Subordinate Legislation
National Health Service (Transfer of Property between Health Boards) (Scotland) (No 2) Regulations 2004 <br />(SSI 2004/285)
Item 1 on the agenda is subordinate legislation. The matter that we are dealing with is continued from our meeting on 29 June and concerns the consideration of the Subordinate Legislation Committee's report, which members have before them. No comments have been received from members and no motion to annul has been lodged.
From the Scottish Executive we have before us Jan Marshall from Legal and Parliamentary Services, Mike Baxter, the director of performance management at the Health Department, and David Hastie from the directorate of performance management and finance at the Health Department. They will clarify any points that members are unclear about.
A question that is frequently asked of me relates to what happens to bequests that are given to specific hospitals and specific hospital departments. When any shuffling happens in the national health service, people ask what happens to that money. That question always crops up but I cannot answer it.
Mike Baxter (Scottish Executive Health Department):
When bequests are made to NHS hospitals, they are usually extremely specific. When there is a restructuring of the health service, the expectation is that the bequests will be used for the purposes for which they were given. In respect of the Scottish Hospital Trust, there were specific provisions in the Public Appointments and Public Bodies etc (Scotland) Act 2003 to ensure that the functions for which the bequests were originally made are continued after they transfer to a different body.
What was our panel's view of the abridged version of the Subordinate Legislation Committee's report? I would like an opinion on its contents.
Jan Marshall (Office of the Solicitor to the Scottish Executive):
The Executive has a view and, with the permission of the committee, I would like to read out a statement on behalf of the Executive.
The Subordinate Legislation Committee has drawn the Health Committee's attention to the regulations on the ground that it considers that there are doubts as to whether regulation 2(c) is intra vires. Although the Scottish Executive understands why the Subordinate Legislation Committee takes that view, it cannot agree with it.
Section 5(4) of the Public Appointments and Public Bodies etc (Scotland) Act 2003 permits any trust property formerly belonging to the Scottish Hospital Trust that has been transferred to a health board to be transferred to another health board,
"subject to such conditions … as the Scottish Ministers may by regulations provide for."
The Subordinate Legislation Committee considers that that power does not enable a condition to be imposed, as in regulation 2(c), that requires such property to be transferred back on a date that is agreed between the boards. The committee takes that view because section 5(5) of the 2003 act makes provision for the property to be transferred back when the transfer or health board so requires.
The Subordinate Legislation Committee considers that the effect of that condition is to modify the effect of section 5(5) of the 2003 act. In the Executive's view, there might have been some justification for the Subordinate Legislation Committee's view. That is to say that the effect of section 5(5) is modified if, in fact, regulation 2(c) had purported to nullify the effect of section 5(5) by preventing the transferring health board from requiring the property to be transferred back before the agreed date. However, in our view, that is not what regulation 2(c) does. It does not do that because it expressly provides that its provisions are without prejudice to section 5(5).
The Subordinate Legislation Committee goes on to say that it does not consider that that is sufficient. It considers that the effect of section 5(5) of the 2003 act is to preclude not only any condition that contradicts its provisions, but any condition that makes any other additional provision regarding the transfer back of the property. The Subordinate Legislation Committee states at paragraph 10 of its report:
"Where an Act makes provision for a certain event, it is not open to Ministers to make provision by subordinate legislation in respect of that event unless the enabling power specifically so allows."
In the Executive's view, although there might in community law be a doctrine that is called occupying the field, the Scottish Executive is not aware of any case law that indicates that a similar doctrine is to be applied when interpreting statutes as a matter of domestic law. It seems to the Executive that the Subordinate Legislation Committee's view on the matter is not supported by domestic case law.
The Scottish Executive's view is that section 5(4) of the 2003 act enables the regulations to impose such conditions as the Scottish ministers may provide. The Scottish Executive accepts that that power is impliedly restricted by section 5(5), but only to the limited extent of preventing those regulations from imposing conditions that would prevent the transferring health board from requiring the property to be transferred back on demand. However, subject to that qualification, it is the Executive's view that there is nothing in sections 5(4) and 5(5) that would prevent the regulations from imposing other conditions regarding the transfer back of the property.
The Executive notes at paragraph 12 of the Subordinate Legislation Committee's report that that committee appears to consider that, although it would be doubtful vires for the regulations to require the property to be transferred back on such date as might be agreed between the health boards,
"there is nothing to prevent the parties from reaching such an agreement"
outwith the regulations. The Scottish Executive is surprised by that suggestion and we have doubts about whether the suggestion would be intra vires because it appears to undermine the effect of sections 5(4) and 5(5) of the 2003 act as well as the role of this committee in scrutinising the regulations.
I am stunned. I am grateful that that response is now on the record. Are we to have in-depth supplementaries from David Davidson?
I was simply going to say, what does it actually mean? If the Executive has one view and the committee has another, who is the outside arbitrator? It is certainly not this committee.
It is the courts.
Yes, it would be the courts. That is why I am grateful that the response is on the record. Is the Official Report the only record of that full response?
The purpose of making the statement was to have the response on the record. I am prepared to write to the committee in exactly those terms if that would be of assistance and to take any supplementary questions at a later stage if necessary.
The advice is that any conflict should be settled by the courts.
That is my understanding. If there were a conflict, the courts would rely on what Jan Marshall has said as part of the legal argument. I am grateful for that, although I suspect that some of us got lost—but that is neither here nor there. Is it the case that the committee does not wish to make any recommendation in relation to the National Health Service (Transfer of Property between Health Boards) (Scotland) (No 2) Regulations 2004 (SSI 2004/285)?
Members indicated agreement.
I welcome Carolyn Leckie to the committee as a guest member, as it were. I can also pass on to the committee Mike Rumbles's apologies, which I omitted to do earlier.