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Earl Howe: My Lords, I think that the brick wall is growing higher by the minute. Part of my concern is that it is all too easy for a government to set up an SHA without too many formalities. It is a very easy procedure. There are complexities involved here which I felt warranted an exception to the normal rule. However, I take the noble Baroness's point about full public consultation. That is an important factor in the equation and I do not belittle it. I hope that it will serve to iron out any residual concerns that there may be. No doubt the Government will in their usual way take any such concerns into account. I can just about bear my disappointment on this occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Clause 179 [Charges for dental services]:

Lord Skelmersdale moved Amendment No. 402:



"( ) Regulations under subsection (1) may not be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament."

The noble Lord said: My Lords, in moving this amendment, I shall speak also to government Amendment No. 403 and Amendment No. 410 in our name. The first and the last amendments in this group constitute a belt-and-braces approach and would make the regulations under Clause 191 affirmative.

In Committee, the noble Baroness, Lady Andrews, was good enough to say—twice, I might add, after a bit of teasing—that the Government would look again at whether the new Schedule 12ZA to the 1977 Act, which covers exemptions to dental charging, should be subject to revision by negative or affirmative instrument. The purpose of the amendments is to elicit the results of such looking again.

Those results are to be found in Amendment No. 403, in the Government's name. But, if there is any logic in the Government's position, the proposed "looking" would have been more favourable than Amendment No. 403 provides. The Government have already conceded to the view of the Select Committee on Delegated Powers and Regulatory Reform that another set of exemptions—namely, that of exemptions to liability to pay NHS charges under Part 3—should always be made by affirmative instrument, not only the first time, as in Amendment No. 403, but whenever changes are made. There is no difference in principle; either both sets of exemptions should always be by affirmative procedure or neither should. I beg to move.

Baroness Andrews: My Lords, I was going to begin my response to the amendment with that wonderful line from "A Midsummer-Night's Dream", "O lovely wall", as Pyramus and Thisby approach the chink in the wall.

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I was hoping to give total satisfaction, but, clearly, I will not be able to. In Committee, I gave a commitment to look again at the level of parliamentary scrutiny afforded to the regulations under Clause 179. I understood that there was concern that Parliament had not been given sufficient detail on how the dental charging regime would work under new primary dental services. I referred to the review group on patient charges, led by Harry Cayton, and the fact that it had not yet finished and reported on its work—that is why we were sympathetic.

We have looked again at the dental charging regulations, which have always been subject to the negative resolution procedure in the past. We have concluded that it would be reasonable for the first set of regulations, in which it is intended to set out the new basis on which dental charges are to be calculated, to be subject to a debate in both Houses. Subsequent sets would revert to the negative resolution procedure. That would give Parliament the opportunity to debate the initial changes proposed to the charging system but would ensure a proper balance and that parliamentary time is not taken up unnecessarily when the regulations are periodically amended, probably annually, to adjust the amount of patient charges—for instance, to keep charges in line with inflation.

The Government's amendment, Amendment No. 403, is to Clause 179 rather than Clause 191, as the noble Earl, Lord Howe, proposes in Amendment No. 410. That is because Clause 179 inserts new provisions relating to dental charging into the 1977 Act. Amendment No. 403, therefore, provides for amendment to Section 126 of the 1977 Act, which contains provisions relating to the exercise of regulation and order-making powers under that Act. On the other hand, Clause 191 contains provisions relating to regulations or orders under, or conferred by, the Bill. On those grounds, we cannot accept Amendment No. 410. However, I appreciate that it is a belt-and-braces approach, because Amendment No. 402 also seeks to make regulations made under new Section 79 always subject to the affirmative procedure. However, our problem with that is that the equivalent provisions—the National Health Service dental charges regulations—have always been subject to negative resolution procedure, as I said, in common with other provisions in the 1977 Act. It seems unnecessary to change that in relation to new Section 79, which is why I reject it.

The noble Lord was kind enough to give me warning of the other points he raised and I have sought advice on them. Exemptions from dental charges are set out in Schedule 12ZA, paragraph 1 and they are precisely the same as those in the current 1977 Act. Therefore, regulation is not required. Indeed, further primary legislation would be necessary to amend charge-exempt groups. As I said in Committee, we have no intention of changing the exemptions. Therefore, under new Section 79(1), dental charges regulations have no bearing on exemption charges. We are not guilty of inconsistency; there is simply a difference in governance.

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Finally, for further background, remissions from charges covered by the low income scheme for help with health costs are not covered by regulations made under Section 79. That is just additional information, which I hope that the noble Lord will accept. If he would prefer to have that spelt out, I am happy to add it to the letter which he will receive.

Lord Skelmersdale: My Lords, I am grateful to the noble Baroness. As I said in Committee, I am delighted that the noble Baroness accepts that, because of the changes in new Section 79(1), (2) and (3) of the 1977 Act, the first time round the regulations should be subject to the affirmative resolution procedure. We have no argument with that.

As I explained to the noble Baroness both privately before the debate and just now, my worry is that part of this is Schedule 12ZA to the 1977 Act, which refers to exemptions. I must say that the noble Baroness gave me the most surprising answer that I have heard for some time when she said that primary legislation would be needed to alter those exemptions under paragraph 1 of new Schedule 12ZA. But I have been referring—both in Committee and on Report—to the fact that there is the opportunity, under Clause 191, to amend any part of the Act by regulation. Of course, that regulation must be affirmative.

Does that cover alterations, which may be made 20 years in the future? I have no idea. Alternatively, alterations could be made within the next year or so. Again, I have no idea. Nor, I suspect, does the noble Baroness. To be told that primary legislation is needed to change Schedule 12ZA fills me with amazement.

In due course, I shall be happy to accept government Amendment No. 403 if it is correct. Perhaps I may ask the noble Baroness not to move the government amendment tonight, but to double check and come back on it. If there is no change, I would be delighted to accept it on Third Reading. Unfortunately, under the rules of the House, I am unable to amend it at Third Reading if that is what I should like to do.

Baroness Andrews: My Lords, there is a sense of mutual surprise across the Chamber now. My inclination would be to move the amendment and to write to the noble Lord about the concerns he has raised about consistency between the regulations. I am sure that Amendment No. 403 is correct and that we can rely on our officials to achieve that purpose. I hope that he will be satisfied for me to write to him because I shall continue to move the amendment.

Lord Skelmersdale: My Lords, the noble Baroness puts me in a very difficult position. We had no intention of asking your Lordships to agree or disagree to anything in the closing stages of this Report stage, and I am bound by a commitment that was given. Under any other circumstances, of course, I would seek to divide the House on this matter.

Given that I am going half way to meeting the noble Baroness, perhaps she can go half way to meeting me. She has not lost anything, except a week—the Bill will still get on to the statute book, with the amendment she

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proposes. I am simply asking whether the amendment is totally and utterly correct. She has the opportunity of double checking if she reserves government Amendment No. 403 for Third Reading.

Baroness Andrews: My Lords, my advice is that Clause 191 is about regulations made under this Bill. Section 79 is a 1977 Act provision—Clause 191 is not, therefore, relevant. We cannot, under Clause 196, make amendments using powers in this Act to amend Schedule 12ZA. That is a technical explanation. I urge the noble Lord to accept that we will move the amendment, and I will write to him. If we are wrong, we can seek to make amends.


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