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If Section 86 powers are transferred, there will be a direct benefit to patients. Let me exemplify that point: currently, hospital managers in Wales inform the Secretary of State for Health that a patient needs to be removed from a hospital in Wales under Section 86. Subsequently, either the hospital managers or the Secretary of State for Health will refer the case to the independent Mental Health Review Tribunal for Wales. After the tribunal has considered the case, it passes its advice and recommendations to the Department of Health and the Secretary of State for Health. The transfer process will be expedited by virtue of hospital managers in Wales being able to make direct requests to Welsh Ministers, who will then be able to take the decision regarding removal, based on the advice of the Mental Health Review Tribunal, without the need to refer the matter to the Department of Health and the Secretary of State for Health. The line of responsibility and accountability will be greatly clarified as a result of the transfer of functions. The proposed transfer of functions under Section 86 will set right the anomaly in how powers under the Mental Health Act 1983 have been transferred to Welsh Ministers. There are no significant cost issues relating to this transfer.

The proposed transfer of functions under Section 259 of Schedule 21 to the National Health Service Act 2006 in relation to the sale of good will of medical practices would give Welsh Ministers the responsibility and power to grant certificates stating that no good will has been sold. Subject to specified exceptions, the sale of good will of medical practices is prohibited

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under Section 259 of the Act. Schedule 21 makes it an offence to sell good will contrary to Section 259, which provides that any person proposing to be a party to a transaction which they think might amount to the sale of good will of a medical practice has to ask the Secretary of State for Health for a certificate confirming that the transaction does not give valuable consideration in respect of the good will. This function is currently exercised by the National Health Service Litigation Authority on behalf of the Secretary of State for Health for England and Wales.

No issue arises regarding cross-border practices. The premises are being sold, not the patients registered at the practice. If the premises are physically in England, the National Health Service Litigation Authority would continue to be responsible for issuing a certificate confirming that no good will has been sold. The transfer of functions order would make the Welsh Assembly Government responsible for issuing the same certificates to GP practices in Wales. There are no major financial implications relating to the proposed transfer of functions under Section 259 and Schedule 21, as the small administrative costs in dealing with cases will be funded from existing resources. I beg to move.

Moved, That the draft order laid before the House on 22 April be approved. 17th Report from the Joint Committee on Statutory Instruments.—(Baroness Morgan of Drefelin.)

Lord Livsey of Talgarth: My Lords, I thank the Minister for her statement on this historic statutory instrument, which transfers to Welsh Ministers functions of a Minister of the Crown. This is the first draft instrument to be made under the Government of Wales Act 2006. As the Minister rightly said, it relates to Section 88 of the 1983 Act and Section 259 of Schedule 21 to the NHS Act 2006. The process, as a result of the Government of Wales Act 2006, transfers powers to Welsh Ministers. Previously, these functions were transferred to the Assembly. This clarifies the difference between the Executive, in the form of the Ministers, and the Assembly, which can now concentrate on scrutiny and revising. Some say that this dilutes democracy in Wales, but previously there was a lot of confusion over the role of the Assembly. As a result of the 2006 Act, Welsh Ministers can be more accountable to the Assembly, which can, if necessary, give them a very hard time. In that respect they represent the people of Wales.

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We approve of the principle of the transfer of powers found in this statutory instrument. The draft order relates to the provisions in the Mental Health Act 1983 regarding the movement of detained patients subject to guardianship between England and Wales and any country abroad. It also relates to Section 86 of the Mental Health Act 1983 where a patient is receiving treatment for mental illness in a hospital. This applies on the one hand to patients concerned in criminal proceedings or under sentence and on the other hand to civil patients detained in hospital. Obviously, patients involved in legal proceedings remain the responsibility

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of the Secretary of State for Justice, whereas the other patients will now be the responsibility of the appropriate Welsh Ministers.

We support this transfer of powers, as it is entirely in line with the devolution settlements of 2006 and 1998 whereby the National Assembly for Wales was given responsibility for mental health. The line of accountability will now be much clearer. Where the restriction orders are in place, it seems entirely logical for direction to remain, for the time being, with the Secretary of State for Justice. The National Assembly for Wales and its Ministers do not have powers in relation to criminal law, although eventually this may change. Section 259 of Schedule 21 to the National Health Service Act 2006, which refers to issues relating to GP practices and the prohibition of the sale of good will, us entirely sensible. We agree with this order.

Lord Elystan-Morgan: My Lords, I too welcome the context in which the draft order is presented and its contents. The general context is that of devolution, and it bears out the famous words of Mr Ron Davies when the Welsh Assembly was established that this was the beginning of a process rather than a single happening. Here we have the transfer of two fairly limited executive functions to Wales. The Section 86 transfer gives Welsh Ministers jurisdiction in relation to civil patients in mental hospitals and thereby removes an anomaly that has existed for quite a long time.

Anybody who has had any dealings with the Home Office in relation to the Mental Health Act 1983 will appreciate that the boundary between health jurisdiction and that of the Home Office runs right through that Act. I can remember some conflict when I had the pleasure of being a Junior Minister in the Home Office.

The anomaly exists because this situation was entirely at the join between the jurisdictions of those two departments. When, in 2007, that situation was resolved as far as England and Wales were concerned generally, by allocating the criminal functions to the Home Office and the health functions under Part 2 of the Act to health Ministers, clearly Wales had to follow suit and remove that anomaly. The protection for the individual remains and the rules remain basically the same for Wales as for England, save that the executive decision will now be made by Welsh Ministers. It would have been entirely absurd for the certificate on the sale of good will under Section 259 of the National Health Service Act 2006 to have been granted in relation to a Welsh situation by anybody other than a Welsh Minister or, more correctly, the body advising on behalf of the Welsh Minister.

The noble Lord, Lord Livsey, has already drawn attention to the historic significance of this first order made under Section 58 of the Government of Wales Act 2006. It is surprising, bearing in mind the volume of activity in this field, that something has not come along earlier. Be that as it may, we welcome it very much. I hope it is indicative of the way in which devolution in Wales will develop along three paths: first, under Part 3 of the Act; secondly, as far as ministerial transfers are concerned; and, thirdly, the framework provision transfers which we have already been concerned with over the past few years. The

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canard was widely circulated in Wales when the Government of Wales Act was considered that the Welsh Assembly could be nothing more than a Glamorgan County Council on stilts. Whatever truth there was in that, we now have the division between the Executive and the National Assembly, making the Welsh Assembly much more in the outline of a Parliament than ever before.

The noble Lord, Lord Livsey, mentioned a matter which I had considered while looking at these papers: whether one was taking power out of the hands of a democratic Assembly—as would have been the case before the 2006 legislation—and transferring it to the single hand of a Minister. I think that it was in 1935 that Sir Gordon Hewart wrote his book The New Despotism, describing how jurisdiction and authority moved from the Benches of the other place and this House to the hands of a single Minister. For the past 75 years, it has been one inexorable drift in that direction. Although I agree to some extent with the point of the noble Lord, Lord Livsey, we must accept that, and it has long been accepted.

Lord Jones: My Lords, surely it is entirely appropriate for Wales Assembly Ministers to exercise this function. One presumes that, as every such order makes its administrative way to Cardiff, the Wales Assembly gains in confidence and status. The process may well evidence a further accretion of powers by the Wales Assembly Government—powers that it has sought and that most people in Wales will surely agree with. In that, we are observing a further maturation of the Wales Assembly’s achievement. “More constitutional creep” is not the phrase that I am thinking of, but it is something like that. One hopes that this legislation will lead to more and better governance; good governance is surely the objective of what we are discussing. I hope too that it aids better services for ordinary people at the grass roots; that surely is another objective of such legislation.

The subject of mental health is important. I recollect as a Welsh Office Minister receiving advice from the now noble Lord, Lord Prys-Davies. As a special adviser in the mid-1970s he gave wise advice to Ministers, and we made advances in mental health in which he had an important role.

I ask the Minister to tell us of an instance of the sale of good will. In paragraphs 7.9 to 7.12 of the Explanatory Memorandum, there are references to professional procedures that are somewhat puzzling to the lay person. What amounts of money might be paid for good will? Is it many thousands of pounds? Can she furnish us with an example to illuminate our proceedings?

However, the transfer of functions order regarding medical practice and certificates must surely be the right procedure. I wish this legislation well.

Lord Glentoran: My Lords, I thank the noble Baroness for her clear, if lengthy, explanation of the order. I have spoken last on this occasion because I feel rather humbled by so many ex-Welsh Ministers around the House, who have much greater knowledge of the issues than I have.



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Having read the brief debate held in another place, I am satisfied that the basic essence of this statutory instrument is to be applauded and agreed to. The honourable David Jones challenged the Minister in another place, Huw Irranca-Davies, about various costs and the question of how good will might be handled, and was answered satisfactorily by him.

I do not feel the need to go on longer, except to say that we all appreciate that anything to do with mental health and its patients needs a soft and sensitive touch. I believe that the order will clarify the route that needs to be followed and make it simpler. From what I have been able to read, I do not see that there should be any cross-border problems and, in general, we on these Benches support the order.

Baroness Morgan of Drefelin: My Lords, like the noble Lord, Lord Glentoran, I feel humbled when I come to the Chamber and propose such orders. The wealth of experience and the quality of contributions is truly enlightening for me. The noble Lord, Lord Livsey, reminded us of the historic importance of the transfer of functions under the Government of Wales Act, which I did not mention in my somewhat lengthy introduction to the order. I welcome his support for it and am grateful that the noble Lord, Lord Elystan-Morgan, took the time to examine the proposed transfer with his eagle eye and give us the benefit of his analysis.

I thank the noble Lord, Lord Glentoran, for his reassurance that my honourable friend in the other place was able to answer his colleague’s questions adequately. My noble friend Lord Jones was concerned to find out if there had been payments for good will made following the sale of premises or property owned by GPs’ practices. No such payment has been made for good will, precisely because this is about ruling out such payments.

I offer further clarification to my noble friend: the good will that we are talking about is the value of what a GP practice may own other than tangible assets such as premises and equipment. For example, good will may be derived from the provision of an out-of-hours service, additional or enhanced services or non-medical business assets. Good will relates to the intangible factors that give a practice a good reputation and encourage patients to register with that practice. We are also talking about the issuing of a certificate to show that there has been no sale of good will: that is the important point. I hope that noble Lords will agree to the order. I commend it to the House.

On Question, Motion agreed to.

National Assembly for Wales (Legislative Competence) (Social Welfare) Order 2008

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The Parliamentary Under-Secretary of State, Department for Innovation, Universities and Skills (Baroness Morgan of Drefelin) rose to move, That the draft order laid before the House on 22 May be approved.



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The noble Baroness said: My Lords, we have just debated the order that confers executive functions on Welsh Ministers. This draft order, covering charges for non-residential social care services, will confer legislative competence on the National Assembly for Wales under Section 95 of the Government of Wales Act 2006. Noble Lords will recall that we previously approved an order giving legislative competence to the National Assembly for Wales relating to children and young people with additional learning needs.

The Order in Council process created by the Government of Wales Act 2006 provided an improved mechanism to enable the Assembly to achieve its legislative priorities. No longer must the Assembly fight for space in future Queen’s Speeches for Westminster Bills. As noble Lords are aware, these orders are subject to affirmative resolution in both Houses and the approval of the National Assembly for Wales. Parliament decides on a case-by-case basis whether legislative competence in a certain area should be devolved. Many questions must be asked to make this determination. Is it appropriate for the Assembly to have legislative competence in this area or would it be better remaining at a UK level? Has a clear case for powers been made? Is the scope of the order appropriate to allow the Assembly to legislate effectively in this area? The details of any measure that the Assembly Government wish to pass—the Welsh equivalent of an Act of Parliament—are not for the Government or Parliament to consider. They will be wholly for the National Assembly for Wales to scrutinise.

On 20 May, the National Assembly considered and unanimously agreed the order that is before this House. Subject to the agreement of this House this evening, and that of the other place next week, the order will confer further legislative competence on the Assembly in the area of social welfare, which has been largely devolved for many years. This will enable the Assembly to pass measures concerning charges that may be levied for non-residential social care services, and payments made to individuals to purchase such care directly.

The primary legislation governing charges for non-residential social care is Section 17 of the Health and Social Services and Social Security Adjudications Act 1983. Section 17 gives local authorities a discretionary power to recover such charges as they consider reasonable from adult recipients of non-residential social services. The only restriction on any authority’s power to charge is that it shall not require users to pay more for services than would appear to be reasonably practical. This has resulted in significant differences between the charging policies of local authorities in Wales, and therefore wide variability in the impact on service users. There is a wide range of hourly charge rates and weekly maximums set by local authorities, and differing amounts can be charged by different authorities for similar services. There is also a disparity in the way that benefits and disability-related expenditure are treated in an individual’s assessment. The Welsh Assembly Government believe that the current marked disparities need to be tackled. They argue that service users deserve a charging system that is both transparent and consistent in the way that it operates.



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The Assembly Government can currently provide statutory guidance to local authorities on charging under Section 7 of the Local Authority Social Services Act 1970. However, local authorities are able to depart from such guidance and its impact has been limited as a result. It is for the purpose, therefore, of providing the National Assembly with the legislative tools to achieve this clear objective that this order has been brought forward.

The order was considered by the Constitution Committee, the Welsh Affairs Committee and a committee of the National Assembly for Wales. This process of scrutiny was rigorous and provided members of the committees, along with interested parties and stakeholders, an opportunity to comment on and question the order. I thank all those involved in carrying out this vital scrutiny.

I am pleased to say that the committees supported the order in principle and raised only technical and definitional issues for further consideration. All recommendations arising from their final reports have been considered carefully, and the draft order before the House today reflects the outcome of that consideration.

Many of the committees’ recommendations arose from the fact that the order, which was submitted for pre-legislative scrutiny, was reliant on elements of another proposed order covering vulnerable children and child poverty for definitions and exceptions. Many of the definitions in that order were referred to in this order; there has been a lot of discussion about that in the pre-legislative scrutiny. However, the order before us has been laid in advance of the vulnerable children order, and a number of definitions and exceptions have been inserted into it as a result. I am confident that these changes address the concerns raised by the committees.

The order will enable the development of the type of distinct “Made in Wales” legislation in this area of policy that the Government envisaged in the Government of Wales Act 2006. It will enable the Welsh Assembly Government to continue to improve the lives of some of Wales’s most vulnerable people. The order supports its strategic aims to promote independence and equality for people receiving social care in Wales. It will give the Welsh Assembly Government the means to support their independence further by regulating the setting of charges and removing the wide disparities that currently exist. I therefore commend the order to the House and beg to move.

Moved, That the draft order laid before the House on 22 May be approved. 22ndreport from the Joint Committee on Statutory Instruments.—(Baroness Morgan of Drefelin.)

Lord Glentoran: My Lords, I thank the noble Baroness for making this not-altogether-straightforward statutory instrument abundantly clear. I also thank her for her time this afternoon when we both had an opportunity to look at the pros and cons.

There are several issues here: the political one relates to legislative competence orders. Your Lordships will be faced with debating a host of legislative competence orders in the forthcoming period. The noble Baroness

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made it quite clear, as have the Government, how careful we need to be to ensure that this is, on all occasions, the right road. I do not feel, and neither does my party, that it is right to pass legislative competence orders, then pass the buck to the Government of Wales and let them get on with it. That must never be allowed to happen. However, it is different where the Government of Wales have competence—that is the key issue. I hope that the competence of the Government of Wales will increase steadily as they continue to bed down and rule Wales.

There is another point arising from the order which I am a little concerned about. It appears that this statutory instrument will in some ways reduce the autonomy and powers of local authorities. I am not saying that that is necessarily a bad thing but in political terms your Lordships will be only too aware—probably more than me—that these issues can become very sensitive between a local Government, in the form of the Assembly for Wales, and local authorities, where powers are inevitably shared.


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