HEALTH (WALES) BILL
Memorandum from the Wales Office to the
Delegated Powers and Regulatory Reform Committee
The Health (Wales) Bill received its first reading
in the House of Lords on 9th January 2003. This Memorandum
identifies provisions for delegated legislation and explains their
purpose and method of operation. All delegated legislation will
be a matter for the National Assembly for Wales. Before making
any delegated legislation the Assembly will be required to comply
with its subordinate legislation procedures referred to in sections
66 and 67 of the Government of Wales Act 1998, c38. No Parliamentary
procedure will be involved. This is consistent with the general
disapplication of Parliamentary procedures in relation to functions
transferred to the Assembly by Order in Council (Government of
Wales Act 1998, section 44).
The Bill is short, consisting of only 10 clauses
and 4 schedules.
Clause 1 and Schedule 1 cover the reform of Community
Health Councils ("CHCs"). They also allow the National
Assembly for Wales to establish an Association of Welsh CHCs,
with responsibility for the performance of Welsh CHCs.
Clauses 2 and 3 and Schedule 2 deal with the establishment
of the Wales Centre for Health ("WCH"), which will be
an independent training, advisory and research body working with
the National Assembly for Wales and the public, voluntary and
academic sectors. It is intended that the WCH will bring together
information and evidence and provide advice upon which policy
makers (including the Assembly) can base decisions, co-ordinate
professional surveillance of health trends, and undertake risk
assessments of threats to health and well-being in Wales. Clauses
2 and 3 and Schedule 2 establish the WCH as a body corporate and
set out its statutory functions. The Assembly is empowered to
confer further related functions on the WCH.
Clauses 4 and 5 provide for the creation of Health
Professions Wales ("HPW", a body which may, by agreement
with the relevant UK professional bodies (the Nursing and Midwifery
Council ("NMC") and the Health Professions Council ("HPC")),
undertake quality assurance of pre-registration nurse, midwife
and health visitor training on behalf of the NMC and quality assurance
of training of other health professionals on behalf of the HPC.
In addition, HPW will also carry out such other functions as the
Assembly determines in relation to the continuing education, training,
and clinical experience of nurses, midwives, health visitors and
other healthcare professions and support workers. HPW may also
undertake other related functions which are currently undertaken
within the Assembly by a business unit also known as HPW.
Clauses 6 to 10 (with Schedules 3 and 4) deal with
miscellaneous and supplementary issues relating, in particular,
to consequential provisions, financial provision, amendments and
repeals, orders and regulations, devolution, commencement of the
Act's provisions, the extent of the Act and the short title.
The main provisions of the Bill (Clauses 1 to 5 and
Schedules 1 and 2) extend to England and Wales.
RATIONALE AND OVERVIEW OF DELEGATED POWERS
The Bill contains powers for the Assembly to make
The Bill's provisions relate to an area of law which
is devolved to the National Assembly for Wales and bodies for
which the Assembly has (or will have, once they are established
under the provisions of this Bill) responsibility. It is therefore
appropriate for the powers to make delegated legislation to be
vested in the Assembly.
In considering whether matters should be specified
on the face of the Bill or left to delegated legislation the Wales
Office has taken account of the need to ensure that:
- The overall legislative framework and the substantive
policy provisions are presented clearly on the face of the Bill,
- The provisions of the Bill are flexible enough
to allow detailed administrative arrangements to respond to changing
BACKGROUND: 1. EXISTING HEALTH LEGISLATION
Devolution in the case of the National Assembly for
Wales works not by devolution of competency for entire fields
of policy but by transfer of ministerial functions (see for example
the National Assembly for Wales (Transfer of Functions) Order
1999 (1999/672) and subsequent Transfer of Functions Orders).
Therefore it is useful to view the delegated powers which will
be granted under this Bill in the context of the existing legislation,
primarily the National Health Service Act 1977 (c.49).
The approach of the 1977 Act is to place the duty
for providing a comprehensive health service on the Secretary
of State (section 1) and to confer broad discretionary powers
on him in relation to how that is to be secured (see sections
2 and 3 in particular, which are based on the formula of what
"he considers appropriate" or "he considers necessary").
There are numerous powers to make subordinate legislation and
broad powers to direct health service bodies to carry out functions
of the Secretary of State (section 16D) and as to the exercise
of their functions (section 17). The Secretary of State's functions
under the 1977 Act (with certain specific limited exceptions which
do not affect the scope of the general powers) were transferred
to the Assembly by the Transfer of Functions Order 1977.
Thus, the overall context of the powers which the
Assembly has in relation to health in Wales is permissive, rather
than prescriptive. The benefit of this is that it promotes the
freedom and flexibility to adapt to changing needs in the delivery
of health services, and avoids a mass of detail on the face of
primary legislation which would have to be the subject of Parliamentary
Following this model, the National Health Service
Reform and Health Care Professions Act 2002 (c.17) conferred broad
powers on the Assembly to achieve the first two aims of its five-point
plan for the NHS and its partners in Wales, namely the establishment
of Local Health Boards (section 6 and Schedule 4) and the creation
of health and well-being strategies (section 24). These included
the power to set up, re-organise and dissolve Local Health Boards,
to define their functions and constitutions, and to set out the
obligations of health service and social service providers under
health and well-being strategies.
The approach adopted in this Bill is consistent with
the 1977 and 2002 Acts, in that it seeks to confer on the Assembly
a similar degree of freedom and flexibility as were previously
conferred on the Secretary of State, and also to ensure that the
Assembly has the ability to develop its own solutions for changing
situations in health care provision without having to wait for
further primary legislation on the matter. The checks and balances
which apply to the Assembly are in fact greater than would apply
to the Secretary of State in the exercise of these powers - as
dealt with in the section below.
BACKGROUND: 2. DEVOLUTION IN WALES AND THE EXERCISE
The powers conferred on the Assembly, whether by
transfer of functions or by subsequent enactments, are conferred
on the Assembly itself, and not on an executive or individual
ministers. The Assembly is a 60-member elected body with its own
processes for scrutiny of the exercise of delegated powers.
In the case of subordinate legislation, the Assembly
may not delegate its function of approving such legislation (Government
of Wales Act 1998, section 66(7) and all legislation is made by
the Assembly in plenary session, save for exceptional cases in
which urgent legislation may be signed by the Presiding Officer
or a Minister without going through the usual procedure, and which
is then subject to potential revocation by the Assembly for forty
working days (section 67 of that Act).
The Assembly has no power to make or approve any
subordinate legislation which is incompatible either with rights
under the European Convention on Human Rights as defined in the
Human Rights Act 1998 (section 106(7) of GoWA 1998), or with European
Community obligations (section 107(1) of GoWA 1998).
Before a draft of any proposed subordinate legislation
is laid before the Assembly, a regulatory appraisal as to the
likely costs and benefits of complying with it must take place
(section 65(1), GoWA 1998), unless this would be inappropriate
or not reasonably practicable (section 65(2)). If the appraisal
indicates that the costs of complying with the proposed legislation
are likely to be significant then appropriate consultation with
interested parties or organisations (including representatives
of business) must take place (section 65(3) and Standing Order
22.2). Assembly guidance also makes it clear that engaging communities
of interest is central to delivering responsive policies and sets
out guidelines for conducting consultation.
When the draft of proposed subordinate legislation
is laid before the Assembly, it is posted to the Intranet, to
which all Assembly members have access, and also to the Assembly's
website to which the public have access. The draft is then considered
by The Business Committee to determine (amongst other things)
whether the legislation needs to be considered by the relevant
subject committee of the Assembly. For example, the Assembly legislation
setting up Local Health Boards and their functions, and setting
out the scope of health and well-being strategies, was considered
by the Health and Social Services Committee of the Assembly, which
made a number of recommendations for amendment, a significant
number of which were accepted.
The draft legislation is then considered by the Assembly's
Legislation Committee. This Committee considers whether there
are any matters which it ought to notify to the Assembly under
Standing Order 11.5, which includes matters such as whether there
is doubt as to the Assembly's power to make the legislation, defective
drafting or lack of clarity. In practice, the report of the Legal
Adviser to the Legislation Committee often makes a number of suggestions
(of a lesser order than notification under SO 11.5) as to how
the legislation might be improved, and these suggestions are usually
The final stage is approval of the legislation by
resolution in plenary session.
Therefore, the powers to make subordinate legislation
which are to be conferred by this Bill are exercised by a democratically-elected
body, with appropriate safeguards in respect of human rights and
a strong bias in favour of consultation, and they are subject
to greater scrutiny than would be the case with the Parliamentary
negative resolution procedure.
As regards powers of direction and determination,
these may be delegated by the Assembly to the First Minister (section
62(1)(b) of GoWA 1998), who may then make arrangements to delegate
such functions to individual Ministers (section 62(5) of that
Act). However, if the content of any direction or determination
is legislative in character, rather than purely administrative,
some or all of the stages as described above may be applied as
appropriate, and the instrument treated as legislation (Standing
Order 27). The Assembly's Health and Social Services Committee
are notified in advance of forthcoming directions and determinations
which effect significant changes.
OVERVIEW OF POWERS
The Bill contains powers to make subordinate legislation
- Clause 1(1) (which inserts a new section 20A
into the National Health Service Act 1977). New section 20A(2)
covers the name by which CHCs are to be known and the abolition,
establishment, or alteration of districts of CHCs. Subsection
(4) of the new section inserts a new schedule 7A into the 1977
Act which contains further powers as set out below.
- Schedule 1. This inserts a new Schedule 7A into
the 1977 Act. Paragraph 2 confers powers in respect of numerous
detailed matters (sub-paragraphs (a) to (n)) concerning the constitution,
functions, performance and powers of CHCs. Paragraphs 3(1) and
(2) allow the Assembly to make regulations concerning inspections
by CHCs of the types of health service providers described. Paragraph
(4) allows the Assembly by regulations to establish a body to
advise and assist CHCs.
- Clause 1(2). This inserts (at section 126 of
the 1977 Act) a new subsection (4A). The new subsection extends
the existing power of the Assembly under section 126(4) so as
to allow it to make consequential amendments or repeals to any
provision made by or under any enactment.
- Clause 2(2). The Assembly may determine the number
of members of the Wales Centre for Health. Further powers in relation
to the WCH are contained in Schedule 2.
- Schedule 2. Paragraph 4 gives the Assembly a
power of direction in relation to the appointment of staff, terms
and conditions of employment including pensions, etc, and the
application of any sums paid to the WCH. Paragraph 6 gives the
Assembly a power of direction to remedy matters in the case of
a serious failure by the WCH to perform any function. Paragraph
10 allows the Assembly to make regulations concerning matters
such as the appointment and tenure of office or the chairman and
members of WCH, and about committees and sub-committees of the
WCH, and their proceedings (sub-paragraphs (a) to (e). Paragraph
27 allows the Assembly to make further provision about the accounts
and audit of WCH.
- Clause 3. Subsection (3) allows the Assembly
to make provision by regulations about additional functions of
the WCH, the giving of advice by the WCH, and reports to be provided
by the WCH. Subsection (4) allows the Assembly to transfer to
itself any or all of the WCH's functions, and subsection (5) allows
for the abolition of the WCH. Subsection (6) allows the Assembly
to provide for the consequential transfer of staff, assets and
- Clause 4. Subsection (1) allows the Assembly
to establish HPW. Subsection (3) allows the Assembly to provide
by order for the HPW to carry out functions on its behalf. Subsection
(4) deals with making provision for HPW to enter into and carry
out arrangements with the NMC, HPC or any other body for carrying
out their functions in relation to Wales. Subsection (7) allows
the Assembly to provide for the constitution of HPW and in particular
allows it to make similar provision to Schedule 2 (see above).
- Clause 5. Subsection (1) allows the Assembly
to make provision about charging for any service provided by HPW.
Subsection (2) provides for the Assembly to make transfers of
staff, assets and liabilities to HPW. Subsection (4) gives the
Assembly a power of direction in relation to the appointment of
staff, terms and conditions of employment including pensions,
etc, and the application of any sums paid to HPW. Subsection (7)
allows the Assembly to make provision about the accounts and audit
of HPW and in particular, to make similar provision to Schedule
2. Subsection (8) allows the Assembly to abolish HPW, and subsection
(9) to make transfers of staff, assets and liabilities of HPW.
- Clause 8(3). This allows the Assembly to include
in regulations or an order made under this Bill any appropriate
consequential, supplementary, transitional, etc provisions and
to amend or repeal any provision made in or under any enactment
for that purpose.
Regulations and Orders made by the National Assembly
for Wales will be subject to their own procedures as provided
for in its standing Orders under sections 64 to 68 of the Government
of Wales Act 1998, and as explained in more detail above.
COMMENTARY ON CLAUSES
Clause 1, Schedule 1: Community Health Councils
Clause 1, subsection (1) inserts a new section (section
20A) into the National Health Service Act 1977. Section 20A(1)
provides that Community Health Councils will be retained in Wales.
Section 20A(2)(a) provides the National Assembly for Wales with
a new power to change the name of Community Health Councils. This
is appropriate, as if the role of CHCs is to change and respond
to the needs of patients, it may become necessary to alter their
names to something more relevant and descriptive of their functions.
Given its commitment to the equal treatment of the Welsh and English
languages, the Assembly may also find it appropriate to create
an equivalent Welsh title, rather than a simple translation of
the existing English statutory title.
Section 20A(2)(b), (3)(a) and (3)(b) together extend
the existing powers of the Assembly (under section 20(1) and (2)
of the 1977 Act) to determine the number of Community Health Councils
in Wales and their geographical boundaries. Section 20A(2)(b)
allows for the abolition, alteration of the district, or establishment
of a Community Health Council. Abolition and variation of the
area of a CHC is not expressly provided for under the existing
legislation and it is appropriate that the Assembly should have
the flexibility to alter the number of CHCs and the areas for
which they are responsible in order to meet changing circumstances.
Section 20A(3)(a) provides that the Assembly must ensure that
every part of Wales is included within the district of a Community
Health Council, and Section 20A(3)(b) that no part of a Community
Health Council's district be separated from the rest of it. Therefore
the Assembly may not use its powers so as to leave any part of
Wales unrepresented by a CHC.
Section 20A(4) introduces Schedule 7A, which makes
further provision in relation to Community Health Councils.
Clause 1, subsection (2) adds a new power to amend
or repeal any provision made by or under an enactment, in consequence
of the exercise of powers under the new section 20A and Schedule
7A. This is appropriate so that the Assembly may make the appropriate
consequential amendments to existing legislation without having
to await primary legislation.
Clause 1, subsection (3) inserts a revised Schedule,
Schedule 7A, into the National Health Service Act 1977.
Schedule 7A sets out the functions of Community Health
Councils and how they are to be run. Paragraphs (a) and (b) of
paragraph 1 confer no powers on the Assembly but state that it
is the duty of a Community Health Council to represent the interests
of the public in the health service and to perform such other
functions as might be conferred on it.
Paragraphs (a)-(n) of paragraph 2 detail the areas
in which the National Assembly for Wales will have powers to make
provision by regulations. Some of these are restatements of existing
powers in relation to CHCs, whereas others are new or extended
Paragraph (a) covers the membership of Community
Health Councils. The current Schedule 7 to the National Health
Service Act 1977 (paragraph 3) states that at least one half of
the Community Health Council's membership should be drawn from
local authorities, one third from voluntary organisations and
the remainder in such a manner as may be prescribed (in effect,
the remainder are appointed through open advertisement). This
paragraph extends the power of the National Assembly for Wales
to make provision about the membership of Councils, by removing
these constraints. It is appropriate that the Assembly should
have the flexibility to make such provision free from the existing
constraints, and the Secretary of State has the like power in
relation to Patients' Fora (which are the CHCs' replacement in
England) under section 19(2)(a) of the National Health Service
and Healthcare Professions Act 2002.
Paragraphs (b) to (e) concern proceedings, staff,
premises and expenses of Councils, their discharge of functions
via committees, and the appointment of persons who are not members
of a Council to such committees. Paragraphs (b) and (c) re-state
existing powers (see Schedule 7, paragraph 2 (b) and (c) to the
Paragraph (d) confers a new power to provide for
the discharge of any function of a CHC by a committee of that
CHC or a joint committee appointed with another CHC. Paragraph
(e) confers a new power to provide for the appointment of persons
who are not members of the CHC or CHCs concerned to such committees.
These new powers are needed to provide for efficient and flexible
working and sharing of resources between CHCs and the introduction
of skill and expertise from outside where necessary. Similar powers
have been conferred on the Secretary of State in respect of Patients'
Fora in England (section 19(2)(f) and (g) of the NHS Reform, etc,
Paragraph (f) re-states the existing power (see Schedule
7, paragraph 2(d), to the 1977 Act) to provide for consultation
of CHCs by Health Authorities and NHS Trusts, and extends it to
cover Strategic Health Authorities, Primary Care Trusts and Local
Health Boards. This extension is necessary in view of the structural
changes to the main health service bodies which are taking place
in both Wales and England.
Paragraph (g) re-states the existing power (see Schedule
7, paragraph 2(f), to the 1977 Act) to provide for consideration
by CHCs of matters relating to the operation of the health service
within their districts, and the giving of advice by them to Health
Authorities and NHS Trusts, and extends this latter provision
to cover Primary Care Trusts and Local Health Boards. Again, this
is justified by the creation of the new bodies referred to in
Paragraph (h) re-states the existing power (see Schedule
7, paragraph 2(g), to the 1977 Act) to provide for the preparation
and publication of reports by CHCs, but extends it by removing
the qualification that such reports are to be on matters relating
to the operation of the health service within their districts.
This is to allow for the possibility of CHCs reporting on the
provision of services outside their area, for instance where specialist
services are rendered to patients who live in a CHC's district
by a provider in another part of Wales or England. Again, this
reflects the equivalent powers given to the Secretary of State
in relation to Patients' Fora (section 19(2)(n) of the 2002 Act).
Paragraph (i) confers a new power to provide for
the content of such reports. Paragraph (j) confers a new power
to provide for the furnishing and publication by Health Authorities,
Local Health Boards and NHS Trusts of comments on such reports.
These latter two powers are necessary in order to ensure that
CHCs provide reports on appropriate areas of health service provision
and that their comments are taken on board by the providers. These
powers replicate the equivalent powers given to the Secretary
of State in relation to Patients' Fora (section 19(2)(o) and (p)
of the 2002 Act).
Paragraph (k) confers a new power to provide for
the provision of information to CHCs by Health Authorities, Local
Health Boards, Strategic Health Authorities, Primary Care Trusts
and NHS Trusts. This is to ensure that CHCs are kept informed
of matters such as major service developments and changes which
are planned by the providers, and reflects the equivalent powers
given to the Secretary of State in relation to Patients' Fora
(section 19(2)(k) of the 2002 Act).
Paragraph (l) confers a new power to provide for
the provision of information by CHCs to other persons (including
other Councils). It may be necessary for CHCs to provide information
to organisations or individuals or other CHCs in order to fulfil
their functions, including for example participating in consultations
on major service changes. The equivalent power is given to the
Secretary of State in relation to Patients' Fora (section 19(2)(l)
of the 2002 Act).
Paragraph (m) confers a new power to provide for
the provision by CHCs of independent complaints advocacy services
under section 19A of the National Health Service Act 1977. This
is necessary to ensure that CHCs may deliver this service if appropriate.
Paragraph (n) re-states the existing power (see Schedule
7, paragraph 2(h), to the 1977 Act) to provide for additional
functions to be exercised by CHCs. This is necessary to allow
CHCs to carry out additional related functions if the needs of
the patients they represent so require.
Paragraph 3 gives the National Assembly for Wales
a new power to make regulations requiring health service bodies
and providers of family health services, (e.g. GPs, pharmacists,
dentists and opticians) as well as others who own or control premises
where such services are provided (e.g. nursing homes in which
NHS care is provided), to allow authorised members of Community
Health Councils to inspect premises owned or controlled by them.
This applies to Health Authorities, Local Health Boards, Strategic
Health Authorities, Primary Care Trusts, Local Authorities, NHS
trusts, and providers of general and personal medical services
under the relevant provisions of the National Health Service Act
1977. The requirement to allow access will be limited to the cases
and circumstances set out in regulations and subject to any limitations
or conditions specified in those regulations. This power is necessary
so as to allow the Assembly to give CHCs a right to access and
inspect premises where health services are provided, in order
to perform their role effectively. This mirrors the equivalent
powers given to the Secretary of State in relation to Patients'
Fora (section 17 of the 2002 Act).
Paragraph 4 re-states the existing power of the National
Assembly for Wales, through regulations, to establish a statutory
body to advise and assist Community Health Councils in Wales in
the performance of their functions, and to perform such other
functions as may be prescribed. As was previously the case, the
Assembly will also have power to provide for the membership, proceedings,
staff, premises and expenses of that body. This is appropriate
so that the Assembly may create an umbrella body to advise and
assist CHCs in the performance of their duties.
Paragraph 5 replicates existing Schedule 7 provisions
applicable to members' expenses.
Clause 2 and Schedule 2: Wales Centre for
Clause 2 does not confer any legislative powers on
the Assembly. It does, however, introduce Schedule 2, which contains
legislative powers (see below).
Clause 2, subsection (1) establishes the Wales Centre
for Health ("WCH") as a body corporate.
Clause 2, subsection (2) empowers the National Assembly
for Wales ("the Assembly") to appoint the members of
the WCH and subsection (3) allows the Assembly to appoint one
of the members as the Centre's chairman.
Clause 2, subsection (4) allows the Assembly to make
payments to the WCH on such conditions as the Assembly determines.
Clause 2, subsection (5) introduces Schedule 2, which
sets out further provisions in relation to the WCH. Paragraphs
1 to 3 deal with the status of the WCH and the exercise of its
functions, and confer no legislative powers.
Paragraphs 4 to 9 of Schedule 2 concern powers to
make directions which may be given by the Assembly in relation
to staff and administrative matters (paragraph 4 and 5), and in
circumstances where there has been a serious failure by the Centre
to perform any function which the Assembly considers should have
been performed by the WCH (paragraph 6). In view of the WCH's
intended status as an independent body, there is no general power
to direct it in relation to the exercise of its functions (as
is often the case in respect of health-related bodies). Some limited
power of direction is needed to provide for routine administrative
and financial matters, and more exceptionally, to allow the Assembly
to act to remedy the situation where there is a serious failure
to perform a function. This latter power reflects the power which
the Secretary of State has in respect of another independent body,
the Food Standards Agency (section 24(1) of the Food Standards
Act 1999 (c.28)). There are conditions in paragraphs 7 and 8 on
the exercise of this power. Paragraph 7 provides that directions
under paragraph 6 must include a statement summarising the reasons
for giving them. Paragraph 8 provides that any directions given
under this schedule must be given in writing. Paragraph 9 provides
that the WCH must comply with any directions given by the Assembly
under this schedule.
Paragraph 10 details the areas in which the Assembly
has a power to make provision through regulations in respect of
the WCH. The Assembly has a new power to make provision by regulations
- The appointment of the chairman and other members
of the WCH including conditions for appointment and disqualification
- Tenure of office of the chairman including circumstances
in which he ceases to hold office or may be removed or suspended
from office (Paragraph 10(b));
- Tenure of office as a member of WCH of the chairman
or any other member including circumstances in which they cease
to hold office or may be removed or suspended from office (Paragraph
- The appointment and constitution of, and exercise
of functions by, a committee or sub-committee of the WCH, including
provision for including in a committee or sub-committee persons
who are not members of the WCH, and including in a sub-committee
persons who are not members of a committee (Paragraph 10(d));
- The proceedings of the WCH, or any of its committees
or sub-committees (Paragraph 10(e).
These are all normal and routine matters of detail,
about which it is reasonable and appropriate to give to the Assembly
the function of legislating.
Paragraphs 11 to 13 contain no legislative provision
but do confer on the Assembly a power to make requirements and
determinations in respect of payment, allowances and pensions,
etc, of members. The Assembly will have a power to require the
WCH to -
- Pay the chairman and other members, and any member
of a committee or sub-committee, such remuneration, travelling
and other allowances as the Assembly may determine (Paragraph
- Pay to, or in respect of, any person who has
been the chairman or other member of the WCH such pension, allowances
and gratuities as the Assembly may determine (Paragraph 12(a)),
or to make such payments as the Assembly may determine towards
the provision of such pensions, etc (Paragraph 12(b));
and the Assembly may determine whether there are
special circumstances which make it appropriate for a person who
ceases to hold office as the chairman or a member of WCH or a
committee or sub-committee to receive compensation, and the WCH
must pay such amount as the Assembly may determine (Paragraph
13(a) and (b)). These are normal and routine matters of detail
which it is reasonable to leave to the Assembly rather than putting
the detail on the face of the Bill.
Paragraphs 14 to 16 concern the chief executive of
the WCH and similar provision is made for the Assembly to make
requirements and determinations in respect of the chief executive's
remuneration, allowances, pension and compensation for loss of
office where appropriate. In addition, the chief executive may
only be appointed with the Assembly's consent and on such terms
as the Assembly may determine (Paragraph 14(2)(a) and (b)). Again,
this is a matter of detail which it is reasonable to leave to
Paragraphs 17 to 19 contain provisions about the
WCH's staff. These provisions do not confer any powers on the
Paragraph 20 sets out the general powers of the WCH
to do anything which it considers necessary or expedient for the
purpose of, or in connection with, the exercise of its functions.
This provision does not confer any powers on the Assembly.
Paragraph 21 allows the WCH to charge for the provision
of advice, information or assistance to any person. This provision
does not confer any powers on the Assembly.
Paragraph 22 allows the WCH to make arrangements
with other persons to assist it in the discharge of its functions.
This provision does not confer any powers on the Assembly.
Paragraph 23 provides that the WCH must keep proper
accounting records, and that it must prepare accounts for each
financial year in such form as the Assembly may determine. As
the body responsible for funding the WCH, it is appropriate that
the Assembly should determine the form in which accounts should
Paragraph 24 deals with audit provisions and the
scrutiny of accounts by the Auditor General for Wales. Such accounts
must be submitted to the Auditor General for Wales before the
end of such period after the end of the financial year as the
Assembly may direct. As the body responsible for funding the WCH,
it is appropriate that the Assembly should direct the period for
submitting the accounts for audit.
Paragraph 25 makes provision for examinations into
the use of resources by the WCH. This provision does not confer
any powers on the Assembly.
Paragraph 26 makes provision for examinations by
the Comptroller and Auditor General. This provision does not confer
any powers on the Assembly.
Paragraph 27 confers a regulation-making power on
the Assembly to make such further provision about the accounts
and audit of the WCH as it considers appropriate. As the body
responsible for funding the WCH, it is appropriate that the Assembly
should have such a power.
Paragraph 28 deals with the formalities of execution
of documents. This provision does not confer any powers on the
Paragraph 29 deals with the provision of reports
by the WCH and includes a power for the Assembly to request information
(paragraph 29(3)). As the WCH's role is to advise on public health
matters, it is appropriate that the Assembly should have the power
to call for information, for example statistics or other health
information and so on, from time to time.
Clause 3: Functions of the WCH
Clause 3, subsection (1) sets out the statutory functions
of the WCH. These include providing information to the public
on matters related to the protection and improvement of health
in Wales, and undertaking research and supporting training in
such matters. Subsection (2) provides that the function of making
information available to the public must be carried out with a
view to ensuring that they are kept informed in respect of matters
which the Centre considers might significantly affect their health.
These provisions do not confer any powers on the Assembly.
Clause 3, subsection (3) empowers the Assembly to
make provision by regulations regarding additional functions of
the WCH (clause 3(3)(a)), persons to whom advice and information
are to be given by the WCH (clause 3(3)(b)), and reports to be
published by the WCH (clause 3(3)(c)). The WCH will be a new body,
in a new role, and it is appropriate that the Assembly should
have the powers listed in this paragraph so as to provide for
the inevitable change and adaptation which will occur as the WCH
grows into its role.
Clause 3, subsection (4) empowers the Assembly to
transfer, by order, any (or all) functions of the WCH to itself.
Where a transfer Order transfers all the WCH's functions to the
Assembly, the order may abolish the WCH (subsection (5)). Any
transfer order may make provision for the transfer of any staff,
assets or liabilities of the WCH (subsection (6)). Such a power
is needed to deal with any potential future situation in which
it may be more effective for the Assembly to perform any function
of the WCH, or in which it the WCH itself may no longer be needed.
It is important that the Assembly should have the flexibility
to make the necessary arrangements without returning to Parliament
for more primary legislation solely to enable this to be done.
Of course, any legislation to remove functions from the WCH or
to abolish it would have to go through the process of consultation
and scrutiny described above in the "Background" section.
Clauses 4 and 5: Health Professions Wales
Clause 4(1) gives the National Assembly for Wales
the power to establish by order a body corporate to be known as
Health Professions Wales ("HPW"). HPW does not have
a responsibility to the public (as WCH does) and certain of its
functions are already being performed within the Assembly by a
business unit, therefore it is appropriate that the Assembly should
have the power to establish this body.
Clause 4(2) provides that HPW is to have such functions
in relation to health care professionals and support workers as
may be conferred on it under this clause.
Clause 4(3) confers on the Assembly an order-making
power to provide for HPW to carry out functions on behalf of the
Assembly. This expressly does not include the function of making,
confirming or approving subordinate legislation (subsection (5)).
This is needed in order to allow HPW to continue carrying out
the present functions of the Assembly which the business unit
now carries out, and to take on any related functions which may
Clause 4(4) confers on the Assembly the power, by
order, to make provision enabling HPW to enter into and carry
out arrangements with the Nursing and Midwifery Council ("NMC"),
the Health Professions Council ("HPC") and any other
body for the exercise of their functions in relation to Wales.
When the former Wales National Board for Nursing and Midwifery
was abolished, many of its functions transferred to the new central
body, the NMC. Also, the HPC was created to exercise similar functions
in respect of other health professions. Both organisations have
the power to make arrangements for their functions to be carried
out by local organisations in Wales, Scotland and Northern Ireland.
Therefore this power is needed, in order to allow HPW to enter
into such arrangements with these or other bodies.
It is to be noted that the carrying out of functions
by HPW on behalf of the Assembly or any other body does not affect
the responsibility of the Assembly or the body concerned (subsection
Subsection (7) gives the Assembly a power to provide
for the constitution of HPW, including making similar provision
to that set out in Schedule 2 in respect of WCH. The same justifications
as apply to the powers in Schedule 2 in respect of WCH also apply
Subsections (8) and (9) define the terms "health
care profession" and "health care support worker".
These provisions do not confer any power on the Assembly.
Clause 5, subsection (1) allows the Assembly, by
order, to make provision for HPW to charge for any of its services.
It may be appropriate for HPW to charge for certain services,
such as advice and assistance to employers on training and education,
etc. It is only proposed to charge for services which are used
on a voluntary basis. As mentioned before, such legislation would
be subject to the usual processes of consultation and scrutiny
Under subsection (2), the Assembly may by order provide
for the transfer of staff, assets and liabilities for the purpose
of enabling or assisting HPW to carry out any functions on behalf
of the Assembly. This is a reasonable and appropriate power in
order to enable HPW to do its work. It is necessary because the
employees and assets of the former Wales National Board of Nursing
and Midwifery transferred to the Assembly upon abolition, and
they will have to transfer to the new body upon creation.
Subsection (3) sets out the Assembly's power to make
payments to HPW and impose conditions.
Subsections (4) to (6) deal with the giving of directions
by the Assembly to HPW. Under subsection (4), the Assembly may
give HPW directions in relation to staff and other administrative
matters. This is a necessary and appropriate power which it is
reasonable that the Assembly should exercise. Such directions
must be in writing (subsection (5)) and must be complied with
by HPW (subsection (6)).
Subsection (7) empowers the Assembly to make provision
by order about the accounts and audit of HPW including making
similar provision to that set out in Schedule 2 in respect of
WCH. This is appropriate, given that the Assembly is the body
responsible for funding HPW.
Subsection (8) allows the Assembly to abolish HPW
by order. Abolition may become necessary to meet changed circumstances.
In particular, if the NMC and HPC wish to take greater control
of continuing education of health care professions within the
remit of HPW . This would remove a large part of HPW's raison
d'etre, and the remaining functions may not be sufficient to justify
maintaining a separate body on economy and efficiency grounds.
It is important that the Assembly should have the flexibility
to make such a decision if necessary.
Subsection (9) allows the Assembly to provide by
order for the transfer of any staff, property, rights and liabilities
of HPW. This is a necessary ancillary provision to the power to
Subsection (10) provides that an order under subsection
(2) or (10) may provide for transfers to take effect subject to
any reservations and exceptions, or for the creation of interests
in, or rights over, property, or for the transfers to take effect
in spite of any provisions which would otherwise restrict or prevent
transfer. This is a normal provision in order to avoid inhibitions
to the necessary ancillary transfers of property and other assets.
Clause 6 (Powers of the National Assembly for Wales
under amended Acts) does not of itself confer any new powers or
extend any existing ones. It has the effect of ensuring that where
an Act referred to in the National Assembly for Wales (Transfer
of Functions Order 1999)(SI 1999/672) is amended by this Bill,
the reference is to be treated as a reference to the Act as amended.
The "power to make further Orders" referred to in subsection
(2) is the existing power of Her Majesty under s. 22 of the Government
of Wales Act 1998 to make Orders in Council transferring ministerial
functions to the Assembly.
Clause 7 deals with minor and consequential amendments
and repeals, and does not confer any powers on the Assembly.
Clause 8 makes the standard provision for orders
and regulations, namely that -
- The power to make them is exercisable by statutory
instrument (subsection (1));
- They may make different provision for different
purposes or cases (subsection (2)); and
- They may make any appropriate consequential,
incidental, supplementary, transitory, transitional or saving
provision, including amending or repealing any provision made
by or under any enactment (subsection (3)). This is necessary
to allow the Assembly to make any necessary and consequential
amendments in connection with the exercise of the powers conferred
by this Bill and so as to avoid the need to return to Parliament
for further primary legislation to achieve such amendments. In
general, where amendments to primary legislation are made by secondary
legislation, the Assembly is required to agree these in advance
with Parliamentary Counsel.
Clause 9 deals with financial provision and confers
no powers on the Assembly.
Clause 10 sets out the short title, commencement
and extent. Subsection (2) confers a power on the Assembly to
appoint by order the date for commencement of all the provisions
of the Bill, save for clauses 8, 9 and 10 (which come into force
on Royal Assent). As the provisions of this Bill relate almost
entirely to Wales, and the assembly will be responsible for implementing
them, it is appropriate that the Assembly should have the discretion
as to when to commence them.