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The Minister of State, Department of Health (Lord Warner) rose to move, That the draft order laid before the House on 26 April be approved [25th Report from the Joint Committee].
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The noble Lord said: My Lords, this order for pre-consolidation is made under Sections 36 and 38 of the National Health Service Reform and Health Care Professions Act 2002. Those provisions enable the Secretary of State to make by order amendments to legislation relating to the health service in England and Wales which facilitate, or are otherwise desirable in connection with, the consolidation of NHS law.
The order allows minor technical changes to the law prior to its consolidation. It affects the National Health Service Act 1977 and other health service legislation. The 1977 Act itself consolidated prior health legislation. There followed numerous statutory changes that have made applying the law a more complex task which calls for consolidation. For example, my noble friend Lord Hunt of Kings Heath pointed out in 2002 that the 1977 Act had been amended by 57 further statutes.
The department intends to introduce three Bills in June to consolidate NHS law in England and Wales: the National Health Service Bill (England), the National Health Service Bill (Wales) and the National Health Service (Consequential Provisions) Bill. The three Bills have been prepared by the Law Commission, and represent many years' hard work by the draftsmen at the commission. I am extremely grateful for their work.
I am very pleased that the parliamentary stages are underway, with this pre-consolidation order being the first stage of the process. The provisions of the pre-consolidation order are compatible with the European Convention on Human Rights. Furthermore, we have had nothing but supportive feedback from stakeholders within our 12-week consultation period. The order makes minor amendments to the National Health Service Act and other health service legislation. The amendments can be broadly categorised as: desirable to clarify the legislation or remove an element of ambiguity from it; necessary to remedy missed consequential provisions; incorporating modifications; dealing with local health boards in Wales; removing certain requirements for Treasury consent before certain payments can be made; remunerating practitioners; and repealing provisions which are either spent or are unnecessary.
The order is not therefore the most exciting of reads. None the less, I will try and give a flavour of the order. The Explanatory Memorandum gives a detailed explanation of each of the provisions in Schedule 1. I hope this has been of assistance. The order enables consolidation to remove ambiguity. One example of this is Schedule 1(2), which amends Section 3 of the National Health Service Act 1977. In a legal dispute of July last year, the Court of Appeal, on intervention by the Department of Health, reversed a court decision to narrowly construe the term "facilities." The order amends Section 3 to more clearly reflect the finding of the court in that case.
The order also aims to correct a number of missed consequential amendments. The first example concerns the NHS and Community Care Act 1990 and the Health and Social Care Act 2003. A large part of the
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order incorporates provisions in relation to local pharmaceutical services. The National Health Service Local Pharmaceutical Services Regulations 2006 recently made a number of modifications to the 1977 Act. The order incorporates these modifications into the 1977 Act, thereby making the legislation more accessible.
This brings me to the amendments necessary because of the powers of the National Assembly for Wales. The Assembly has directed local health boards to exercise some of its functions that were transferred to the Assembly on the abolition of health authorities in Wales in April 2003. The consolidation reflects the effect of these functions regulations by substituting references to local health boards for references to health authorities in all relevant sections under the 1977 Act. The order clarifies these arrangements accordingly. Another group of amendments concerns Treasury consent provisions. The order removes the requirement for Treasury consent for certain payments which may be made by the Secretary of State. This is in line with Treasury policy that such
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consent should be reviewed and repealed where appropriate. The Treasury has agreed these amendments.
I should make special reference to the largest amendment. Schedule 1(19) inserts Sections 43A and 43B into the 1977 Act. The consolidation will be more comprehensible if it is possible to reproduce these sections in a simple form, and this amendment, together with the consequential repeals, will enable this. Furthermore, by amending other legislation, the order will provide for a less complex consolidation exercise. For example, the Ministry of Health Act 1919 is spent and is therefore repealed. This avoids the need to reproduce a spent enactment in the consolidation. In summary, the order is an important step in the consolidation of our NHS legislation. I beg to move.
Moved, That the draft order laid before the House on 26 April be approved [25th Report from the Joint Committee.](Lord Warner.)
On Question, Motion agreed to.
House adjourned at twenty-six minutes before nine o'clock.
The Committee met at half-past three of the clock.
[The Deputy Chairman of Committees (BARONESS HOOPER) in the Chair.]
The Deputy Chairman of Committees (Baroness Hooper): I remind the Committee that if there is a Division in the Chamber while we are sitting, the Committee will adjourn at the earliest convenient moment after the Division Bills are rung and will resume after 10 minutes.
Baroness Byford rose to move, That the Grand Committee do report to the House that it has considered the Water Resources (Abstraction and Impounding) Regulations 2006 (S.I. 2006/641) [30th Report from the Merits Committee].
The noble Baroness said: I welcome the noble Lord, Lord Rooker, to his new ministerial post. If we raise issues today that have not come directly to him by now, I shall be more than happy that he should come back to me later.
The Merits of Statutory Instruments Committee spent two pages of its 30th Report on the subject of these regulations. Its main concern is the changes to the advertising requirements for those seeking permission to abstract or impound water. As the matter stands, an applicant must advertise in the London Gazette and on two occasions in a local paper. These regulations would move the responsibility from the applicant to the Environment Agency, drop the London Gazette requirement, reduce local advertising to one occasion and add a requirement to publish the details on the agency's website.
The committee's doubts were that the changes might result in lower exposure and lessen public awareness of the applications. Were that to lead to a fall in representations by the public, it fears that the agency's objective of minimising damage to the environment may be compromised. It comments that Defra has not supplied any evidence that its website is a superior method of communicating information to a public accustomed to obtaining information from its local paper. We agree with those reservations and believe that in rural areas many more people will read their local paper from cover to cover than will perhaps sign on to any website, far less so to one run by DefraI say that with humilityas they might not think that they should look there.
However, a more obscure question occupies us. As things stand, the duty to advertise lies with the applicant. If that duty is not discharged, the application may be refused or approval rescinded. Once the duty lies with the Environment Agency, what will be the result if it is not carried out? Will any
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approval be countermanded? Will any expense by the applicant, based on an approval, be reclaimable from the Environment Agency, and will the applicant be able to sue the Environment Agency for negligence? The regulations appear to be silent on the subject, which is particularly important in relation to the applications made by the Environment Agency for its own purposes. We feel there should be a requirement to tie proof of advertising to the approval documentation.
I should like to direct the Minister's attention to a matter of detail. Under Regulation 6(7) an advertisement should not contain information,
"that is not to be included in a register by virtue of . . . Section 191B (exclusion from registers of certain confidential information)".
Where the application relates to a national park or the broads, Regulation 9(3) excludes from the notice,
Are those two the same thing? If so, should they not be controlled by the same wording? If they are not the same wording or not the same thing, where is the difference? Reading through it, I could not clarify that.
The committee's report also said that there were 39 responses to the consultation, of which seven were from respondents representing agriculture. What were the main concerns of those agriculture respondents? Does the instrument that we are debating overcome their fears? In addition, after the recent announcement of drought orders, what consideration or balance will the Environment Agency give to the needs of the farming community for irrigation to ensure that their crops survive? I understand that there have been orders banning hosepipes and the cleaning of cars, and so on, which I can understand. However, unfortunately, much agricultureespecially horticulture and growing vegetablesis very reliant on water. Interestingly enough, the draft order has been granted to Sutton and East Surrey Water, but I understand that applications have also been made from water companies in East Anglia, where a lot of such crops are grown.
The explanatory RIA said that 1,200 applications were made each year, one-third of which are no longer necessary as they fall below the minimum registration amount of 20 cubic metres, for which we are grateful. We debated that when we took the Water Bill through, and we were glad that we persuaded the Government to exclude those applicants. But that leaves some 939 applicants, of whom some 469 get some dispensation. Can we have clarification on who is getting what?
I understand, too, that no charge will be made for the information put out on the Environment Agency website, which is good to have. But I should like clarification on whether newspaper costs will be recovered from the applicant. We are told that the sums will be of a modest charge to cover the administrative costs. Does that mean the total cost or the costs just for advertising? Again, that was not made clear.
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It is for these reasons that I bring this Motion before us today. I look forward to hearing from the Minister. I beg to move.
Moved, That the Grand Committee do report to the House that it has considered the Water Resources (Abstraction and Impounding) Regulations 2006 (S.I. 2006/641) [30th Report from the Merits Committee].(Baroness Byford.)
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