Health Bill [HL]

House of Commons

Session 2008 - 09
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Other Bills before Parliament

Health Bill [HL]

Health Bill [HL]
Schedule 3 — NHS and other health appointments: suspension
Part 2 — Supplementary
49

      (2)
In paragraph 2(a), omit the words from “(including” to the end.
      (3)
After paragraph 2 insert—
“2A
Regulations made under paragraph 2(a) may make provision
about—
(a)
the election by members of a Council of a member to chair
5
the Council, and
(b)
the appointment by the Welsh Ministers of a member to
chair the Council on an interim basis in cases where the
member so elected is removed or suspended from office.”
17    (1)
Schedule 13 (further provision about standing advisory committees) is
10
amended as follows.
      (2)
In paragraph 1(b), after “office” insert “(including removal or suspension
from office)”.
      (3)
After paragraph 5 insert—
“5A
But regulations under paragraph 1(b) may make provision about
15
the appointment by the Welsh Ministers of an interim chairman of
a standing advisory committee in cases where the chairman
elected under paragraph 5 is removed or suspended from office.”
Part 2
Supplementary
20
Cross-border bodies
18    (1)
In relation to a cross-border body—
(a)
functions exercisable by the Secretary of State under the National
Health Service Act 2006 (c. 41) by virtue of paragraph 11 or 13 are
exercisable by the Welsh Ministers concurrently with the Secretary of
25
State, and
(b)
functions exercisable by the Welsh Ministers under the National
Health Service (Wales) Act 2006 (c. 42) by virtue of paragraph 15 or
17 are exercisable by the Secretary of State concurrently with the
Welsh Ministers.
30
      (2)
In sub-paragraph (1) “cross-border body” has the same meaning as in the
Government of Wales Act 2006 (c. 32).
Transitional provision
19
The amendments made by this Schedule apply in relation to a person
appointed at any time (including a time before the coming into force of those
35
amendments).

Health Bill [HL]
Schedule 4 — Tobacco: minor and consequential amendments
50

Schedule 4
Section 24

Tobacco: minor and consequential amendments
Children and Young Persons (Protection from Tobacco) Act 1991 (c. 23)
1
In section 5(3)(a) of the Children and Young Persons (Protection from
Tobacco) Act 1991 (enforcement action by local authorities in England and
5
Wales), after “district” insert “, county borough”.
Tobacco Advertising and Promotion Act 2002 (c. 36)
2
The Tobacco Advertising and Promotion Act 2002 is amended as follows.
3     (1)
Section 6 (exclusion from advertising offence for specialist tobacconists) is
amended as follows.
10
      (2)
In subsection (1), at the end of paragraph (a), insert “in Scotland”.
      (3)
In subsection (4), after ““premises” in subsections” insert “(A1),”.
4     (1)
Section 8 (displays) is amended as follows.
      (2)
In subsection (1), after “causes to be displayed” insert “in Scotland”.
      (3)
After subsection (1) insert—
15
“(1A)
A service provider established in Scotland is guilty of an offence if,
in the course of providing information society services, the provider
does anything in an EEA State other than the United Kingdom
which, if done in Scotland, would constitute an offence under
subsection (1).”
20
      (4)
For subsection (2) substitute—
“(2)
Nothing in subsection (1) makes it an offence for a service provider
established outside the United Kingdom to do anything in the course
of providing information society services.”
      (5)
In the heading, at the end insert “: Scotland”.
25
      (6)
In relation to a time before section 21 of this Act comes fully into force the
references to Scotland in subsection (1A) inserted into section 8 of the 2002
Act by sub-paragraph (3) are to be read as references to the United Kingdom.
5     (1)
Section 9 (prohibition of free distributions) is amended as follows.
      (2)
After subsection (1) insert—
30
“(1A)
A service provider established in the United Kingdom is guilty of an
offence if, in the course of providing information society services, the
provider does anything in an EEA State other than the United
Kingdom which, if done in the United Kingdom, would constitute an
offence under subsection (1).”
35
      (3)
After subsection (5) insert—
“(5A)
Nothing in subsection (1) makes it an offence for a service provider
established outside the United Kingdom to do anything in the course
of providing information society services.”

Health Bill [HL]
Schedule 4 — Tobacco: minor and consequential amendments
51

6     (1)
Section 11 (brandsharing) is amended as follows.
      (2)
In subsection (3), after “3,” insert “3A, 7A, 7C, 7D,”.
      (3)
After subsection (4) insert—
“(5)
A service provider established in the United Kingdom is guilty of an
offence if, in the course of providing information society services, the
5
provider does anything in an EEA State other than the United
Kingdom which, if done in the United Kingdom, would constitute an
offence under subsection (4).
(6)
Nothing in subsection (4) makes it an offence for a service provider
established outside the United Kingdom to do anything in the course
10
of providing information society services.”
7     (1)
Section 13 (enforcement) is amended as follows.
      (2)
In subsection (1)(a), after “Wales, a” insert “local”.
      (3)
In subsection (3), after “Wales” insert “, Northern Ireland”.
      (4)
Omit subsection (4).
15
      (5)
In subsection (5), after “proceedings” insert “which are—
(a)
in respect of an offence committed in England, and
(b)
”.
      (6)
After subsection (5) insert—
“(5A)
The Welsh Ministers may take over the conduct of any proceedings
20
which are—
(a)
in respect of an offence committed in Wales, and
(b)
instituted in England and Wales by another person under
any provision of this Act or regulations made under it.”
8     (1)
Section 14 (powers of entry etc.) is amended as follows.
25
      (2)
Omit subsection (11).
      (3)
In subsection (12)—
(a)
omit “or” at the end of paragraph (a),
(b)
after paragraph (a) insert—
“(aa)
the Welsh Ministers take over any proceedings by
30
virtue of section 13(5A), or”, and
(c)
after “(as the case may be)” insert “the Welsh Ministers or”.
9     (1)
Section 16 (penalties) is amended as follows.
      (2)
Subsection (1A) (limitation of penalty for certain offences relating to
information society services) ceases to have effect.
35
      (3)
In subsection (2)(a), for “level 5 on the standard scale” substitute “the
statutory maximum”.
      (4)
Sub-paragraph (2) does not apply to offences committed before the coming
into force of that sub-paragraph.
10
In section 17(1) (defences: burden of proof) after “6(1),” insert “7B(5)
40
and (7),”.

Health Bill [HL]
Schedule 4 — Tobacco: minor and consequential amendments
52

11    (1)
Section 19 (regulations) is amended as follows.
      (2)
In subsection (1), after “Powers” insert “of the Secretary of State, the Welsh
Ministers and the Scottish Ministers”.
      (3)
After subsection (1) insert—
“(1A)
Powers of the Department of Health, Social Services and Public
5
Safety to make regulations under this Act are exercisable by
statutory rule for the purposes of the Statutory Rules (Northern
Ireland) Order 1979.”
      (4)
For subsections (3) to (5) substitute—
“(3)
No statutory instrument containing an order under section 7 or
10
regulations under sections 7C, 7D, 8, 9 or 11 is to be made—
(a)
by the Secretary of State unless a draft of the instrument has
been laid before and approved by a resolution of each House
of Parliament;
(b)
by the Welsh Ministers unless a draft of the instrument has
15
been laid before and approved by a resolution of the National
Assembly for Wales;
(c)
by the Scottish Ministers unless a draft of the instrument has
been laid before and approved by a resolution of the Scottish
Parliament.
20
(4)
In any other case, a statutory instrument containing regulations
made under this Act—
(a)
by the Secretary of State is subject to annulment in pursuance
of a resolution of either House of Parliament;
(b)
by the Welsh Ministers is subject to annulment in pursuance
25
of a resolution of the National Assembly for Wales;
(c)
by the Scottish Ministers is subject to annulment in
pursuance of a resolution of the Scottish Parliament.
(5)
The Department of Health, Social Services and Public Safety may not
make regulations under section 7C unless a draft of the regulations
30
has been laid before, and approved by a resolution of, the Northern
Ireland Assembly.
(6)
In any other case, regulations made by the Department of Health,
Social Services and Public Safety under this Act are to be subject to
negative resolution within the meaning of section 41(6) of the
35
Interpretation Act (Northern Ireland) 1954 as if they were a statutory
instrument within the meaning of that Act.”
12
In section 21(1) (interpretation), for the definition of “appropriate Minister”
substitute—
“appropriate Minister”—
40
(a)
in relation to England, means the Secretary of State,
(b)
in relation to Wales, means the Welsh Ministers,
(c)
in relation to Northern Ireland, means the
Department of Health, Social Services and Public
Safety, and
45
(d)
in relation to Scotland, means the Scottish Ministers,”.

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
53

13
In the Schedule (information society service providers), in paragraph 1, in
the definition of “relevant offence”, for “or 9” substitute “, 7D, 8, 9 or 11”.
Schedule 5
Section 33

Investigation of complaints about privately arranged or funded adult social
care
5
Part 1
New Part 3A for the Local Government Act 1974
1
The Local Government Act 1974 (c. 7) is amended as follows.
2
After Part 3 (local government administration) insert—
“Part 3A
10
Investigation of complaints about privately arranged or funded
adult social care
Private adult social care: matters subject to investigation
34A
Interpretation: “adult social care provider” and “adult social care”
(1)
This section applies for the purposes of this Part.
15
(2)
“Adult social care” means social care within the meaning of Part 1 of
the Health and Social Care Act 2008 which is provided to persons
aged 18 or over.
(3)
“Adult social care provider” means a person who carries on an
activity which—
20
(a)
involves, or is connected with, the provision of adult social
care, and
(b)
is a regulated activity within the meaning of Part 1 of the 2008
Act.
(4)
Action is to be treated as action taken by an adult social care provider
25
if it is taken by—
(a)
a person employed by that provider,
(b)
a person acting on behalf of that provider, or
(c)
a person to whom that provider has delegated any functions.
(5)
Action is also to be treated as action taken by an adult social care
30
provider if—
(a)
that provider provides adult social care by means of an
arrangement with another person, and
(b)
the action is taken by or on behalf of the other person in
carrying out the arrangement.
35
34B
Power to investigate
(1)
Under this Part, a Local Commissioner may investigate a matter—

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
54

(a)
which relates to action taken by an adult social care provider
in connection with the provision of adult social care, and
(b)
in relation to which Condition 1 or 2 is met.
(2)
But a Local Commissioner may not conduct an investigation under
this Part in respect of any action or matter described in Schedule 5A.
5
(3)
Condition 1 is met if a complaint about the matter which satisfies
sections 34C and 34D has been made to a Local Commissioner.
(4)
Any question whether Condition 1 is met in relation to a matter is to
be determined by a Local Commissioner.
(5)
Condition 2 is met if—
10
(a)
the matter has come to the attention of a Local Commissioner,
and
(b)
section 34E applies to the matter.
(6)
Before investigating a matter under this Part a Local Commissioner
must be satisfied that—
15
(a)
the matter has been brought, by or on behalf of the person
affected, to the notice of the adult social care provider to
which it relates and that that provider has been afforded a
reasonable opportunity to investigate the matter and to
respond, or
20
(b)
in the particular circumstances, it is not reasonable to expect
the matter to be brought to the notice of that provider or for
that provider to be afforded a reasonable opportunity to
investigate the matter and to respond.
(7)
In subsection (6) the reference to a person affected includes a
25
reference to that person’s personal representatives.
(8)
In deciding whether to initiate, continue or discontinue an
investigation, a Local Commissioner must, subject to the provisions
of this section and sections 34C to 34E, act in accordance with the
Local Commissioner’s own discretion.
30
(9)
Without prejudice to the discretion conferred by subsection (8), a
Local Commissioner who is satisfied with action which the adult
social care provider concerned has taken or proposes to take may in
particular decide—
(a)
not to investigate a matter, or
35
(b)
to discontinue an investigation of a matter.
(10)
Her Majesty may by Order in Council amend Schedule 5A by
adding, omitting or changing a description of an action or matter.
(11)
A statutory instrument containing an Order in Council made under
subsection (10) is subject to annulment in pursuance of a resolution
40
of either House of Parliament.
34C
Who can complain
(1)
A complaint about a matter under this Part may only be made—
(a)
by a member of the public who claims to have sustained
injustice in consequence of the matter (“P”),
45
(b)
by a person authorised in writing by P to act on P’s behalf, or

Health Bill [HL]
Schedule 5 — Investigation of complaints about privately arranged or funded adult social care
Part 1 — New Part 3A for the Local Government Act 1974
55

(c)
in accordance with subsection (2).
(2)
Where a member of the public by whom a complaint about a matter
might have been made under this Part (“D”) has died or is otherwise
unable to authorise a person to act on D’s behalf, the complaint may
be made—
5
(a)
by D’s personal representatives (if any), or
(b)
by a person who appears to a Local Commissioner to be
suitable to represent D.
34D
Procedure for making complaints
(1)
Subject to subsection (3), a complaint about a matter under this Part
10
must be made—
(a)
in writing, and
(b)
before the end of the permitted period.
(2)
In subsection (1)(b), the “permitted period” means the period of 12
months beginning with—
15
(a)
the day on which the person affected first had notice of the
matter, or
(b)
if the person affected has died without having notice of the
matter—
(i)
the day on which the personal representatives of the
20
person affected first had notice of the matter, or
(ii)
if earlier, the day on which the complainant first had
notice of the matter.
(3)
A Local Commissioner may disapply either or both of the
requirements in subsection (1)(a) and (b) in relation to a particular
25
complaint.
34E
Matters coming to attention of Local Commissioner
(1)
This section applies to a matter which has come to the attention of a
Local Commissioner if—
(a)
the matter came to the Local Commissioner’s attention
30
during the course of an investigation under Part 3 or this Part,
(b)
(subject to subsection (3)) the matter came to the Local
Commissioner’s attention—
(i)
before the person affected or that person’s personal
representatives had notice of the matter, or
35
(ii)
in any other case, before the end of the permitted
period, and
(c)
it appears to the Local Commissioner that a member of the
public has, or may have, suffered injustice in consequence of
the matter.
40
(2)
In subsection (1)(b)(ii), “the permitted period” means the period of 12
months beginning with—
(a)
the day on which the person affected first had notice of the
matter, or
(b)
if the person affected has died without having notice of the
45
matter, the day on which the personal representatives of the
person affected first had notice of the matter.