expenses
incurred by standing advisory committees, the provision of
accommodation for persons displaced by health service developments, and
loans to commission for patient and public involvement in health. It is
in line with Treasury policy that such consent provisions should be
reviewed and repealed where appropriate, and the Treasury has agreed
the
amendments. 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. Resolved, 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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