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Health and Social Care Bill

moved Amendment No. 55: 55: Schedule 8, page 170, line 21, leave out paragraph 2 and insert— ““2 (1) Section 62 of the 1999 Act (regulations and orders) is amended as follows. (2) In subsection (10), after ““that Parliament”” insert ““and is not merely incidental to, or consequential on, provision that (if so included) would be outside that competence””. (3) After subsection (10) insert— ““(10A) But if any provision made by an Order in Council under that section would, if it were included in an Act of the Northern Ireland Assembly, be within the legislative competence of that Assembly, no recommendation is to be made to Her Majesty to make the Order unless a draft— (a) has been laid before, and approved by resolution of, each House of Parliament, and (b) has been laid before, and approved by resolution of, the Northern Ireland Assembly.”””” The noble Lord said: My Lords, the amendment relates to Schedule 8 to the Bill. Paragraph 1 of the schedule would bring the pharmacy profession in Northern Ireland within the scope of Section 60 of the Health Act 1999. That section provides for a power to make Orders in Council modifying the regulation of various medical professions covered by other legislation set out in Section 60(2). Section 62(10) of the 1999 Act provides that if a provision of such an Order in Council—that is, an Order in Council under Section 60—is within the legislative competence of the Scottish Parliament, the draft order must be laid before and approved by the Scottish Parliament. In Northern Ireland, the regulation of health and associated professions is fully devolved. The Northern Ireland Assembly has legislative competence over all the matters mentioned in Section 60(2) of the 1999 Act. However, there is no equivalent of Section 62(10) for the Northern Ireland Assembly. That brings me to the main point of my amendment, which is to insert a new subsection (10A) into the 1990 Act. That would make exactly the same provision for the Northern Ireland Assembly as Section 62(10) makes for the Scottish Parliament so that, if a Section 60 order contains provisions that would be within the competence of the Northern Ireland Assembly, a draft of that order must be laid before and approved by the Assembly. This is an important procedural point because it relates to the relationship between this Parliament and the devolved legislatures. It would achieve parity between the Scottish Parliament and the Northern Ireland Assembly and it would apply good practice and good relations between Parliament and the devolved legislatures. The process is analogous to the Sewel procedure, whereby a consent motion is sought in the devolved legislature when Parliament is legislating on a devolved matter. The Sewel procedure has been put on a statutory basis for Scotland and I am proposing the same for Northern Ireland. My amendment would put the Assembly on the same standing as the Scottish Parliament where the regulation of the profession is devolved. That is the important point. If the regulation of the profession is devolved and Westminster is giving a power to modify that regulation, before that power is exercised there should be effective consultation with the devolved legislature. The matter was drawn to my attention by the Pharmaceutical Society of Northern Ireland. I cannot avoid the temptation to note that the initials of that body are PSNI. This PSNI was created in 1924, or thereabouts, and I can only assume that it was not drawn to the attention of the noble Lord, Lord Patten, when he decided to use exactly the same initials to describe the police force in Northern Ireland. Some people take great pride in using PSNI to refer to the Pharmaceutical Society rather than the Police Service, but that is by the way. The Pharmaceutical Society of Northern Ireland noted that the power in Schedule 8 intended to bring it within the Section 60 order power. It made representations to the health department and the amendment derives from those discussions. I think that the amendment was drafted by the society and has been considered by the Northern Ireland department. The first part of the amendment clarifies Section 62(10) and repeats what is in paragraph 2 of Schedule 8. I am not sure whether in this draft that clarification would also apply to the proposed new subsection (10). As the draft fell into my hands from discussions between the society and the department, I decided not to presume to change the wording, as that might have led to greater confusion. I expected the draft to emerge as a government amendment consequent on a request from the Department of Health, Social Services and Public Safety in Northern Ireland to the Department of Health in Whitehall. I understood that it would appear at an earlier stage, but it seems that the department has had second thoughts about the amendment. I think, judging from what I have heard of the discussions between the society and the department as late as last Friday, that it may still be undecided. I thought it right to table the amendment because it relates not so much to the detail of regulation as to devolution and the principle of devolution. I am strengthened by a letter that I received from Dr Brian Patterson, the chairman of the Northern Ireland Council of the British Medical Association. I shall, if I may, read the guts of the letter to your Lordships. It states: "““It has come to my attention that you have tabled an amendment to the Health and Social Care Bill, currently going through the House of Lords committee stage.""““The BMA(NI) welcomes the inclusion of this amendment as it will help ensure that any Order in Council under the Health Act 1999 affecting Northern Ireland will be ‘devolution-proofed’ first to counteract any possible democratic deficit.""““The amendment brings Northern Ireland into line with the status of Scotland. This seems eminently sensible, given that medical regulation is a fully devolved issue to the Northern Ireland Assembly.""““This would allow the Northern Ireland Assembly to scrutinise any proposal before it becomes an Order in Council to ensure it will be sensitive to local needs while maintaining a UK wide approach on appropriate health policies””." That is an eminently reasonable position to take. Parenthetically, I add that it is the preference of the Pharmaceutical Society of Northern Ireland that its profession be subject to a local regulatory scheme, similar to the local schemes for the Law Society of Northern Ireland and the Northern Ireland Social Care Council. Such an arrangement could still be put in place by the devolved institutions if the Whitehall department does not use the power under Section 60 as amended by the Bill. In theory, the local option could survive without this amendment, but the existence of this extension of the Section 60 power in the Bill could be read as an intention to override localism. I emphasise again that this matter is brought forward as a matter of principle concerning devolution. It is not wise to devolve a matter and then a short time later to take a power to override devolution by an Order in Council. It is also not wise to treat the devolved legislatures of Northern Ireland and Scotland differently. I beg to move.