Select Committee on Delegated Powers and Regulatory Reform Twenty-Fourth Report


PART 5: MISCELLANEOUS

Clause 181: Replacement of the Welfare Food Schemes

299.  Clause 181 replaces, with some modifications, section 13 of the Social Security Act 1988 and makes consequential amendments to section 15A of that Act. The purpose of the new section is to establish one or more schemes to provide benefits for prescribed descriptions of pregnant women, mothers and children to help and encourage them to eat food of a prescribed description. All of the regulations to be made pursuant to the new powers will be subject to the negative resolution procedure, for reasons that are set out below. However, the Department has agreed to publish the first set of regulations for public consultation in early 2004. The powers are subject to the requirement in subsection (2) that the Secretary of State consult the devolved administrations.

300.  Subsection (1) contains new regulation making powers. They enable the Secretary of State to set up one or more schemes to provide food of a prescribed description to certain pregnant women, mothers and children. The specific groups to be entitled will be set out in regulations as the Secretary of State requires the flexibility to target the scheme(s) at certain groups of women and children according to specific public health needs. The policy intention is that the scheme will continue to be targeted primarily at low income families and linked to income based benefits, but that a separate scheme for the provision of prescribed foods in nursery and day care will also operate. Like other regulations under the new powers, regulations pursuant to the power to prescribe descriptions of the potential groups of beneficiaries will be subject to the negative resolution procedure.

301.  Clause 181 makes new provision (in subsection (3)) to allow regulations under subsection (1) to specify that certain requirements must be satisfied for a person to become or continue to be entitled to the prescribed food benefit. All of the possible requirements in subsection (4), such as the requirement to attend a hospital, clinic or doctor's surgery, are intended to better link the scheme to the NHS by means of a registration system, thereby helping to improve the health and nutrition of low income beneficiaries. Further consultation with health professionals and parents is necessary before the details of how the system will operate can be finalised. Negative resolution procedure regulations can be more easily adapted to accommodate changes in NHS structures and evidence of best practice in engaging with low income families.

302.  Subsection (1) of the Bill enables the Secretary of State to specify the categories of foods which will be made available to beneficiaries. At present, the range of foods is defined in primary legislation as 'liquid cow's milk, dried milks, vitamin tablets and vitamin drops'. This range has changed very little since the scheme's inception in 1940 and the Secretary of State may only add or remove foods from this list by order made by the affirmative resolution procedure.

303.  The decision to forego the requirement for an affirmative resolution procedure order to alter the range of foods is a consequence of the policy intention to inject greater choice within the scheme(s). It is proposed that the nutritional basis of the scheme(s) be widened, in line with scientific advice, to include other 'healthy' foods such as fruit, vegetables and cereals, in addition to milk and vitamins. The range of foods may need to be regularly adapted as the scheme(s) develops to ensure that it continues to meet the needs of the specified groups of beneficiaries. This flexibility would be lost if the range of foods were described on the face of the Bill, or required to undergo a separate and more demanding legislative procedure such as the affirmative resolution procedure that applies currently.

304.  Although the scheme itself has not been devolved, it is recognised that Ministers in the National Assembly and the Scottish Executive have the power to determine health and nutrition policy in their respective countries. Therefore subsection (7) transfers to the National Assembly the power to specify in regulations the range of foods which will be provided for beneficiaries in Wales. The power to make regulations to specify the range of foods available to beneficiaries in Scotland is intended to be transferred to the Scottish Executive by order in due course.

305.  Under the current scheme, liquid and dried milk is supplied to beneficiaries using a milk token that can be exchanged with registered suppliers for a fixed volume of milk. Suppliers are reimbursed according to the retail price of the milk they provide. Under the new scheme, it is intended that a voucher (provided for in subsection(5)(b)) bearing a fixed value will replace the milk token, enabling beneficiaries to obtain the wider prescribed range of foods. It is therefore not necessary to retain the power in section 13(4)(b) of the Social Security Act 1988 to control prices (e.g. for a pint of milk) to be charged for any welfare food.

306.  It is essential that the scheme(s) can be altered over time to take account of the differing needs of beneficiaries and also to incorporate advances in technology. For example, it may be possible in the longer term to replace a paper based voucher scheme with one that utilises smart card technology. The powers set out at subsection (5) provide the necessary flexibility.

307.  Subsection (5)(a) enables the Secretary of State to set out in regulations the type of organisation that can be involved in supplying the prescribed range of foods to beneficiaries and subsection(5)(c) enables him to require them to register with the Department before they can supply the foods. Subsection (5)(d) enables the Secretary of State to provide by regulations for payment of these suppliers. It is considered essential that a scheme(s) of this size and complexity (it currently costs around £142m per annum and involves over 750 000 beneficiaries) retains adequate operational flexibility. Therefore it is appropriate to enable these details to be set out in negative resolution procedure regulations, rather than in the Act itself or by means of a statutory instrument subject to the affirmative resolution procedure.

308.  Subsections 5(h) and (6) update powers in Section 13 of the Social Security Act 1988, which relate to information required in connection with the administration of the scheme. It is likely that the categories of persons that are specified in regulations will primarily relate to suppliers of the prescribed food. A supplier may be required, for example, to verify his status as a legitimate business, or to submit evidence which relates to a voucher transaction. The specific requirements will depend upon the operational systems which underpin the scheme(s) and will therefore be set out in secondary legislation subject to the negative resolution procedure.

309.  The purpose of subsection (5)(e) is to enable the Secretary of State to make payments to beneficiaries in certain circumstances where they have not received their voucher entitlement. This could be the result, for example, of a failure in the system that prevented the beneficiary receiving the voucher in adequate time. In these cases, it may be appropriate to make backdated cash payments. The matter has been left to delegated legislation as the circumstances in which these payments may be made will be determined largely by the operational systems which are put in place by a third party contractor.

310.  Regulations under subsection (1) may provide for the delegation of certain functions under the scheme and for all or part of a scheme to be administered by prescribed bodies on behalf of the Secretary of State (subsection (5)(f) and (g)). These wider powers are necessary for the Secretary of State to be able to delegate the administration of certain parts of the scheme to a third party, such as a contracted service provider or a Primary Care Trust.

311.  Subsection (8) provides a power for the Secretary of State to direct such bodies in matters relating to the operation of the scheme, for example, to ensure that the required standards of service are provided. With the agreement of the Secretary of State, the Assembly may direct bodies administering all or part of a scheme in relation to matters relating to the operation of the scheme in Wales (subsection 9). A similar power, in relation to Scotland, is intended to be transferred to the Scottish Executive by order in due course. It is anticipated that the precise role of third parties will be determined following additional consultation with industry and the NHS. The arrangements may need to change over time. It is appropriate for such matters therefore to be delegated.

312.  Subsection (10) continues the power in Section 13(4)(e) of the Social Security Act 1988 to enable prescribed enactments under the Social Security Administration Act 1992 (c.5), including enactments relating to offences and criminal proceedings, to be engaged and modified where necessary in relation to the administration of the scheme(s). Any modifications to the Act to be made in secondary legislation will reflect the arrangements for the supply of the prescribed foods which are put in place.

Clause 182: Replacement of the Welfare Food Schemes: Northern Ireland

313.  Clause 182 will enable Northern Ireland to replicate the provisions in Clause 181 of the Bill by way of an Order in Council subject to negative resolution procedure. This will ensure that women and children in Northern Ireland have equal access to the reformed welfare food scheme as women and children in England, Scotland and Wales. Currently women and children in Northern Ireland, under the separate Northern Ireland Welfare Food Scheme, have access to the same benefits as those in the rest of the UK. This has been the position since the Scheme's inception in 1940 and we would wish to maintain this position.

314.  During suspension of the NI Assembly NI legislation may be made by Order in Council. Such Orders are normally subject to the affirmative resolution procedure under the NI Act 2000. However, if there is a requirement for immediate parity in legislative provisions between NI and GB a convention has been established that allows Orders to be made subject to the negative resolution procedure. This is permitted only if the Order is specifically authorised by an Act of Parliament and the provisions of the Order will correspond in their purpose to the relevant provisions of the GB Act.

315.  While it will expedite NI legislation, there is still a form of Parliamentary control as the clause restricts the NI order to make provision corresponding to clause 181 of this Bill. Accordingly, if Parliamentary scrutiny of the clause results in legislative changes these will have to be reflected in the NI Order, but with a saving in Parliamentary time.

316.  To use the affirmative resolution procedure would delay the introduction of the legislation and involve Parliament debating again the same issues as in clause 172. This would be inefficient use of Parliamentary time, particularly as the amendment would require any changes to the Bill as a result of debate to be reflected in the subsequent Order. The negative resolution procedure is frequently used where there is a need for immediate parity between GB and NI legislation, most notably in social security matters.

Clause 183 and Schedule 1: Appointments to certain health and social care bodies

317.  Clause 183 provides the Secretary of State for Health with the power to direct a Special Health Authority to undertake appointments functions in relation to members of any body that has functions relating to health, social care, or the regulation of professions associated with health or social care, together with any particular office within the membership of that body, for example the chairperson. This extends the direction making power in section 16D of the 1977 Act which currently gives the Secretary of State the power to direct a Special Health Authority only in relation to functions that fall within the meaning of the "health service" in the 1977 Act: pursuant to the existing powers, the Secretary of State can, therefore, already direct a Special Health Authority to undertake appointments to NHS trusts, Primary Care Trusts and Strategic Health Authorities and national bodies whose functions fall wholly within the meaning of the "health service" in the 1977 Act. The extended power of direction will allow Ministers to delegate appointments, or such parts of the appointments process as are specified in the directions, in relation to members (and particular offices within the membership) of all health and social care bodies where Ministers are responsible for making appointments to those bodies.

318.  It would be inappropriate to have an absolute requirement for the Secretary of State to delegate his appointments function to a Special Health Authority for all or certain bodies that have functions relating to health, social care, or the regulation of professions associated with health or social care. The Secretary of State would wish to retain discretion not to delegate in relation to particular bodies or particular appointments to different bodies - he may also wish in particular cases only to delegate parts of the appointments function and the direction making power allows for this. Furthermore, there are large numbers of different types of bodies involved and the position in relation to each in terms of appointments is different, and further still might change over time. The direction making power allows for a decision to delegate to be revoked and/or varied over time to cater for changing circumstances.

319.  Clause 183(3) and Schedule 12 make amendments to the Pharmacy Act 1954, the Medical Act 1983, the Dentists Act 1984, the Opticians Act 1989, the Osteopaths Act 1993, the Nursing and Midwifery Order 2001 and the Health Professions Order 2001 to allow the Privy Council to delegate its appointment functions to the Special Health Authority. The Privy Council is given a direction-making power so that it can direct an Special Health Authority to undertake its appointments functions, or part of those functions, in relation to certain members of the health professions regulatory bodies governed by the legislation set out at the beginning of this paragraph. It would be inappropriate to have an absolute requirement for the Privy Council to delegate these appointments functions to a Special Health Authority for all the relevant bodies. There may well be circumstances where the Privy Council would wish to retain its appointment making functions in relation to a particular body or in relation to particular appointments or it may wish in particular cases only to delegate certain parts of the appointments function. The direction making power allows for a decision to delegate to be revoked and/or varied over time to cater for changing circumstances.

320.  Directions given to a Special Health Authority pursuant to the powers in section 16D, and therefore this clause, have to be given in writing by virtue of section 18(1) of the 1977 Act.

Clause 184: Appointments to certain health and social care bodies: Joint functions

321.  Clause 184 makes special provision in relation to cases where the Secretary of State's appointments function is exercisable jointly or concurrently with another person, for example the National Assembly for Wales. In these cases, the Secretary of State will have the power to direct the Special Health Authority to undertake the appointments function, subject to the requirement that he must first consult the other person. The exception to this is appointments to be made jointly with Scottish Ministers: in such a case, the Secretary of State may only direct the Special Health Authority to undertake his part of the appointments function.

Clause 185: Validity of clearance for employment in certain NHS posts

Clause 186: Abolition of the Public Health Laboratory Service Board

Clause 187: Loans by Secretary of State to NHS trusts

Clause 188: Amendment of provision relating to reform of Welsh health authorities

322.  These clauses contain no delegated powers.


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003