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Lord Carter: When I moved the amendment I said that I did not believe I would get far with it. I am glad that the Government have the highest regard for the National Health Service and the highest regard for the trade unions—yet another U-turn.

Baroness Miller of Hendon: I said that the Government have the greatest respect for the trade unions.

Lord Carter: I must read Hansard with care because that is a connoisseur's distinction between "respect" and "regard". I understand the points that the Minister made but I thought it was important for us to make some from this side. The RCN and the BMA, of course, are not affiliated to the Labour Party, as I made clear. I hope that those who transfer to the Civil Service unions, with the encouragement now of the Government, fare a little better than the members of the Civil Service unions at GCHQ. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter moved Amendment No. 35:


Page 44, line 21, leave out sub-paragraph (8).

The noble Lord said: Perhaps with this amendment we shall have a little more light and a little less heat than with the last two. It is a probing amendment to establish why occupational pensions are not included, as we understand it—I shall be glad to be proved wrong—in the transfer of employment rights.

Paragraph 9 of Schedule 2 is concerned with the transfer of contracts of employment and the protection of the rights of transferred employees. I am advised that it is not clear why sub-paragraph (8) is necessary, given that, where there is a transfer of undertakings, the Transfer of Undertakings (Protection of Employment) Regulations 1981—the TUPE regulations—provide for the transfer of conditions of service, with the exclusion of occupational pensions.

I am advised by the RCN that female nurses have special status under the NHS occupational pension scheme and are able to retire at the age of 55. I am not sure what the position is regarding male nursing officers. It would be interesting to know and perhaps the Minister could advise on it.

The RCN seeks an assurance that those nurses affected by transfer arrangements under the Bill will not lose the special status to which they are currently entitled. It will be helpful if the Minister can give an assurance that the provisions of the NHS occupational scheme will be extended to those staff transferring under the Bill.

As I said, this is a probing amendment on an important matter. I hope that the Minister can throw some light on it. I beg to move.

Baroness Miller of Hendon: The Transfer of Undertakings (Protection of Employment) Regulations provide generally for the transfer of contractual terms and acquired rights to a new employer. Most employees

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transferring under the Bill will be covered by the provisions of TUPE. However, to make sure that all staff will be protected, we asked for provisions in Schedule 2 which parallel TUPE.

However, under the TUPE regulations, pension rights are not transferred to the new employment. Regulation 7 of TUPE specifically excludes those provisions of an occupational pension scheme which relate to benefits for old age, invalidity or survivors from the general transfer requirement. The sub-paragraph which the amendment seeks to delete does no more than reflect the TUPE provisions.

The Government believe that Regulation 7 of TUPE fully accords with our obligations in relation to pensions under the acquired rights directive. That does not mean that we are not bothered about pensions. Far from it. Our view is that the new employer should provide broadly comparable pension arrangements or make a compensating adjustment within the overall remuneration package.

We are committed to ensuring that staff transferred under the Bill enjoy similar pension rights in their new employment. We are taking steps to ensure that they do.

For the vast majority of NHS staff covered by the Bill—that is, those transferring from district health authorities and family health service authorities to the new health authorities—there will be no impact at all on current pension arrangements. They will remain National Health Service employees and continue to have access to the National Health Service pension scheme.

The position is different for regional health authority employees who transfer to the employment of the Department of Health. That is because, on transfer to the regional offices, they will become civil servants. They will not be able to remain in the National Health Service pension scheme. A basic pensions principle is that pension cover should follow from employment. It would be inappropriate for former regional health authority staff, as civil servants, to belong to the National Health Service scheme, which is the occupational pension scheme for National Health Service employees.

Regional health authority staff who transfer to the National Health Service Executive will be able to join the principal Civil Service scheme, which is an excellent non-contributory pension scheme. But we have proposed special arrangements to protect National Health Service pension benefits which are not offered by the Civil Service scheme. That will ensure that all regional health authority staff who become civil servants will have access to pension rights in their new employment which will be broadly equivalent to those which they enjoyed in the National Health Service.

The detailed proposals have been put to the staff and their representatives for consultation until the end of April. It will be for regional health authority staff to decide whether to transfer their accrued National Health Service pension rights to the Civil Service scheme. If they choose to leave them in the National Health Service scheme, their NHS pension rights will be preserved, index-linked and fully protected for payment at normal

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retirement age. If they choose to transfer their National Health Service pension rights, they will be offered a year-for-year service credit in the Civil Service scheme.

Paragraph 9(8) simply parallels the provisions of the TUPE regulations. Satisfactory arrangements will be put in place to protect staff's pension positions. On that basis, we do not feel that the amendment is appropriate. I hope that I have said enough to reassure the noble Lord, Lord Carter, and that he will be able to withdraw the amendment.

Lord Carter: I am grateful to the Minister. I believe that I am reassured but I shall have to read what he has said and take advice on it. It seems that the Government have tried to meet the anxieties expressed; and in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.

Clause 5 agreed to.

Schedule 3 [Repeals and revocations]:

Baroness Cumberlege moved Amendment No. 36:


Page 50, line 30, at end insert:
("1982 c. 32. The Local Government Finance Act 1982. Section 28A.") .

The noble Baroness said: We have already debated this amendment. I beg to move.

Lord Carter: To clear up any confusion, we had a highly technical discussion on Amendment No. 29 about the Local Government Finance Act. I believe that the Minister said "Not moved" in relation to Amendment No. 30, when I believe she should have said that she wished to accept the amendment; Amendments Nos. 29, 30 and 36 are grouped. I am happy to accept that if it is what the Minister intended.

Baroness Cumberlege: I am clearly at fault here. I had presumed, because we had discussed the amendments, that I did not have to move them again—that is, as they were grouped together they were all moved.

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

Clause 6 [Subordinate instruments]:

Lord Carter moved Amendment No. 37:


Page 4, line 9, leave out ("annulment") and insert ("approval").

The noble Lord said: Amendments Nos. 37 and 38 deal with a matter that we have often dealt with before in discussing Bills; namely, the question of affirmative or negative resolution. These two amendments give the Government the chance to make the case as to why in Clause 6(3) all the statutory instruments to be used under the Bill are negative resolutions, with the curious exception of the order to be made under Clause 9(3), which deals with the Scilly Isles. I am interested to know from the Minister why the Scilly Isles needs an affirmative resolution and everybody else needs a negative resolution. That is a serious question. I am indeed puzzled as to why that should be the case.

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This debate always takes place. I sometimes have the feeling that there are in the offices of the parliamentary draftsman a little book of rules headed, "Saving the Government Time and Bother, Parliamentary Draftsman, Rules for the Use of". Whenever we have this debate, the Government try very hard to put everything into the negative form. We feel that there are aspects of this Bill which should come to Parliament and be dealt with through the affirmative route.

Perhaps I may give just one example. New Section 8(4) in Clause 1 states that the Secretary of State:


    "may by order...vary a Health Authority's area...abolish a Health Authority; or...establish a new Health Authority".

I entirely understand paragraph (a) in relation to such technical matters as the variation of the boundaries. The negative procedure would be entirely right in that respect. But if the Government intend to abolish a health authority or establish a new one, they should be required to bring the necessary order to Parliament and seek the approval of both Houses through the affirmative route.

The amendment as drafted would reverse the Government's approach and require them to make all orders affirmative. I am entirely happy to discuss with the Minister outside the Chamber which type should be affirmative and which should be negative. It is in a sense a probing amendment to give the Government, as I say, a chance to say why they decided, as they usually do, that all the orders that are required under this Bill should use the negative route.

I believe that the Government have said that the boundaries and functions of the new health authorities will be dealt with, obviously, by order. I shall be interested to hear how they propose to deal with them. With the negative route, there is a problem over time limits, the praying against, the resolutions, and so on. We do not suggest otherwise, in spite of the wording of the amendment; we phrased it this way merely to have the matter debated. After I have heard the Minister I shall withdraw it and perhaps return to the matter on Report to try to tease out then which areas of the Bill should be subject to the affirmative resolution route and which to the negative. The purpose of this amendment is to give the Government the chance to state on the record the reason why, with the curious exception of the Scilly Isles, they believe that this Bill requires the negative route for every order. I beg to move.

5.45 p.m.

Baroness Cumberlege: I presume that these amendments were tabled in the belief that the Secretary of State is seeking unduly wide powers to make orders and regulations in the Bill. That is perhaps what the noble Lord, Lord Carter, is trying to say. Of course we do not agree with that. In fact, the Government plan to include only four new permanent regulation and order-making powers in the Bill.

First, it will enable regulations to be made allowing consortia of health authorities, special heath authorities and NHS trusts to work on and contract for education and training. The second new power in the Bill will enable regulations to be made setting out requirements for consultation on the establishment of NHS trusts.

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This is hardly a sweeping new power. It simply adds flexibility to the arrangements following the abolition of regional health authorities. The third new power will allow the regions of mental health review tribunals to be varied by order. Again, this is not a controversial power. Finally, we shall debate on Report the fourth new power to be introduced by Amendments Nos. 27 and 28.

All the other powers that are taken in the Bill, except those that will have effect only until 1st April 1996, replicate existing powers in relation to district health authorities or family health services authorities. Statutory instruments made under similar powers in the National Health Service Act 1977 and the National Health Service and Community Care Act 1990 are subject to the negative resolution procedure.

The power in relation to the Isles of Scilly needs no parliamentary procedures. This power enables the Health Authorities Act to be amended in its application to the Isles of Scilly. The National Health Service Act 1977, the Mental Health Act 1983 and the National Health Service and Community Care Act 1990 have all been applied to the Isles of Scilly by order. Modification was needed to ensure that any reference to a local authority or local social services authority was construed to be a reference to the council of the Isles of Scilly. That council fulfils the role of a local authority in the islands. Any order under this Bill will contain a similar modification. I hope that that is very clear to the noble Lord and that I have dealt with his problem in the necessary detail.

I see no need to take a different approach in this Bill. If the amendment were passed, a disproportionate amount of parliamentary time would have to be taken up with statutory instruments under this Bill. Therefore I invite the noble Lord to withdraw his amendment.


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