Health and Social Care (Community Health and Standards) Bill

HL Deb 11 November 2003 vol 654 cc1319-50

9.2 p.m.

The Parliamentary Under-Secretary of State, Department of Health (Lord Warner)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Warner.)

On Question, Motion agreed to.

Clause 158 [Payment of NHS charges to hospitals or ambulance trusts]:

Lord Skelmersdale moved Amendment No. 386: Page 78, line 14, leave out paragraph (b).

The noble Lord said: My Lords, we now return to what the Minister described in Committee as, not just a stealth tax".—[Official Report, 20/10/03; col. 1417.]

I have been wanting to tease him about that for some time, but now is not the moment. Clause 158(3)(b) provides for regulations to establish who is to receive the money when the responsible body of the health authority or ambulance trust concerned has ceased to exist.

It seems self-evident that the money, which is to come in very quickly—normally within 14 days of the certificate being issued—will be in time to be credited in the final accounts and usually to mitigate the debts of the NHS facility in question. I cannot imagine many cases where a credit balance appears on the closing accounts of a hospital, for example, or, indeed, an ambulance trust. I am sure that the regulations on that will make interesting reading to my noble friend Lady Noakes.

However, putting that red herring to one side, that issue does not concern me at present. What do worry me are the last five words of the subsection. They read, including provision modifying this Part".

That surely means that none of the other order-making powers in this part are really necessary. If the final words of this subsection do not cover the whole of this part, as seems to be the case, what on earth are they doing there? If they mean what they say, are the regulations to amend any part of Part 3 covered by Clause 191(5)(c)? Noble Lords will remember that Clause 191(5)(c) concerns, an order or regulations under this Act … which amends or repeals any part of the text of an Act",

in terms of making incidental, supplementary, consequential, transitory, transitional or saving provisions. After all, the subject can hardly be covered by the noble Lord's new favourite word "minutiae". I beg to move.

Lord Warner

My Lords, it is always a pleasure to be able to extend the noble Lord's vocabulary. It might help if I explain the purpose of the subsection that the amendment would remove before turning to these points.

Sometimes there can be quite a long period between an injury being suffered and treated and the compensation and associated NHS costs being paid by the compensator. During that time the NHS trust at which the treatment was received may have ceased to exist, generally due to merging with another to form a new separate NHS trust. Consequently the compensation recovery unit receives money from the compensator which it can no longer forward to the trust providing the treatment because that trust no longer exists.

Clause 158(3)(b) allows regulations to be made to deal with that situation. Under the existing road traffic scheme these regulations specify that the recovered funds can be given to the NHS body to which the property rights and liabilities of the old NHS trust have been transferred. It is our intention that the regulations governing the extended scheme will make exactly the same provisions using the powers in Clause 158(3)(b). In that way we shall be able to ensure that every penny of recovered funds goes back to the NHS. Without that provision the compensation recovery unit would find itself unable to comply with Clause 158(1), which places an obligation to give recovered funds to the responsible body of the hospital that provided the treatment, because that responsible body would no longer exist.

My understanding of the last five words about which the noble Lord is so concerned is that this was provided there and parliamentary counsel thought it was appropriate, but I am happy to give a more extended reply in writing if it would help the noble Lord.

Lord Skelmersdale

My Lords, I apologise if I have surprised the noble Lord by the way I introduced the amendment. I shall be delighted to receive one of his missives—he has written and circulated quite a few during the course of the Bill—as long as it is received promptly.

The fact is that the Minister does not know the answer to my question but he will tell me in due course. On that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 160 [Liability of insurers]:

Lord Skelmersdale moved Amendment No. 387: Page 79, line 25, leave out subsection (2).

The noble Lord said: My Lords, Clause 160 on the liability of insurers makes it quite clear that liability imposed on the insurer as far as the duty to pay NHS charges is concerned is absolute. It cannot be excluded or restricted. That I found all very well until I re-read the whole clause together with the Explanatory Notes. Subsection (4) states that regulations may in prescribed cases limit the amount of the liability—the absolute liability to which I have just referred— imposed on the insurer by way of his duty to pay. The Explanatory Notes posit a case that that might be appropriate, for example, to enable a reduction in the NHS costs payable where an insurer has covered only a proportion of the total compensation as a result of the cap on the amount payable under the insurance policy.

I simply cannot understand how these two subsections fit together. Either the duty is absolute, as I have said, or it is not. It cannot be both. The duty on the insurance company is twofold: first, to apply for a certificate and secondly to pay the amount requested within the 14 days, plus to pay any extra money requested in a supplementary certificate. As far as I can see, that is the limit of his liability to the Secretary of State and applies in every case where a successful claim for injury is made. Secondly, the company may not issue a restricted policy in this regard.

I am totally confused and I hope that this time the Minister can satisfy me on what on earth is going on. I beg to move.

Lord Warner

My Lords, I hope to be able to elucidate. Clause 160(1) specifies that where a qualifying compensation payment is made and the insurance policy covers a person's liability in respect of the injury, the policy must be treated as also covering any liability to pay NHS costs.

Clause 160(2), which the amendment would delete, ensures that the insurers' liability to pay NHS costs cannot be restricted or excluded. Without it, it would be possible for insurers to avoid covering the liability to pay NHS costs by limiting, or even excluding, NHS costs from the cover provided by the policy. It was not necessary to include provisions covering this in the Road Traffic (NHS Charges) Act 1999. That legislation specified the types of insurance policy that attracted NHS costs recovery.

Under the extended scheme, many different kinds of insurance policies could attract NHS costs recovery— too many to specify on the face of the Bill. It was therefore necessary to make other provisions to ensure that insurers cannot avoid liability for NHS costs.

As I explained during discussion of the clause in Committee, the majority of NHS costs will be recovered as a result of an insurance policy. There is no provision for the liability to pay NHS costs to be transferred to someone other than the person making the compensation payment. Thus, the amendment could vastly reduce the additional £ 150 million that we expect to be recovered. We think the risks attached to the amendment are far too serious. That is why the Government cannot accept it.

Lord Skelmersdale

My Lords, I was not expecting the amendment to be accepted; I was expecting an explanation of not only why but how all this would work. I well understand that these provisions were not in the Road Traffic (NHS Charges) Act. It was necessary to make provisions to ensure that there would be no avoidance of the payment of charges. I am still totally confused about the two differences, as it were, of liability. Perhaps I could respectfully suggest that the Minister has another go in another letter, or indeed in the same letter that he promised me on the previous amendment. If he can do that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 167 [Dental public health]:

Earl Howe moved Amendment No. 388: Page 82, line 23, at end insert—

(6) Regulations made in respect of the matters set out in this section may not be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament.""

The noble Earl said: My Lords, I have retabled this single amendment from those I tabled in Committee in a final attempt to persuade the Minister that the very substantial changes we are about to see in dental public health are such that Parliament should have a guaranteed debate about them when the regulations are introduced.

In particular, we are all very conscious that the proposed dental public health duties of PCTs and local health boards take us into new territory. How NHS dentistry is remunerated and the shift of emphasis that this will bring—all being well—away from routine treatment and towards prevention is imaginative and exciting as a concept, but still vague in its detail.

The key to its success will be the incentives that are offered to dentists to increase their productivity. The regulations, when they appear, will show us exactly what those incentives are. As the Minister knows, I admit to a worry that the available resources for dentistry will be inadequate to do all the very worthy things that the Government want done.

If we are permitted a debate under the affirmative procedure, we shall at least have a chance, which we do not have today, to test the Government on the assumptions underpinning their plans. It would be helpful if between now and Third Reading the Minister were to agree to take away this issue and have another look at it. I hope that she will do so. I beg to move.

Baroness Andrews

My Lords, in Committee, I spoke at some length about the opportunities that the changes in dental health policy would bring. I tried to address the question of incentives in terms of the restructuring of pay for dentists and the encouragement that that would give for oral health and a more sensible approach to real dental needs. I shall not reiterate that. Of course the noble Earl is at one with us in welcoming the changes as a way of promoting and sustaining oral health as part of our strategy on reducing health inequality.

Clause 167 inserts new Section 16CB into the 1977 Act. Subsection (1) provides for regulations to confer dental public health functions on PCTs. Indeed, we had a short debate in Committee on the capacity of PCTs. We intend the functions to include oral health promotion, school screening and plans to manage dental health services locally. I expect other functions to be added in due course. As I said then, because dental public health is a community-wide issue, PCTs may act jointly in discharging that function.

I am also conscious that I shall have to repeat the response that I gave in Committee about why we intend to continue with negative regulations. The argument—which is powerful—is that it is consistent and in keeping with equivalent existing powers. It is fully appropriate given the matters to be legislated for. Indeed, no other regulations under the [977 Act are subject to the affirmative resolution procedure.

Before I turn to government Amendment No. 403 relating to dental charges regulations, they may be an exception to that. We have made that concession for positive reasons. I shall have something to say about that when I speak to the amendment.

I can hardly conclude the debate without again citing the Select Committee on Delegated Legislation, which again made no recommendation for affirmative procedure for the regulation-making powers. I accept that the Opposition insist on affirmative regulations for this section; I hope that they will be persuaded that we have a case, for consistency, for the negative procedure.

9.15 p.m.

Earl Howe

My Lords, as ever, I am grateful to the noble Baroness, but I am disappointed that she does not see the matter from our point of view. I shall not press it, but we seem to be heading for a set of major changes affecting the delivery of dental care in public health, which the other place, in particular, may never be able fully to debate. That worries me. However, I sense a brick wall when I hear one, so there is little more for me to say than to beg leave to withdraw the amendment.

mendment, by leave, withdrawn.

Clause 168 [General dental services contracts]:

Earl Howe moved Amendment No. 389: Page 83, line 3, at end insert—

( ) The first regulations made under this section may not be made until a draft of the regulations has been laid before and approved by a resolution of each House of Parliament."

The noble Earl said: My Lords, I move the amendment with a slightly greater sense of optimism in the light of the Minister's previous remarks. The amendment would require that the first regulations made under new Section 28K of the National Health Service Act 1977, as inserted by Clause 168, are subject to the affirmative procedure.

In Committee, we had a useful exchange about the new general dental services contract—in particular, about how the financial mechanisms for payments to dentists and collection of NHS charges would work. My noble friend Lord Colwyn explained to the Committee how incredibly complex is the issue and the noble Baroness, Lady Andrews, told the Committee about the work in hand, which is still far from complete.

We had all rather hoped to receive a comprehensive explanation of how the new system and incentives would work to ensure that the NHS received the income from charges that it was due—especially as it appears to be agreed that dentists will not be required to accept responsibility for that. However, it was clear from that debate that the Government are not sufficiently advanced to allow Parliament to consider how the scheme will work before the Bill is passed.

It is important for Parliament to know how the new system is to be implemented. We clearly cannot delay the Bill until the Government reach a conclusion. Hence, my amendment requires the first regulations made under Section 28K to be subject to the affirmative procedure. I hope that the Minister will be receptive to that suggestion. I beg to move.

Baroness Andrews

My Lords, I shall start with the positive: yes, work is under way through the NHS Modernisation Agency's Options for Change field sites to test the new commissioning and remuneration models, among other innovations to improve NHS dental services. Indeed, the 20 field sites are looking at no fewer than 150 different practices. They are considering different ways of paying dentists' remuneration packages. Further, the teams will receive their existing spend from the GDS budget in exactly the same way as will practices from April 2005. We are intent on learning from this and the first complete field site draft contract templates will be made available in January of next year. They will have a two-year lifespan, going beyond April 2005.

The point of outlining the background was to reiterate, as the noble Earl remarked, that this is very much a developing programme. We shall learn from and draw on that programme to ensure a smooth transition and the Department of Health will be working closely with the BDA and the NHS to develop a simple and robust base contract that all PCTs and practices will be able to put in place from April 2005.

Under these arrangements, from April 2005, unless any local variations are agreed, the DPB and its successor body, the special health authority, will continue to pay dental practices contracting with PCTs broadly the same levels of income for broadly comparable levels of activity, increased by any nationally agreed uplifts following the recommendations of the DDRB.

The noble Earl has asked again whether we see fit to provide affirmative regulations on this part of the Bill. Clause 168 provides for PCTs and local health boards to negotiate, subject to the regulations covering GDS contracts, the detailed terms of a general dental services contract with individual practices seeking to provide primary dental services under such a contract.

The general dental services contract will replace the existing statutory arrangements for the provision of general dental services that are set out in the NHS GDS regulations, SI 1992/661. A general dental service contract is a contract for primary dental services, but it may also include services which are not primary dental services such as, for example, specialised services such as orthodontics, if that has been agreed with the commissioning PCT. Further, there is to be an obligation under a GDS contract to provide a specified range of routine dental care and treatment.

The reason for going into the background is to make it clear that these equivalent provisions and their many amendments since 1992 have always been subject to the negative resolution procedure, in common with other provisions under the 1977 Act. We feel that the procedure has provided the necessary flexibility and has served the development of the provisions very well. Further, it appears that no other regulations made under the 1977 Act are subject to the affirmative resolution procedure.

Amendment No. 389 seeks to amend new Section 28K, to be inserted into the 1977 Act by Clause 168, which provides for a PCT or local health board to enter into a general dental services contract. However, I should tell the noble Earl that new Section 28K. provides no regulation-making power, and so I am afraid that the amendment is flawed. However, even if that were not the case, there is no reason to change the existing tried and tested arrangements for parliamentary scrutiny. We believe that they have served us well. In addition, no support was expressed by the Committee on Delegated Powers and Regulatory Reform for making such a change. I am sorry to disappoint the noble Earl yet again.

Earl Howe

My Lords, the Minister disappoints me in such a charming way that I do not know that I can come back at her with any force. She spoke of the need for flexibility as a reason for rejecting the affirmative procedure. Flexibility is often a good argument for retaining the negative procedure when the Government have to move quickly on something, but I do not think that it is a good reason when it is applied to something like this, where speed is clearly not of the essence.

I am sorry that what I had hoped was a good halfway house between the Minister's position and ours does not find favour and that it will not break the regular rule of the negative procedure, except in the first instance when the regulations are introduced. Again, however, I do not see that I shall get much further at this point. I thank the Minister for her comprehensive reply, which was helpful. 1 beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Warner moved Amendment No. 390: Page 85, leave out lines 1 and 2.

The noble Lord said: My Lords, in Committee I gave a commitment to bring forward amendments on Report which dealt with the response of the Delegated Powers and Regulatory Reform Committee and amendments tabled by noble Lords on the discretionary nature of the patient choice powers. These amendments, in a nutshell, provide that regulations must, rather than may, make provision concerning the rights of patients to choose from whom they receive their NHS dental or medical services.

The regulations must also provide for the circumstances in which a person providing services under either a general medical services or a personal medical services contract must or may accept a patient, may decline to accept a patient and may terminate his responsibility for a patient.

I indicated in Committee that it was our intention that the regulations would make clear a responsibility not to discriminate against patients in the process of registering and deregistering. The regulations would also require a reason to be given in writing to the patient as to why patients are removed from a practice list.

At that time further discussions were taking place with the British Medical Association concerning the question of reasons for patients being refused inclusion on a list. I can now confirm that the regulations will also include provision that a contractor who refuses an application for inclusion in its list of patients should notify patients of the decision and the reason for it.

During those discussions I also gave an assurance that there would be consultation on the regulations. The intention is to consult with patient representative groups on those aspects of the regulations relating to patient choice and patient registration which will be made under Section 28V(3) and the new subsection (5A). I hope that this process will begin in the very near future.

I am sure that these amendments deal with the findings of the Delegated Powers and Regulatory Reform Committee. I am grateful for the support given by the Opposition Front Bench to Amendment No. 396. I beg to move.

Earl Howe

My Lords, in Committee, the Minister kindly gave an undertaking in the middle of the night or the very early morning, depending on one's perspective of our marathon committee day, and we were delighted to find our names in company with his on Amendment No. 396. We welcome the other amendments in the group.

On Question, amendment agreed to.

Lord Warner moved Amendment No. 391: Page 85, line 13, at end insert—

(3A) Regulations under subsection (1) must make provision as to the right of patients to choose the persons from whom they are to receive services.

On Question, amendment agreed to.

Clause 170 [Provision of primary medical services]:

[Amendment No. 392 not moved.]

Clause 171 [General medical services contracts]:

[Amendment No. 393 not moved.]

Baroness Barker moved Amendment No. 394: Page 89, leave out lines 21 to 44.

The noble Baroness said: My Lords, I return to a matter which was raised by my noble friend Lord Clement-Jones at an earlier stage of the Bill. It is one on which we on these Benches remain somewhat unconvinced by the Minister's reply then.

The amendment concerns the GMS contract and the elements within it relating to prescriptions and the provision of drugs. It is an important statement of principle, as well as one of practice, that within a GMS contract general medical care providers should have the freedom to exercise clinical judgments over the range of treatments they seek to provide. That is as important as patient choice because patients, who are ultimately the recipients of those services, need not necessarily know when they sign up with a general practitioner that they may inadvertently or indirectly be signing up to a limited choice of provision.

We on these Benches believe that the arbitrary national control of prescribing runs counter not only to good practice for GPs but to the philosophy in the Bill that a health service should be granted as much freedom and decision making as possible at local level. Put simply, GPs and other people working under GMS contracts should be in the best position to make such judgments. We do not see why there needs to be such continual manacling of such judgments as there is under the national controls set out in the clause. That is the reason for the amendment. I beg to move.

9.30 p.m.

Lord Warner

My Lords, we do not believe that the measure is arbitrary at all. The amendment would remove a revision in the Bill for directions to be made that set out the drugs, medicines or other substances that may or may not be ordered for patients. It is essential that the Government retain the capacity to influence prescribing by general practitioners in a direct way through the new contracts, because there are circumstances in which expenditure on particular drugs or products will detract from the provision of other services or treatments with a higher priority.

That is best exemplified by the action that the Government have taken with regard to the provision of impotence treatments on NHS prescription. It is estimated that around 2 million men in the United Kingdom suffer from complete impotence and a further 8 million are thought to be partially affected— 10 million in all. There are no objective means of diagnosis, so the condition is largely self-diagnosed. In the absence of the current restricted prescribing regime, we estimate that tens of millions of pounds of scarce resources could be diverted from treating other conditions such as cancer and mental health. That is not a situation that we as a government could possibly countenance.

Therefore, by way of reiteration, the Government are of the firm belief that the powers being taken are a necessary component, alongside the work of bodies such as the National Institute for Clinical Excellence, to ensure the most effective use of the resources made available to the NHS. Therefore, we cannot accept the amendment.

Baroness Barker

My Lords, like the noble Earl, Lord Howe, I can hear the sound of a brick wall when I see one.

I am not surprised by the Minister's response, but I believe that he is somewhat off the mark with his remarks about NICE because the requirements on providers to follow NICE guidelines are not as robust as we on these Benches would like them to be

The Minister mentioned drugs that are sometimes referred to as "lifestyle" drugs. People at a local level are best placed to see medicine management and control throughout their practice and the area. One of the reasons why we advocated the approach in. the amendment was because medicine management should not be done by a particular provision. Provision of one drug could lead to a decrease in demand for others.

We remain of a different view on the matter but, in view of the hour, I shall not press the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Andrews moved Amendments Nos. 395 and 396: Page 90, leave out lines 11 and 12.

Page 90, line 21, leave out "may" and insert "must

On Question, amendments agreed to.

Earl Howe moved Amendment No. 397: Page 90, line 31. leave out "suspending or terminating" and insert "as to the suspension or termination of

The noble Earl said: My Lords, in Committee the Minister very helpfully explained the background to new Section 28V(4)(b) which provides for the suspension or termination of any duty under the GMS contract. He also set out the intended effect of this provision in relation to individual services, and I was grateful for that. He did not, however, settle the doubts that I still have about the drafting. The subsection states: Regulations under subsection (2)(e) may … make provision suspending or terminating any duty under the contract to provide services of a prescribed description".

I do not think that that is quite what it should be saying if we take the construction of those words literally. The regulations, when they come, will not actually suspend or terminate a duty under the contract to provide services, it seems to me; they will allow individual GMS practices to opt out of particular duties, which is a different thing. Those who do not opt out will surely still have to provide the services in question. So I am concerned that this blanket provision may not be quite right.

I do not want to labour what is obviously a technical point. If the Minister can assure me that it has been looked at I will gladly withdraw the amendment. I beg to move.

Lord Warner

My Lords, I am pleased to tell the noble Earl that we have consulted parliamentary counsel and we believe his amendment is a suitable form of words. So I am very pleased to be able to accept his amendment. I would suggest that there is a new career opportunity opening up for him here.

Earl Howe

This is indeed a joyous day, my Lords. I thank the Minister for his trouble in taking away what by the standard of this Bill was a minor concern and for responding so positively.

On Question, amendment agreed to.

Lord Warner moved Amendment No. 398: Page 90, line 35, at end insert—

(5A) Regulations under subsection (1) must make provision as to the right of patients to choose the persons from whom they are to receive services.

On Question, amendment agreed to.

Clause 173 [Arrangements under section 28C of the 1977 Act]:

Lord Warner moved Amendments Nos. 399 and 400: Page 93, leave out lines 1 to 8.

Page 93, line 34, at end insert—

( ) In that section, after subsection (3D) (as inserted by subsection (10) above) insert—

• "(3E) The regulations must provide for the circumstances in which a person providing primary medical services under section 28C arrangements—
1. (a) must or may accept a person as a patient to whom such services are so provided;
2. (b) may decline to accept a person as such a patient;
3. (c) may terminate his responsibility for a patient.
1330
• (3F) The regulations must make provision as to the right of patients to choose the persons from whom they are to receive services under section 28C arrangements.""

On Question, amendments agreed to.

Earl Howe moved Amendment No. 401: After Clause 177, insert the following new clause—

"SPECIAL HEALTH AUTHORITY FOR DENTAL FUNCTIONS

If the Secretary of State makes an order under section 11 of the 1977 Act setting up a Special Health Authority to assume functions relating to the provision of dental services under the 1977 Act as amended, the order shall not have effect unless a draft of the order has been laid before and approved by each House of Parliament.

The noble Earl said: My Lords, I realise that I shall be accused of sounding like a cracked record—on reflection, I had better withdraw the word cracked. However, I hope that the Minister will forgive me for returning to an issue that I believe we ought to look at again relating to the proposed abolition of the Dental Practice Board and its replacement with a special health authority.

The Minister provided us in Committee with a very helpful exposition of why the Government have decided to adopt this course. I was grateful to her for that. I now have a much clearer idea of the timetable for the transfer of the DPB's functions and of the transitional arrangements. I took the Minister's point that it would not be appropriate to have a debate in Parliament about the functions of the Dental Practice Board at the moment when the board was about to be abolished. What concerns Parliament more are the successor arrangements, some of which, as she explained, are likely to be put in place long before the actual abolition of the board. These changes are important; they are not straightforward, and they have to be got right.

I therefore think that the Government ought to reconsider the merits of the affirmative procedure, not as regards the DPB which we accept is destined to disappear, but as regards the successor body. Parliament ought to be guaranteed the ability to scrutinise the detail of what is being proposed for the SHA and to debate it. The other place has not done so. We have done so only in a cursory fashion, without disrespect to the Minister's helpful remarks last time.

So I put it to the Minister that there is a strong case for allowing Parliament to examine the transfer of functions, the interrelationship between the SHA and the PCTs and in general the key elements of the changeover that will determine its success. I hope that the Minister will be receptive to this revised suggestion of mine. I beg to move.

Baroness Andrews

My Lords, I am afraid that the moment of joy was very temporary and that we are back to the brick wall, but with some different arguments.

I shall not reiterate the exposition I gave in Committee except to return briefly to the bullet points. We said that the Dental Practice Board had outlived its functions as it is too restrictive. A new special health authority is necessary to confer additional flexibility and to take on additional NHS functions some of which in the future might not even relate to general dental services because of the terms of the primary legislation. If we kept the old Dental Practice Board, it would be increasingly difficult to match the capacity of the organisation to its appropriate functions and would not make best use of its staff.

Clause 177 therefore provides for the abolition of the DPB and for the creation of a special health authority under Section 11 of the 1977 Act by the Secretary of State and the Welsh Assembly as it will be a cross-border organisation. As an SHA it will be capable of undertaking functions in relation to the NHS conferred on it by directions of the Secretary of State or the Assembly. As the noble Earl said, it will have a very important role, not least in the transitional period, because the DPB has such a good reputation for paying dentists correctly and on time. The profession draws confidence from that. We are extremely intent on maintaining that confidence during the transitional period, during which time responsibility for pay will transfer to the PCTs and the SHA will become the payment agent, acting on their behalf.

The first thing I want to say is that we a re very aware of the need for public consultation on that matter. One of the reasons we do not consider that the affirmative procedure is necessary is because we are discussing how best to achieve that proper transfer with all the relevant stakeholders. There will be full public consultation over the transfer. Indeed, Section 11 of the 1977 Act requires the Secretary of State, before he makes an order, to consult with such bodies that he may recognise as representing those who in his opinion are likely to be transferred or affected by transfers as a result of the order. That is a very serious undertaking because the transfer to local contracting will make it important not least to ensure that the correct charges have been calculated and collected. We are very keen that the consultation is serious and proper.

In addition to a payment function, the new special health authority will undertake monitoring and quality assurance in relation to the new primary dental services regime. That is a very significant and important enhancement of its current work. We shall consider such matters carefully. Under Section 11 of the 1977 Act, the assets, liabilities and staff—subject to consultation—of the DPB will be transferred during 2005 to the new SHA. Its successor special health authority will need to be established before the DPB is abolished.

The noble Earl wants to make the establishment order of the new SHA the subject of debate in both Houses. My second reason for being reluctant to accept the measure is that there is no precedent for special health authorities to be subject to affirmative order. Indeed, there is no requirement in the 1977 Act for any other special health authority to be subject to the affirmative procedure. To put it bleakly, there is no reason why this SHA should be treated any differently. I hope that with those assurances the noble Earl will be able to bear his disappointment.

Earl Howe

My Lords, I think that the brick wall is growing higher by the minute. Part of my concern is that it is all too easy for a government to set up an SHA without too many formalities. It is a very easy procedure. There are complexities involved here which I felt warranted an exception to the normal rule. However, I take the noble Baroness's point about full public consultation. That is an important factor in the equation and I do not belittle it. I hope that it will serve to iron out any residual concerns that there may be. No doubt the Government will in their usual way take any such concerns into account. I can just about bear my disappointment on this occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.45 p.m.

Clause 179 [Charges for dental services]:

Lord Skelmersdale moved Amendment No. 402: Page 96, line 36, at end insert—

( ) Regulations under subsection (1) may not be made unless a draft of the regulations has been laid before and approved by a resolution of each House of Parliament.

The noble Lord said: My Lords, in moving this amendment, I shall speak also to government Amendment No. 403 and Amendment No. 410 in our name. The first and the last amendments in this group constitute a belt-and-braces approach and would make the regulations under Clause 191 affirmative.

In Committee, the noble Baroness, Lady Andrews, was good enough to say—twice, I might add, after a bit of teasing—that the Government would look again at whether the new Schedule 12ZA to the 1977 Act, which covers exemptions to dental charging, should be subject to revision by negative or affirmative instrument. The purpose of the amendments is to elicit the results of such looking again.

Those results are to be found in Amendment No. 403, in the Government's name. But, if there is any logic in the Government's position, the proposed "looking" would have been more favourable than Amendment No. 403 provides. The Government have already conceded to the view of the Select Committee on Delegated Powers and Regulatory Reform that another set of exemptions— namely, that of exemptions to liability to pay NHS charges under Part 3—should always be made by affirmative instrument, not only the first time, as in Amendment No. 403, but whenever changes are made. There is no difference in principle; either both sets of exemptions should always be by affirmative procedure or neither should. I beg to move.

Baroness Andrews

My Lords, I was going to begin my response to the amendment with that wonderful line from "A Midsummer-Night's Dream", "O lovely wall", as Pyramus and Thisby approach the chink in the wall.

I was hoping to give total satisfaction, but, clearly, I will not be able to. In Committee, I gave a commitment to look again at the level of parliamentary scrutiny afforded to the regulations under Clause 179. I understood that there was concern that Parliament had not been given sufficient detail on how the dental charging regime would work under new primary dental services. I referred to the review group on patient charges, led by Harry Cayton, and the fact that it had not yet finished and reported on its work— that is why we were sympathetic.

We have looked again at the dental charging regulations, which have always been subject to the negative resolution procedure in the past. We have concluded that it would be reasonable for the first set of regulations, in which it is intended to set out the new basis on which dental charges are to be calculated, to be subject to a debate in both Houses. Subsequent sets would revert to the negative resolution procedure. That would give Parliament the opportunity to debate the initial changes proposed to the charging system but would ensure a proper balance and that parliamentary time is not taken up unnecessarily when the regulations are periodically amended, probably annually, to adjust the amount of patient charges—for instance, to keep charges in line with inflation.

The Government's amendment, Amendment No. 403, is to Clause 179 rather than Clause 191, as the noble Earl, Lord Howe, proposes in Amendment No. 410. That is because Clause 179 inserts new provisions relating to dental charging into the 1977 Act. Amendment No. 403, therefore, provides for amendment to Section 126 of the 1977 Act, which contains provisions relating to the exercise of regulation and order-making powers under that Act. On the other hand, Clause 191 contains provisions relating to regulations or orders under, or conferred by, the Bill. On those grounds, we cannot accept Amendment No. 410. However, I appreciate that it is a belt-and-braces approach, because Amendment No. 402 also seeks to make regulations made under new Section 79 always subject to the affirmative procedure. However, our problem with that is that the equivalent provisions—the National Health Service dental charges regulations—have always been subject to negative resolution procedure, as I said, in common with other provisions in the 1977 Act. It seems unnecessary to change that in relation to new Section 79, which is why I reject it.

The noble Lord was kind enough to give me warning of the other points he raised and I have sought advice on them. Exemptions from dental charges are set out in Schedule 12ZA, paragraph 1 and they are precisely the same as those in the current 1977 Act. Therefore, regulation is not required. Indeed, further primary legislation would be necessary to amend charge-exempt groups. As I said in Committee, we have no intention of changing the exemptions. Therefore, under new Section 79(1), dental charges regulations have no bearing on exemption charges. We are not guilty of inconsistency; there is simply a difference in governance.

Finally, for further background, remissions from charges covered by the low income scheme for help with health costs are not covered by regulations made under Section 79. That is just additional information, which I hope that the noble Lord will accept. If he would prefer to have that spelt out, I am happy to add it to the letter which he will receive.

Lord Skelmersdale

My Lords, I am grateful to the noble Baroness. As I said in Committee, I am delighted that the noble Baroness accepts that, because of the changes in new Section 79(1), (2) and (3) of the 1977 Act, the first time round the regulations should be subject to the affirmative resolution procedure. We have no argument with that.

As I explained to the noble Baroness both privately before the debate and just now, my worry is that part of this is Schedule 12ZA to the 1977 Act, which refers to exemptions. I must say that the noble Baroness gave me the most surprising answer that I have heard for some time when she said that primary legislation would be needed to alter those exemptions under paragraph 1 of new Schedule 12ZA. But I have been referring—both in Committee and on Report—to the fact that there is the opportunity, under Clause 191, to amend any part of the Act by regulation. Of course, that regulation must be affirmative.

Does that cover alterations, which may be made 20 years in the future? I have no idea. Alternatively, alterations could be made within the next year or so. Again, I have no idea. Nor, I suspect, does the noble Baroness. To be told that primary legislation is needed to change Schedule 12ZA fills me with amazement.

In due course, I shall be happy to accept government Amendment No. 403 if it is correct. Perhaps I may ask the noble Baroness not to move the government amendment tonight, but to double check and come back on it. If there is no change, I would be delighted to accept it on Third Reading. Unfortunately, under the rules of the House, I am unable to amend it at Third Reading if that is what I should like to do.

Baroness Andrews

My Lords, there is a sense of mutual surprise across the Chamber now. My inclination would be to move the amendment and to write to the noble Lord about the concerns he has raised about consistency between the regulations. I am sure that Amendment No. 403 is correct and that we can rely on our officials to achieve that purpose. I hope that he will be satisfied for me to write to him because I shall continue to move the amendment.

Lord Skelmersdale

My Lords, the noble Baroness puts me in a very difficult position. We had no intention of asking your Lordships to agree or disagree to anything in the closing stages of this Report stage, and 1 am bound by a commitment that was given. Under any other circumstances, of course, I would seek to divide the House on this matter.

Given that I am going half way to meeting the noble Baroness, perhaps she can go half way to meeting me. She has not lost anything, except a week—the Bill will still get on to the statute book, with the amendment she proposes. I am simply asking whether the amendment is totally and utterly correct. She has the opportunity of double checking if she reserves government Amendment No. 403 for Third Reading.

Baroness Andrews

My Lords, my advice is that Clause 191 is about regulations made under this Bill. Section 79 is a 1977 Act provision—Clause 191 is not, therefore, relevant. We cannot, under Clause 196, make amendments using powers in this Act to amend Schedule 12ZA. That is a technical explanation. I urge the noble Lord to accept that we will move the amendment, and I will write to him. If we are wrong, we can seek to make amends.

Lord Skelmersdale

My Lords, I am well aware that Amendments Nos. 402 and 410 are not totally correct. Therefore, I intend to withdraw my amendment.

As far as the government Amendment No. 403 is concerned, I am put in the position of having to accept it. Perhaps the House feels that I have put myself in this position; the noble Lord, Lord Warner, certainly thinks so because he is nodding. However, I have to say, I do it with a very heavy heart. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Andrews moved Amendment No. 403: Page 98, line 30, at end insert—

• "(2A) In section 126 of that Act—
1. (a) in subsection (1), after "PCT order" insert "or an instrument to which subsection (1A) applies";
2. (b) after subsection (1) insert—
• "(1A) The Secretary of State may not make a statutory instrument containing the first regulations made under section 79(1) above (as substituted by the Health and Social Care (Community Health and Standards) Act 2003) unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament."

On Question, amendment agreed to.

Clause 181 [Replacement of the Welfare Food Schemes: Great Britain]:

Baroness Barker moved Amendment No. 403A: Page 99, line 9, after "may" insert ", having conducted pilot schemes involving full consultation and independently audited evaluation

The noble Baroness said: My Lords, we come to a raft of amendments on this clause. Buoyed up by the victory of the noble Earl, Lord Howe, a couple of groups ago, I go in to bat with a hope of success, not least because the noble Lord, Lord Warner, in his letter to noble Lords of 4th November, indicated in some detail that we are very close to agreement on a number of matters to do with welfare food. Therefore, these amendments are tabled in the hope of closing what I believe to be a very narrow gap.

In the noble Lord's letter, he quoted the noble Baroness, Lady Andrews, on the phasing in and testing of the new scheme. Amendment No. 403A refers to conducting pilot schemes, involving people in consultation and having independent audit and evaluation. I believe there is a distinct difference. I fully accept that the very concise and precise way in which all these amendments are drafted stems in part from the great disquiet about the way in which these provisions were originally drafted. None the less, I do not think that our amendment is a semantic difference. We are talking about important healthcare provisions for very small children and infants. What is being talked about is a big change, and it is described in fairly loose terms throughout the Bill. It is therefore important that we should seek to pilot it in a small-scale way and subject it to quite rigorous evaluation before it is rolled out. That is qualitatively different from the phasing-in of a scheme. I beg to move.

10 p.m.

Earl Howe

My Lords, the noble Baroness has again made a powerful case for pilot schemes to precede the full roll-out of a replacement for the Welfare Food Scheme. I share many of the concerns that have led to her call for pilot schemes.

Our concerns on the proposed new scheme are several and, if I may without speaking for too long, I shall summarise them. The first is that we are abandoning a scheme that has acknowledged nutritional value for one that may not deliver equivalent nutritional value in future. It will be difficult to ensure that the new scheme will result in mothers and young children receiving sufficiently nutritious food. The second concern is that we have not seen any details of how the scheme will work in practice, including how the vouchers will work to differentiate between different kinds of food.

Thirdly, the overwhelming finding from the Healthy Start consultation was that alternative nutrition would need a value higher than the current value of the milk-based scheme. However, the Government have said that they intend to stick with the current annual cost of around £140 million. Lastly, the new scheme will be open to abuse, and we have no details of how it will be monitored or policed. We also have concerns about the knock-on impact on the milk distribution sector. If doorstep milk deliveries decline as a result of changes in the scheme, the harm could spread to other vulnerable groups, especially elderly people. The Government simply do not have an answer to that.

We recognise that pilots, especially those that are fully evaluated as Amendment No. 403A calls for, can take a long time. We can see that the Government will want to press ahead once they have sorted out the huge number of details left. That is one reason why our Amendment No. 404 requires that the scheme be subject to affirmative regulations.

In Committee, the noble Baroness, Lady Andrews, tried to convince us that to reduce the parliamentary scrutiny for the Welfare Food Scheme was necessary in order to be able to rush through new ideas on nutrition. We simply do not buy that, and can see no reason for parliamentary scrutiny of the new scheme to be less than is currently the case.

Given that the Government have given us so little information about how the scheme will work in practice and how the potential pitfalls will be avoided, I put it to the Minister that she ought to welcome the opportunity to debate the details with Parliament when the new scheme is ready to be implemented. If she will not accept my amendment—I suspect from her answers this evening that she may not—will she at least consider making the first regulations under the scheme subject to the affirmative procedure?

Baroness Andrews

My Lords, we wrote in response to the debate in Committee on 5th November and offered more detailed information about our intentions in respect of aspects of reforming the Welfare Food Scheme. We gave some information about our plans for rolling out, testing and evaluating the reformed scheme. We gave information about the type, value and distribution of the new voucher, and about our strategy for communicating with families. I hope that the letter has provided a clearer and fuller picture of how the new scheme will work.

I turn first to Amendment No. 404, which would require all regulations made under subsection (1) of Clause 181 to be subject to the affirmative resolution procedure.

I have spoken about the need for the reformed scheme to be as flexible as possible and to be able to respond to changes in nutritional advice, operational need and to the needs of beneficiaries. It must be informed by expert advice and by the proper consultation of those affected. I have referred to the consultation process that we have just carried out. We had a positive response to the scheme and to what we intend to do.

However, we have listened. The noble Earl expressed concern about "abandoning" the tried and tested scheme. I would say rather that we are building on the tried and tested scheme. I said in Committee that we appreciated the difficulties of debating a scheme which is in development, which is dynamic, and which builds on and reflects consultation in a formative rather than a merely retrospective way. I readily accept the concerns expressed about the setting up of a new scheme in the wake of one which has undergone little change in 63 years. It is remarkable for that reason. It is truly unique. I therefore propose to look again at the level of parliamentary scrutiny of the welfare food regulations and to come forward with an amendment at Third Reading that would make the first set of regulations subject to the affirmative procedure and subsequent sets negative. We are pleased to facilitate that debate. I therefore hope that the noble Earl will see fit to withdraw his amendment.

On Amendment No. 403A, I believe that I said at Second Reading that we want to get it right. We do not want to cause any difficulty or confusion to beneficiaries, who are vulnerable and who rely heavily on the scheme to supplement their nutritional needs. We are making the changes because we want to do more on their behalf and to use the health service registration process to achieve that. We intend seriously to test and to phase in the scheme and to pilot elements of it.

Amendment No. 403A would make it a requirement for pilot schemes to be set up before regulations could establish the new Welfare Food Scheme. Such a requirement would apply to all operational changes in the future, however minor, as much as to substantial change at the outset. I have said that we need to consult fully on draft regulations. We also intend our consultation to encompass arrangements for testing and phasing in the reformed scheme.

I have assured the House of my undertaking to make the first set of welfare food regulations affirmative. I hope that the Noble Earl will finally be pleased with something that we have done this evening.

Baroness Barker

My Lords, the noble Earl appears to be ecstatic. I am not quite so overjoyed. I still question whether seriously testing and phasing in is tantamount to a pilot scheme. I suspect that we are separated not so much by a brick wall as by a small fence. I will look with interest at what the department brings forward, particularly in regard to evaluation within the regulations. That appears to be the point over which we have the greatest concern.

Baroness Andrews

My Lords, nobody could be more serious about proper evaluation than I am. The evaluation procedure is bound to be robust because it will grow out of the consultation process itself.

Baroness Barker

My Lords, the Minister is as convincing as ever on the subject of evaluation. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Barker moved Amendment No. 403B: Page 99, line 13, at end insert "and particularly infants up to the age of one year

The noble Baroness said: I should have declared an interest for this part of the debate. I am of an age not only to have been brought up on formula milk, but also to have had free school milk before it disappeared.

The amendment states the importance not only of the encouragement of breast-feeding, which we know is not nearly widespread enough, but also of maintaining the presence of infant formula where breast-feeding is for one reason or another not adopted.

Infants require special protection and therefore the maintenance of infant formula is important. I accept the Government's argument about the need to move to a wider range of healthy diets, but at a previous stage we seemed to be in danger of going too far down that track.

Noble Lords may remember the tragic case a few months ago of the small baby who died because her young parents did not understand that infants cannot take an adult diet. These amendments attempt to focus back on that and to place the scheme's emphasis on infants. I beg to move.

Baroness Andrews

My Lords, I welcome the opportunity to discuss these aspects of the scheme with the noble Baroness. We have made it clear that our intention is to reform the current Welfare Food Scheme in order to make better use of resources to meet the needs of beneficiaries. We have said that the reforms must be achieved within current resources; broadly, £142 million per annum for Great Britain as a whole.

It is worth pointing out to the House that the panel on child and maternal nutrition of the Committee on the Medical Aspects of Food and Nutrition Policy, which reviewed the current scheme in 1999 and informed what we are doing, expressed the firm view that the scheme could be greatly improved without additional cost. That is a significant finding.

Our aim is to ensure that those in greatest need get the most help from the reformed scheme. I applaud the purpose of the amendments; to safeguard the position of families with young children on the basis that they have the greatest need. We intend to do just that. Realising that the intention of the amendments would make reform almost impossible within anything close to our current budget makes it difficult to accept them. However, perhaps I may explain what we are thinking about.

It is our intention that the value of the voucher for all the scheme's beneficiaries will be at least £2.80, as this is the average amount that retailers supplying seven pints of liquid milk under the current scheme are reimbursed. It is also our intention to give greater benefit to younger infants up to the age of one and we expect the value for them to be twice that of older children; that is, at least £5.60 per week. We anticipate that this higher level of benefit will be given throughout the child's first year and will provide an essential safety net for babies who are bottle fed. That is important for mothers who cannot breast feed. But it will also ensure that mothers who are breast feeding obtain extra help to meet their own nutritional needs at this important time. It is a time when progressively less formula is needed by infants.

By these means, we will ensure that families with very young children are not disadvantaged by a move to value-based vouchers. Breast-feeding mothers of infants have long lost out because they have been able to exchange tokens for only seven pints of milk, which has a lower monetary value than 900 grams of infant formula. Under the scheme, for the first time, they will be given the same amount of benefit as all other mothers of infants. That is very much part of our initiative to encourage greater levels of breast feeding among low income groups.

I hope that the noble Baroness will see that we are very aware of the needs of younger infants in the way that she would want and will therefore be able to withdraw her amendment.

Baroness Barker

My Lords, I take heart from that. I believe it is important to restate exactly what the scheme is all about. If I had a criticism of the Minister's letter, it was that at times it was too general and I do not believe that it covered the matter in quite as much detail as the noble Baroness has just done. However, given the assurances that the overall monetary value will not differ and that the flexibility will be needs-led and not financially driven, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Baroness Barker moved Amendment No. 403C: Page 99, line 15, at end insert "and with a view to offering nutritional advice in particular for infants, including breast-feeding and infant formula.

The noble Baroness said: My Lords, the amendments in this group relate to a similar issue. They concern the information and advice that will be provided and the people to whom that will be provided. In debate on the previous group of amendments, the noble Baroness talked about the way in which breast-feeding is not as widespread as it should be and about how important it is.

The amendments are framed very much by the way in which the earlier versions of these provisions were written and they relate to the fairly widespread fear that not all pregnant women will be in a position to qualify for the new scheme. We consider that to be wrong; we believe that all pregnant women, whoever they are, should be included in the scheme and that they should be given appropriate nutritional advice. That is the gist of the amendments, and I hope that they will find some favour. I beg to move.

Baroness Andrews

My Lords, the noble Baroness is absolutely right. It is essential that, when we provide advice to beneficiaries about nutrition, we do so fully and appropriately. Indeed, providing that advice is a key element of our plans for reforming the scheme. However, it is important that the advice should be accessible, simple, appropriate and friendly. It should not be patronising; it should be tailored to the needs of individual beneficiaries; and it should not simply be a repetition of a set list of dos and don'ts on issues which are set down in legislation.

It goes without say that for pregnant women and mothers of infants, any advice given must include the importance of breast-feeding and encouragement to initiate and maintain the appropriate use of formula. However, having said that, we must be very careful. When mothers are already bottle-feeding or when their children are older, giving them inappropriate advice could be counter-productive. Requiring them to receive irrelevant advice could damage the relationship or the trust that they have with health professionals and their receptiveness to other forms of advice. A similar situation would occur if, for example, we insisted, through legislation, that mothers of older children be given advice on infant-feeding in general.

The noble Baroness also alluded to the fact that the amendments were tabled before we came forward with other changes. Therefore, I also point out that a number of the amendments relate to subsection (4), which we intend to remove from the Bill in response to continued concerns in this House. Therefore, I cannot accept the amendments, although I fully accept the spirit behind them. I hope that the noble Baroness will trust us to make the information and advice available and to make it as appropriate and as useful as possible.

Baroness Barker

My Lords, I thank the noble Baroness for that reply. Our concern was not that mothers should be given irrelevant advice but that it should be comprehensive and that there should be no fads and fashions in the advice given to pregnant women. It would not be the first time that that has happened. It was in that spirit that we tabled the amendment. We wanted to try to prevent the good elements of the current scheme being thrown out along with the rest of the reforms. However, I take on board what the noble Baroness said and acknowledge the changes which she will no doubt talk about in more detail. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 404 not moved.]

Baroness Barker moved Amendment No. 404A: Page 99, line 21, at end insert "but not exclude any pregnant woman, mother or infant.

The noble Baroness said: My Lords, as I said a moment ago, these amendments were framed very much by the seeming requirement within the original provision for registration and to attend certain clinics, and so on.

Our concern is simply that all pregnant women should receive appropriate and comprehensive advice. We also felt that while the scheme is being rolled out, no one should be left out in the transition while the new system of registration and vouchers is introduced. We saw that as a potential problem. That is the spirit behind the amendments. I hope that the noble Baroness will respond positively. I beg to move.

Baroness Andrews

My Lords, as the noble Baroness explained, the intention of the amendments is to make it impossible to deny benefit to any pregnant woman, mother, infant or child irrespective of family circumstances or need, who applies to participate in the reformed scheme. They would also allow any person to benefit from the scheme even otherwise than as a beneficiary—such as a supplier of foods— regardless of whether they need the benefits that the scheme provides or whether they meet other eligibility criteria.

Once on the scheme the intention seems to be that a person should then not be removed from it without full consideration of his or her welfare. The scheme would, therefore, in effect be almost universal and very rigid. In addition, that would contradict the historic aims of the scheme and our intentions for the future.

We intend that the reformed scheme should build on its fundamental principle and provide help with nutrition through vouchers to those pregnant women, mothers and young children who, because they are on low incomes and receive qualifying benefit, are in greatest need of them. To increase coverage to all pregnant women, mothers and young children or others, whether or not they are on low incomes, could not be done within the current financial constraints without devaluing the benefit to the point that it becomes useless.

We must have flexibility to use resources in a way that will do most good. I fully accept the principle that underlies the amendments, which is that we must ensure that pregnant women and families who meet eligibility criteria are brought on to the scheme quickly so that they begin to receive the benefits as quickly as possible. We intend to address that by streamlining and improving the application process, linking it with other benefits available to the group, such as the Sure Start maternity benefit, and most importantly, by publicising the scheme to those who are on qualifying benefit. Those are aspects that we fully intend to test and evaluate. We shall make modifications to the operation in the light of evaluation.

I also fully accept that families should not be removed from the scheme for any other reason than that they no longer meet the standard eligibility criteria, for example, having children of the appropriate age, and being in receipt of benefits. However, putting the specific requirements that have been proposed on the face of the Bill will not achieve that for the reasons I have outlined. It would be a source of confusion and contradiction within the benefit regime. For those reasons I hope that the noble Baroness will withdraw her amendment.

Baroness Barker

My Lords, I thank the noble Baroness for her response. I accept some of the limitations in the drafting, which she pointed out. However, I hope that she will accept that perhaps one of the reasons that the existing scheme has done so well for over 50 years—some of us are living proof of that— is precisely that it was a universal scheme. It was there to pick up those children and mothers who might be in obvious need. That was the concern behind the amendment.

Perhaps the noble Baroness has rather more faith than me in the new scheme, not only to determine who will be eligible at the beginning but to continue to pick up the children who would be eligible. One of the great aspects of the existing scheme was the general monitoring of healthcare that was carried on throughout.

I note what the noble Baroness says. I shall take this away and read her comments. In the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 404B not moved.]

The Deputy Speaker (Baroness Cox)

My Lords, before calling Amendment No. 405, I must inform the House that if that amendment is agreed to, I cannot call Amendments Nos. 405ZA to 405ZD standing in the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Barker.

Earl Howe moved Amendment No. 405: Page 99, leave out lines 23 to 37.

The noble Earl said: My Lords, following the Minister's most welcome concession on the regulations, there can be one line only of "A Midsummer Night's Dream" with which to respond— Merrily, merrily, shall 1 live now".

In moving Amendment No. 405, I am able to repeat that line with even greater vigour because we have the happy circumstance of the Minister's name alongside our own. I shall not labour our objections to subsection (4) of new Section 13 of the Social Security Act 1988. Suffice it to say that I am very glad the Minister has taken on board our concerns and is prepared to join with us in deleting the subsection. I beg to move.

Baroness Andrews

My Lords, merrily indeed. I am very pleased that we were able to meet the concerns of noble Lords in this respect.

There was widespread agreement in Committee to our main aim of bringing the Welfare Food Scheme closer to the NHS, precisely in order to help its beneficiaries to make the best use of the NHS primary care services aimed at pregnant women and families with young children. This is a clear and strategic aim. We want very much to make clear that this is part of our strategy for defeating inequalities and improving nutrition as a whole. I think we have done that. Making a direct link between that and the Welfare Food Scheme is part of the national objective.

That method is particularly useful because it gives us a way to help young families at the earliest and most vulnerable time of their lives. That is when the lifelong understanding of good nutrition and habits will be laid down. It is timely. This week we had the report of the FSA on the consequences of poor nutrition.

We are very positive about this. Introducing a mechanism for families to register for the reformed scheme through a health professional is a key means of bringing about contact. This is not new. I remind noble Lords that our plans are entirely consistent with other existing arrangements. In later pregnancy women on a low income already have to visit a health professional and receive advice on maternal and infant health in order to claim their Surestart Maternity grant. Women on jobseeker's allowance must also visit a health professional at a similar time to obtain proof of pregnancy and estimated date of delivery before they can make themselves unavailable for work without losing benefits. Both appointments can be rolled into one and evidence suggests that many of our current beneficiaries choose this time to notify DWP of their pregnancy and thus do not get their tokens until late. Our plans propose to link into existing arrangements but significantly to give women the encouragement to access healthcare earlier to get advice and benefit.

However, the detailed requirements that may be specified in order for families to gain and retain access to the benefits of the reformed schemes set out in subsection (4) have given rise to much debate. I offered reassurances in Committee about the nature and purpose of the subsection. I made it clear that our intention was that the requirements would be defined in regulations in a way that is proportionate and reasonable for both health professionals and beneficiaries. I stressed that there would be nothing onerous required of either mothers or NHS staff. I stand by those assurances.

However, I respect that many noble Lords were uncomfortable with the inclusion of some of the requirements in subsection (4). I listened to the range of opinions expressed and we have decided to delete the subsection.

We still intend that regulations under Clause 181 will make it a requirement for a person to apply for the scheme. That is necessary simply because the introduction of tax credits will affect how information on pregnant women is collected. Currently, the Department of Health obtains information on who is eligible for the scheme from the Department for Work and Pensions. From October 2004, that will cease when the Inland Revenue takes over. We have no way of knowing who is eligible. So the simpler registration will enable eligible persons to access the welfare food benefit. I am very pleased that noble Lords are pleased that we have acceded to this and I am grateful for their support this evening.

Earl Howe

My Lords, I once again thank the Minister not only for seeing the matter from our point of view but for going as far as she has done and for her full explanation.

On Question, amendment agreed to.

[Amendment No. 405ZE not moved.]

10.30 p.m.

Baroness Barker moved Amendment No. 405ZF: Page 99, line 41, leave out "person" and insert "qualified health care professional

The noble Baroness said: My Lords, I move the amendment to ask the noble Baroness if she might elucidate a little more on how access to healthcare professionals will work under the new system as she has just described it. I know that she stressed that she has taken on board those concerns, but I was not exactly sure how people who register for the scheme will have direct access to a healthcare professional. If she could just give me some assurances about how that will happen, I shall be as happy as is the noble Earl, Lord Howe. I beg to move.

Baroness Andrews

My Lords, I shall answer the question by dealing with the amendment, if I may.

We see no reason to insist that the beneficiaries of the scheme can collect the foods to which they are entitled only from health professionals or health service bodies—which is what the amendment would provide. Some voluntary schemes exist where food is provided through co-operatives facilitated by health professionals. They work well, but they work precisely because they are voluntary and responsive to local need. To place the burden of such a role on health professionals without regard to the other pressures that they face would not be a good use of valuable skills and expertise.

Our proposals were criticised in Committee for being intrusive and prescriptive in their requirements on beneficiaries. When we read the amendment, we thought that to introduce such a requirement would be prescriptive to the utmost degree and would remove beneficiaries' right to exercise choice. We now envisage that, for example, when a woman finds herself pregnant, she will as a matter of course in the process of confirming her pregnancy meet the health professional—the health visitor, the practice nurse, or whatever—and, as I understand it, will then simply be required to sign to say that she is pregnant and would therefore like to claim her entitlement to the welfare voucher.

That is one matter on which we will consult, because we want—as we have done—to talk to beneficiaries about how they would feel most comfortable and confident about making that connection. If I may, I shall write to the noble Baroness about some responses that we have so far received to our consultation. That has not yet been published, but I should be happy to let her have sight of what women have said about how they think that the scheme could be improved in that respect. As I remember, there was certainly no objection to registration, but those women made some interesting comments about how they saw the scheme working. I should be happy to circulate that letter.

Another point implicit in the amendment is that to remove the dairy industry from the scheme altogether—which, as the noble Earl said, is rather concerned about the impact of reforms on the viability of small businesses—would have a definite negative impact. That is another reason why we cannot accept the amendment. As I said in Committee, we are concerned to continue the dialogue with the dairy industry to ensure that it will continue to play a part in the scheme, as appropriate, and, indeed, to extend the number of suppliers involved so that families and women have the widest choice.

On those grounds, I hope that the noble Baroness will withdraw her amendment.

Baroness Barker

My Lords, I thank the noble Baroness for that extremely helpful reply. We are seeking to strike a balance on this matter which has not yet been fully and satisfactorily determined. I say that for the best of reasons. One could be quite cynical about these amendments, but the motives behind them are extremely good.

The first point of concern was that, given that this work may be undertaken in places other than the standard clinics that we all know—for example, it may take place in pharmacies—we might see a gradual smoothing away from healthcare professionals to product salesmen. Secondly, as I indicated earlier, one of the great advantages of the current scheme is the contact between pregnant women, mothers of infants and healthcare professionals. Clinics often provide an opportunity for other issues to be picked up and discussed. I cite, for example, the onset of postnatal depression, mastitis and other conditions. We are concerned to retain what is best about the involvement of healthcare professionals.

I understand that the settings and the role that voluntary organisations may play in making services accessible may change, but I have to say that I was not wholly convinced by the answer given by the noble Baroness. However, I shall pay great attention to the letter that she has said she will write to me. We are not that far apart on this, I believe, but perhaps we have a little more work to do before we reach a union of agreement with which we are both satisfied. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 405ZG, 405ZH and 405ZJ not moved.]

Lord Warner moved Amendment No. 405A: Page 100, line 37, leave out from "(1))" to first "to" in line 38 and insert "is

On Question, amendment agreed to.

[Amendment No. 405AA not moved.]

Lord Warner moved Amendment No. 405B: Page 101, leave out lines 11 to 13.

On Question, amendment agreed to.

[Amendment No. 405BA not moved.]

Lord Warner moved Amendments Nos. 405C and 405D: Page 101, line 18, leave out from "body" " to "such" and insert "has

Page 101, leave out line 24.

On Question, amendments agreed to.

Clause 1830 [Appointments to certain health and social care bodies]:

[Amendments Nos. 406 to 408 not moved.]

Clause 191 [Orders and regulations]:

The Deputy Speaker (Lord Geddes)

My Lords, I must advise the House that if Amendment No. 409 is agreed to, I cannot call Amendment No. 409A due to pre-emption.

[Amendment No. 409 not moved.]

Lord Warner moved Amendment No. 409A: Page 105, line 37, after "section" insert "(Conduct of elections) or".

The noble Lord said: My Lords, this amendment is tabled in response to the recommendation made last Thursday by the Delegated Powers and Regulatory Reform Committee that the new regulation-making power to set out details of the electoral systems for elections to the boards of governors of NHS foundation trusts should be subject to the affirmative procedure.

Amendment No. 409A would require the regulations to be subject to the affirmative procedure in the first instance, with subsequent sets of regulations being negative. This meets the committee's recommendation half way and, I think, goes far enough to give Parliament an extra safeguard in this area. Once the first set of regulations is made, it will be clear how we envisage the elections working and it would still be possible for Parliament to annul subsequent sets of the regulations if it wished to do so. I beg to move.

On Question, amendment agreed to.

[Amendment No. 410 not moved.]

Lord Warner moved Amendment No. 410A: Page 106. line 2, after "(1)(b)" insert "or section 195 or 196

The noble Lord said: My Lords, in moving Amendment No. 410A, I shall speak also to Amendments Nos. 410B to 410E.

As your Lordships will be aware, the Delegated Powers and Regulatory Reform Committee recommended in its 24th report that affirmative procedures should apply to some of the regulation-making powers under Part 3 and to the power in Part 6 to make consequential amendments to other Acts. In the light of those recommendations, I brought forward amendments in Committee and the Committee agreed to them.

I now have a confession to make. Those amendments did not extend the principle of the affirmative procedure to the Scottish Parliament in relation to provisions as they apply to Scotland on devolved matters. While I note that colleagues have not raised this issue in debate, I am advised that the Delegated Powers and Regulatory Reform Committee intended its recommendations to apply to Scotland. Indeed, it makes sense for them to do so in the context of devolution.

These are technical amendments to ensure that where the affirmative procedure is to apply at Westminster it also applies at the Scottish Parliament for provisions as they apply to Scotland on devolved matters. I beg to move.

Earl Howe

My Lords, undoubtedly we can all go home like Puck with the refrain, "I am that merry wanderer of the night". I was puzzled in Committee by the Minister's reply. Our Amendment No. 412 was an attempt to draw attention to the lacuna which we felt still remained in the Bill by virtue of the recommendation from the Delegated Powers and Regulatory Reform Committee. I am delighted that the Minister has recognised that lacuna. We are very pleased to agree to the amendments.

On Question, amendment agreed to.

Lord Warner moved Amendments Nos. 410B to 410E: Page 106, line 2, at end insert "(including an Act of the Scottish Parliament)

Page 106, line 8, at end insert—

( ) The Scottish Ministers may not make a statutory instrument containing—

1. (a) regulations under section 146(12),
2. (b) the first regulations made under section 149(2), or
3. (c) an order or regulations under this Act making, by virtue f subsection (1)(b) or section 195 or 196, provision which amends or repeals any part of the text of an Act (including an Act of the Scottish Parliament),

• unless a draft of the instrument has been laid before, and approved by resolution of, the Scottish Parliament."

Page 106, line 9, leave out "regulations under Part 3" and insert "any other order or regulations under this Act

Page 106, line 10, after "Ministers" insert "(apart from an order under section 194)

On Question, amendments agreed to.

Lord Warner moved Amendment No. 410F: After Clause 193, insert the following new clause—

"ISLES OF SCILLY

The Secretary of State may by order provide that this Act, in its application to the Isles of Scilly, is to have effect with such modifications as may be specified in the order.

The noble Lord said: My Lords, we need to travel a little further from Scotland. This is a technical amendment to make a late correction to the drafting of the Bill by enabling regulations to clarify how it should apply to the Isles of Scilly.

As your Lordships will be aware, the Isles of Scilly are part of the legal jurisdiction of England and Wales and the Bill extends there just as much as it does to the rest of England and Wales. This amendment allows provision to be made to enable the Bill to work in the Scillies given the slightly different arrangements that prevail there. This is an alternative to spelling out in the Bill the specialised provision which is needed for a very small part of the country. The case it is aimed at is the definition of "local authority" in Part 2 and related expressions. We want to be able to say that, for the Scillies, "local authority" includes the Council of the Isles of Scilly.

There is a great deal of precedent for this kind of provision. I beg to move.

On Question, amendment agreed to.

[Amendment No. 411 had been withdrawn from the Marshalled List.]

Clause 196 [Supplementary and consequential provision]:

[Amendment No. 412 not moved.]