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Lord Hunt of Kings Heath: The noble Lord raises an important point. I accept the general principle suggested by him that, all things being equal, coterminosity is desirable. The scheme that Wales will implement of 22 health boards coterminous with the local authorities is an excellent scheme. In terms of the planning of services across health and local authority boundaries there is much to be gained from coterminosity. With the need for more services to be integrated no doubt that will prove to be a major advantage.
The noble Lord is right in the sense that currently there are 20 community health councils in Wales. They are largely coterminous with the NHS arrangements but clearly not completely. That is because they have reflected variations across Wales and because decisions that were taken in the past were seen to be sensible at the time in view of the way in which patient flows operated.
My understanding is that the intention of the Assembly is two-fold: on the one hand, it wishes to achieve closer coterminosity in the future between CHCs and health bodies but, on the other hand, it does not wish to impose further changes at this stage. We must respect that wise decision. Many CHCs are working in what are called "federation structures", which enable a number of CHCs to work together. That is one way to overcome some of the problems raised by the noble Lord about one CHC having to deal with more than one local authority concerned with patients that are served by the CHC. The federation structure has much to commend it in terms of enabling CHCs to pool their resources.
Essentially, as I said, the Assembly does not want to make further boundary changes in the foreseeable future, but the proposal in the Bill allows it maximum flexibility to make changes should it and CHCs wish to do so. I also believe that the Assembly has a clear intent, demonstrated by the re-organisation of health boards into coterminous boundaries with local authorities and by the clear recognition that ideally in future there will be greater coterminosity between CHCs, local authorities and local health boards. In that respect the flexibility in the Bill is to be welcomed.
The noble Lord said: Clause 1(2) gives a wide-sweeping power to the Assembly to change what after all is primary legislation by order or regulation. The Parliamentary Under-Secretary of State, Mr Don Touhig MP, wrote to the noble Lord, Lord Evans of Temple Guiting, on this matter and he sent meand I am sure othersa copy of that letter. The letter pointed out that similar powers have been conferred on Whitehall departments. It states:
But it is different in that it devolves a power to change primary legislation to an Assembly that does not have such power. Furthermore, the Assembly is not directly accountableas Whitehall departments are through their Ministersto this Parliament. Therefore, there is a difference.
Of course, the power is confined to the Bill and specifically to Clause 1 and the schedule referring to CHCs. But it is an extensive power. I question whether it is necessary. It may be useful, but is it necessary? Will the Minister give an incidence, or two, where the power would be necessary and where an order or regulation would change primary legislation in this area to its advantage? I believe that Ministers have argued that it is absolutely necessary in order to implement the Bill.
I know that the Assembly's presiding officer, the noble Lord, Lord Elis-Thomas, would like this kind of power because he said as much to the commission headed by the noble Lord, Lord Richard. However, we should not be in the business of passing primary legislation in order for others to override it at will. That spells trouble for the future and lays us open to blame if wrong changes are made. I shall be interested in the Minister's reply. I beg to move.
Lord Thomas of Gresford: There will be trouble in future in the nature of the unsatisfactory position of the devolution settlement. The Committee will not be surprised that I express that point of view. But, the settlement being as it is and dealing with the realities of the moment, I support the provisions in the Bill and oppose the amendment. It is necessary to have a degree
Lord Prys-Davies: I listened to the noble Lord, Lord Roberts of Conway, but this is a case where we can support the Henry VIII clause. I am conscious that it, quite rightly, has attracted a great deal of criticism. But in these circumstances, the criticism levelled at the Henry VIII clause is inappropriate. The fact that this power will be exercised by another democratic body, and that the decision will be taken nearer to the people who will be affected by the exercise of the power, mitigates the criticism. Therefore, it is appropriate for the Henry VIII clause to be inserted in the Bill. In this case it can play a positive role in the absence of the Assembly being able to exercise primary legislative power.
Baroness Finlay of Llandaff: I am not a constitutional lawyer, but it is important that the Assembly is able to expand or alter the role of community health councils as it sees fit and as the health service evolves. I am most grateful to the noble Lord, Lord Evans of Temple Guiting, for his letter explaining some of the aspects of community health councils. He stated that they will be given a right to enter and inspect premises where family health care is provided. That will include doctors' and dentists' surgeries and private nursing homes in which NHS funded care is being provided.
Given that there is devolution in Wales, it is important to allow as much scope as possible for its health service to evolve. Therefore, I am unable to support the amendment. However, I seek clarification as to how NHS-funded care is provided. There are many places in Wales where there is part-payment by the NHS for care received by patients in institutions not managed directly by the NHS.
Lord Hunt of Kings Heath: It is always tempting to have constitutional debates on the settlement. It is also tempting to say that we all await the work of the noble Lord, Lord Richard, with a great deal of interest. Taking a proportionate, balanced approach suggests that the Bill, as drafted, gives sufficient flexibility to the Welsh Assembly in what is actually a small area as regards the provisions. It is restricted to incidental, consequential and similar amendments, which it would have been impractical to anticipate within the Bill.
The Assembly's legislative procedures mean that the use of a Henry VIII power would be scrutinised carefully by a legislation committee of Assembly Members, possibly a subject committee as well and, in any event, passed by a vote in plenary session. In addition, the Assembly must secure the approval of parliamentary counsel to any change in primary legislation.
That proposal was considered by your Lordships' Delegated Powers and Regulatory Reform Committee. It considered the delegated powers in the Bill in its seventh report. The report notes that delegated powers are conferred on the National Assembly and that they are subject to the subordinate legislation procedure under the Government of Wales Act 1998.
It further noted that these powers can be exercised only as an extension of the exercise of some other powers under the Bill. The committee accepted that the powers may be required and considered them sufficiently circumscribed.
The Assembly used its Henry VIII powers in the 2003 regulations not to abolish the existing plans and strategies but to harmonise them with the overarching partnership strategy between health and social care providers. That is a good example of how the Henry VIII powers have been used to avoid duplication and confusion.
One could speculate that in the future there may be name changes within the structure of the NHS in Wales which would necessitate some consequential changes in various pieces of legislation. I believe that that would be a sensible and proportionate use of the power in the Bill. I hope that the noble Lord, Lord Roberts, will recognise that the Assembly's powers in this matter are severely constrained but that having them will enable it to tidy up matters which cannot be foreseen while the Bill is progressing
Lord Roberts of Conwy: I am grateful to the noble Lord for his comments. It was the constitutional point that intrigued me, in particular the comment that I believe was made in Committee in another place; namely, that the granting of the Henry VIII power in the case we are discussing was similar to other cases where it was granted to Whitehall departments. There is a considerable difference between Whitehall departments and the National Assembly for Wales.
The Minister's comments provided considerable clarification. One realises only too well that the power is limited to supplementary, incidental and consequential provisions. The example that the Minister gave was perfectly clear. I am also impressed by the fact that the Delegated Powers Committee said that the granting of the power was justified. I beg leave to withdraw the amendment.