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Welsh Ministers (Transfer of Functions) Order 2008

Volume 702: debated on Tuesday 24 June 2008

rose to move, That the draft order laid before the House on 22 April be approved.

The noble Baroness said: My Lords, this draft order, which was debated and approved by the House of Commons Delegated Legislation Committee on 3 June, seeks to effect the transfer of functions relating to two health Acts from UK Government Ministers of the Crown to Welsh Ministers. The draft order contains functions under Section 86 of the Mental Health Act 1983 and Section 259 of Schedule 21 to the National Health Service Act 2006. The proposed transfer of functions has the approval and support of the Department of Health, the Ministry of Justice and, of course, the Welsh Ministers.

The relevant powers of the Secretary of State under Section 86 of the Mental Health Act 1983 apply to patients detained under Part 2 and Part 3 of that Act. Your Lordships may recall from our consideration of the Mental Health Bill last year that Part 3 of the 1983 Act relates to patients concerned in criminal proceedings or under sentence, while Part 2 relates to those often referred to as “civil patients”; that is, patients whose detention in hospital does not involve the courts. Section 86 applies only to patients detained under Part 2 or Part 3 of the Act who are neither British citizens nor Commonwealth citizens with the right of abode in the United Kingdom. The powers in Section 86 are to remove the person from a hospital in England or Wales and to send them to another country.

Section 86 provides that, before exercising the power of removal, the Secretary of State must be satisfied that appropriate arrangements have been made to ensure that a patient receives proper care and treatment in the other country and that removal would be in the patient’s best interests. Before exercising the power of removal under Section 86, the Secretary of State must obtain the approval of the Mental Health Review Tribunal, an independent judicial body concerned with determining whether a patient continues to meet the criteria for detention under the Act. It has the power to discharge a person from detention.

As set out in Section 86(3), the Secretary of State shall not exercise the power except with the approval of the Mental Health Review Tribunal. Responsibilities for mental health matters are devolved to the National Assembly for Wales under the Government of Wales Act 1998. At the time of the original transfer of functions in 1999, which covered the Mental Health Act powers, Section 86 remained the responsibility of the Home Secretary. These powers subsequently have been transferred to the Secretary of State for Health in respect of unrestricted patients and to the Secretary of State for Justice in respect of restricted patients by the machinery of government changes which took place in 2007.

At present, Welsh Ministers are dependent on the Secretary of State for Health to exercise the powers of removing a patient who is receiving treatment for a mental illness from Wales to a country abroad. Given that health falls within the executive competence of the Welsh Ministers, it would be appropriate for them to exercise Section 86 functions. Most of the functions exercisable by the Secretary of State for Health in England are exercisable by the Welsh Ministers in relation to Wales.

This draft order makes it clear that there will be no transfer of functions relating to Section 86 for patients who are subject to a restriction order or direction under Section 41 or Section 49 of the 1983 Act or a hospital and limitation direction under Section 45A of that Act, which, I am sure noble Lords will appreciate, is key. These will remain with the Secretary of State for Justice, who will exercise those functions in relation to England and Wales, which, also, is key. That reflects the current settlement and arrangements regarding such patients. The Welsh Ministers are not seeking to change those arrangements.

There are potential benefits to be gained from the proposed transfer of Section 86 functions to the Welsh Ministers for Part 2 patients and unrestricted Part 3 patients. The Secretary of State for Health currently exercises functions under Section 86 in relation to Wales on the basis of advice from health service bodies in Wales, which are part of NHS Wales. The Secretary of State has no statutory control over NHS Wales; it is the responsibility, as we know, of Welsh Ministers, so it is appropriate for this function to be transferred. For hospital managers in Wales, the transfer of Section 86 powers would provide consistency with the exercise of other functions within the MHA 1983 which are exercised by the Welsh Ministers.

If Section 86 powers are transferred, there will be a direct benefit to patients. Let me exemplify that point: currently, hospital managers in Wales inform the Secretary of State for Health that a patient needs to be removed from a hospital in Wales under Section 86. Subsequently, either the hospital managers or the Secretary of State for Health will refer the case to the independent Mental Health Review Tribunal for Wales. After the tribunal has considered the case, it passes its advice and recommendations to the Department of Health and the Secretary of State for Health. The transfer process will be expedited by virtue of hospital managers in Wales being able to make direct requests to Welsh Ministers, who will then be able to take the decision regarding removal, based on the advice of the Mental Health Review Tribunal, without the need to refer the matter to the Department of Health and the Secretary of State for Health. The line of responsibility and accountability will be greatly clarified as a result of the transfer of functions. The proposed transfer of functions under Section 86 will set right the anomaly in how powers under the Mental Health Act 1983 have been transferred to Welsh Ministers. There are no significant cost issues relating to this transfer.

The proposed transfer of functions under Section 259 of Schedule 21 to the National Health Service Act 2006 in relation to the sale of good will of medical practices would give Welsh Ministers the responsibility and power to grant certificates stating that no good will has been sold. Subject to specified exceptions, the sale of good will of medical practices is prohibited under Section 259 of the Act. Schedule 21 makes it an offence to sell good will contrary to Section 259, which provides that any person proposing to be a party to a transaction which they think might amount to the sale of good will of a medical practice has to ask the Secretary of State for Health for a certificate confirming that the transaction does not give valuable consideration in respect of the good will. This function is currently exercised by the National Health Service Litigation Authority on behalf of the Secretary of State for Health for England and Wales.

No issue arises regarding cross-border practices. The premises are being sold, not the patients registered at the practice. If the premises are physically in England, the National Health Service Litigation Authority would continue to be responsible for issuing a certificate confirming that no good will has been sold. The transfer of functions order would make the Welsh Assembly Government responsible for issuing the same certificates to GP practices in Wales. There are no major financial implications relating to the proposed transfer of functions under Section 259 and Schedule 21, as the small administrative costs in dealing with cases will be funded from existing resources. I beg to move.

Moved, That the draft order laid before the House on 22 April be approved. 17th Report from the Joint Committee on Statutory Instruments.—(Baroness Morgan of Drefelin.)

My Lords, I thank the Minister for her statement on this historic statutory instrument, which transfers to Welsh Ministers functions of a Minister of the Crown. This is the first draft instrument to be made under the Government of Wales Act 2006. As the Minister rightly said, it relates to Section 88 of the 1983 Act and Section 259 of Schedule 21 to the NHS Act 2006. The process, as a result of the Government of Wales Act 2006, transfers powers to Welsh Ministers. Previously, these functions were transferred to the Assembly. This clarifies the difference between the Executive, in the form of the Ministers, and the Assembly, which can now concentrate on scrutiny and revising. Some say that this dilutes democracy in Wales, but previously there was a lot of confusion over the role of the Assembly. As a result of the 2006 Act, Welsh Ministers can be more accountable to the Assembly, which can, if necessary, give them a very hard time. In that respect they represent the people of Wales.

We approve of the principle of the transfer of powers found in this statutory instrument. The draft order relates to the provisions in the Mental Health Act 1983 regarding the movement of detained patients subject to guardianship between England and Wales and any country abroad. It also relates to Section 86 of the Mental Health Act 1983 where a patient is receiving treatment for mental illness in a hospital. This applies on the one hand to patients concerned in criminal proceedings or under sentence and on the other hand to civil patients detained in hospital. Obviously, patients involved in legal proceedings remain the responsibility of the Secretary of State for Justice, whereas the other patients will now be the responsibility of the appropriate Welsh Ministers.

We support this transfer of powers, as it is entirely in line with the devolution settlements of 2006 and 1998 whereby the National Assembly for Wales was given responsibility for mental health. The line of accountability will now be much clearer. Where the restriction orders are in place, it seems entirely logical for direction to remain, for the time being, with the Secretary of State for Justice. The National Assembly for Wales and its Ministers do not have powers in relation to criminal law, although eventually this may change. Section 259 of Schedule 21 to the National Health Service Act 2006, which refers to issues relating to GP practices and the prohibition of the sale of good will, us entirely sensible. We agree with this order.

My Lords, I too welcome the context in which the draft order is presented and its contents. The general context is that of devolution, and it bears out the famous words of Mr Ron Davies when the Welsh Assembly was established that this was the beginning of a process rather than a single happening. Here we have the transfer of two fairly limited executive functions to Wales. The Section 86 transfer gives Welsh Ministers jurisdiction in relation to civil patients in mental hospitals and thereby removes an anomaly that has existed for quite a long time.

Anybody who has had any dealings with the Home Office in relation to the Mental Health Act 1983 will appreciate that the boundary between health jurisdiction and that of the Home Office runs right through that Act. I can remember some conflict when I had the pleasure of being a Junior Minister in the Home Office.

The anomaly exists because this situation was entirely at the join between the jurisdictions of those two departments. When, in 2007, that situation was resolved as far as England and Wales were concerned generally, by allocating the criminal functions to the Home Office and the health functions under Part 2 of the Act to health Ministers, clearly Wales had to follow suit and remove that anomaly. The protection for the individual remains and the rules remain basically the same for Wales as for England, save that the executive decision will now be made by Welsh Ministers. It would have been entirely absurd for the certificate on the sale of good will under Section 259 of the National Health Service Act 2006 to have been granted in relation to a Welsh situation by anybody other than a Welsh Minister or, more correctly, the body advising on behalf of the Welsh Minister.

The noble Lord, Lord Livsey, has already drawn attention to the historic significance of this first order made under Section 58 of the Government of Wales Act 2006. It is surprising, bearing in mind the volume of activity in this field, that something has not come along earlier. Be that as it may, we welcome it very much. I hope it is indicative of the way in which devolution in Wales will develop along three paths: first, under Part 3 of the Act; secondly, as far as ministerial transfers are concerned; and, thirdly, the framework provision transfers which we have already been concerned with over the past few years. The canard was widely circulated in Wales when the Government of Wales Act was considered that the Welsh Assembly could be nothing more than a Glamorgan County Council on stilts. Whatever truth there was in that, we now have the division between the Executive and the National Assembly, making the Welsh Assembly much more in the outline of a Parliament than ever before.

The noble Lord, Lord Livsey, mentioned a matter which I had considered while looking at these papers: whether one was taking power out of the hands of a democratic Assembly—as would have been the case before the 2006 legislation—and transferring it to the single hand of a Minister. I think that it was in 1935 that Sir Gordon Hewart wrote his book The New Despotism, describing how jurisdiction and authority moved from the Benches of the other place and this House to the hands of a single Minister. For the past 75 years, it has been one inexorable drift in that direction. Although I agree to some extent with the point of the noble Lord, Lord Livsey, we must accept that, and it has long been accepted.

My Lords, surely it is entirely appropriate for Wales Assembly Ministers to exercise this function. One presumes that, as every such order makes its administrative way to Cardiff, the Wales Assembly gains in confidence and status. The process may well evidence a further accretion of powers by the Wales Assembly Government—powers that it has sought and that most people in Wales will surely agree with. In that, we are observing a further maturation of the Wales Assembly’s achievement. “More constitutional creep” is not the phrase that I am thinking of, but it is something like that. One hopes that this legislation will lead to more and better governance; good governance is surely the objective of what we are discussing. I hope too that it aids better services for ordinary people at the grass roots; that surely is another objective of such legislation.

The subject of mental health is important. I recollect as a Welsh Office Minister receiving advice from the now noble Lord, Lord Prys-Davies. As a special adviser in the mid-1970s he gave wise advice to Ministers, and we made advances in mental health in which he had an important role.

I ask the Minister to tell us of an instance of the sale of good will. In paragraphs 7.9 to 7.12 of the Explanatory Memorandum, there are references to professional procedures that are somewhat puzzling to the lay person. What amounts of money might be paid for good will? Is it many thousands of pounds? Can she furnish us with an example to illuminate our proceedings?

However, the transfer of functions order regarding medical practice and certificates must surely be the right procedure. I wish this legislation well.

My Lords, I thank the noble Baroness for her clear, if lengthy, explanation of the order. I have spoken last on this occasion because I feel rather humbled by so many ex-Welsh Ministers around the House, who have much greater knowledge of the issues than I have.

Having read the brief debate held in another place, I am satisfied that the basic essence of this statutory instrument is to be applauded and agreed to. The honourable David Jones challenged the Minister in another place, Huw Irranca-Davies, about various costs and the question of how good will might be handled, and was answered satisfactorily by him.

I do not feel the need to go on longer, except to say that we all appreciate that anything to do with mental health and its patients needs a soft and sensitive touch. I believe that the order will clarify the route that needs to be followed and make it simpler. From what I have been able to read, I do not see that there should be any cross-border problems and, in general, we on these Benches support the order.

My Lords, like the noble Lord, Lord Glentoran, I feel humbled when I come to the Chamber and propose such orders. The wealth of experience and the quality of contributions is truly enlightening for me. The noble Lord, Lord Livsey, reminded us of the historic importance of the transfer of functions under the Government of Wales Act, which I did not mention in my somewhat lengthy introduction to the order. I welcome his support for it and am grateful that the noble Lord, Lord Elystan-Morgan, took the time to examine the proposed transfer with his eagle eye and give us the benefit of his analysis.

I thank the noble Lord, Lord Glentoran, for his reassurance that my honourable friend in the other place was able to answer his colleague’s questions adequately. My noble friend Lord Jones was concerned to find out if there had been payments for good will made following the sale of premises or property owned by GPs’ practices. No such payment has been made for good will, precisely because this is about ruling out such payments.

I offer further clarification to my noble friend: the good will that we are talking about is the value of what a GP practice may own other than tangible assets such as premises and equipment. For example, good will may be derived from the provision of an out-of-hours service, additional or enhanced services or non-medical business assets. Good will relates to the intangible factors that give a practice a good reputation and encourage patients to register with that practice. We are also talking about the issuing of a certificate to show that there has been no sale of good will: that is the important point. I hope that noble Lords will agree to the order. I commend it to the House.

On Question, Motion agreed to.