Select Committee on Delegated Powers and Regulatory Reform Seventh Report


ANNEX 1

HEALTH (WALES) BILL

Memorandum from the Wales Office to the Delegated Powers and Regulatory Reform Committee

INTRODUCTION

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).

MAIN PROVISIONS

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.

TERRITORIAL EXTENT

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 delegated legislation.

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, and
  • The provisions of the Bill are flexible enough to allow detailed administrative arrangements to respond to changing circumstances.

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 scrutiny.

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 OF POWERS

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 adopted.

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 in -

  • 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 liabilities, etc.
  • 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.

PARLIAMENTARY SCRUTINY

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 in Wales

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 powers.

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 1977 Act).

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, Act 2002).

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 this provision.

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 Health

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 about -

  • The appointment of the chairman and other members of the WCH including conditions for appointment and disqualification (Paragraph 10(a));
  • 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 10(c));
  • 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)); and
  • 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 11);
  • 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 the Assembly.

Paragraphs 17 to 19 contain provisions about the WCH's staff. These provisions do not confer any powers on the Assembly.

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 be prepared.

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 Assembly.

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 become necessary.

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 (6)).

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 here.

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 before making.

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 abolish.

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.

January 2003


 
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