RESPONSE TO CONCLUSIONS AND RECOMMENDATIONS
Draft legislation for Wales
(a) We warmly welcome the publication of this
first ever draft Bill for Wales, and hope that it will in due
course become the standard practice, not only for standalone
"Walesonly" Bills, but also for clauses in England
and Wales Bills which have particular implications for Wales (paragraph
scrutiny of draft Bills is a new process and the experience gained
on this draft Bill demonstrates its value. Its purpose is to expose
legislative proposals to critical examination by the public, by
professional and other stakeholders and by Parliament, and the
devolved administrations where appropriate. By taking account
of the views expressed before finalising the content of a Bill
the Government believes the quality of draft Bills will be improved,
stakeholders will be more involved and the planning and conduct
of Parliamentary business will benefit. The Government is committed
to submitting draft Bills for prelegislative scrutiny wherever
Publication of regulations in draft
(b) We welcome the commitment by the National
Assembly for Wales to provide for public consultation on the regulations
to be made under the Bill prior to its eventual enactment (paragraph
scrutiny of draft Bills is a valuable process, to which the Government
is committed. The benefits to the quality of new legislation are
accepted and similar principles in respect of secondary legislation
are accepted also. Wherever possible, in addition to the legislative
requirements for consultation, the Government will make proposed
Orders and Regulations available to stakeholders in draft before
they are laid before Parliament. The National Assembly for Wales,
which will bring in secondary legislation under the provisions
in the draft NHS (Wales) Bill, has Standing Orders that require
public consultation on proposed secondary Legislation and will
normally consult also before issuing directions to any body.
Long and short titles
(c) We recommend reconsideration of the long
and short titles of the draft Bill (paragraph 14).
Noted. Short and long
titles of Bills are a matter for Parliamentary Counsel to determine
in consultation with the House authorities and the department.
They are being considered as a normal part of preparing the Bill
(d) Such diversity offers ideal opportunities
for discovering what works best where and why. There may in due
course be a case for some mechanism to ensure that the full potential
benefits are realised of the diversity of provision among the
nations of the UK (paragraph 16).
Noted. The forging of
good working relationships between the 4 countries and key organisations
relevant to professional healthcare practice is a key factor in
ensuring that best practice is developed and shared across the
UK. There are already arrangements in place at Ministerial and
official level between all the nations of the UK to meet and share
views and experience. Many initiatives are worked on collaboratively
across the 4 UK countries. In addition to this the Chief Medical
Officers, Chief Nursing Officers and Human Resources Directors
of all 4 countries have regular meetings to share developments,
concerns and issues.
(e) Our examination of the proposals on CHCs
in the draft Bill have been based on a desire to ensure that no
opportunity is missed for ensuring that the newlook CHCs
in Wales fulfil their potential (paragraph 22).
Noted. The Committee's
approach is welcomed.
CHCs: appointment of members
(f) We see no reason to constrain the freedom
to be given to the National Assembly for Wales to lay down the
principles underlying the appointment of CHC members (paragraph
Noted. It is important
that CHCs are able to benefit from the appointment of members
able to bring to the Councils a wide range of skills and experience,
drawn from a variety of backgrounds.
Timing: Subject to the
passage of the draft Bill, Regulations will be brought forward
by the National Assembly for Wales once the powers become available.
CHCs: time off for members
(g) We recommend that the Bill be amended
to give CHC members the statutory right to time off work for public
duties (paragraph 24).
Not Accepted. It is not
necessary to make this amendment. The Employment Rights Act 1996
lists the bodies of which membership entitles an employee to time
off to attend meetings and for other specified purposes. CHCs
are not listed. However the list of public bodies can be amended
by Order. The absence of a statutory right to time off should
not be allowed to stand in the way of attracting the best people
to CHCs and further consideration will be given to approaching
the relevant Secretary of State to make an Order.
Timing: To be considered
in the light of the emerging timetable for recruitment of new
(h) We recommend adding a third rider to the
existing conditions in new Clause 20A, obliging the National Assembly
for Wales to have due regard to the boundaries of Local Health
Boards and other agencies subject to CHC scrutiny when deciding
the districts of CHCs (paragraph 28).
Not Accepted. It is not
necessary to amend the draft Bill to achieve this. The National
Assembly for Wales intends in the future to achieve closer coterminosity
between CHCs and health bodies. CHCs are already largely coterminous
with NHS arrangements and many of the arrangements reflect the
variations across Wales, e.g. rural areas may need more CHCs,
urban areas may be able to more easily concentrate activity in
one place. Many CHCs are working in federal structures and these
arrangements will need to evolve further to ensure that each locality
is represented in such a way that variations across Wales continue
to be properly addressed, and that CHCs are engaging effectively
with the new NHS structure.
Timing: Regulations defining
the boundaries of CHCs will be brought forward, subject to the
progress of the Bill and to consultation with interested parties,
as powers become available.
CHCs: National Assembly for Wales power to extend
(i) We recommend that the new Schedule 7A
be amended so as to give the National Assembly for Wales power
to extend by regulations the scope of CHC powers to inspect premises
used to provide publiclyfunded health care for the public
in their district (paragraph 32).
Not Accepted. The current
proposals for rights of entry for CHCs strike the right balance
and there are no plans to extend their remit, for example to prisons
(a point raised by the Committee when it took evidence from Ministers
on 25 June 2002 (Ev38 123 and 125). The NHS Reform and Health
Care Professions Act 2002 requires the prison service and prescribed
NHS bodies to cooperate with a view to improving the way
in which health care is secured for prisoners. It is not felt
that CHCs should be directly involved in this process.
CHCs: explanation of inspection powers
(j) In publishing the Explanatory Notes with
the eventual Bill, we recommend a translation into plain English
of the terms of paragraph (3) of Schedule 7A, and in particular
of the arcane language in subparagraphs (g) and (h) (paragraph
Accepted. The draft Bill mirrors Section 17 of the
NHS Reform and Health Care Professions Act 2002 in respect of
Patients' Forums. This is because CHCs are intended to have reciprocal
rights with Patients' Forums. The Explanatory Notes to be published
with the Bill will be revised to clarify the position, with examples
added where appropriate.
Timing: Subject to drafting
of the Bill.
CHCs: rights to information
(k) We are entitled to expect publication
in the Bill of provisions on the obligations of providers of health
services to supply information to CHCs, which should reflect the
full range of CHC visit rights, and should include English providers
Accepted. This was an
oversight and will be rectified. Consideration will be given to
listing the bodies and organisations to which it should apply.
CHCs: advocacy services
(l) We recommend examination of the terms
of paragraph 2 (g) of Schedule 7A, to ensure that it allows for
the National Assembly for Wales to provide for CHCs to commission
other bodies to carry out independent advocacy services (paragraph
Not Accepted. The Bill
provides for CHCs to undertake the independent advocacy services
relating to the NHS complaints procedure prescribed under Section
19A of the NHS Act 1977 on behalf of the National Assembly for
Wales. The Bill as drafted adequately discharges this duty. The
Government is keen to confer responsibility on the National Assembly
for Wales to set out the detail in Regulations, thus ensuring
that arrangements are as flexible as possible and are settled
after appropriate consultation.
Timing: Subject to the
passage of the draft Bill, Regulations will be brought forward
by the National Assembly for Wales as soon as possible.
CHCs: crossborder functions
(m) We recommend that the terms of the new
Schedule 7A be reviewed so as to ensure that Welsh CHCs will not
be constrained in the exercise of their functions as a result
of Welsh patients receiving treatment outside Wales, and that
there will be full reciprocal rights for the equivalent English
bodies (paragraph 41).
Not Accepted. No review
is necessary. The current Schedule is drafted in terms identical
to those in the NHS Reform and Healthcare Professions Act 2002
giving powers of inspection to Patients' Forums in England. It
has effect in England in the same way that the Act of 2002 allows
Patients' Forums to inspect premises in Wales providing treatment
to patients resident in England. The intention is that reciprocal
arrangements for inspections will be made between CHCs and Patients
(n) We recommend a review of the terms of
Schedule 7A to establish whether it provides sufficient authority
for the National Assembly for Wales to provide for a system of
reporting by CHCs to the AWCHC, and the AWCHC to the National
Assembly for Wales (paragraph 45).
Accepted. The Bill as
currently drafted contains sufficient Regulation making powers
to cover these points, however these could be made clearer and
the Schedule will be reviewed with a view to making these powers
CHCs: additional functions for AWCHC
(o) We recommend that the power which it is
proposed to give to National Assembly for Wales to allocate any
functions to AWCHC be constrained by providing that they should
be related to its core statutory functions of advice, assistance
and support to CHCs (paragraph 46).
Not Accepted. The provision
of an allWales voice on patient representation is an appropriate
function for AWCHC but would fall outside its core functions and
could not be allocated if this recommendation were accepted. There
may be others. For this reason it is considered right to maintain
a broad enabling power. However the exercise of this power would
only be in respect of functions appropriate to AWCHC and would
have due regard to the independence of CHCs.
(p) No doubt the National Assembly for Wales
will bear in mind the importance of reflecting the emphasis placed
on the independence of CHCs in any arrangements made for the employment
of their staff (paragraph 47).
Noted. This will be borne
(q) (i) We recommend a review of the terms
in the draft Bill under which the WCH is obliged to comply with
any direction of the National Assembly for Wales, with a view
to limiting that obligation to the exercise of its administrative
or financial functions.
(ii) We recommend that the terms of paragraph
16(2) of Schedule 2 be revisited with a view to using the subparagraph
to enshrine the operational independence of the WCH.
(iii) We recommend further consideration as to
how best to provide within this founding statute for the real
independence of the WCH (paragraphs 55 to 57).
Accepted. It is important
that the independence the National Assembly for Wales intends
WCH to enjoy is perceived clearly by all. A number of respondents
to the public consultation exercise expressed similar concerns.
Accordingly, further consideration will be given to these provisions,
and to the possibility of adopting a model for independence similar
to that introduced for the Food Standards Agency.
WCH: basic function
(r) On balance we are satisfied that the basic
statutory function of dealing with the protection and improvement
of health in Wales is broad enough to allow for the National Assembly
for Wales and the Centre itself to develop its work as appropriate;
and we are confident that the desire to see the Centre as a genuinely
accessible public resource for the people of Wales is well understood
within the National Assembly for Wales (paragraph 59).
Noted. This conclusion
is welcomed. WCH will play an important part in the development
of the public health function in Wales and serve as a valuable
resource for the statutory and voluntary sectors and the public
WCH: public health medical data
(s) The grave difficulties confronting public
health data collection will offer an early challenge to the new
Wales Centre for Health. Urgent and concerted action by Government,
in consultation with all the stakeholders involved, is required
to ensure that a proper level of collection of public health medical
data can be resumed (paragraph 60).
Noted. These issues are
not unique to Wales and cannot be resolved in the context of the
HPW: additional functions
(t) (i) We consider that the phrase "in
particular" should be removed from subsection (1) of Clause
4, and a third phrase added at the end of that subsection to allow
for HPW to exercise functions in relation to "similar matters".
(ii) We are uneasy about allowing functions
to be conferred on HPW by direction, as a means of avoiding the
requirement for consultation and democratic process. We recommend
the removal of subsection (2) (c) of Clause 4, under which a function
can be conferred on HPW by direction.
(iii) We also recommend that the Explanatory
Notes to be published with the Bill include a full list of those
professions whose activities the National Assembly for Wales has
already determined will be covered by HPW (paragraphs 71 to 72).
(i) The drafting of paragraph 4(1) will be reconsidered
in conjunction with Parliamentary Counsel.
(ii) The power of direction in paragraph 4(2) was
intended as a reserve power, but as there is no foreseeable intention
to allocate any additional functions to HPW, this will be removed.
(iii) A list of professions will be annexed to the
HPW: National Assembly for Wales powers of direction
(u) We recommend that the National Assembly
for Wales's power of direction to HPW in exercising a function,
as set out in subsection (4) of Clause 4, should explicitly require
prior consultation where it concerned functions carried out by
HPW on behalf of the HPC or NMC (paragraph 73).
Not Accepted. A duty to
consult is not necessary. HPW may only take on functions from
HPC or NMC by request and subject to agreement. The functions
are regulatory and would therefore have been consulted on by NMC
or HPC. The National Assembly for Wales could not direct HPW to
act in conflict with those agreements as it could lead to withdrawal
of the functions by NMC or HPC.
HPW and WCH: Welsh Language Act
(v) We would welcome written confirmation
that it is necessary to have a specific reference to WCH in section
6 of the Welsh Language Act, but not to HPW (paragraph 74).
Noted. Schedule 3 to the
draft Bill specifically extends the Welsh Language Act 1993 to
CHCs and WCH, which are respectively continued in existence and
established by the draft Bill. HPW will be established by Order
(subject to the passage of the Bill) once the powers become available.
The National Assembly for Wales has powers under the Act of 1993
to add by Order any body and therefore will bring HPW into being
and make it subject to the Act of 1993 by way of an Order.
The Government welcomes this Report, which plays
a valuable part in the prelegislative scrutiny process.
It helps achieve the Government's aim to improve the quality of
draft Bills by opening them to greater involvement by stakeholders
and, consequently, will contribute to the wider objective of improving
the whole process of making legislation in Parliament.