6. Debate: The General Principles of the National Health Service (Indemnities) (Wales) Bill

Part of the debate – in the Senedd at 5:06 pm on 19 November 2019.

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Photo of Mick Antoniw Mick Antoniw Labour 5:06, 19 November 2019

Diolch, Llywydd. We reported on this Bill on 12 November and made three recommendations. Before discussing those recommendations, I just wish to highlight one broad point. As with our scrutiny of all Bills, the Constitutional and Legislative Affairs Committee considered matters relating to the legislative competence of the Assembly, and this includes compliance with human rights legislation. We have consistently maintained that the Welsh Government should ensure that information relating to legislative competence, which is set out in explanatory memoranda, contains sufficient details to ensure transparency and to enable effective scrutiny of Bills. 

In this report, we have taken the opportunity to reiterate the conclusion we made most recently in our report on the Children (Abolition of Defence of Reasonable Punishment) (Wales) Bill, namely that full explanations of assessments undertaken in relation to human rights are available in explanatory memoranda that accompany Bills laid before this National Assembly. 

As has as already been noted, this Bill has been subject to a curtailed Stage 1 process in the Assembly. Our first recommendation related to this point. The Welsh Government announced the background policy decision for this Bill in May 2018, and the regulations for a future liability scheme were brought forward in March of this year. Therefore, it was not clear to us why the Bill was not brought forward earlier. This would have allowed for more Stage 1 scrutiny and for engagement between stakeholders and committees. For that reason, we ask the Minister to use this debate to clarify the timescales that led to the introduction of the Bill, including confirming the point at which the Minister was aware that primary legislation would be needed. And I note the Minister's comments earlier in clarification on this particular point. 

Moving on to our second recommendation, within the context of the short period of Stage 1 scrutiny, we noted the broad power provided to the Welsh Ministers by section 1(8) of the Bill, which inserted a new subsection (10) into the NHS (Wales) Act 2006. The Minister at the time suggested to us that this provision would help facilitate the prevention of accidental or mistaken impact on the existing powers of Welsh Ministers, and we ask the Minister to use this debate to clarify the rationale behind the power being sought in section 1(8). And I note again the Minister's comments earlier on on this particular matter. 

And then, finally, with regard to the balance between the detail on the face of the Bill and what is left to subordinate legislation, we noted that the Bill provided three powers to the Welsh Ministers to make subordinate legislation. We acknowledge the Minister's explanation regarding the choice to bring forward regulations made under section 1(8) of the Bill using the negative procedure. However, in our view, it is questionable whether it's fair and appropriate to compare the making of regulations that will be bring forward an existing liability scheme to those which brought forward the future liabilities scheme earlier this year. 

Our concerns are based on the fact that this Bill, which provides the primary legislative footing for the regulations, has not been afforded the full opportunity for Stage 1 scrutiny, and nor is it clear at this point who and what will be covered by subsequent regulations. For that reason, our third recommendation was the Bill should be amended so that the affirmative procedure would be applied to the first regulations made under section 1(8) of the Bill, followed by the negative procedure on subsequent occasions. Again, I've noted the comments that the Minister has made on this particular point. Thank you, Llywydd.