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Earl Howe moved Amendment No. 474:



"( ) The Secretary of State shall have a duty to consult the Scottish Parliament or the Assembly before making any regulations under this Act which have an impact on the provision of healthcare by NHS bodies which serve patients both in England and in Scotland or, as the case may be, in Wales."

The noble Earl said: We had an extensive debate last week on the impact that devolution has, and will continue to have, on patients who cross the border of Wales or Scotland for treatment in England; and, indeed, vice versa.

I spoke of my concerns about differing standards that may apply on one side of the border relative to the other. I mentioned the risk of dual inspections and dual protocols. I spoke of the possibility of Welsh patients being at a legal disadvantage compared to English patients if a Welsh commissioning body sought treatment for those individuals in England.

The Minister was, if I may say so, rather too dismissive of those concerns. My amendment proposes that the Secretary of State should have a duty to consult the Scottish Parliament or, as the case may be, the Assembly before making any regulations under this Bill that have an impact on any NHS bodies in England which deliver treatment to Scottish or Welsh patients. I do not believe that that is a lot to ask. The Minister may not think that the issues I have flagged up are all that serious, or even real issues at all; but there are many who do; and I believe that the least we should do is to enable the cross-border impact of this Bill to be minimised from the very outset by allowing all those with a potential interest to discuss the issues among themselves. I beg to move.

Lord Warner: I thought that the Committee was aware that both the Assembly and the Scottish

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Executive are and will continue to be consulted as necessary on parts of the development of any set of Westminster regulations. We are not doing anything here which is unusual. We continue to have those consultations. This consultation can take place at ministerial or official level. Day in and day out those kinds of discussions take place. Of course the Assembly and the Scottish Parliament can hold to account as they see fit Assembly Governments and Scottish Executive Ministers.

We do not think that it is necessary to put the provision in the Bill. Post-devolution settlements are working properly. We do not think that it is necessary to specify this particular change in the area of health.

Earl Howe: I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner moved Amendments Nos. 474A and 474B:


    Page 105, line 14, at end insert—


"(4A) The Secretary of State may not make a statutory instrument containing—
(a) regulations under section 146(12),
(b) the first regulations made under section 149(2), or
(c) an order or regulations under this Act making, by virtue of subsection (1)(b), provision which amends or repeals any part of the text of an Act,
unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament." Page 105, line 15, leave out "an" and insert "any other"

On Question, amendments agreed to.

[Amendment No. 475 not moved.]

Lord Warner moved Amendment No. 475A:


    Page 105, line 16, after "section" insert "22, 25(3), 28 or"

The noble Lord said: Amendment No. 475A is technical and corrects a drafting oversight. Its purpose is to change the level of parliamentary scrutiny—from negative procedure to no parliamentary procedure—applicable to the delegated powers concerning various aspects of the operation of NHS foundation trusts, so as to make them largely consistent with similar provisions relating to NHS trusts under the NHS and Community Care Act 1990.

The Delegated Powers and Regulatory Reform Committee considered the amendment and found the change in the level of scrutiny to be appropriate. There was nothing in regard to the amendment to which the committee wished to draw the attention of the House. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 476 and 477 not moved.]

Clause 191, as amended, agreed to.

Clause 192 agreed to.

Schedule 14 [Repeals and revocations]:

[Amendment No. 477ZA not moved.]

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Lord Warner moved Amendments Nos. 477ZB to 477ZE:


    Page 169, line 24, column 2, leave out "and (j)" and insert ", (j) and (k)"


    Page 170, line 32, column 2, at end insert—


    "In Schedule 7A, in paragraph 3(1)(g), the words from "or under" to "this Act".

Page 170, line 40, column 2, leave out "paragraphs 6 and 7" and insert "paragraph 6"


    Page 171, column 2, leave out line 42.

On Question, amendments agreed to.

Schedule 14, as amended, agreed to.

Clause 193 agreed to.

Clause 194 [Commencement]:

Lord Warner moved Amendment No. 477A:


    Page 106, line 10, after "115," insert "section 143 and"

The noble Lord said: This is a technical amendment that corrects an error. It simply provides that the power to commence the minor and consequential amendments provided for by Clause 143 and Schedule 9 is exercisable by the Secretary of State, with respect to England, and by the National Assembly for Wales, with respect to Wales. I beg to move.

On Question, amendment agreed to.

Clause 194, as amended, agreed to.

Clause 195 agreed to.

Clause 196 [Supplementary and consequential provision]:

Earl Howe moved Amendment No. 478:


    Page 107, line 9, at end insert—


"( ) No order may be made under this section unless a draft of the order has been laid before and approved by both Houses of Parliament."

The noble Earl said: By any measure, the provisions in Clause 196 are out of the ordinary. They enable ministers to make such supplementary incidental or consequential provisions as is thought appropriate to give effect to the Bill. That includes in subsection (3) a power to modify any Act, including an Act of the Scottish Parliament or subordinate legislation. It is understood that that includes repeals.

The Select Committee on Delegated Powers and Regulatory Reform commented that it is not persuaded by the department's explanation of why the negative rather than the affirmative procedure should apply here. It recommends that the affirmative procedure should apply for those orders that amend Acts. I hope that the Minister will sympathetically consider my amendment in the light of that. As the Select Committee noted, this is a wide-ranging Bill. The scope for amending it and any of its subject areas under the powers set out in the clause is enormous. I suggest to the Minister that the Government abandon the negative procedure not just for subsection (3) but for the clause as a whole. I beg to move.

Lord Warner: There may be a misunderstanding. In response to the recommendations of the Delegated Powers and Regulatory Reform Committee, we tabled

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government Amendment No. 474A, which we debated—it seems only yesterday but it was actually early on Tuesday morning. That will have the effect of making any order or regulation that amends or repeals any part of the text of an Act of Parliament subject to the affirmative procedure. So we have already responded in part to Amendment No. 478, in that any consequential provision that amends part of the text of an Act would be debated in both Houses.

However, Amendment No. 478 goes further and would require all orders to make consequential provision—whether or not they amend Acts—to be subject to the affirmative procedure. In future, we may need to amend references to certain bodies referred to in regulations—for example, where the functions of the National Care Standards Commission are being taken over by CSCI. In those circumstances, we will need to change references in secondary legislation by order. Such an order would not amend primary legislation and it would go beyond the scope of the recommendation of the Delegated Powers and Regulatory Reform Committee for it to be subject to the affirmative procedure.

Earl Howe: I am grateful to the Minister for drawing my attention to government Amendment No. 474A, to which I should have paid closer attention when he spoke to it on Tuesday morning. Clearly, I shall read what he said then. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 196 agreed to.

Remaining clauses agreed to.

House resumed: Bill reported with amendments.

Anti-social Behaviour Bill

1.5 p.m.

Report received.

Clause 1 [Closure notice]:

Lord Dixon-Smith moved Amendment No. 1:


    Page 1, line 9, leave out "and" and insert "or"

The noble Lord said: My Lords, Amendment No. 1 deals with territory that we covered in great detail in Committee. I do not intend to reiterate that debate. Clause 1 provides that a closure notice can be placed on a residential property where drugs are being produced or distributed and where there is anti-social behaviour. The only reason I have for returning to the matter is that in his response, the noble Lord, Lord Bassam, said:


    "A range of measures are in place and it might be useful if I clarify them in correspondence so that I can describe how we see them working. We can then share the knowledge across the House".—[Official Report, 11/9/03; col. 437.]

I may well have missed something, but as far as I am aware I have not received that reply. It would be useful if the noble Lord, Lord Bassam, were to share that knowledge across the House now.

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Amendment No. 3 deals with a separate and new issue, but one around which we had much discussion in our debates on this part of the Bill in Committee. There was wide concern that third parties in a group of people, who might be completely innocent of both anti-social behaviour and any use of drugs because they are completely dominated by whoever is committing the offences, might none the less be adversely affected if a closure order was made.

The closure order requires consultation with the local authority, but there are local authorities and local authorities. Consultation can be someone asking the chief executive's department a question and the department saying, "Yes, that is fine. That has been a thorn in our flesh for a long time", without thinking of the possible consequences for innocent parties.

Amendment No. 3 is intended to deal with that situation. The housing authority has responsibilities that are in a sense in conflict with the purpose of this part of the Bill, because it is responsible for housing homeless people. It will always be a delicate balancing act between the priority for closure and the priority of dealing with the social consequences that flow from it, especially for housing. We reworded some of our earlier amendments to explore that issue and draw it to the House's attention once again to enable the Government to give us a more detailed explanation of how they see the provision working.

I shall not spend much time on Amendment No. 4, because we tabled it earlier. We prefer Amendment No. 3, which is rather more precise. I beg to move.


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