Subordinate Legislation Committee, 28 Oct 2003

Meeting date: Tuesday, October 28, 2003

Official Report 109KB pdf

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Delegated Powers Scrutiny

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National Health Service Reform (Scotland) Bill: Stage 1

Today we are considering the National Health Service Reform (Scotland) Bill at stage 1. The legal advisers have informed us of the changes that the bill will make.

Four sections in the bill will confer powers to make orders or regulations: sections 2, 6(1), 8(1) and 10. We will consider first section 2, which inserts new section 4A into the National Health Service (Scotland) Act 1978, to provide for the establishment of community health partnerships. As always, we are thinking about whether the balance between primary and subordinate legislation is correct, and whether the appropriate procedures are being used.

It is suggested that the balance is just about okay and that the negative procedure is appropriate for regulations made under new section 4A.

Are there any further comments?

I have a comment, although it might not necessarily be about what you were just saying. I am curious about new section 4A(6), where there appears to be an illustrative list. We have discussed such lists before. When we took evidence from Executive representatives on another bill, we asked about illustrative lists. At that time and on that bill, the Executive's line was that such lists were not appropriate because they tend to become set in stone, rather than being illustrative. If that is the position, I am curious to know why it is okay to have such a list in this bill, when it was not okay in the previous bill. I believe that it was a health bill that we were discussing at the time.

It was the Primary Medical Services (Scotland) Bill.

It seems strange that such a firm line was taken against illustrative lists at that point, and yet here is one.

What would you suggest?

We should at least write to the Executive and ask for clarification.

Is that agreed?

Members indicated agreement.

It has also been suggested that section 4A should require consultation before the making of regulations. Obviously, the issue is very important and there is going to be a lot of debate on community health partnerships. What does the committee feel about that suggestion?

I do not know what was discussed earlier, but it is inescapable that there must be local consultation. It might be a bit excessive, however, to put it in the bill that local consultation should be done and that the Executive should then further consult on orders that it is going to make. Is that routine in other areas?

This is one of the glories of the British constitution.

I understand that the previous Subordinate Legislation Committee recommended that, where it was appropriate, that should be inserted in a bill.

Do you mean that there should be consultation by the Executive as well as at a local level?

Who will be drawing up the regulations?

They will come from the Executive and will be for the community health partnerships, but they will have been devised by the health boards who will presumably have consulted the local stakeholders.

As I understand it, the requirement for consultation is to be written into the bill so that the results of consultation would be taken on board before the regulations are made.

What we are suggesting here is that there should be consultation further down the line if changes were required to regulations that had already been made. Was that what you meant?

I am not sure what paragraph 13 of the legal briefing is suggesting. I am all in favour of consultation, but I wonder what kind of consultation and whose responsibility it will be, how often it will be done and what it is that the committee is being invited to request.

I understand that the previous Subordinate Legislation Committee required that it be in the bill prior to the regulations being drawn up.

Required that what be in the bill?

Nothing is in the bill yet.

Nothing is in the bill at all. The change that we are suggesting is that it should be in the bill that a consultation is required before regulations are drawn up.

A consultation by the Executive?

Yes.

So we are not asking for a requirement that health boards should consult, but that the Executive should consult. Why?

If we think that it is more appropriate that the consultation should be carried out by other bodies, we can suggest that.

The bill says that every health board shall submit a scheme for the establishment of community health partnerships that the Executive will ratify, or whatever it is required to do. Why would it be difficult to insert a provision that the health board must consult the local stakeholders before they draw up their scheme? Is that what Murray Tosh means?

Yes. The health boards must do that before they can reasonably make any proposals. If that is to be done, that is where the onus of consultation should lie. Are we asking the Executive to go back and consult the local stakeholders to see whether they are happy with what has been done locally? That seems burdensome. I would have thought that we were being asked to charge the local health boards with performing the appropriate functions.

That is not what the regulations are.

To clarify, what is being suggested is with regard to section 4A(5), which states that

"Regulations may make provision in relation to—"

community health partnerships. It is in that area that more consultation might be required before regulations are drawn up.

Murray Tosh seems to be speaking at cross purposes. We are concerned with the subordinate legislation. The regulations are nothing to do with the schemes that the health boards will have to draw up. Those schemes will be required under the statutory obligation under section 4A(1). However, the regulations that we are dealing with as the Subordinate Legislation Committee are nothing to do with that. The regulations that we are considering are provided for in section 4A(5), and only the Executive can consult on those regulations.

There might well be a requirement for the health boards to consult before they draw up their community health partnership schemes, but it is for the lead committee to put that in the bill; that has nothing to do with us.

Absolutely.

However, if we assume that the health boards have consulted on the schemes—whether they have done it because it is required or out of the goodness of their hearts—are we really saying that when the Executive is making regulations to give effect to the health boards' schemes, it has to consult again? Of course, a proposed scheme might not implement the regulations.

I do not think that the regulations would deal with the content of a scheme that was submitted by a local health authority. Proposed new section 4A(5) makes provision for regulations to deal with the structure of schemes, not their content. The regulations would provide for the number, the staffing and the procedures of such schemes. I may be wrong on this, but I think that the scheme submitted by the local health authority would not itself be subject to those regulations. In other words, when the health board draws up a scheme and consults on it, that would not be dealt with by the Executive's regulations, which would be made under subsection (5). However, perhaps the regulations will deal with that.

It certainly seems that—

Just two seconds, Murray. Please speak through the chair.

It certainly seems that section 4A(5) provides that the health authority will be required to set out the number of community health partnerships, the status of those and the functions that they will fulfil. Each health board will be required to make a complete proposal on how such partnerships will operate within that health board area. I agree that consultation within each health board area is absolutely crucial for getting that right. That is where the consultation should be.

Okay. Is it worth writing to the Scottish Executive to clarify that point?

Absolutely.

We are basically asking whether the regulations are in some way separate from the plans that will be drawn up by the health boards. Is that the nub of the issue?

Yes. What I am not clear on—I thought that I was, but I am no longer—is the relationship between the regulations in section 4A(5) and the proposals that are to be submitted by the health board.

We might phrase that by saying that it is not clear from the bill how exactly the content of the regulations will have been consulted on. We can leave it open as to the stage at which we expect that consultation to happen.

Okay. I think that Alasdair Rankin has got that now.

That discussion was worth having. It will be obvious to Murray Tosh that we did not discuss the issue fully beforehand, so we could not answer his question.

Let us move on to section 6(1), which deals with the dissolution of local health councils and the setting up of the new public involvement structure. The legal advice suggests that it is reasonable to provide some flexibility in section 6 and that the negative procedure gives the proper degree of parliamentary control. Is that agreed?

Members indicated agreement.

We move on to the more contentious area of ancillary provision, which is dealt with in sections 8(1) and 8(2). I gather from legal advice that quite a lot of work has been done on the issue down at Westminster. The House of Lords Delegated Powers and Regulatory Reform Committee examined the issue and, on 11 December 2002, produced a report that was somewhat critical of such provisions.

The relevant part of the bill is part 3 on page 5. Section 8(1) states:

"The Scottish Ministers may by order made by statutory instrument make such incidental, supplemental, consequential, transitional, transitory or saving provision as they consider necessary".

The House of Lords committee took issue with the word "supplemental", which could allow very sweeping changes. That committee also said:

"the Government should, in the Explanatory Notes accompanying any new bill … offer an explanation of the reasons why a particular form of wording has been adopted in each case."

The explanatory notes for the National Health Service Reform (Scotland) Bill do not provide such an explanation.

Do members have any further comments?

Supplemental does strike one as a blank-cheque word. Political expediency and political reality may mean that no Executive could actually abolish the health service by such a method, but it is not clear to me what supplemental means over and above the other words. What would not be covered by "incidental", "consequential", "transitional", "transitory" or "saving"? I cannot think of an example that would need supplemental as well.

That is a fair comment. Even had an example been given of what might come under the category of supplemental, that would not get round the fact that supplemental could include lots of other things as well. I suspect that the power is too strong.

If we had been given an example, we might have been able to live with it, but if anything that the Executive would legitimately be entitled to do is contained in the other words, why have the blank-cheque word?

The legal adviser's briefing makes the comment that section 8(1) is a common provision in the usual form. That is somewhat scary. That suggests that it is quite commonplace for such provisions to exist and to be used. Are legal advisers able to advise the committee by giving the kind of example that Gordon Jackson requested?

The House of Lords committee report made the point that such powers are becoming more and more common. That committee was a little concerned that such provisions may be due to laziness—that is perhaps not the appropriate word—as they allow the Government to catch anything that has been missed.

As I pointed out, I suspect that Executives of all hues and in all places do not actually abuse such powers because of the political reality that their opponents will not let them do that. However, I still do not see why supplemental should be included if it is not needed.

This might be a good time to raise some of those points with the Scottish Executive. We could use the bill as an example and build on the work that has already been done elsewhere, which has already drawn attention to the difficulties that have been seen with such powers. We may like to pursue that in future.

I suggest that we could also flag up the issue to the Procedures Committee, which might want to consider the whole principle—mentioned in paragraph 19 of the legal adviser's briefing—of amending primary legislation by subordinate legislation. Such amendment appears to stand on its head the whole conceptual framework behind having primary and secondary legislation. It seems to be either a constitutional practice that exists and is not widely understood or a constitutional innovation that does not sit well with the consultative steering group's principles or with everything that this Parliament was intended to be in terms of scrutiny and proper practice. Perhaps, in subsequent phases of its work, the Procedures Committee will want to spend some time considering the issue.

We will send two letters: one to Iain Smith of the Procedures Committee and one to the Scottish Executive. That is a good point.

I agree with everything that has been said. I agree that the use of such powers is becoming too common and I have concerns about the scope of such provisions that could be used by an Executive or Government. At the same time, we need to accept that there must be flexibility in the legislation. There must be room for manoeuvre in subordinate legislation and in other matters for Government to do such things. We have to make it clear that our argument is about how often such powers are used and about the scope of the word supplemental; it is not about the principle of those powers as such.

That is correct.

No one would object to words such as incidental and consequential because one knows what they are. In a funny sort of way, those terms are easy to define. I think that that is what Stewart Maxwell is saying. No one objects to those words; the blank-cheque word is what we are worried about.

Supplemental is the word that was picked up by the House of Lords committee.

I welcome Christine May, who has just joined the meeting. I gave her apologies earlier.

We move on to sections 10(1) and 10(2), which deal with the commencement and short title. No points arise on those.