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"it appears to the regulator that it provides goods or services only or mainly for the prevention, diagnosis or treatment of any disorder or disability of the mind or for the benefit in any other way of people suffering from a disorder or disability of the mind."
The hon. Gentleman asked about the judicial review. Our view was that it would be better to delay our review of the matter until after we had seen the view expressed by the courts. However, lawyers consider such things with a degree of care, and I have done so and taken the view that the courts would actually want to know how the Government propose to deal with these issues. I believe that it would therefore assist the courts if we set out how we propose to do so, so that the fact that we are conducting a review can be taken into account in any judgment that they reach in due course in relation to the judicial review. He asks whether we have changed our mind: yes, we have. Have we considered the matter again? Yes. Have we taken the view that we can go ahead with the change now? Yes, we have-I have taken advice from those who advise us and taken the view that we can move forward. [Interruption.] It was a lawyer's examination of the issues, to reach a sensible conclusion based upon the evidence.
Mr. Mike O'Brien: The new clause is designed to correct a drafting mistake that was made in the Health Act 2006, which is now consolidated into the National Health Service Act 2006. I understand that the error was spotted by officials on 8 September this year, and the new clause makes no change in policy.
Since the introduction of the optical voucher scheme in 1986, Government policy has been that eligibility for NHS optical vouchers should be targeted at children and those who are in receipt of a qualifying income-related benefit or need a complex optical appliance. Those eligible for help on low-income grounds include those aged 60 or over. The change introduced in the Health Act 2006 seems mistakenly to have extended eligibility for optical vouchers to all people aged 60 or over, regardless of income. That was not referred to in the explanatory notes to the Act, and it was not the subject of an impact assessment or consultation. It was a mistake made during the process of preparing the draft Bill.
Before Opposition Members have fun with this-I would expect no less-I remind them of the minor fact that although it is true that Ministers at the time did not spot that the wording was wrong, neither did either Opposition party's Front Benchers, so let us not be holier-than-thou about this. We accept that there appears to have been a drafting error. There seems to have been some lack of clarity in the Department of Health's instructions, which led to a mistake in drafting that was never picked up in this place or the other place. The new clause simply corrects that error and reinstates the legislation that reflects our long-standing intention and policy, including at the time of the Health Act 2006-to maintain entitlement unchanged.
No one eligible for an optical voucher before the mistake was made is affected by the new clause. Our view continues to be that help with the cost of optical appliances through the NHS voucher scheme should be targeted at those most in need, and that that
represents the best use of NHS funds. That view predates our Government and has continued, by and large, under this Government.
Mr. Mike O'Brien: I dare not concede that. Our draftsmen do an excellent job, and we certainly do not want to upset them. My guess is that there was just a lack of clarity in some of the instructions that were sent over. It is difficult to be clear about why the mistake originally arose, but arise it did. By the way, we spotted it, and we are dealing with it now. People aged 60 and over are eligible for NHS-funded sight tests in view of their increased risk of eye disease, and that will continue. There are conditions in relation to the application of the rules. Our policy is unchanged and the new clause merely corrects an error in the legislation.
Mike Penning: The Minister is right-we might have a little fun, but only for a few moments because I do not want to delay matters. I thank him for the letter of 2 October to my colleague, informing the official Opposition that the Department had found the mistake-three years after it was included in the measure; the Minister forgot to mention how long it had taken. However, he is right that the provision was not intended to be in the 2006 measure-I have looked through the work that took place long before I joined the Front Bench to ascertain how the Bill went through. He should be commended on his intention to continue the previous Conservative Government's work on optical vouchers.
I noted the Minister's comment that the shadow Secretary of State had taken part in proceedings on the Bill and that perhaps he should have picked up the mistake. Not quite as many lawyers work for Her Majesty's Opposition as for the Department of Health. While we are having a bit of banter, let me point out that the hon. Member for Lincoln (Gillian Merron), now a Minister in the Department, was the Whip on the Bill. One therefore wonders whether the Bill that we are considering today, about which she may comment-she served on the Committee-has had the same sort of scrutiny that took place in 2006.
Sandra Gidley: I have little to add. I had spotted the flaw that neither Ministers nor the Opposition teams found. It made me wonder whether we had inadequate time for scrutiny. Bills are heavily timetabled in Committee nowadays and clauses often do not receive the attention that they perhaps would if we had a little more time.
I am amazed that the mistake took three years to come to light. However, I have a question for the Minister. Should I advise my mother, who is over 60 but currently does not qualify for free spectacles, to get out there quickly and get her vouchers before the changes come into force?
Mr. Mike O'Brien: The policy remains exactly as it was. The best advice for the hon. Lady's mother is that the NHS has rules, which it has applied and will continue to apply. If her mother qualified previously, she qualifies now. If she did not qualify previously, she does not now.
'(1) The Secretary of State shall make regulations to require a business which in the course of its activity sells a tobacco product or causes one to be sold to disclose details of its marketing and research activities.
(3) The Secretary of State shall make regulations to require disclosure of information and results from all market research and scientific research conducted by the businesses specified in subsection (1) in relation to tobacco products by type of product.
(4) The Secretary of State shall require all information required by subsections (1) and (3) to be submitted on a quarterly basis by businesses specified in subsection (1) and shall, within three months, publish a report aggregating the data.
(6) The provisions of section 13 (Enforcement), 14 (Powers of entry, etc), 15 (Obstruction, etc of officers) and 16 (Penalties) of the Tobacco Advertising and Promotion Act 2002 shall apply to this section.'.
'Within six months of the passing of this Act, the Secretary of State shall set out guidance for consultation with appropriate stakeholders on regulations prohibiting or restricting the use of logos, colours, brand images or promotional information on tobacco packaging other than brand names and product names displayed in a standard colour and font style.'.
I was a proud member of the Select Committee on Health that pushed the Government from a partial ban on smoking in public places to a full ban. I did not think that anyone should be protected under the legislation on a cherry-picking principle. It should be one rule for all or not at all. I was therefore pleased that the Select Committee, after taking a lot of evidence, reached conclusions that meant that an amendment was tabled and, on a free vote, the House came to a sensible decision.
Unless things have changed since the debate began, I am sad that the two main Opposition parties have a free vote this evening, while the Government party does not. That is a shame. It is an issue of conscience- [Interruption.] No, the Government party does not have a free vote-Labour Members can ask the Minister. Some selective voting by Labour Members may happen, but the Government will oppose the amendments and that is a shame.
Mike Penning: That is a sensible point. We did not force any votes in Committee because we wanted the House to have the opportunity to express a view and did not want to constrain the House. I said to the Minister in Committee that the evidence appeared to be selective. I understand where it came from; I have nothing but admiration for Cancer Research UK and Action on Smoking and Health-ASH. I have worked with them in the past and will continue to do that. However, it is a Minister's job to examine all the evidence so that legislation is evidence-based.
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