Select Committee on Public Accounts Appendices to the Minutes of Evidence

Paper A

Invitations from Committees of Devolved Legislatures: the legal position

  1.  This note is an outline of the legal position as regards the acceptance of invitations from Committees of the devolved legislatures. It is not comprehensive, particularly with regard to the Scottish Parliament, and in all cases of doubt legal advice should be sought.


  2.  The powers of the Scottish Parliament to call for witnesses and documents are in section 23 of the Scotland Act 1998. The general power permits the Scottish Parliament to require persons to attend and give evidence concerning any subject for which the Scottish Executive has "general responsibility". "General responsibility" is undefined and potentially covers a very large number of subjects, including, functions transferred under or by virtue of section 53 (general transfer of functions to Scottish Ministers), section 63 (executive devolution) and section 89 (cross border bodies). It should be noted that the power is exercisable in relation to subjects and not merely in relation to functions. In addition, it should be noted that a member of the Scottish Executive has general responsibility only in or as regards Scotland.

  3.  However, the power is then qualified in a number of ways. Most importantly, in the current context, Ministers and officials cannot be required to attend in relation to the exercise of their functions if they are functions which can also be exercised by Scottish Ministers (ie concurrent functions) or are exercisable only after obtaining the agreement of or after consultation with Scottish Ministers (subsection 4). The result appears to be that where the Scottish Ministers have some influence over the exercise of functions UK Ministers and officials cannot be required to attend in relation to those functions—thus maintaining an appropriate division of accountability. However, the limitation on functions exercised with agreement or after consultation is limited to reserved matters (subsection 5). So for a devolved subject where a Minister exercises functions with the agreement of or after consultation with Scottish Ministers then a requirement to attend may be imposed. Taking all the above into account, the power of the Scottish Parliament to summon Ministers and civil servants appears to be quite limited.

  4.  In some cases the other qualifications of the general power may be relevant. For example, witnesses cannot be required to answer questions or produce documents which they would be able to refuse to answer or to produce in court proceedings in Scotland (subsection 9).

  5.  Section 25 establishes that failure to comply with the requirements of the Scottish Parliament constitutes a criminal offence.


  6.  The powers of the National Assembly for Wales to call for witnesses and documents are in section 74 of the Government of Wales Act 1998. The powers are limited to bodies specified in Schedules 4 and 5 of the Act. UK Ministers and their departments are not included in those schedules and Ministers and officials cannot therefore be required to attend. A number of public bodies (some UK-wide) are, however, included. The Secretary of State can amend Schedule 5 so the position may change. Failure to comply is again a criminal offence (subsection 75(2)).


  7.  The powers of the Northern Ireland Assembly to call for witnesses and documents are in section 44 of the Northern Ireland Act 1998. The matters on which witnesses may be required to attend and give evidence or on which documents may be required are set out in subsection (2) (transferred matters and other matters in relation to which statutory functions are exercisable by Northern Ireland Ministers or departments). UK Ministers or officials outside Northern Ireland can only be summoned in connection with the discharge of functions relating to matters falling within subsection (2). A further important exclusion from the requirement is the discharge of functions by Ministers and officials prior to the appointed day—ie in advance of devolution to Northern Ireland taking place (subsection 4). Failure to comply is again a criminal offence (section 45).

  Question 59: Where there any factors involving risk to the public associated with the dismissal of the previous NBA Chairman?

  The decision of the then Secretary of State that it was not in the interests of the NHS for Sir Colin Walker to remain as Chairman of the NBA was taken on the basis of his judgement that Sir Colin had mismanaged organisational change within the Blood Service. In his view, in doing so Sir Colin had lost the confidence of the Service's medical and other staff, donors and the public and had done considerable damage to the reputation and good standing of the Service. There was never at any time a question that action taken by Sir Colin had had a detrimental effect on safety or caused risk to the public.

  Question 191: Can you explain the apparent inconsistency between Figure 11 showing significant net in-flows of blood to London and the South East from the other NBS regions in 1999, and the finding in NAO's attitude survey that, compared with the general population, recent donors are more likely to be Londoners than people in other regions?

  There is no necessary or direct relationship between stock movements (Figure 11) and donor potential and collections, and stock movements vary year on year. In 2000, for example, the net flow into the London and South East Zone was only slightly greater than into the Northern Zone. Historically in Midlands and South West the donor potential and collection capability has always exceeded local demand.

  We have not seen the figures on which NAO base their finding ie we do not know the extent to which Londoners are disproportionately represented among recent donors. However, London is also a disproportionately heavy consumer of blood because of the preponderance of large acute hospitals.

  Question 195: Can you explain the £1.9 million "Clinical Negligence" figure in Appendix 10?

  The £1.9 million does not represent the cost of clinical negligence settlements in 1998-99. The figure is taken from the NBA's audited accounts for the year, which by accounting convention have to include "provisions" for any future payments which might arise from events happening in that year. The bulk of the £1.9 million reported in 1998-99 was in respect of provisions, £1.7 million in respect of a single on-going class action by people who claim to have been infected with the Hepatitis C virus from contaminated blood received in the early 1990s. 1998-99 was the first year in which the NBA was advised by its lawyers that the likelihood of eventually having to pay this sum had increased to over 50 per cent—the point at which, by the then current accounting convention, the provision had to be shown in the accounts. In previous years the likelihood of having to pay was deemed to be less than 50 per cent, so the potential liability had previously been shown as a "contingent liability".

  The £1.7 million was represented by 56 cases at a payment of £14,000 net of the estimated cost of settlement contribution from the centrally (Vote) funded Existing Liabilities Scheme, of which all NHS bodies are members; and eight cases at an estimated cost of £56,000 net of the ELS contribution. A further £400,000 represented the anticipated legal costs of defending the claims.

  A further £77,000 was provisions in respect of an outstanding claim from a patient who received a transfusion of blood contaminated by bacteria.

  Of the remainder, £130,000 does represent actual in-year payments, mainly for small claims by donors for bruising. In addition £28,000 was paid as the NBA's contribution to the NHS Litigation Authority—administered Clinical Negligence Scheme for Trusts, ie the NHS's own risk pooling scheme for clinical negligence events occurring after 31 March 1995.

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