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Official Report (Hansard)

Session: 2008/2009

Date: 06 November 2008


Health and Social Care (Reform) Bill

6 November 2008

Members present for all or part of the proceedings: 
Mrs Iris Robinson (Chairperson) 
Mrs Michelle O’Neill (Deputy Chairperson) 
Dr Kieran Deeny 
Mr Alex Easton 
Mr Tommy Gallagher 
Mrs Carmel Hanna 
Mr John McCallister 
Ms Sue Ramsey

Mr Craig Allen ) 
Mr Martin Bradley ) 
Mr Ivan McMaster ) Department of Health, Social Services and Public Safety 
Mr Bernard Mitchell )

The Chairperson (Mrs I Robinson):

We now move to the clause-by-clause consideration of the Health and Social Care (Reform) Bill. I welcome Bernard Mitchell, Ivan McMaster, Craig Allen and the Chief Nursing Officer, Martin Bradley. At last week’s meeting, the Committee agreed the non-contentious clauses and those where our proposals were accepted by the Department.

We will consider the remaining 12 clauses and three schedules. The Department has not accepted — or fully accepted — our proposals regarding those clauses. After listening to the views of the Department, the Committee must decide whether it is content with each clause as it is drafted or agree amendments that will be included in the Committee’s report and tabled for debate at the Bill’s Consideration Stage.

Members will be aware that the Assembly agreed to grant a short extension to the period in which the Committee Stage must be completed. However, I strongly suggest that we complete the Bill’s clause-by-clause consideration today. The Committee’s report will be prepared after the meeting.

The papers that have been provided for members include a follow-up letter from the British Medical Association (BMA) about the evidence session that took place on 2 October; a revised version of the Department’s response to the various clauses; the Hansard reports of previous meetings; and a briefing paper from the Examiner of Statutory Rules.

Clause 1 (Restructuring of administration of health and social care)

The Chairperson:

Officials outlined the meaning of clause 1 at a previous meeting. It deals with the generality of the restructuring of the organisations and the bodies that will be dissolved. Clause 1 also provides for several bodies’ names to be changed and defines the proposed health and social care bodies.

Members raised two concerns about clause 1 during the previous discussions. The first of those concerns regarded the use of the initialism “RQIA” — to refer to the health and social care regulation and quality improvement authority — in clause 1(2)(b) and throughout the Bill. The Committee suggested that the abbreviation “health and social care RQIA” should be used instead. The Committee also regarded the initialism “RAPHSW” — to refer to the proposed regional agency for public health and social well-being — as cumbersome.

I invite the officials to brief the Committee on the Department’s response to those concerns.

Mr Ivan McMaster (Department of Health, Social Services and Public Safety):

After discussions with the Office of the Legislative Counsel, the Department felt that the initialism “RQIA” should continue to be used throughout the Bill. Initialisms and acronyms are designed to provide a shortened version of terms. We do not feel that the term “health and social care RQIA” fulfils that purpose. In any case, RQIA is a widely accepted initialism.

The Chairperson:

Therefore, the Department does not accept the Committee’s first suggestion.

Mr McMaster:

The Department agreed that the initialism “RAPHSW” is something of a tongue-twister. We propose that the term “regional agency” should be used in its place throughout the Bill.

The Chairperson:

One of the Committee’s two recommendations was accepted. I suppose that that is not a bad outcome.

Question, That the Committee is content with the clause, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Clause 1, subject to the Committee being content with the wording of the Department’s proposed amendment, agreed to.

Clause 4 (Department’s priorities and objectives)

The Chairperson:

Officials explained that clause 4 will make it a statutory requirement for the Department to determine its priorities and objectives for the provision of health and social care regularly. The Department can revise those priorities and objectives, but it must consult with the bodies in question before doing so.

Officials also pointed out that clause 4(3) releases the Department from the obligation to consult when urgent action is required, and there is no time for consultation. Members had concerns about that provision and asked the officials to consider two possible amendments. First, the word “extreme” should be inserted to make the clause read thus:

“because of the extreme urgency of the matter”.

Secondly, the Department should be required to report and review instances retrospectively when it acted without consultation because of the urgency of the situation. I again invite officials to brief the Committee on the Department’s response to those points.

Mr McMaster:

We propose to reject the suggestion that the phrase “extremely urgent” should be used. The difficulties concern the definition of the word “extremely” and trying to separate that from “urgent”. More importantly, if a provision is included that exempts the Department from consulting in extremely urgent cases, it means that we would have to consult in ordinary urgent cases, which seems to defeat the purpose of the provision in the first place. It is because of that difficulty that we propose to reject that suggested amendment.

The second issue concerns reporting afterwards. We propose the following wording:

“Where the Department is of the opinion that because of the urgency of the matter it is necessary to act under subsection (1) without consultation —

  • subsection (2) does not apply; but
  • the Department must as soon as reasonably practical give notice to such bodies as it thinks appropriate of the grounds on which the Department formed that opinion.”

In other words, if the Department acts in a case of urgency, it is required to consult with those bodies and provide the reasons that it formed that opinion.

The Chairperson:

Again, it is a case of one amendment being accepted and another being rejected.

Question, That the Committee is content with the clause, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Clause 4, subject to the Committee being content with the wording of the Department’s proposed amendment, agreed to.

Clause 6 (Power of Department to give direction to certain bodies)

The Chairperson:

Similarly to clause 4, members had concerns about the provision in clause 6(3)(a), which states that the Department is not required to consult:

“because of the urgency of the matter, it is necessary to give directions without that consultation”.

Officials agreed to consider similar amendments as in clause 4, which is to insert “extreme” before “urgency” and to report retrospectively when action is taken without consultation.

Mr McMaster:

The Department again rejected the suggested amendment because of the same reasons in clause 4 — the difficulties around the phrases “extreme urgency” and “urgency”. However, we accept that there is a need for the Department to explain its reasons for doing so. We propose an amendment to clause 6(3), so that it would read:

“Where the Department is of the opinion that because of the urgency of the matter it is necessary to give directions under subsection (1) without consulting the body concerned —

(a) subsection (2) does not apply; but

(b) the Department must as soon as reasonably practicable give notice to that body of the grounds on which the Department formed that opinion.”

We also propose to insert new clause 6(3A):

“Where the Department is of the opinion that (for any reason other than the urgency of the matter) it is not reasonably practical to comply with subsection (2) —

  • that subsection does not apply; but
  • the Department must as soon as reasonably practicable give notice to the body concerned of the grounds on which the Department formed that opinion.”

Therefore, the Department is committed to explaining to the bodies concerned why it formed an opinion that it could not consult in advance.

The Chairperson:

What is the purpose of proposed new clause 6(3A)?

Mr McMaster:

Proposed new clause 6(3A) is slightly different. There are two situations in which the Department does not consider consultation to be necessary. The first situation is because of the urgency of the matter, and the second is because it is not otherwise practicable. In order to achieve clarity, the draftsman entered a second subsection to deal with cases in which it is not reasonably practicable.

The Chairperson:

I understand the logic — I think.

Question , That the Committee is content with the clause, subject to the Committee being satisfied with the wording of the Department’s proposed amendments, put and agreed to.

Clause 6, subject to the Committee being content with the wording of the Department’s proposed amendments, agreed to.

Clause 8 (Functions of the Regional Board)

The Chairperson:

Officials explained that clause 8 outlines the functions of the regional board, which are chiefly those transferred to it from the four existing boards and any other function that the Department directs. The officials explained that clause 8(3) requires the board to draft a commissioning plan. In doing so, it must consult the regional agency and have due regard to its views. Members should note that uncertainty about the various bodies’ relationships — particularly the relationship between the regional board and the regional agency — is a recurring theme in written submissions received by the Committee.

The officials explained earlier that the Minister is considering strengthening that provision by requiring the board and the agency to sign off the commissioning plan jointly. After initial consideration, members were content with that clause as presently drafted, subject to consideration of the joint sign-off proposal.

Mr McMaster:

Unfortunately, I am unable to outline the wording. The Department is committed to suggesting an amendment to provide for joint sign-off of the commissioning plan. The wording has not yet been agreed. The Department intends, before Consideration Stage, to clarify that amendment.

Question , That the Committee is content with the clause, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Clause 8, subject to the Committee being content with the wording of the Department’s proposed amendment, agreed to.

Clause 9 (Local Commissioning Groups )

The Chairperson:

Clause 9 deals with the establishment of the local commissioning groups. Members raised concerns about the wording of clause 9(4)(b)(i), which refers to consultation with the regional agency. The Royal College of Nursing called for that provision to be strengthened, and officials had agreed to consider that suggestion.

Mr McMaster:

We have drafted an amendment. The Department believes that it is preferable that the wording of the clause now compels each local commissioning group, in the exercise of its functions, to:

“work in collaboration with the regional agency and have due regard to any advice or information provided by it;”.

The draftsman raised concerns about the previously suggested wording. The term “in partnership” has legal connotations and may suggest a formal relationship. The Department does not want to tie two bodies to such a relationship, because it is difficult for two separate organisations to have regard to each other’s priorities.

Mr Easton:

I am happy enough with that.

Clause 9(2) states:

“Each Local Commissioning Group shall exercise its functions as regards such area of Northern Ireland as may be prescribed . ”

Should we not try to change that to:

“exercise its functions within local government districts.”?

I do not want local commissioning groups to criss-cross all over the place. Do you see where I am coming from?

The Chairperson:

The areas will be prescribed in the regulations, and the Committee will have an opportunity to scrutinise those.

Mr Easton:

Will we?

The Chairperson:

They will be subject to scrutiny.

Mr Bernard Mitchell (Department of Health, Social Services and Public Safety):

At a previous meeting, I was asked for, and gave, a commitment that, on completion of local government reform, the boundaries of the local commissioning groups would be reviewed to ensure appropriate coterminosity. I am prepared to restate that commitment.

Question, That the Committee is content with the clause, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Clause 9, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Clause 12 (The Regional Agency for Public Health and Social Well-being)

The Chairperson:

We move now to clause 12 and the corresponding schedule 2. During earlier consideration, members were divided on the merits of a separate regional public health agency. The issue has been discussed in some detail at Committee meetings on 2, 9 and 16 October 2008, and members have a copy of the transcripts.

Some members questioned the merits of setting up a separate agency, arguing that it would create another layer of bureaucracy, be contrary to the aim of creating more efficient structures, and its functions could be dealt with by the regional board. Other members strongly supported a separate agency, arguing that a much stronger public-health message is required. Officials agreed to provide additional information on the likely structures and costs involved. Ivan, I invite you to talk us through clause 12 because it received a good airing, and two opposing opinions were expressed.

Mr Mitchell:

In response to the request at a previous meeting, we have tried to provide a clear illustration of the respective position of the agency. We have provided a diagram in which we tried to map the agency’s position and the interrelationships between it, the Department, the board and other bodies. We also outlined in more detail the specified functions of the agency. I am happy to go through the reasons that the Department advocates a separate agency.

The Chairperson:

Please do, because it is a contentious subject that, if possible, we would like to resolve.

Mr Mitchell:

The case for the agency that underpinned its inclusion in the package of reforms, of which it is considered an important element, relates to public health. The most recent figures available compare public health and well-being in 1999, 2001 and in 2004-06. They show that life expectancy remains worse in the most deprived areas than in Northern Ireland overall: the life expectancy of males is 3·8 years lower and that of females is 2·6 years lower. We consider that the issue of public health and well-being that we are seeking to address is a key challenge faced by the health and social care system in the years ahead.

The feeling was that the arrangements that have been in place in the past, although they have certainly made improvements, have not made the degree of improvement that is considered necessary, and it is felt that a different, more radical, approach is required.

The concept of the agency acquired significant support in the responses to the public consultation, including from: the Royal College of Physicians in London; the Northern Ireland Chief Environmental Health Officers Group; the Royal College of Physicians of Edinburgh; the Institute of Public Health in Ireland; the Health Promotion Agency; the Royal College of Midwives; the Health Protection Agency in London; the British Dental Association; and the Advisory Committee of the Allied Health Professions (Northern Ireland).

The proposed agency would, in partnership with local government and other key stakeholders, provide a focus on issues of public health and well-being, anticipating, and consistent with, proposals for community planning and would seek to have pilot schemes in operation in 2009-10. It is the view of the Department that, under the remit of the proposed regional health and social care board, there remains a risk that public health and well-being will not be prioritised, because of the very significant pressures that will otherwise be faced by that body.

It has been pointed out in previous discussions that the staff of the agency will be co-located and work in a fully integrated way with the staff of the board in supporting the work of the local commissioning groups. The agency will have real influence over the full range of the £4 billion committed annually by the regional health and social care board, and that influence will be spelt out in legislation, including the need for formal approval of the commissioning plan. That point was discussed earlier, in relation to clause 9.

That is a key issue: the agency is not simply concerned with the funding that it receives directly from the Department and which it allocates for health improvement and health protection, and so forth. It also brings real influence — with teeth — to bear on the full £4 billion worth of expenditure that the regional board will commit every year to ensure that public health and well-being achieve the necessary priority.

The staffing of the new organisation is estimated to consist of around 200 to 250 staff, subject to the completion of a staff-mapping exercise. Those staff are currently employed by boards and trusts, the Health Promotion Agency and the research and development office, and are doing work that will continue to be required, irrespective of the organisational structures that are put in place. No matter what structure is established, the great majority of the staff that might be employed in the agency will still have to do that work, whether in a board or in another organisational arrangement. Those are not 200 or 250 additional staff who would not be required if the agency were not established; the great majority of those staff will continue to be required. As we sit here today, they are working in all those bodies, carrying out commissioning work, research and development, and so forth.

We have sought to design the two bodies to avoid duplication as far as possible. It is estimated that, if the agency were to be merged with the board, the savings would primarily be in the boardroom and would be made on positions such as the chairperson, the chief executive, one or two directors, the non-executive directors and any associated costs. The bulk of the staff in question are carrying out functions that will be needed no matter what structure is established. That is a fundamental point.

Mr Martin Bradley (Department of Health, Social Services and Public Safety):

I am very conscious that there is a division of opinion about the agency and the board, and how those two organisations can be brought together to work in tandem. I do not want to rehearse the arguments that the Committee has heard from the Chief Medical Officer, but, speaking as a nurse and as the Chief Nursing Officer, there are still unacceptable variations in health outcomes in Northern Ireland. That is in spite of having 60 years of the Health Service. We are still not getting something right. We have a real opportunity to do something different that will put us ahead of the rest of the United Kingdom, and having an agency that is dedicated to solving some of the fairly wicked problems that we are faced with would do that.

I meet health visitors, school nurses and hospital and community midwives regularly. They are aware of the conditions that people in Northern Ireland have to live with. We must try to do something about that and articulate a much better vision as to how we get ahead of some of the lifestyle choices that we must make if we are to have a better outcome for the people of Northern Ireland and the next generation — particularly mothers and children.

If we always do what we always did, we will always get what we always got. We have a real opportunity to get ahead of the game, do something different and, in particular, build a cohort of staff who can focus in a new way, without the encumbrance of having to do all the firefighting that we do daily in the Health Service. We must try to get ahead and have some dedicated time to have a dedicated resource and the expertise, the thought and the intelligence to put us ahead on some of the major issues that we continue to face.

Without rehearsing all the arguments that the Chief Medical Officer outlined, as Chief Nursing Officer, I see a real opportunity for us to do something different.

The Chairperson:

Although I am Chairperson, I have a concern about a further tier of bureaucracy; if the regional agency is going to be part and parcel of the board in any case, why make it a separate stand-alone agency? I have concerns about equality. What patterns are we using to target social need and areas of high need that will ensure that both communities receive a fair coverage of moneys and input into healthcare promotion and all that that entails? On what are you basing your areas? What mapping is being used? I make no apology for being concerned that some communities — particularly unionist communities — have not seen the same input of moneys down through the years. I am not being politically obstinate or trying to raise a red flag to a bull. It is a fact that some of the most deprived areas are unionist, and areas such as the Shankill Road and Tullycarnet come to mind.

I am afraid that it will be the same old, same old, where there is a wide proofing — if that is needed or if that is the proper word — but unionist communities have suffered quite considerably in not being able to project their needs as well as the Roman Catholic community; I say that without any bias. That is a major worry, and it is the reason that I am concerned about what you are establishing as areas of need and where that goes back to.

Mr Bradley:

Your points are well made. We can have a much better public debate about how some of the problems will be tackled if we can establish a more coherent agency to deal with those issues. The main factors that drive the issue are education and unemployment. Yesterday, the Institute for Public Health in Ireland published a report showing the clear link between educational outcomes and life chances.

It is true that, in our communities, people achieve different educational outcomes, and people have a different attitude towards education, which does affect how they go through their lives and the consequences that that can have for local communities. Part of this discussion has to be about empowering people and local communities, but it is also about consistent, persistent, concentrated public-health action. It is about mobilising a significant resource. In the world in which I live — of health visiting, district nursing and, in particular, community midwifery — the focus must be on the real areas of need.

I am currently conducting a review of health visiting and school nursing, one of the outcomes of which will be a more focused attempt to target those families that are in the most need. They are spread across both communities. You are right; there are issues in Northern Ireland on how communities access services and how services are best used. A public health agency would be empowered to begin to raise the profile of those wicked issues and begin that debate — not only with the public but with Departments. Part of the conversation a while ago was about the need for more co-ordinated working — for instance, between the Department of Education and the Department of Health, Social Services and Public Safety.

Mr Mitchell:

The information that I quoted earlier came from the Department’s report, ‘Health and Social Care Inequalities Monitoring System: Changes in the Life Expectancy Gap 1999/01–2004/06’. It is worth highlighting one of the issues underpinning the reforms — that is, democratisation. The proposal is that the agency will have two local government representatives on its board. The agency will also be charged with leadership in progressing local government partnerships across Northern Ireland and with the intention of our trying to put in place, in theory, pilot schemes from April 2009, which would anticipate community planning and wider community engagement.

The issue of democratisation can also be read across into the membership of local commissioning groups, and so forth, which will include four local government representatives. There is a vein of democratisation running through the reform package, which, I hope, would give appropriate political input.

Mr Easton:

I had the chance to speak to representatives from different health agencies and bodies who attended the DUP party conference last weekend. We have been led to believe that everybody is in favour of the new public health agency. I am not against it, but I am against an extra layer of bureaucracy and the associated costs. I think that that can be done in the regional board, and I cannot see the point of the agency being a separate body.

Many representatives of the health bodies with whom I have spoken do not see why the agency’s functions cannot be kept within the regional board. The same functions would be carried out; the board could be toughened up and could do the new things that we require of it. I do not care what anyone says — it will cost money to set up the agency. It will create an extra layer of bureaucracy, which we are meant to be doing away with as we enhance, and create a better, Health Service. Given the extra bureaucracy and cost, I would be happier if the agency’s functions were kept within the regional board. I have heard no arguments to convince me otherwise. At the risk of being on my own on this issue, I propose that the public health agency is incorporated into the regional health and social care board under clause 7.

Mr McCallister:

I oppose Alex’s idea. The public health role is too important not to have an agency focusing on it. Last year’s debate on the Budget highlighted to me — as did Professor Appleby’s evidence to the Committee, and also what Martin has said — that, if we fail to engage the public with their health, we are sitting on a funding time bomb for health services in years to come.

We must raise our game. Health promotion is one positive way to do that. I support the creation of a regional agency that focuses on that agenda. Previously, the Minister has talked about the need to work with local government in order to deliver some of that agenda on the ground. Members all know of areas of deprivation and inequality where public health must be promoted, as well as among the general population.

Ms S Ramsey:

My party does not support Alex’s proposal. At previous meetings, the point has been made that the issue is health promotion and the Investing for Health strategy. The body that is involved with that must be proactive. All the Committee’s discussions during the past few weeks have been about the need to tackle illness in all communities, because all areas suffer from poor health and illness. We must be proactive on public health.

I am interested in the connection that was made between poor health and poor educational attainment. It is important, therefore, that a collective body exists that is involved in proactive health promotion and will have the authority — for want of a better word — to hold other Departments to account, whether that be DSD, DCAL, DE or DEL, and so on. My party does not support Alex’s proposal.

Mrs Hanna:

The SDLP will not support the proposal either. I will certainly raise my concerns. I want the focus to be on public health. For years, I have been a champion of public health. I raised concerns about how the regional agency would have teeth and would have a meaningful relationship with communities. We have been given some answers. However, the proof of the pudding will be in the eating. We understand that.

Inevitably, there will be costs. However, if lives are saved through prevention and early intervention, money will be saved down the line. I firmly believe that if the agency can work, money will be saved. We must watch it and ensure that it works.

Dr Deeny:

I want to respond as someone who is interested in public health and who has worked in the Health Service for many years. I have taken on board Alex’s point. We all accept that, for many years, the Health Service has been over-administrated and over-bureaucratised. That has now been addressed.

My worry is that, if the agency is incorporated into the board, it will be low on the pecking order of importance and priority — as, indeed, the Chief Medical Officer has mentioned. Public health, health promotion and disease prevention are major elements of the future of healthcare. For far too long, we have waited until people become sick before we treat them, which costs a lot of money. As I have said before, my worry, as a doctor, is that, if the agency is incorporated into the board, public health, health promotion and disease prevention will not have a strong enough voice.

I understand that the agency needs to work with local commissioning groups. I like the terminology: “democratisation”. That is important; every area of health must be represented and have input, not only from political representatives but from GPs in local areas. It is important, too, for the future of commissioning for the health needs of local areas’ populations.

I asked you about the number of administrative staff in the Health Service, Bernard. You mentioned that 700 people are employed by the Department, 400 people by the regional board, and 250 to 350 — let us say 300 — by the agency. That is a total of 1,400. I know that there is a bigger picture and that staff are employed outside Belfast. However, the public will see that as 1,400 people, who are mainly based in Belfast, administering for a population of 1·7 million people. That seems like an awful lot of staff. Therefore, I agree with Alex on that point.

I do not suggest that people should lose their jobs, as has occurred in trusts and boards. The Minister has explained that some of those staff will leave the Health Service through “natural wastage”, without any enforced or compulsory redundancies. Has the Department reviewed its staff numbers — which exceed 700 — with a view to making efficiency savings? To those 700 staff in the Department must be added 400 and a further 300; that comes to 1,400 people. The point is often made to me that one could slim down the bureaucracy and still have sufficient staff to man the agency.

Mr Mitchell:

The answer in respect of the Department is yes. The Department’s staff total will be reduced from over 1,000. My bitter experience is that staff numbers of any organisation, considered in isolation, always sound large. One must consider what it is the officials do before one can decide whether the number of officials is justified.

Those staff were never envisaged as being entirely based in Belfast. The Minister has made it clear to workshops that I have attended that we envisaged maintaining a significant local presence across the Province. The majority of the staff about whom we are talking will probably be based in local environments. They cannot support local commissioning groups and local family practitioner services from a base in Belfast. It has never been our intention to base all those folk in Belfast: we have always been clear that we will maintain a strong local presence.

One must not lose sight of the overarching savings to which the Department is committed: £53 million and a reduction of 1,700 posts, primarily in administrative and managerial grades. That remains the case irrespective of the structures. Those targets must still be met.

The Chairperson:

I will put the question; however, even if this proposal falls, no party is precluded from tabling amendments at Consideration Stage.

Question proposed:

That the regional public health agency be incorporated into the proposed regional board under clause 7. — [Mr Easton.]

Question put.

The Committee divided : Ayes 2; Noes 6.


Mr Easton, Mrs I Robinson


Dr Deeny, Mr Gallagher, Mrs Hanna, Mr McCallister, Mrs O’Neill, Ms S Ramsey

Question accordingly negatived.

Question put, That the Committee is content with the clause.

The Committee divided : Ayes 6; Noes 2.


Dr Deeny, Mr Gallagher, Mrs Hanna, Mr McCallister, Mrs O’Neill, Ms S Ramsey


Mr Easton, Mrs I Robinson

Question accordingly agreed to.

Clause 12 agreed to.

Clause 13 (Functions of RAPHSW)

The Chairperson:

When clause 13 was previously considered, members raised three concerns about the drafting of the clause, which were highlighted in written submissions.

Disability Action called for clause 13(2)(b) to be expanded to better outline the health-promotion function, and the British Red Cross asked for the same paragraph to be strengthened by including a reference to risk reduction. The Association of the British Pharmaceutical Industry called for the regional agency to be required to consult the Committee for Health, Social Services and Public Safety before making persons, materials and facilities available to other bodies. I invite Ivan to talk us through this.

Mr McMaster:

We accept the suggestion to expand the wording with regard to the health-promotion function of the regional agency. We propose to table an amendment so that clause 13(2)(b) would read as follows:

“The health promotion function is including, in particular, enabling people to increase control over, and to improve, their health and social well-being.”

That, incidentally, is the recognised World Health Organization definition of health promotion. Our intention is to make it clear what health promotion actually means. It also has the benefit of retaining the phrase “health promotion”, which is a recognisable phrase.

We do not propose to include the phrase “risk reduction”. It was felt that risk reduction was already included. If one is increasing control over, and improving, one’s health and social well-being, risk reduction is considered to be a part of that, without having to say so specifically.

A third issue was raised: to include, in clause 13(4)(e), the words:

“including the Assembly Health, Social Services and Public Safety Committee”

after the words “any other body”. We decided not to accept that change. This provision is intended to allow the agency, in carrying out its functions, to be able to work with other bodies on matters such as promotions and other day-to-day activities. To constrict the agency in a way that would prevent it from providing those bodies with materials, personnel or facilities would be a significant inhibitor of the agency’s day-to-day performance of its duties and could prove to be extremely bureaucratic if it had to come back and consult each time before it did that.

The Chairperson:

I should point out to members that the Committee can table an amendment if we do not agree with your decision not to accept that change. Again, we got 50% of what we wanted.

Question , That the Committee is content with the clause, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Clause 13, subject to the Committee being content with the wording of the Department’s proposed amendment, agreed to.

Clause 15 (Functions of RSSO)

The Chairperson:

During an earlier meeting of the Committee, members raised an issue that had been highlighted by the Northern Health and Social Services Board. It was suggested that in clause 15(3)(a), in relation to securing the provision of support services, the word “equitable” should be included as well as the words “economic, efficient and effective”.

Mr McMaster:

We do not propose to insert the word “equitable”. The regional business services organisation (RBSO), as we are now proposing to call it, will be bound, as are all newly created bodies, by the legislative requirements of section 75 of the Northern Ireland Act 1998, which requires such bodies to be equitable in all their dealings. However, this clause puts in place arrangements to:

“provide, or secure the provision of, support services to other health and social care bodies”

on demand. Therefore, we felt that it would not only be unfair but difficult for a new organisation to demonstrate that its services were being provided in an equitable way. The services that the RBSO will provide are support services. To ask it to provide those services in an equitable way places a duty on it that we believe it cannot meet.

The Chairperson:

Are you saying that those services are already equality proofed?

Mr McMaster:

All the RBSO’s dealings are equality proofed. It will be called on to deliver services. The bodies that ask the RBSO to deliver services must ensure that their dealings are equality proofed. You are asking an organisation that is acting as an agent to second-guess whether the client body is equitable in its dealings.

Mr Gallagher:

Can it be amended later?

The Chairperson:

The Committee can propose amendments now or parties can add amendments —

Mr Gallagher:

Do you mean in the Chamber?

The Chairperson:

Yes, during the Consideration Stage debate. The enunciator informs Members when amendments are being accepted for debates.

Question, That the Committee is content with the clause, put and agreed to.

Clause 15 agreed to.

Clause 17 (Functions of the Patient and Client Council)

The Chairperson:

In the previous consideration sessions, members raised two matters relating to clause 17. First, in clause 17(2)(a), Disability Action proposes that the council should be required to consult the public “in an accessible way”. Secondly, Disability Action questioned whether clause 17(4) refers to reasonable adjustments, as defined in the Disability Discrimination Act 2005.

Mr McMaster:

We reject the suggestion that the patient and client council should consult in an accessible way. Although there were considerable discussions with the draftsman about the wording of that subsection, the patient and client council will be bound by the requirements of the Disability Discrimination Act 2005. Therefore, the draftsman concluded that there is no reason to repeat that Act’s provisions in this Bill. The Act already stipulates that consultation must be carried out in an accessible way. In carrying out the its functions, the council must promote positive attitudes to, and encourage participation by, disabled people. Indeed, it is a drafting principle that existing primary legislation should not be duplicated in new legislation. Therefore, given that the patient and client council will be bound by the 2005 Act, those provisions will not be repeated in this legislation.

The second matter is covered by the same response. Given that the patient and client council is bound by the provisions of the 2005 Act, the council will be required to make reasonable adjustments to meet individuals’ requirements.

Ms S Ramsey:

I appreciate that; however, whether we are discussing section 75 or the Disability Discrimination Act 2005, when bodies such as Disability Action — which deals day and daily with clients who are directly and indirectly affected by legislation — submits such proposals, is it not worthwhile attempting to reach an agreement that suits everybody? I accept what you said about clause 17(4), but what is the difficulty with inserting “in an accessible way” into clause 17(2)(a)? Although the draftsman says that that is already covered in the 2005 Act, we should not be prevented from including that phrase in the new Bill. When a body such as Disability Action makes a suggestion, I cannot understand why we must get into a fight about it. Disability Action is not asking for everything to be changed; it is merely making a positive suggestion for the Bill.

Mr McMaster:

I understand your point. Although we recently had long discussions about that subsection with the draftsman, he is bound by what he calls “drafting principles”, which prohibit repeating provisions that are elsewhere.

Ms S Ramsey:

You may say that you do not accept that; however, we are in a new dispensation, and my concern is that, although we have the Disability Discrimination Act 2005, Disability Action found it necessary to suggest those four words — “in an accessible way” — so it must conclude that the 2005 Act does not go far enough. Whatever the draftsman said, is there any point in getting into a fight about those four words?

The Chairperson:

Everyone who has made known their opinion and who wishes additional words to be inserted would, from their perspective, attempt to safeguard that opinion.

Mr Mitchell:

Our presumption concerning all the Committee’s proposals was to say yes as much as we could. That is the position from which we began, and we attempted to accept the Committee’s proposals when it was possible for us to do so. I asked the draftsman to go through that specific issue because Claire had raised a couple of matters, and I was conscious that the Department was saying no to two or three issues that were raised by members. Therefore, I pushed it a wee bit.

As Ivan explained about precedents, if the response to individual requirements were to include excerpts from other pieces of legislation, the process would become endless. Every piece of legislation would then replicate every insert that any particular group wished to have included in order to highlight its concerns. The draftsman said that there was no end to that process and that once words are used they must be defined. Therefore, if the phrase “in an accessible way” is used, there is guidance running to several pages on what that means. In the same way, “reasonable adjustment” is defined in several pages of guidance. The difficulties snowball.

I assure the Committee that the Department’s starting point, and the reason that I asked to meet the draftsman, is summed up simply — we should be able to do this. However, his counter-argument was reasonably substantive. I started from the same position as the Committee. That was my wish, and I wanted to include the proposal.

Mr Gallagher:

I have some sympathy with Sue, and I have the highest respect for the legal profession. However, the Committee must listen carefully when legal people state that nothing more can be done. Nevertheless, there is no such thing as perfect legislation. If the Committee accepts this precedent, it may not be possible to tackle a serious problem that might arise in the future. Other than being here for a year, however, I cannot see how the Committee can proceed. It must accept the advice.

Is it possible for the Committee to go back to Disability Action in order to establish why it made that suggestion? The Committee could then pick up on the issue again with the Department later.

The Chairperson:

The problem, Tommy, is that the Committee is trying to agree all the clauses today. An individual member may want to make contact with Disability Action and propose an amendment as a party at Consideration Stage. That may be an appropriate course of action. The Committee is tied for time, but that does not prevent members submitting amendments on behalf of their parties.

Question, That the Committee is content with the clause, put and agreed to.

Clause 17 agreed to.

Clause 19 (Public involvement: consultation schemes)

The Chairperson:

At an earlier consideration, members were content with the clause as presently drafted, apart from a question in relation to clause 19(1)(a) about the provision of information in accessible formats.

Mr McMaster:

The provision of information in accessible formats involves the same principle as consulting in an accessible manner.

Question, That the Committee is content with the clause, put and agreed to.

Clause 19 agreed to.

Clause 22 (Public-private partnerships)

The Chairperson:

During previous consideration, members expressed concerns about the principle of public-private partnerships (PPP) and referred the clause for further consideration. Members also proposed that the clause should include a reference to ensuring the long-term financial viability and value of any PPP schemes.

Mr McMaster:

The clause was considered, and the Department decided not to include such a reference. The thinking behind that was that to provide in legislation a requirement to ensure that the long-term financial viability would be an open-ended requirement and that, although for the foreseeable future — which could be 10, 15, 20 or 25 years — a project could be financially viable, it might subsequently prove not to be. It might be financially viable only as far as one can see. If long-term financial viability were to be included in the legislation, someone could come back after 30 or 40 years and say that a project was not financially viable and question why it was done.

As I said before, the provision is merely enabling the new organisations to use public-private partnerships. Any organisation in Northern Ireland, when procuring anything, is bound by Department of Finance and Personnel guidance, which is taken from Treasury guidance. I will quote to the Committee from a “Dear accounting officer” letter, which is issued by the Department of Finance and Personnel to all organisations:

“The central concern in taking procurement decisions is as always the achievement of VFM. PFI or any other PPP should only be pursued where it delivers VFM, defined as the optimum combination of whole of life cost and quality (or fitness for purpose) of the good or services to meet the user’s requirement; and does not always mean choosing the lowest cost option. In order to ensure that consistently good VFM procurement decisions are made, it is important that VFM assessments should take place as early as possible”.

That applies to any procurement route that is followed. It continues:

“and that Departments ensure there is the flexibility to pursue alternative procurement routes if at any stage PFI/PPP does not offer the best VFM.”

Guidance from the Treasury and the Department of Finance and Personnel, which all Departments must follow, makes it clear that value for money is the starting point, and one must consider it before one can consider not only public-private partnership agreements but any procurement route that they chose to follow.

Therefore, we do not propose to include the requirement for value for money, because it is firmly set out in guidance. Value for money is the beginning and the end of all procurement that is directed by the Department of Finance and Personnel.

Mrs Hanna:

Many people are, at best, sceptical about PPPs. I had to make an attempt to get that provision in somewhere. I accept your point, but you used the word “consider”. Your letter of 22 October 2008 states:

“where a public-private partnership is to be entered into, the body concerned must ensure that option demonstrates best value for money and long-term financial viability.”

PPPs should demonstrate value for money when they are being considered, before a decision is made. The following wording would be preferable:

“When a public-private partnership is to be considered, it must demonstrate value for money.”

The paragraph, as it stands, can be read as though the decision has already been made on the public-private partnership, and it is subsequently demonstrating value for money.

Mr McMaster:

After an earlier Committee meeting, we considered that proposal. Having considered it with the draftsman, we decided not to include it.

Mrs Hanna:

You will not include any of that?

Mr McMaster:

We will not include in the legislation the requirement that one must guarantee that an agreement represents value for money before one enters into it.

Mrs Hanna:

I am not saying “guarantee”. The legislation should state that, while considering a PPP, one should demonstrate that it provides best value for money. There is a lot of concern that it does not demonstrate best value for money.

Mr McMaster:

The process is such that before anyone can procure anything — a building, goods or whatever — the initial guidance and policy from the Department of Finance and Personnel is that one must consider value for money: that must be the first consideration.

Mrs Hanna:

That it taken as read.

Mr McMaster:

Yes, and it is important that it is taken as read. This provision will ensure that, if value for money turns out to be down the public-private partnership route, the bodies that we are creating can enter into those partnerships. The first consideration is value for money, and, having considered value for money, any of those bodies can go down several different routes. Once they have said that public-private partnership is the route, the provision simply enables that to happen. Without the provision, none of the bodies that we are creating could enter into a public-private partnership. The provision is not saying that it has to do so; it is saying that it will follow DFP guidance, consider value for money and come up with the preferred route. That preferred route may not be a public-private partnership, and, if so, this provision does not matter. However, if the best value-for-money route were to be a public-private partnership, this provision would allow that to happen.

Mr Gallagher:

I note that you are taking best Treasury guidance, and all the rest, which frightens me. However, I understand why you are doing that. If the Treasury guidance is fine and good, how did the car park at the Royal Victoria Hospital end up to be such poor value for money — in fact, to be a real rip-off? That is why we are worried about getting the matter right.

Mr Mitchell:

The question is whether one tries to preface what is in the legislation with some kind of explicit reference to the obligations that are laid on public bodies to do what Ivan quoted from the “Dear accounting officer” letter, and we put that explicitly to the draftsman. In one sense, there is no disagreement between us at all in the requirements that are laid down and what Ivan quoted, which are fully consistent with your concerns. The question is whether they can be made more explicit in the legislation.

Mr McMaster:

The difficulty with saying that a public-private partnership must be value for money before it is entered into is the fact that it could come back to haunt someone further down the line. Treasury guidance states that one must look as far ahead as possible. However, once the provision that it must guarantee value for money is in legislation, it is there for ever, beyond the period of normal Treasury guidance, which, I imagine, has a limited lifespan — although I am not a Treasury expert. Value for money stretches to a certain point, and one cannot see beyond that point. However, once a provision is inserted into legislation, it remains there for ever or until the legislation is amended to remove that provision.

The steps that are used in the process are important. When one wants to do something that is considered value for money, one must select the options. This provision simply permits one option: it does not advocate that option. The first step is to agree on value for money. We could talk all day about whether the current guidance on assessment of value for money is right or proper, but that is a separate issue altogether. However, there is guidance, and the first step must be to ask what the best value-for-money option is. After that, one can select an option. If an organisation has followed all the necessary steps and a public-private partnership arrangement turns out the best value-for-money option, the clause will simply allow that organisation to enter into an agreement. Without that provision, none of the bodies could enter into an agreement because there would be no legislation permitting them to do so. The clause does not state that they have to enter into a PPP or that they should do it, and neither does it say that they should override all other steps that are taken to try to secure value for money.

Dr Deeny:

You talked about PPPs, PFIs and value for money. The important word here is “demonstrate”. There is nothing private about a PPP or a PFI; they involve public money that has to be repaid over a long period. Tommy mentioned the Royal Victoria Hospital car park, and we know about the case of Balmoral High School. Across the water, several health projects were entered into as PPPs, but the public sector had to pay to get out of the contract. Therefore, we are talking about public money not private money. Private groups may provide the initial finance, but they are then paid back, out of the public purse, over 25 years or whatever. Therefore, if a PPP or PFI turns out to be the most cost-effective and best value-for-money option, it is vital that that it is clearly demonstrated to the public why that is the case. I have studied examples of PFIs and PPPs across the water, and I know that the repayments come out of the health budget — and there may be an impact on other services. Therefore, it is very important that whatever option is taken — and let us not forget, clause 22 is not about other options; it is about PPPs — it is clearly demonstrated to the public that value for money will be achieved. There have been cases in the past in which value for money had clearly not been achieved and in which PPPs have had a very negative impact.

Mr Mitchell:

The issue takes us a step away from the legislation. It relates more to the Committee’s concerns about the current guidance that informs the use of PPPs or PFIs. It seems that we are discussing whether the general guidance that is issued throughout the public sector is applicable and whether your concerns can be addressed.

Mr McMaster:

I could not agree more that value for money has to be demonstrated, and that is why the Department of Finance and Personnel requires every organisation to carry out a value-for-money assessment on any project into which they enter. That assessment should show what is producing the best value for money and why, and the reasons that other options are being rejected. As I said, that is part of the consideration process, and, by all means, that process should be open, available and clear.

We could argue at length about how those decisions are reached. Dr Deeny is right; those value-for-money assessments must be carried out. However, this provision deals with the point beyond that; it simply allows an organisation that has carried out an assessment that demonstrates that a public-private partnership is the best value for money to enter into that contract and deliver on it. The provision enables delivery; it has nothing at all to do with the assessment that leads up to the decision, although it is absolutely essential that those assessments are carried out. I hope that the Department of Finance and Personnel will exercise control and ensure that value-for-money assessments are carried out correctly. I cannot speak about cases whereby assessments have been wrong. Clause 22 simply enables an organisation to enter into a contract once everyone is satisfied that the best value for money would be delivered through a PPP. It has nothing to do with the assessment that goes before it; that is done long before getting to that stage, if it represents best value for money and if DFP agrees to do that. That has all gone before this stage is reached. Clause 22(1) refers to that as:

“A body to which this section applies may form, or participate in”.

Nothing is mentioned about the assessment prior to that; it is about forming a partnership to deliver on that.

Question, That the Committee is content with the clause, put and agreed to.

Clause 22 agreed to.

Clause 29 (Orders, regulations, guidance and directions)

The Chairperson:

At an earlier consideration, members questioned what consideration had been given to whether regulations under clause 29(2) should be subject to negative resolution or affirmative resolution. Subordinate legislation that is made under different procedures is subject to different levels of scrutiny and approval in the Assembly. The Examiner of Statutory Rules has provided advice to the Committee on that issue, and his paper is tabled today. That paper has been shared with the officials.

Mr McMaster:

Further consideration was given to clause 29. Clause 29(1) sets out areas in which it is considered that affirmative resolution should be used. That will allow Orders to propose altering the functions of the new regional agency, the new regional business services organisation or any Order that allows legislation to enable the Bill to come into operation. Those are the areas that are likely to merit the most discussion and that should be formally approved by the Assembly.

Any other regulations and Orders that are proposed will relate more to the day-to-day organisation of the various new bodies, and, therefore, it would be considered to be more appropriate to the negative resolution procedure. As with all subordinate legislation, the Department is required to submit a formal SL1 proposal, by which we must set out the purpose of any set of regulations or any Order, and the reason that those are being made. Those will be scrutinised by the Committee for Health, Social Services and Public Safety. The Department considers that clause 29 should remain as drafted.

Question, That the Committee is content with the clause, put and agreed to.

Clause 29 agreed to.

Schedule 1 (The Regional Health and Social Care Board)

The Chairperson:

At an earlier consideration, members were content with schedule 1 as drafted, but the schedule was not formally agreed at the last meeting.

Question, That the Committee is content with the schedule, put and agreed to.

Schedule 1 agreed to.

Schedule 2 (The Regional Agency for Public Health and Social Well-being)

The Chairperson:

Schedule 2 is linked to clause 12, which we agreed earlier. At the earlier consideration, the officials accepted that there was an error in paragraph 7(3) of schedule 2, in that the reference to the regional board should read “RAPHSW”.

Mr McMaster:

The Department proposes to table an amendment that will insert a new schedule 2 to take on board the change that we suggested. It would amend all references to “RAPHSW” to “regional agency”. The insertion of a new schedule will cut down the number of amendments that would have been required at Consideration Stage. There are already around 175 references, and we trying to cut that down as much as possible. Inserting a new schedule and changing the references will reduce the number of amendments that must be moved. We propose to insert a new schedule 2 that amends “RAPHSW” to read “regional agency” in every case.

We noted another error. I point that out to ensure the Committee is kept up to date on everything. The provisions of each of the schedules allow for people who are appointed to the boards of those organisations to resign or to be removed by the Department. The provisions, as previously stated, apply only to the chairperson and other non-executive directors. However, as Bernard pointed out, the board of the regional agency will also include some local councillors, who are appointed by the Department. Therefore, the provision must be extended to those people as well.

Question , That the Committee is content with the schedule, subject to the Committee being satisfied with the wording of the Department’s proposed amendments, put and agreed to.

Schedule 2, subject to the Committee being satisfied with the wording of the Department’s proposed amendments, agreed to.

Schedule 5 (Transfer of assets, etc)

The Chairperson:

At the earlier consideration, the Department advised that it proposed to make an amendment to paragraph 2(6) of schedule 5 to insert a reference to the transferor organisations.

Mr McMaster:

Paragraph 2 of schedule 5 deals with the transfer of employed staff. When that schedule was drafted initially, it stated that certain people should not be involved in the consideration of grievances.

As currently drafted, the paragraph states that a member, or member of staff, of a transferee —the body to which the assets are being transferred — or a member of staff of the Department should not be involved in those grievances. That is correct; no one who has a vested interest should be involved in the consideration of grievances. Unfortunately, the term “transferor” was left out. The transferor is the body from which the assets or liabilities are being transferred. The term was left out because it was thought that all the bodies from which assets are being transferred would be dead in the water by the time the legislation was enacted. However, the provisions allow certain assets to be transferred after 1 April 2009, if needs be. For example, functions for shared services may be transferred at a later date. Therefore, if a body from which the staff are being transferred is still in existence, its staff should not be involved in the consideration of grievances. That brings the Bill into line with similar provisions in the Libraries Act ( Northern Ireland) 2008. The Department of Finance and Personnel brought that to our attention.

Question , That the Committee is content with the schedule, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Schedule 5, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, agreed to.

Schedule 6 (Minor and consequential amendments)

The Chairperson:

At the earlier consideration, the Department advised that it proposed to make a technical amendment to paragraph 18(1)(a) of schedule 6.

Mr McMaster:

The amendment to paragraph 18(1)(a) of schedule 6 is consequential. It deals with the provision of information as to births and deaths, which we got wrong. Paragraph 18(1)(a) of schedule 6 states:

“for ‘or the Agency’ substitute ‘, the Regional Board or RAPHSW’”.

That is wrong, because those functions are transferring to the regional business services organisation. Therefore, we propose that the wording be amended to reflect that.

Question , That the Committee is content with the schedule, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Schedule 6, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, agreed to.

The Chairperson:

That concludes the formal clause-by-clause consideration of the Bill. A draft report to the Assembly on the Committee Stage of the Bill will now be prepared and considered by the Committee at the next meeting.

I thank Martin, Bernard, Ivan and Craig for their attendance today. No doubt, we will see you again.

Mr Mitchell:

There have been five or six sessions, and members have had to take in a lot of detail. On behalf of my colleagues, I wish to express my gratitude for the way in which members have conducted themselves and for the care and attention that they have shown throughout. It is very much appreciated.

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