NHS Reform and Health Care

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Schedule 9


Mr. Hutton: I beg to move amendment No. 259, in page 81, line 5, at end insert—

'Health Services
and Public Health Act
               In section 63(5B), the ''and''
at the end of paragraph (bb).'.

The Chairman: With this it will be convenient to take Government amendments Nos. 260 to 264.

Mr. Hutton: This is another fiendishly descriptive part of the Bill. The amendments add to the table in schedule 9, which in turn lists all the repeals provided for in other clauses and schedules to the Bill. The Acts referred to are, I hope, self-evident, but I draw the Committee's attention to amendment No. 264, which

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in a curious and somewhat inexplicable way—I shall try to explain in a moment—repeals provisions in the current Bill. I suspect that that must be a first.

Reference is made to amendments to section 15 of the National Health Service Act 1977 that are added to paragraph 2 of schedule 2 by amendment No. 99, which the Committee has already approved. We have already amended the Bill in Committee, which is what the amendments to schedule 9 try to reflect. Reference is also made to amendments to section 18 of the National Health Service and Community Care Act 1990 through amendment No. 100. Both the relevant amendments provide for their own repeal. They are amendment provisions that are themselves repealed by provisions in the Health Act 1999 that have yet to come into force.

I realise that a fog is probably descending on the Committee, but I shall carry on. I should warn the hon. Member for West Chelmsford that if he asks me any questions about this matter, I shall definitely have to correspond with him.

The amendments provide for their own repeal, as well as for the repeal of the substantive provisions that they amend. In summary, the amendments are further repeals that take account of the provisions in the Bill. In essence, they are tidying-up provisions. Schedule 9 lists in tabular form all the repeals included in other clauses and schedules to the Bill, and amendments Nos. 259 to 264 simply add to that table. They are all consequential repeals, which are necessary in the light of amendments to the Bill that we accepted in Committee. I do not propose to detain the Committee by discussing them individually. As I said, the Acts referred to are, I hope, self-evident.

Mr. Burns: I thank the Minister for that somewhat unusual explanation of his amendments. He is probably right in saying that this may be a first, in that amendment No. 264 amends the Bill before it has even reached the statute book, but why do we need to do that? Why could we not table the relevant amendment to schedule 2 on Report or in another place, thereby avoiding this unusual procedure?

Mr. Hutton: Those are options. The amendments could indeed be tabled on Report, in another place or anywhere else.

Mr. Burns: I was talking about just this one.

Mr. Hutton: This one could be tabled anywhere. It is a perfectly legitimate amendment, and the Government are entitled to make such changes at any point in the Bill's legislative passage. However, we wanted to do so in Committee because this is the time and place that such amendments are usually tabled. As I understand it, they are simply consequential, tidying-up amendments that are necessary because of changes already made to the Bill through amendments Nos. 99 and 100 in particular. They go no deeper than that. Making such changes in Committee, on Report or in

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another place is a question of judgment for Ministers. I felt that it would be helpful to consider them in Committee.

Amendment agreed to.

Amendments made: No. 260, in page 81, line 8, column 2, at end insert—
'In section 22(1A), the ''or'' at the end of paragraph (c).
In section 28A(1), the ''and'' at the end of paragraph (a).'.
No. 261, in page 81, line 13, column 2, at end insert—
'In section 51(3), the ''and'' at the end of paragraph (bb).'.
No. 262, in page 81, line 15, column 2, at end insert—
'In section 125, the ''and'' at the end of paragraph (bb).'.
No. 263, in page 81, line 23, at end insert—
'Acquisition of Land Act 1981.In section 16(3), the ''and'' at the end of paragraph (b).
Health Service Commissioners Act 1993.In section 2, in subsection (1)(da), ''established for areas in England''; and in subsection (2)(a), ''whose areas are in Wales''.
Government of Wales Act 1998.In Schedule 5, in paragraph 20, ''for an area in, or consisting of, Wales''.
In Schedule 17, in paragraph 12, ''for an area in, or consisting of, Wales''.'.
No. 264, in page 81, line 35, at end insert—
'National Health Service Reform and Health Care Professions Act 2002 (c. )In Schedule 2, in paragraph 2, sub-paragraphs (3) to (5); and paragraph 55.'.—[Mr. Hutton.]

Schedule 9, as amended, agreed to.

Clause 36

Regulations and orders

2.45 pm

Mr. Hutton: I beg to move manuscript amendment (a), in page 41, line 22, after 'than' insert

    'regulations under section 26 or'.

The Chairman: With this it will be convenient to take manuscript amendment (b).

Mr. Hutton: It will be obvious to all members of the Committee that the manuscript amendments are a response to this morning's debate on clause 26, in which I made it clear that I was minded to accept the calls of the hon. Member for West Chelmsford and my hon. Friend the Member for Crawley (Laura Moffatt) for regulations made under clause 26 to be approved by affirmative resolution of both Houses and not, as we originally proposed, by the negative resolution procedure.

The amendments do indeed provide that regulations made under clause 26 will be subject to affirmative resolution procedures. They are a response to the Opposition's argument, with which I agree, that

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regulations made under clause 26 are unusual and merit greater parliamentary scrutiny than the negative resolution procedure would provide.

As I said during our discussion of clause 26, I am persuaded by the argument for a higher level of parliamentary scrutiny of the arrangements dealt with in the clause. Systems such as these are not normally set up through secondary legislation, but dealt with by the parliamentary ombudsman and included in primary legislation. In the light of the way in which the amendments provide for regulations to be made, I hope that they will command the support of the Opposition.

Because clause 36 provides for the making of orders and regulations under the Bill, the amendments—unlike those tabled by the hon. Member for West Chelmsford—amend clause 36 and not clause 26, even though they refer to regulations dealt with in clause 26. Manuscript amendment (a) amends clause 36(2), which provides for regulations in the Bill to be subject to the negative resolution procedure, by excluding regulations under clause 26 from the negative resolution procedure. Manuscript amendment (b) amends clause 36(3), which lists the secondary legislation that is subject to the affirmative procedure, by adding the regulations under clause 26 to the list that requires the affirmative procedure.

Mr. Burns: I thank the Minister for his explanation of the manuscript amendments and for the swift way in which he, the parliamentary draftsmen and, one assumes, other civil servants in the Department of Health have worked since our discussions some time after 9.30 this morning to produce the amendments in time to amend the Bill in Committee.

Because you were not chairing the Committee this morning, Miss Widdecombe, you may not be aware that the amendments that gave rise to the principle behind the manuscript amendments were tabled in my name and that of my hon. Friend the Member for North-East Hertfordshire. Given the importance of the issue, we believe that the regulations should be made under the affirmative resolution procedure, and according to the Minister, the hon. Member for Crawley—I note that she is not in her place—shares our concern. We have all been in government from time to time, so we understand the way in which these matters work. We welcome any conversions from the other side, so we welcome the support given by the hon. Member for Crawley for a change from the negative to the affirmative resolution procedure. Given her great concerns about the matter, I would have been more than happy had she felt able to add her name to our amendments. That was not to be, but at least she is with us in spirit in our argument.

May I also say what a pleasure it is that the Government accepted the amendment? If one is in opposition when the Government have such a large majority, any crumbs from the table are welcome. Gratefully, although not with much pride, I accept the crumb that the Minister has thrown us today. We are

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delighted that he agrees with us and sees the merits and worth of our argument, and that he and his draftsmen have come up with the amendments so swiftly.

In conclusion, I can only thank the Minister for his swift and gracious actions and assure him that we will support the son of our original amendment 100 per cent.

Mr. Hutton: Can I simply place on the record my appreciation of the hon. Gentleman's words about my officials? I am sure that they will be greatly appreciated in the Department of Health.

Manuscript amendment agreed to.

Manuscript amendment made: (b), in line 25, after ''containing'' insert

    ''regulations under section 26 or''.—[Mr. Hutton.]

Mr. Hutton: I beg to move amendment No. 94, in page 42, line 7, at end insert—

    ''( ) Directions given in pursuance of any provision of this Act are, except where otherwise stated, to be given by instrument in writing.

    ( ) Any power conferred by this Act to give directions by instrument in writing includes power to vary or revoke them by subsequent directions.''.

The amendment provides that any directions made under the Act are, unless otherwise stated, to be given by instrument in writing and that any directions may be varied or revoked by subsequent directions. The powers affected are threefold: the power of the National Assembly for Wales relating to health and well-being strategies in clause 22(7); powers in relation the Commission for Patient and Public Involvement in Health in paragraphs 2(1) and 10(4) of schedule 6; and powers concerning payments and loans to the Council for the Regulation of Health Care Professionals in paragraphs 13, 7 and 8 of schedule 7.

The intention is that all directions under the Act should, unless otherwise stated, be able to be issued in writing without the need for any parliamentary procedure. That is the procedure used in most cases for directions under the National Health Service Act 1977.

Amendment agreed to.

Clause 36, as amended, ordered to stand part of the Bill.

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Prepared 13 December 2001