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Public Bill Committee Debates

Draft Welsh Ministers (Transfer of Functions) Order 2008

The Committee consisted of the following Members:

Chairman: John Cummings
Ainger, Nick (Carmarthen, West and South Pembrokeshire) (Lab)
Banks, Gordon (Ochil and South Perthshire) (Lab)
Baron, Mr. John (Billericay) (Con)
David, Mr. Wayne (Caerphilly) (Lab)
George, Mr. Bruce (Walsall, South) (Lab)
Griffiths, Nigel (Edinburgh, South) (Lab)
Havard, Mr. Dai (Merthyr Tydfil and Rhymney) (Lab)
Irranca-Davies, Huw (Parliamentary Under-Secretary of State for Wales)
Jenkin, Mr. Bernard (North Essex) (Con)
Jones, Mr. David (Clwyd, West) (Con)
Kirkbride, Miss Julie (Bromsgrove) (Con)
Moon, Mrs. Madeleine (Bridgend) (Lab)
Morden, Jessica (Newport, East) (Lab)
Moss, Mr. Malcolm (North-East Cambridgeshire) (Con)
Price, Adam (Carmarthen, East and Dinefwr) (PC)
Touhig, Mr. Don (Islwyn) (Lab/Co-op)
Williams, Mark (Ceredigion) (LD)
Mr. Mike Clark, Committee Clerk
† attended the Committee

Fourth Delegated Legislation Committee

Tuesday 3 June 2008

[John Cummings in the Chair]

Draft Welsh Ministers (Transfer of Functions) Order 2008

10.30 am
The Parliamentary Under-Secretary of State for Wales (Huw Irranca-Davies): I beg to move,
That the Committee has considered the draft Welsh Ministers (Transfer of Functions) Order 2008.
I welcome you to the Chair, Mr Cummings, and I welcome all right hon. and hon. Members on both sides of the Committee. I would like to begin by informing the Committee that these are two separate matters, under two separate UK Health Acts: section 86 of the Mental Health Act 1983 and section 259 of and schedule 21 to the National Health Service Act 2006. The Wales Office has obtained formal agreement from the Department of Health, the Ministry of Justice and, of course, the Welsh Ministers, for the provisions of this order.
The first transfer of functions effected by this order relates to functions under section 86 of the Mental Health Act 1983, which applies to patients detained under part 2 and part 3 of that Act. The relevant powers under section 86 of the 1983 Act apply to patients detained under part 2 and part 3 of the Act who are not British, EU or Commonwealth citizens with the right of abode in the United Kingdom. The powers in section 86 are to remove such a person from a hospital in England or Wales.
Right hon. and hon. Members may recall from our deliberations on the Mental Health Act 2007 last year that part 3 of the 1983 Act relates to patients concerned in criminal proceedings or under sentence, while part 2 relates to patients who are often referred to as “civil patients”, that is patients whose detention in hospital is a process that does not involve the courts.
Responsibilities for some mental health matters were devolved to the National Assembly for Wales under the Government of Wales Act 1998. That included responsibility for patients detained under the Mental Health Act 1983 except for patients subject to restrictions under part 3 of the Act; relevant functions in relation to them remained the responsibility of the Home Office. At the time of the original transfer of functions—the National Assembly for Wales (Transfer of Functions) Order 1999—which covered the Mental Health Act powers, section 86 remained the responsibility of the Home Secretary. These have subsequently been transferred to the Secretary of State for Health, in respect of unrestricted patients, and to the Secretary of State for Justice, in respect of restricted patients, by the machinery of government changes that took place in 2007.
Given the nature of such a power of removal, the relevant Welsh Minister must first be satisfied that appropriate arrangements have been made to ensure that the patient in Wales receives proper care and treatment when transferred to the other country. Section 86 powers cannot be exercised before it has first been established that it would be in a patient’s best interests to be removed to the other country. The general principle remains the same, but these functions are transferred to Welsh Ministers.
At present, Welsh Ministers are dependent on my right hon. Friend the Secretary of State for Health to exercise the powers of removing a patient who is receiving treatment for a mental illness from Wales to a country abroad. Given that the health service falls within the executive competence of Welsh Ministers and my right hon. Friend has no statutory control over NHS Wales, it would be wholly appropriate for Welsh Ministers to exercise section 86 functions.
What does that mean for hospital managers in Wales? For hospital managers in Wales, the transfer of section 86 powers would also provide a consistency with the exercise of other functions within the 1983 Act, which are exercised by Welsh Ministers. The draft order makes it clear that the functions relating to section 86 for patients who are subject to a restriction order or direction under section 41 or section 49 of the 1983 Act, or a hospital and limitation direction under section 45A of that Act, will remain with the Secretary of State for Justice, who will exercise those functions in relation to both England and Wales. That reflects the current settlements and the arrangements regarding such patients. The Welsh Ministers are not seeking to change those arrangements and neither are we today.
With Members’ good will, let me turn briefly to the issue of goodwill. If it pleases right hon. and hon. Members, I will move on to the second matter under section 259 and schedule 21 of the National Health Service Act 2006, which relates to the sale of goodwill of medical practices. The transfer of functions would give the Welsh Ministers the responsibility and power to grant certificates stating that no goodwill had been sold. I will explain further. Subject to specified exemptions, the sale of goodwill of medical practices is prohibited under section 259 of the 2006 Act. Schedule 21 makes it an offence to sell goodwill contrary to section 259, which provides that any person proposing to be a party to a transaction that they think might amount to the sale of goodwill of a medical practice has to ask the Secretary of State for Health for a certificate confirming that the transaction does not give valuable consideration in respect of the goodwill. That function is currently exercised by the national health service litigation appeal authority unit on behalf of the Secretary of State for Health for both England and Wales.
No issue arises regarding cross-border practices. It is the premises that are being sold and not the patients who are registered at the practice. If the premises are physically in England, the national health service litigation appeal authority unit would continue to be responsible for issuing a certificate confirming that no goodwill has been sold. The transfer of functions order would make the Welsh Assembly Government responsible for issuing the same certificates to GP practices in Wales. The proposed transfer of functions under section 86 of the 1983 Act and section 259 and schedule 21 of the National Health Service Act 2006 have the approval and support of UK and Welsh Ministers. I commend the draft order to the House
10.38 am
Mr. David Jones (Clwyd, West) (Con): I welcome you to the Chair, Mr. Cummings. I am sure that the Committee, and the Minister in particular, will be pleased to hear that I have no observations on the first element of the proposed order. It appears to be a logical measure given the current status of the devolution settlement. However, I am afraid that I have a few queries about the second element of the order, which I am sure the Minister will be able to help me with.
As the Minister explained, at present, the national health service litigation appeal authority unit is responsible for the issue of certificates under section 259 of the National Health Service Act 2006 in respect of the sale of the assets of medical practices in both England and Wales. The Minister has explained that the issue and sale of goodwill is specifically prohibited by that section. That Act was enacted after the establishment of the Welsh Assembly and also at a time when the Government of Wales Act 2006 was in full contemplation. I, therefore, take it that the issue of devolution was taken fully into account at that time by the Government when they decided to implement the current procedure under section 259. Perhaps the Minister could explain why the decision has been taken at this particular time to transfer the relevant function to the Welsh Ministers.
It would also be of assistance if the Minister could indicate the order of magnitude that we are talking about. How many certificates are applied for per annum in Wales and how many are granted? What does the consideration of an application for a certificate involve, in terms of manpower and time? How many staff are employed by the appeal authority unit, and how many members of that staff are dedicated to considering Welsh applications? Would he also indicate the current cost of operating the certification procedure in respect of Wales?
Can the Minister also give some indication of the estimated cost to the Welsh Assembly of assuming the responsibility for the issue of certificates in Wales? Another matter concerns me: it is clear that the appeal authority unit must have a significant degree of expertise in considering applications such as this, which has presumably been developed over the years. What proposals are there for the Welsh Ministers to create a similar level of expertise within their own establishment? Finally, I make what may appear to be a rather straightforward point: has any consideration been given simply to shifting the responsibility within the appeal authority unit, so that in respect of Welsh applications, it is accountable to the Welsh Ministers, and, in respect of English applications, to the Secretary of State for Health? That would probably be the simplest procedure to adopt, and probably the most cost-effective.
10.41 am
Mark Williams (Ceredigion) (LD): I welcome you to the Chair, Mr. Cummings, and I approach the order in the spirit of inquiry rather than with any criticism, because the general principle of ensuring that we transfer functions that are part of the devolution settlement is a sound one, and in that sense it is a logical and consistent tidying-up order. However, I should like to probe the Minister a little further on a couple of things.
My understanding is that the abortive Mental Health Bill of 2004 made provision for those section 86 powers under the Mental Health Act 1983, and conferred them on Welsh Ministers. Can the Minister confirm that that was the case, and explain why those provisions were not included in the 2007 legislation? I know that individual circumstances at that time do not necessarily dictate that every function can be included in legislation as it goes through the House, but some explanation as to why that was not replaced in 2007 would be helpful.
There is also the issue of the cost of repatriation. Can the Minister clarify that as it affects the Welsh Assembly Government, that would be helpful, as well as the number of cases that he envisages, or has in the past precedents for, on the National Assembly Government?
The final point lies very much in the context of the Welsh Affairs Committee’s inquiry into cross-border issues: the criteria used in certain individual cases to determine whether this would be a matter for the Secretary of State for Health in London, or the Welsh Health Minister. Would this be done on the basis of residence, the location of the hospital undertaking the treatment, or any other factors? There will obviously be quite complex procedures for dealing with where the ministerial responsibility lies, but one can envisage a situation where a patient is living within Wales, but is proceeding with the treatment across the border. Again, the cost issue there is quite relevant.
We support the order, although I regret that it was not in the 2007 legislation. That would have saved us a morning, not least when the Welsh Affairs Committee is meeting along the corridor. None the less, we welcome the order.
10.44 am
Mr. Don Touhig (Islwyn) (Lab/Co-op): I add my comments to those of other colleagues and welcome you to the Chair, Mr. Cummings; I know that our proceedings will be in safe hands with you guiding us this morning. I also thank my hon. Friend the Minister, for his explanation and for the useful explanatory notes that he has provided for us. However, I have a number of questions that maybe he can clarify for me.
I see from the explanatory notes that this is the first instrument to be made under section 58 of the Government of Wales Act 2006. Whenever we are asked to transfer powers from Parliament in London to the National Assembly in Cardiff, I ask one simple question: how will this benefit the people of Wales? Perhaps my hon. Friend can tell me when he responds, because it seems that paragraph 7.7 in the explanatory notes is all about tidying up and avoiding confusion. It seems to me that a bunch of bureaucrats in Cardiff have said to their Ministers, “Oh, this is rather confusing for us, Minister; shouldn’t you get some change?” Then they have come forward with today’s instrument. What difference will transferring power from London to Cardiff make to mental health patients being moved—what difference at all?
Paragraph 7.3 of the explanatory notes refers to part 3 of the Mental Health Act 1983 and mentions patients concerned in criminal procedures or under sentence. I was not clear when the Minister opened our debate this morning precisely how that would impact on the responsibilities of the Home Secretary and the Secretary of State for Justice. For instance, if there is a proposal to transfer someone from Wales to a country abroad and the Home Secretary or Justice Secretary were concerned for that person’s welfare—that person’s life might be at risk or that person might be subject to ill treatment—would Welsh Ministers have the power to overrule any concerns expressed by the Government? Section 86 and part 6 in general of the Mental Health Act 1983 are about moving mental health patients abroad and out of UK jurisdiction. If the order is approved and the powers are passed to Ministers in Cardiff, who will be responsible for seeking assurances from that third or foreign country that the patient being transferred will be well treated, that their interests and well-being will be cared for and that proper medical attention will be given? There is an overlap with the responsibilities of the Foreign Office. It may be that there is some sort of memorandum of understanding planned, by which the power can be exercised in a sensible and positive way, but we need some assurances, so that we can fully understand what we are being asked to do today.
10.46 am
Adam Price (Carmarthen, East and Dinefwr) (PC): It is a pleasure to serve under you, Mr. Cummings, in the Committee this morning.
The difference between me and the right hon. Member for Islwyn is that when I see a power transferred from this place to where that power should rest—with the democratically elected representatives of the people of Wales in our national legislature, the National Assembly—I see that as a cause for celebration.
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Prepared 4 June 2008