NHS Redress Bill [HL]

I thank my noble friend Lord Rowlands for that intervention. I pay tribute to him as the godfather of the clause, which was introduced when he was a valiant member of the Richards commission. We have already discussed at great length how the Government intend to take forward redress in the health service in England; now we must turn to Wales. Clause 17 enables the Assembly to introduce such arrangements as it sees fit in respect of NHS redress in Wales, within the limits set out in Clause 17(1) and the restrictions set out at Clause 17(4). In clinical negligence claims, the law of negligence applies, without difference, to England and Wales. However, some of the arrangements for dealing with claims in the NHS in England and Wales are already different. As noble Lords are clearly aware, in Wales, the Assembly has set up a pilot ““speedy resolution scheme”” for resolving low- to medium-value clinical negligence claims at a fixed cost and to fixed timescales. That was launched in February 2005. The Assembly will consider the experience of the pilot scheme and all the other relevant factors to determine how best the framework powers in Clause 17 might be used to develop a scheme or some other arrangement that best suits the needs of patients and the NHS in Wales. That is why, at the request of the Assembly, we have made separate provision for Wales. Wales must provide what the people of Wales need. I shall outline the reasons why the Government have decided that Clause 17 should be based on the principles set out in the Wales Office’s White Paper Better Governance for Wales, which was presented to Parliament on 15 June this year. The Government have a manifesto commitment to enhance the legislative powers of the Assembly. The provision of framework powers in primary legislation relating to Wales is the first step in that process. Government policy is to give the Assembly maximum discretion to determine policy in relation to Wales by conferring broader legislative powers. That is part of the natural development of the devolution settlement, which, as has been said in many places, was not an event but a process—this is part of that process. As noble Lords are aware, the Government intend to bring forward primary legislation to enhance the Assembly’s legislative competence. That legislation will legally separate the executive—the Welsh Assembly Government—from the legislature, the National Assembly for Wales. That legislation will provide for the conversion of framework powers, such as Clause 17, into enhanced legislative competence in 2007. The Assembly will then be able to legislate by way of Assembly measure in that area of competence. Accordingly, those broad powers will remain within the elected legislature. A measure could confer power to make subordinate legislation, for example on Welsh Ministers, and so the bar on sub-delegation in Clause 17(4)(c) would fall away when the framework power is converted into enhanced legislative competence. Similarly, the bars at Clause 17(4)(d) and (f) are likely to be subject to change when the conversion order is made. The extent to which the Assembly, by way of measure, may make consequential or incidental provision applying in relation to England will be debated when the forthcoming legislation is introduced. I want to bring the Committee’s attention to that in particular, so that noble Lords are aware of the effect of such a conversion on the proposals put before them. I should also refer the Committee to the issues raised on Clause 17 by the Constitution Committee and the Delegated Powers and Regulatory Reform Committee, referred to already by the noble Earl. My noble friend Lord Warner has written to the noble Lords, Lord Dahrendorf and Lord Holme, responding to their questions. Copies of his letters have been sent to noble Lords who have spoken on the Bill at Second Reading and in Committee, and a copy has been placed in the Library. I apologise sincerely to noble Lords for the lateness of the responses; however, it was necessary to consider carefully the important points raised in the Committee’s letters and to seek advice from the appropriate quarters. The Delegated Powers and Regulatory Reform Committee drew attention to its view that,"““the power in Clause 17 is so wide that, if conferred on the Minister of the Crown in relation to England, it would be inappropriate””." This would be a compelling point were it not for the fact that the Assembly, as pointed out by my noble friend Lord Rowlands, is a democratically elected body which operates as a legislature. The Assembly scrutinises its own Ministers and subjects proposed legislation to rigorous examination. Indeed, my noble friend was correct to point out that subordinate legislation can also be amended by the Assembly. Therefore wholly different considerations apply to conferring framework style provisions upon the Assembly, because it is an elected body. My noble friend Lord Warner has also responded to the concerns of the Constitution Committee, providing an equally strong case for the use of framework powers in Clause 17. The noble Earl has rightly drawn the attention of the Committee to the fact that the memorandum does not give any examples of Acts which might be overridden in the exercise of this power, and we apologise for the oversight. It would have been good practice to have given some indication of the type of amendments that might be expected. The following should be treated as examples only, as Members of the Committee will appreciate that, given the framework nature of the clause, the Assembly is still formulating its policy in relation to providing arrangements for NHS redress in Wales. It is envisaged that the power might be exercised to make, for example, additions to Section 19A of the NHS Act 1977 to place a requirement upon the Assembly to provide advocacy services for NHS patients who make use of Welsh NHS redress arrangements. Another example might be an amendment to the Public Services Ombudsman (Wales) Act 2005 to enable the Public Services Ombudsman for Wales to consider complaints about the operation of Welsh NHS redress arrangements. A third example might be an amendment to Section 113 of the Health and Social Care (Community Health Standards) Act 2003 to enable the creation of links between the complaints procedure and Welsh NHS redress arrangements.