Written evidence submitted by the Welsh
NHS Confederation
I refer to the Welsh Affairs Committee's recent request
for written submissions to support their pre-legislative scrutiny
for the proposed Legislative Competence Order in Council on Health
and Health Services. The NHS in Wales, via the Welsh NHS Confederation,
would offer the following comments on the proposed Order:
1. Is the LCO request in the spirit and scope
of the devolution settlement?
Yes, it seems appropriate for the Welsh Assembly
Government to seek competence from Parliament in relation to organ
donation.
2. Is the use of the LCO mechanism in accordance
with the Government of Wales Act of 2006?
Yes, given that the Government of Wales Act 2006
allows the Assembly to seek competence, via an LCO.
3. Does the Order relate to Field 9, Part
1 of Schedule 5 and Subject 9, Schedule 7 of the Government of
Wales Act 2006?
We are not in a position to comment on the legal
details of the Government of Wales Act or Field 9, Part 1, Schedule
5 of the Government Wales Act and Subject 9 of Schedule 7.
4. To what extent is there a demand for legislation
on the matter(s) in question?
Although there is no definitive audit of the level
of demand for legislation; public and professional opinion would
appear to support the need for legislation in favour of presumed
consent.
5. Are there any cross border issues relating
to the LCO?
It is important that the scope of the LCO in clarifying
in particular who the system of presumed consent will apply to
and who will be excluded. However, we assume that this level of
detail will be included in the measure.
6. Are the purpose and scope of the LCO clearly
defined, including the terms and definitions?
We believe the purpose and scope of the LCO is clearly
defined as is the definition of deceased adults.
7. Does the LCO have the potential to increase
the regulatory burden on the private or public sector?
Any new system has the potential to increase the
regulatory burden but we are not aware of the proposed implementation
so are unable to comment in detail at this time.
8. Would the proposed LCO necessitate the
formation or abolition of Welsh institutions and structures? If
so, where does the legislative competence to exercise such changes
lie?
We are not aware that the proposed LCO will necessitate
the formation or abolition of Welsh institutions or structures
at this time.
9. Is the use of the LCO more appropriate
than, for example, the use of the framework power in a Westminster
Bill to confer competence on the Assembly?
Yes, from our limited knowledge of this we understand
that in order to seek powers in a Westminster Bill there needs
to be a Bill going through Parliament.
10. Has the full use been made of any existing
powers to issue statutory guidance and/or secondary legislation
in relation to this matter?
We are not in a position to be able to comment on
this matter.
11. Does the LCO have the potential to cause
confusion regarding legal jurisdiction and individuals to whom
any measure would apply to?
The detail of the measure would need to make it clear
the legal jurisdiction and individuals to whom it will apply.
12. What are the implications of Article 8
and Article 9 of the European Convention on Human Rights on such
a measure?
We are unable to comment on this issue although we
would anticipate that the Welsh Assembly Government would always
act in accordance with the European Convention on Human Rights.
February 2011
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