| For adult services, we have been
able to make substantial progress in developing
policy within the same statutory framework as in
England. For example, our work to promote the use
of the 1999 Health Act Flexibilities, and to promote
joint working especially for long term care, has
been distinctively Welsh, relying heavily on our
ability to work across boundaries between health
and social care. This approach has enabled us to
progress in delivering joined up services at ground
level.
The provisions in Section 114 of the Government
of Wales Act provide a very strong platform on
which the Assembly has developed its partnership
scheme with the Voluntary Sector across Wales.
This broad power is an important tool in delivering
partnership across the Assembly’s work.
Policy development involving primary legislation
The previous section sets out the breadth of
what we have been able to achieve with powers
devolved to Wales, but there are some important
examples where these have been insufficient for
what we needed to do. Primary legislation was
therefore essential to establish organisations
or provide the Assembly with extra enabling powers.
Indeed, primary legislation has been an important
part of taking forward health and social services
policy in Wales, and so far we have had the support
of the Wales Office and Department of Health in
doing this.
Much has been achieved and we have gained considerable
experience of the intricacies of the processes
involved. The first two pieces of Wales-only primary
legislation since devolution – establishing
the Children’s Commissioner and the NHS (Wales)
Bill – have both been within my remit. We
have also had important sections included in the
Care Standards Act 2000 and the recent England
and Wales NHS Reform and Health Professions Act.
These have allowed us to take forward the policy
for regulation and future structures for the NHS
in Wales in a direction quite different to England’s,
and we have been involved in other legislation
put forward by the Department of Health.
Given our considerable experience, I think it
is worth setting out at some length both our success
and some of the constraints related to taking
forward this legislation. In particular, our unique
experience in establishing the Children’s
Commissioner and taking the NHS (Wales) Bill through
pre-legislative scrutiny demonstrates a number
of different facets of working closely with colleagues
in Whitehall and Westminster. I have therefore
presented detailed descriptions of the processes
undertaken, and would be very pleased to answer
further questions when I appear before the Commission.
In all of the examples, the prime role of the
Wales Office, which has responsibility for taking
primary legislation through the parliamentary
processes, needs to be recognised.
Children’s Commissioner: One of the
first commitments made by the new Assembly –
given added weight by a recommendation of the
Waterhouse Inquiry into abuse of children and
young people in North Wales – was to establish
a Commissioner for Children and Young People in
Wales. This policy attracted all-party support
in the Assembly, and we were able to secure initial,
limited, provision to establish the Commissioner’s
office through Welsh specific clauses in the Bill
which became Care Standards Act 2000. Development
of the Commissioner proposals was supported by
the Health and Social Services Committee itself,
which consulted widely in Wales and advised me
on the detailed remit for the Commissioner’s
office.
In order to deliver our policy objectives in
full, further primary legislation was required.
Despite the UK Government not being convinced
of the need for a Children’s Commissioner
for England, the Secretary of State for Wales
was very supportive in assisting us to achieve
a second specific Bill, in the following session.
This was a pioneering piece of legislation for
the UK, and met all of the recommendations of
the Health and Social Services Committee, except
for a role for the Commissioner in respect of
non-devolved services, which was only partially
achieved.
As drafted, the Children's Commissioner for Wales
Bill provided no jurisdiction over non-devolved
areas, although this was supported by the Committee's
recommendations, the Assembly Cabinet, UK Government
backbenchers and voluntary sector pressure and
lobby groups in Wales. A concession was eventually
made in the Lords as a Government Amendment allowing
this function in a limited form, whereby the Commissioner
can make representation on non-devolved issues
direct to the National Assembly. It is then a
matter for the Assembly to decide its response.
In addition, he can publicise that representation
in the media, but he cannot use the powers he
has in devolved areas.
The fact that the Bill was taken through its
Committee stages in the Commons without a single
division being moved reflects the success of the
co-operation between the Assembly and the Government.
The process contained a number of innovative
features. Part 7 of the Regulations to the Children's
Commissioner for Wales Act requires that the Commissioner
"in exercising his or her functions…shall
have regard to the United Nations Convention on
the Rights of the Child". This is the
first time that reference has been made to the
Convention in UK legislation.
Participation of young people in recruitment
was a key feature of the interview process. A
group of 17 young people interviewed the six shortlisted
candidates in a process that they had designed,
and two of this group took part in the formal
interviews held by the National Assembly's Appointments
Sub-Committee. We believe that this is the first
occasion on which young people have played such
a central part in the recruitment of a post of
this level, certainly in the UK.
Care Standards Inspectorate: The Care
Standards Act also provided for the establishment
of the Care Standards Inspectorate for Wales (CSIW)
within the Assembly. The Inspectorate is now operating
within that framework. In England, the Secretary
of State for Health is now proposing further restructuring
of Social Care Inspection and Regulation arrangements
to create a unified Inspectorate outside the Department
of Health, brigading together the Care Standards
Inspectorate and Social Services Inspectorate.
That is a road I have chosen not to travel in
Wales, believing that our existing arrangements
within the Assembly provide cohesion, and a strong
bridge between inspection and policy, while maintaining
effective operational independence for the regulators.
NHS Reform and Health Professions Act:
Our clauses in the NHS Reform and Health Professions
Bill were less straightforward in practice, though
the outcome was successful. The clauses were to
allow the Assembly to create Local Health Boards
(LHBs) and to establish a duty for each LHB and
the local authority it shares boundaries with
to develop and implement strategies for Health,
Social Care and Well-being in their area. I regard
this as a significant step forward, putting joint
working on a statutory footing across Wales, not
just with social care but with the wide range
of local government functions which impact on
health and well-being. The Bill also provided
for Wales retaining Community Health Councils,
which were being disbanded in England.
The Bill included enabling powers to establish
LHBs through secondary legislation, which would
be subject to full scrutiny and process within
the Assembly. Although the broad direction was
certain (having been through public consultation),
the detail would only be finalised by the Assembly
once the Act was in place. The enabling powers
were closely scrutinised by MPs, who needed to
be reassured about the detail of exactly how the
Welsh Assembly Government intended these organisations
to work. Through the Wales Office, we presented
as full a picture as we could of our intentions,
to the eventual satisfaction of MPs. During the
parliamentary process, the Health and Social Services
Committee and key external stakeholders in Wales
were given the opportunity to comment on the Bill,
and I represented their views to the Wales Office.
The NHS (Wales) Bill is short and straightforward,
seeking enabling powers for the Assembly to develop
Community Health Councils and establish two organisations:
Health Professions Wales and the Wales Centre
for Health. It has now successfully been through
a full process of pre-legislative scrutiny. Parliamentary
scrutiny is widely felt to have worked well. The
chair of Legislation Programme Committee has been
complimentary about the way this draft Bill has
been handled and has commented that the approach
adopted may well be promoted as the model for
pre-legislative scrutiny of other Bills. In the
Assembly, the draft Bill was considered in detail
by the Health and Social Services Committee –
to which MPs from the Welsh Affairs Select Committee
were invited – and by the whole Assembly
at a plenary debate. In parallel, the Wales Office
carried out public consultation on the Bill and
arranged for it to be scrutinised by the Welsh
Affairs Select Committee, Welsh Grand Committee
and at a meeting of interested peers.
The Welsh Affairs Select Committee took advice
and evidence from officials and stakeholders,
as well as the Wales Office Minister and myself,
in one informal briefing meeting and two formal
sessions. The Committee concentrated on the policy
underlying the proposals, its likely effects on
stakeholders and whether the draft Bill would
deliver the policy intention as described. The
Welsh Grand Committee discussed the draft Bill
and the report of the Welsh Affairs Select Committee.
This produced no new recommendations for change
to the Bill, but gave members an opportunity to
engage in a political debate on the Bill and issues
surrounding health in Wales. Peers were provided
with a briefing note by the Wales Office spokesman
in the Lords and invited to the briefing with
me, the Welsh Office Minister and officials. This
was conducted as a private meeting. Issues raised
were similar in focus to those raised by the Welsh
Affairs Select Committee and covered similar ground.
As with the NHS Reform Bill, MPs and Peers were
keen to understand the detail of how exactly the
Assembly would use its enabling powers. The final
detail would not be known until secondary legislation
is properly debated and agreed by the Assembly
– which cannot start until the Bill receives
Royal Assent – but we set out the Welsh Assembly
Government’s current intentions and will
look to draft secondary legislation in parallel
with the Bill going through the parliamentary
process if it is included in the forthcoming Queen’s
Speech.
The pre-legislative scrutiny raised a number
of suggested amendments to the draft Bill from
AMs, MPs and the public. The Wales Office Minister
and I discussed these and agreed which of them
we would propose taking forward. The final decision
was then the responsibility of the Secretary of
State for Wales, though under an agreement made
under section 41 of the Government of Wales Act
he should not make significant changes to the
Bill without consulting the Assembly. The Secretary
of State submitted the amended Bill to the Legislative
Programmes Committee. The Health and Social Services
Committee is to debate the outcome of the Assembly’s
recommendations at a meeting on 20 November, to
which the Wales Office Minister is to be invited.
Involvement in other primary legislation:
As well as taking forward our own primary legislation,
we have played a role in the development of England
and Wales legislation on which the Department
of Health takes the lead. Our involvement has
taken different forms. In many cases, where circumstances
have allowed it, we have been involved from the
start, with Assembly officials attending regular
meetings around policy development. For example,
officials have played a part in the development
of the GP and consultant contracts, which –
with the commitment of all four Health Ministers
– will be part of the proposed Health and
Social Care Reform Bill. In other cases, such
as the draft Mental Health Bill sponsored by the
Department of Health and Home Office, we have
been kept informed about intentions throughout
and have been formally consulted during the consultation
process.
The significant differences between the health
services in Wales and England mean that we must
also be vigilant that legislation designed for
England does not inadvertently affect Wales, and
that England and Wales legislation has the intended
effect here. Circumstances mean that sometimes
the Department of Health has needed to bring forward
pieces of legislation quickly, or a policy has
not been finalised until a late stage in the process.
We then need to react very quickly to understand
all the implications for Wales and to ensure the
drafting of the legislation takes account of the
differences here. There are parts of the proposed
Health and Social Care Reform Bill which fall
into this category, where we may not wish to follow
the English policy or where the important details
of some areas of policy (on some of the lesser
items covered by the Bill) are only now reaching
a level where we can assess properly how we should
react. An earlier example with a noticeable consequence
was when the Department of Health were constrained
by the timing of the General Election to produce
legislation on the introduction of the National
Patient Safety Agency (NPSA) at speed. This inevitably
impacted upon the Assembly’s processes of
consideration.
Developing policy with Whitehall
This section covers examples which relate to
your final three questions about promoting policy
aspirations through influencing Whitehall, influencing
policy on non-devolved matters, and divisions
of responsibilities between the Assembly and Whitehall
which worked well or less well.
Our main relationship is with the Department
of Health. Generally, I and my officials are involved
in the development of Wales and England policies
from an early stage. For example, the Welsh Assembly
Government has been represented in the processes
for developing the new UK-wide GP and consultant
contracts, and in the discussions on developing
a replacement for the England and Wales Commission
for Health Improvement. There are also occasional
Joint Ministerial Committees and other less formal
meetings of Health Ministers from the four UK
countries – as well as meetings of senior
officials from the four departments – which
allow general issues and directions of travel
to be discussed.
The picture is less consistent for policy on
devolved matters. There is often value to be gained
from England and Wales pursuing similar courses
of action, for example to make policies more cost-effective,
avoid unfavourable comparisons or prevent practical
difficulties arising from different policies across
a border so easily crossed. A new policy intended
for England can have significant consequences
in Wales. This means that it is important that
proposed policies are communicated between the
Assembly and Department of Health at an early
stage to allow the other to decide the position
they wish to adopt. In many cases, good working
relationships have built up between officials
in the two organisations and advance notice of
new policies or direction of change has been effective
and helpful and sometimes we have been able to
influence, to some degree, elements of a policy.
On the other hand, where this relationship has
not been built, or when policies are being developed
at speed, announcements can emerge with a lesser
degree of prior notice.
Parts of my responsibilities are mirrored in
England by functions in the Home Office: these
include youth justice, domestic violence, and
relations with the voluntary sector. In the first
of these, for example, we have established some
good working relationships with the Home Office
and the Youth Justice Board, although this relationship
needs continued monitoring to ensure that the
specific needs of Wales are properly addressed
in an organisation which inevitably focuses largely
on the English situation. I am also joint chair,
with Lord Warner, of the all-Wales Youth Offending
Strategy. Our ability to work across portfolios
in the Assembly puts us in a strong position to
secure provision in Wales which meets the needs
of Welsh young people.
There are a few specific instances where we do
not have full powers to carry out areas of work
and are reliant on Whitehall departments. Examples
include:
|
|
The Dental Practice
Board is an England/Wales body and accountability
for the Wales element rests with the Director.
There is no power however for the Assembly
to direct the Board and this has to be done
on our behalf by the Secretary of State for
Health. |
|
|
There is an occasional
need to seek Treasury or Home Office approval,
such as cancellation of NHS Trust Public Dividend
Capital. |
|
|
The Department
of Health and Home Office have the lead on
prison healthcare, though local social policy
requirements would suggest different ways
of handling many of the prison health problems
in Wales. |
These have not led to any serious problems.
Conclusion
I hope this evidence provides a broad range of
issues which will be of interest to the Commission
in taking forward your work. I look forward to
presenting evidence in person on 7 November.
|
