Draft Welsh Ministers (Transfer of Functions) Order 2008

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Mr. Touhig: I do take the hon. Gentleman’s point, which I know he feels passionately about, but if he is saying that he has no legitimacy in this place, then what is he doing here?
Adam Price: I am saying that this place has no legitimacy in those areas that have already been transferred. The subject headings were clear in the referendum. It was clear what the people of Wales were voting on. [Interruption.] The hon. Member for Bridgend shakes her head. Perhaps she would like to share her thoughts with the Committee—but she does not want to. However, it was clear that health and mental health were being devolved to the National Assembly for Wales. We have a tidying-up exercise here, which is no surprise, because we have a spider’s web, an arcane devolution settlement that unfortunately necessitates such tidying-up exercises. It should not be that way. We should have a clear constitutional settlement, which is what I hope we will get, when in due course we have the referendum in part 4 of the Government of Wales Act 2006—then it will be up to the right hon. Member for Islwyn to decide which side he stands on.
On the particular matters before us, as other Committee members have asked, perhaps the Minister could explain why the issues have come to light at this stage. Was it, for example, raised within the Welsh Assembly Government in the first instance, or within the Department of Health or the Wales Office? As the right hon. Member for Islwyn pointed out, the instrument is the first transfer of functions order since the separation within the Assembly between the Executive and the legislature. Can we expect a series of ministerial transfer of functions orders? Is there a process now whereby the Wales Office in conjunction with the Welsh Assembly Government is trying to identify any remaining constitutional anomalies?
In a spirit of co-operation, I ask the Minister about another issue. I understand the distinction in terms of the machinery of government here, whereby those areas that have restrictions applied to them—the part 3 distinction—remain with the Secretary of State for Justice. It strikes me that mental health is an area where health and the criminal justice system collide because some functions are shared. Was there no discussion with Welsh Assembly Government Ministers about there being a role for the Welsh Assembly Government? In the One Wales agreement, there is a commitment by the Labour party and Plaid Cymru to look at transferring criminal justice powers, albeit in a limited form to begin with. It appears to me that it would be worth pursuing that in the area of mental health. I am interested to know whether that was raised in initial discussions on the order. On the general rule, we welcome any further powers that can be transferred to the Welsh Assembly Government.
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Huw Irranca-Davies: I thank hon. Members for the considered and thoughtful way in which they have raised their points. They have genuinely probed the purposes behind the order.
The hon. Member for Clwyd, West focused particularly on the issue of goodwill in the second part of the order and asked why that function should be transferred to Welsh Ministers. The Medical Practices Committee, which used to be responsible for granting certificates to ensure that no goodwill was sold, was abolished on 31 March 2003 by the Health and Social Care Act 2001.
It was agreed at an official level that the function of granting such certificates should not have been reserved to the Secretary of State for Health in respect of Wales. In effect, this item has been hanging around for a bit waiting to be tidied up. People often use the idea of tidying up when discussing legislation and I usually try to steer away from it. However, this issue has been hanging around and it has been identified as a matter that can be appropriately sorted out by the order. The Welsh Ministers who are responsible for health matters in Wales should also be responsible for dealing with the operation of this function of goodwill. As I said, we have tried to track some of the history of it.
The hon. Gentleman also mentioned the financial implications of the transfer. Our assessment is that there will be no major financial implications for the proposed transfer of functions under section 259 and schedule 21. The very small administrative costs in dealing with these few cases, which I will come to in a moment, will be dealt with from existing resources. There has only ever been one case in Wales of the sale of goodwill of medical practices and that was in 2002.
I guess that that invites the question of why we are doing the transfer. It is because this process should be exercised in the appropriate place and that is in the Welsh Assembly. The cost implications will be minuscule if we go on past records. Hopefully, I have dealt with the queries on the order of magnitude and the cost. The cost of producing a certificate on the sale of goodwill is estimated at about £300. Those costs will be met by the Welsh Assembly Government. I thank the hon. Gentleman for raising those issues and hopefully he can see from the answers that there is not a huge implication.
Mr. Jones: I raised the issue of why we should not leave the procedure with the appeal authority unit. That unit has a reservoir of expertise and could quite happily continue to deal with the very small number of applications that are made for Wales as agent for the Welsh Ministers rather than for the Secretary of State for Health. It seems extraordinary, given the infinitesimally small number of applications that are made, that it is thought appropriate to transfer the functions to Welsh Ministers when the unit could simply carry on dealing with them as agent for those Ministers.
Huw Irranca-Davies: That was another helpful intervention. The issue is where the certificate originates. At the moment, the certificate originates from the Secretary of State in England. That anomaly is what we are trying to sort out today, so that the certificate will be issued on the advice of Welsh Assembly Government Ministers rather than the Secretary of State in England. I hope that that helps.
Mr. Jones: I understand fully that the certificate will be issued by Welsh Ministers. My point is: why not simply leave the procedural aspects with the unit? It has the expertise and the staff, and it could probably deal with the situation far more simply than if it were sent to Cardiff for Welsh Ministers to deal with.
Huw Irranca-Davies: My apologies. I misunderstood the hon. Gentleman slightly. I see his point. Perhaps there is an option for that to remain as it is, but our discussions with Welsh Assembly Government Ministers at an official level about how many applications there might be, the resource implications and the pool of knowledge necessary leave us in no doubt that Welsh Assembly Government Ministers and their officials are fully equipped to deal with such cases. Although the situation could be left as it is, there is a devolution logic to ensuring that it is delivered from the appropriate place. That place is the Welsh Assembly Government. However, I accept the spirit in which the hon. Gentleman probed the issues.
The hon. Member for Ceredigion referred to the cost of repatriation, the numbers involved and the cross-border issues. The costs of repatriation will be met by the hospital manager in Wales. That is currently the case anyway, so there will not be a change in respect of the costs of repatriation. Often, arrangements are reached with the hospital to which the patient is being admitted, so some negotiation takes place as well. As for the numbers, we estimate that in the past five years, there have been about 20 in England and Wales. I do not have the accurate figure, but very few of that 20 were in Wales. Once again, we are talking about relatively few instances. On the cross-border issue, there are none in this particular case. The application is made under section 86 based on the hospital’s location, so it is clear where the responsibility falls.
To return to the question why the function was not transferred originally, the aim behind the Mental Health Act 2007 was to help ensure—I know that I am reminding the hon. Gentleman of what he already knows—that people with serious mental disorders can be required when necessary to receive the treatment that they need to protect them and the public from harm. It was a big Bill with a lot of controversial aspects, and the focus on the time was on that and the other policy intents: bringing mental health legislation in line with modern service provision, strengthening patient safeguards and tackling human rights compatibility. Given all that, I am not too distressed that we have introduced the order today and are giving it an appropriate amount of discussion on its own, because it involves a transfer of functions.
My right hon. Friend the Member for Islwyn raised some important points. There is a critical issue about all aspects of legislation involving devolution or transfer of powers within existing executive areas, no matter what route they come through. The critical question is why. What is it all about? What purpose does it have? How does it benefit? There are benefits: not only will the order provide devolutionary and bureaucratic clarity, but it will provide clarity for hospital managers in Wales, so that when they seek to effect transfers under section 86 they will know exactly where responsibility lies.
Curiously, there is an aspect of improvement for the patient as well. My right hon. Friend will bear in mind that transfer to another country is always effected with the patient’s best interests in mind. It is marginal, but there should be greater efficiency when a transfer is deemed appropriate. Decisions will not take a circuitous route from the Welsh Assembly Government to the Secretary of State for Health and back, so there is a much more direct line of accountability and responsibility that will marginally help to speed up the process in the best interest of the patient. There will be a benefit.
My right hon. Friend made an interesting point on how the TFO would work. It might help if I describe exactly what will happen when a request or authorisation is made and compare that to what happens now. Currently, hospital managers inform the Secretary for Health that a patient needs to be removed from a hospital in Wales under section 86. Under the order, the only difference will be that such a request will be made directly to the Welsh Assembly Government Minister rather than the Secretary for Health.
The patient’s case will then be referred to the independent mental health review tribunal, which is an England and Wales body. That is currently done either by hospital managers or the Secretary of State. In future, the Welsh Assembly Government Minister will deal with Welsh hospital managers. The tribunal will consider the case in the normal way. It holds hearings, takes evidence from mental health professionals and, first, decides whether the patient should be discharged from compulsion—if not, they decide whether removal is in the patient’s best interests. The tribunal currently passes its advice and recommendations to the Department of Health and the Secretary of State; under the transfer, the advice will go to the Welsh Assembly Government Minister. If removal is in the patient’s best interest, the Secretary of State or, subject to the order, the Welsh Assembly Government Minister, will issue a direction to effect the removal. If that is not in the best interests of the patient, they will remain in hospital in Wales subject to compulsion.
The question why it would not be in the best interests of the patient arises. The power is used on only a very few occasions, which I alluded to. Each case is considered individually and a decision is reached on the basis of the independent decision of the tribunal. There are a number of reasons why such a removal might not be in a patient’s best interests; for example, the facilities for their care and treatment could be totally inadequate for their needs. In such circumstances, they would remain in hospital in Wales and continue to receive treatment under compulsion.
On the vital point made by my right hon. Friend on the role of the Secretary of State for Justice, the measure does not affect his power one jot. The powers under section 86 that are retained by the Secretary of State are entirely unaffected by the order and excluded from the transfer. In fact, partly in answer to the hon. Member for Carmarthen, East and Dinefwr, Welsh Assembly Government Ministers have made no request to open a dialogue on that. The measure is focused on sorting out a legacy to ensure a fit with the Executive powers—there has been no request to go further and extend such powers regarding criminal justice or other matters—but who knows whether inquiries will be made in future? They do not form part of the measure. Hopefully, the assurance that I gave to my right hon. Friend makes it clear that the measure does not impinge on the Secretary of State for Justice.
I turn briefly to the issues raised by the hon. Member for Carmarthen, East and Dinefwr, who asked whether he could expect a series of such orders. Most Executive functions were transferred by TFOs in 1999. A few additional functions—I do not have the exact numbers—have been identified, and there might be another short TFO in the next Session. I am talking about making another appearance before this Committee to look at similar tidying-up issues and making demarcations of where responsibilities should lie, but I cannot say that there will be a series of orders because most such things were dealt with in 1999.
He asked whether the transfer of patients was considered, and I can tell him that it was not, as I have said. The discussions were very much limited to the order.
I thank hon. and right hon. Members for their contributions. Today has been useful because it has given an appropriate level of time and discussion to a transfer of functions. Members of the Committee have been able to discharge their scrutiny of the transfer of powers to Wales duties appropriately, the probing has been in a very good spirit, and it has been well informed. I thank you, Mr. Cummings, for your chairmanship, and the Committee for taking part. I commend the order to the Committee.
Question put and agreed to.
That the Committee has considered the draft Welsh Ministers (Transfer of Functions) Order 2008.
Committee rose at six minutes past eleven o’clock.
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