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Lord Skelmersdale: My Lords, I apologise if I have surprised the noble Lord by the way I introduced the amendment. I shall be delighted to receive one of his missives—he has written and circulated quite a few during the course of the Bill—as long as it is received promptly.

The fact is that the Minister does not know the answer to my question but he will tell me in due course. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 160 [Liability of insurers]:

Lord Skelmersdale moved Amendment No. 387:

The noble Lord said: My Lords, Clause 160 on the liability of insurers makes it quite clear that liability imposed on the insurer as far as the duty to pay NHS charges is concerned is absolute. It cannot be excluded or restricted. That I found all very well until I re-read the whole clause together with the Explanatory Notes. Subsection (4) states that regulations may in prescribed cases limit the amount of the liability—the absolute liability to which I have just referred—imposed on the insurer by way of his duty to pay. The Explanatory Notes posit a case that that might be appropriate, for example, to enable a reduction in the NHS costs payable where an insurer has covered only a proportion of the total compensation as a result of the cap on the amount payable under the insurance policy.

I simply cannot understand how these two subsections fit together. Either the duty is absolute, as I have said, or it is not. It cannot be both. The duty on the insurance company is twofold: first, to apply for a certificate and secondly to pay the amount requested within the 14 days, plus to pay any extra money requested in a supplementary certificate. As far as I can see, that is the limit of his liability to the Secretary of State and applies in every case where a successful claim for injury is made. Secondly, the company may not issue a restricted policy in this regard.

I am totally confused and I hope that this time the Minister can satisfy me on what on earth is going on. I beg to move.

Lord Warner: My Lords, I hope to be able to elucidate. Clause 160(1) specifies that where a qualifying compensation payment is made and the insurance policy covers a person's liability in respect of the injury, the policy must be treated as also covering any liability to pay NHS costs.

Clause 160(2), which the amendment would delete, ensures that the insurers' liability to pay NHS costs cannot be restricted or excluded. Without it, it would be

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possible for insurers to avoid covering the liability to pay NHS costs by limiting, or even excluding, NHS costs from the cover provided by the policy. It was not necessary to include provisions covering this in the Road Traffic (NHS Charges) Act 1999. That legislation specified the types of insurance policy that attracted NHS costs recovery.

Under the extended scheme, many different kinds of insurance policies could attract NHS costs recovery—too many to specify on the face of the Bill. It was therefore necessary to make other provisions to ensure that insurers cannot avoid liability for NHS costs.

As I explained during discussion of the clause in Committee, the majority of NHS costs will be recovered as a result of an insurance policy. There is no provision for the liability to pay NHS costs to be transferred to someone other than the person making the compensation payment. Thus, the amendment could vastly reduce the additional 150 million that we expect to be recovered. We think the risks attached to the amendment are far too serious. That is why the Government cannot accept it.

Lord Skelmersdale: My Lords, I was not expecting the amendment to be accepted; I was expecting an explanation of not only why but how all this would work. I well understand that these provisions were not in the Road Traffic (NHS Charges) Act. It was necessary to make provisions to ensure that there would be no avoidance of the payment of charges. I am still totally confused about the two differences, as it were, of liability. Perhaps I could respectfully suggest that the Minister has another go in another letter, or indeed in the same letter that he promised me on the previous amendment. If he can do that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 167 [Dental public health]:

Earl Howe moved Amendment No. 388:

    Page 82, line 23, at end insert—

"(6) Regulations made in respect of the matters set out in this section may not be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament.""

The noble Earl said: My Lords, I have retabled this single amendment from those I tabled in Committee in a final attempt to persuade the Minister that the very substantial changes we are about to see in dental public health are such that Parliament should have a guaranteed debate about them when the regulations are introduced.

In particular, we are all very conscious that the proposed dental public health duties of PCTs and local health boards take us into new territory. How NHS dentistry is remunerated and the shift of emphasis that this will bring—all being well—away from routine treatment and towards prevention is imaginative and exciting as a concept, but still vague in its detail.

The key to its success will be the incentives that are offered to dentists to increase their productivity. The regulations, when they appear, will show us exactly what those incentives are. As the Minister knows, I

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admit to a worry that the available resources for dentistry will be inadequate to do all the very worthy things that the Government want done.

If we are permitted a debate under the affirmative procedure, we shall at least have a chance, which we do not have today, to test the Government on the assumptions underpinning their plans. It would be helpful if between now and Third Reading the Minister were to agree to take away this issue and have another look at it. I hope that she will do so. I beg to move.

Baroness Andrews: My Lords, in Committee, I spoke at some length about the opportunities that the changes in dental health policy would bring. I tried to address the question of incentives in terms of the restructuring of pay for dentists and the encouragement that that would give for oral health and a more sensible approach to real dental needs. I shall not reiterate that. Of course the noble Earl is at one with us in welcoming the changes as a way of promoting and sustaining oral health as part of our strategy on reducing health inequality.

Clause 167 inserts new Section 16CB into the 1977 Act. Subsection (1) provides for regulations to confer dental public health functions on PCTs. Indeed, we had a short debate in Committee on the capacity of PCTs. We intend the functions to include oral health promotion, school screening and plans to manage dental health services locally. I expect other functions to be added in due course. As I said then, because dental public health is a community-wide issue, PCTs may act jointly in discharging that function.

I am also conscious that I shall have to repeat the response that I gave in Committee about why we intend to continue with negative regulations. The argument—which is powerful—is that it is consistent and in keeping with equivalent existing powers. It is fully appropriate given the matters to be legislated for. Indeed, no other regulations under the 1977 Act are subject to the affirmative resolution procedure.

Before I turn to government Amendment No. 403 relating to dental charges regulations, they may be an exception to that. We have made that concession for positive reasons. I shall have something to say about that when I speak to the amendment.

I can hardly conclude the debate without again citing the Select Committee on Delegated Legislation, which again made no recommendation for affirmative procedure for the regulation-making powers. I accept that the Opposition insist on affirmative regulations for this section; I hope that they will be persuaded that we have a case, for consistency, for the negative procedure.

9.15 p.m.

Earl Howe: My Lords, as ever, I am grateful to the noble Baroness, but I am disappointed that she does not see the matter from our point of view. I shall not press it, but we seem to be heading for a set of major changes affecting the delivery of dental care in public health, which the other place, in particular, may never

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be able fully to debate. That worries me. However, I sense a brick wall when I hear one, so there is little more for me to say than to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 168 [General dental services contracts]:

Earl Howe moved Amendment No. 389:

    Page 83, line 3, at end insert—

"( ) The first regulations made under this section may not be made until a draft of the regulations has been laid before and approved by a resolution of each House of Parliament."

The noble Earl said: My Lords, I move the amendment with a slightly greater sense of optimism in the light of the Minister's previous remarks. The amendment would require that the first regulations made under new Section 28K of the National Health Service Act 1977, as inserted by Clause 168, are subject to the affirmative procedure.

In Committee, we had a useful exchange about the new general dental services contract—in particular, about how the financial mechanisms for payments to dentists and collection of NHS charges would work. My noble friend Lord Colwyn explained to the Committee how incredibly complex is the issue and the noble Baroness, Lady Andrews, told the Committee about the work in hand, which is still far from complete.

We had all rather hoped to receive a comprehensive explanation of how the new system and incentives would work to ensure that the NHS received the income from charges that it was due—especially as it appears to be agreed that dentists will not be required to accept responsibility for that. However, it was clear from that debate that the Government are not sufficiently advanced to allow Parliament to consider how the scheme will work before the Bill is passed.

It is important for Parliament to know how the new system is to be implemented. We clearly cannot delay the Bill until the Government reach a conclusion. Hence, my amendment requires the first regulations made under Section 28K to be subject to the affirmative procedure. I hope that the Minister will be receptive to that suggestion. I beg to move.

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