COMMONS AMENDMENT (Hansard, 17 June 1999)

§ Baroness Hayman
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10. In moving this amendment I shall speak also to Amendments Nos. 24, 25, 28, 52, 63, 68, 70, 75, 82, 83, 93, 94, 98, 99, 102, 104, 107, 111 to 117, 119, 120, 122 to 124, 126, 127, 129 and 131 to 143. The fact that I am dealing with another large group of amendments may give the noble Lord, Lord Renton, an opportunity to make his point.
These amendments are mainly minor, drafting, technical or consequential amendments to tidy up the Bill's provisions in a number of places. I shall therefore keep my remarks on this group brief, merely indicating some of the issues which the amendments seek to address. Some correct slight drafting errors. For example, Commons Amendment No. 10 inserts a missing "and" into Clause 8 and Commons Amendment No. 25 corrects a grammatical error, involving the mixed use of the singular and the plural in the same context.
A number of the amendments, Commons Amendments Nos. 75, 111, 112, 114, 122 and 129, are consequential to the provisions in Part II of the Bill concerning Scotland.
A large number, Commons Amendments Nos. 102, 120, 123, 124, 126, 127, 134 to 139 and 141 to 143, are consequential on Clause 1 and the abolition, of GP fundholding. They remove existing statutory references to fundholding and fundholders.
A further chunk of the amendments, Commons Amendments Nos. 28, 52, 63, 68, 82, 83, 98, 107 and 117, form a group of amendments that make changes to 429 the provisions in the Bill that set out the manner in which the powers to make directions may be exercised. The main amendment in this group is Commons Amendment No. 82 which inserts new subsections into Clause 55. Subsections (1A) and (1B) replace the various individual provisions in the Bill that set out how the powers of direction may be exercised. The amendments simplify the provisions and ensure that they are to be interpreted consistently. If one needs to know how the Secretary of State's powers of direction under the Bill are to be exercised, one will need only to look in one place—at Clause 55.
Commons Amendment No. 99 seeks to clarify how the consultation process on a draft order under Clause 54 of the Bill concerning professional self-regulation, as set out in paragraph 9 of Schedule 3, will work when a draft order concerns matters within the legislative competence of the Scottish Parliament. That is where a draft order seeks to regulate a profession not currently regulated by statute. The intention is that such orders should, wherever possible, be made on a United Kingdom basis. This means that the drafting of the order and the consultation needs to be co-ordinated between the various administrations in the United Kingdom. This amendment serves to clarify how this process would work in relation to the Scottish Parliament. I commend the amendments to the House.

§ Baroness Carnegy of Lour
My Lords, I should like to say a few words on this group of amendments because, as the noble Baroness has said, it contains a number of amendments which relate to Scotland. I am very grateful—as I know are other noble Lords—for the notes that the Minister was kind enough to send us on the amendments. The notes have made it very much easier to understand the procedure in which we are engaged.
I should just like to comment again, because I did so during the passage of the Bill, on the timing of the passage of Part II of the Bill. The group of amendments relating to Scotland now under consideration are not entirely technical or minor. For example, Commons Amendment No. 75 affects the many employees in the Scottish National Health Service and their conditions of employment if they transfer between health service bodies. An entire new clause is being inserted into the Bill on the subject of health workers in Scotland when the health service in Scotland is already devolved to the Scots Parliament. Only yesterday, the First Minister in the Scots Parliament began to announce the legislative programme that it will consider. It did not, of course, contain this particular subject because Westminster is considering it.
It has been established during the Bill's passage that this is a perfectly legal procedure. Under the Scotland Act, not only can the Westminster Parliament complete Part II of this Bill for Scotland after devolution, but the Westminster Parliament will be able to legislate for anything it likes, whether or not the matter has been devolved. So there is no question about the legality. But 430 I hope that the Minister will convey to her noble friends and to her right honourable friends the view that it is important that the Government do not continue in this way. We do not want Westminster deciding for Scotland matters which have been devolved to the Scots Parliament. It should not be necessary. Had the passage of this Bill been differently timed, it would not be necessary. It is a strange procedure. We hope that it will not be repeated. I hope that the Minister will take note of the fact that something is being done that should not be repeated often. A matter that has been devolved to Scotland should, once the Scots Parliament takes over, be decided in Scotland, not at Westminster.

Earl Howe
My Lords, perhaps I may add to my noble friend's comments by putting another point to the Minister. I believe I am right in saying that this Bill is classed as a pre-commencement enactment. That means that any regulations laid under the provisions for regulation of the professions after the Bill is enacted will fall, in respect of Scotland, to the Scottish Parliament. Am I therefore right in supposing that there is no guarantee to this House or another place either that the regulations laid in the Scottish Parliament will be similar to those that may be laid south of the Border; or that the same professions will be regulated?
There could be a wide disparity between the rules applicable north of the Border and those applicable south of the Border to the same type of professional individual. I see that as something of an anomaly. I hope that I am not departing too far from the views expressed by my noble friend. I shall be interested in the Minister's comments.

§ Baroness Masham of Ilton
My Lords, coming from Scotland, I suggest that the regulations in Scotland may perhaps be better than those in England.

§ Baroness Hayman
My Lords, during earlier discussions on the Bill we dealt with the challenges—I shall not say "difficulties"—that were posed by this piece of legislation given the timing of the inception of the Scottish Parliament. We have to manage that transition. Being as close as we are to 1st July makes it particularly pertinent and relevant. But in the future, as regards the broad issue of whether the United Kingdom Parliament will legislate for Scotland on devolved matters, it will be for Scottish Ministers to decide whether they want to implement any part of the Bill. The UK Parliament will not, by convention, be legislating for the Scottish Parliament without its permission.
As regards the specifics of Commons Amendment No. 75, to which the noble Baroness, Lady Carnegy, referred, when NHS trusts were established in Scotland by the 1990 Act they took over a range of facilities—for example, hospitals and clinics—from health boards. Where facilities were transferred, the rights and terms of employment of the staff who worked in them were safeguarded and transferred to the new trusts by means of a staff transfer scheme under Section 12B of the National Health Service (Scotland) Act 1978. Paragraph 43 of Schedule 4 of this Bill sought to extend the 431 protection that these orders give to staff to situations where functions transferred to NHS trusts after their establishment. The inclusion of new Clause 13 renders paragraph 34 redundant and we seek to delete it. The Government consider that setting out the provision in a self-standing clause rather than a series of detailed amendments would introduce some clarity into the Bill in this area.
As regards the order-making power in relation to Scotland, the Scotland Act 1998 provides that the regulation of the health professions, currently regulated by statute, is a reserved matter: that is, any profession regulated on 1st July 1999 by the Pharmacy Act 1954; the Professions Supplementary to Medicine Act 1960; the Medical Act 1983; the Dentists Act 1984; the Opticians Act 1989; the Osteopaths Act 1993; the Chiropractors Act 1994; and the Nurses, Midwives and Health Visitors Act 1997.
The regulation of other professions, however, is within the legislative competence of the Scottish Parliament. Nevertheless, the departments will work closely together on the development of professional self-regulation. It is in the interests of all concerned that, wherever possible, we have a UK-wide approach to professional self-regulation. That view was aired on all sides of the House throughout our discussions.
These working arrangements will be set out in concordats, agreements between the health departments. It is the intention to continue to make UK-wide provision for the professions so that patients, wherever they live, are afforded the same level of protection and there are no artificial barriers to the free movement of professionals within the United Kingdom.