COMMISSION ON THE POWERS AND ELECTORAL ARRANGEMENTS OF THE NATIONAL ASSEMBLY FOR WALES

MINUTES OF PROCEEDINGS

of the

EVIDENCE OF:

WELSH ASSEMBLY GOVERNMENT MINISTER FOR HEALTH AND SOCIAL SERVICES

JANE HUTT

held at

National Museum & Gallery, Cardiff

on

7^TH November 2002

LORD RICHARD: Minister, thank you very much for coming. I wonder if you would be kind enough, for the record, to introduce yourself and your colleagues at the beginning and we would very much like to hear you open up the topic, and then we can follow it through from there.

MS HUTT: I am Jane Hutt, the Health and Social Services Minister. Tim Kirby is from the NHS Department and Helen Thomas is Director of the Social Policy Department at the Welsh Assembly Government. I am very pleased to be able to come and, perhaps, restate some of my written evidence and answer any questions and queries you have.

I would like to start by saying that obviously my portfolio is a huge portfolio, covering not just the NHS but also social services and children and youth justice. In relation to the NHS and devolution many matters were already devolved pre devolution to the former Welsh Office, particularly many of the issues that have informed policy development and indeed the need for primary legislation does relate back to pre devolution developments in Wales. That may be something that you would be interested to discuss with me.

I think one of the most interesting things about my experience over the last three and a half years, and I have been minister for Health and Social Services since day one of the Welsh Assembly Government - is the fact that I have had enormous policy development, considerable extension of my budget and the opportunity to promote legislative opportunities, more so than, I think, any other minister because I have been instrumental in promoting two Wales-only bills, the Children's Commissioner and the NHS (Wales) Bill. I suppose my experience over the past three and a half years, I hope, is quite useful in commenting on the constitutional settlement and the impact of having those powers, those extra powers devolved to me as minister and to the Welsh Assembly Government.

It is very helpful for me to have this opportunity to reflect on the opportunities that I have had and the capacity that we have in Wales to grasp the constitutional settlement, and I am sure this will be teased out in discussion. We have also had the opportunity to develop through working with the Health and Social Services Committee to look at how we can influence secondary legislation. Fortunately with the Wales-only NHS Wales Bill that was a draft bill, so it was one of the first bills to have pre legislative scrutiny. I think the arrangements that we came to with the Welsh Affairs Committee through my colleagues in the Wales Office have been very beneficial. I think Robin Cook has commented on how well that pre-legislative scrutiny has panned out over the past few months. Of course we await the Queen's speech with interest.

Having had a large portfolio with a number of responsibilities that also cover the England and Wales boundary - particularly with the Foods Standards Agency, NICE and CHI, but also instigating and driving through reforms, particularly of the NHS, which does engage in local government as well and our partners in the voluntary sector - I have had a very challenging time in terms of policy development, using legislative opportunities through primary legislation, getting the slots, which I think is very important, so that my relationships with the Wales Office, with the Secretary of State, and indeed the support of the Welsh Assembly Government have been such that my bids for legislation have been successful, and also recognising that it has been a challenging time to achieve all of that and policy change and development in the first three and a half years of the new National Assembly for Wales and the constitutional settlement. I think those are the areas which I hope we can usefully touch on in this session.

LORD RICHARD: Thank you very much indeed. The thing that occurs to me immediately on listening to what you have to say is, how do you actually get the slots? Are you better perhaps than other ministers? I know it is an issue that Central Government in Westminster is highly interested in, nevertheless to get two slots in successive Queen’s Speeches is quite an achievement.

MS HUTT: Yes. If I perhaps just refer to the two policy areas which required legislative arrangements through the bills. The Children's Commissioner is a very interesting example because, in fact, it came from the Waterhouse Report, which was received by the Secretary of State, that again was pre devolution, it was instigated by the Waterhouse Inquiry, the North Wales abuse tribunal. There was joint ownership, to a certain extent, with the Secretary of State, of the report from Sir Ronald Waterhouse in which, of course, the first recommendation was that we should have a Children's Commissioner. I think that did have an impact, the fact that it was received first in Parliament by the Secretary of State.

LORD RICHARD: What about the other ministries in Whitehall? The Secretary of State for Wales cannot produce a legislative slot, unless he is very powerful!

MS HUTT: I obviously have to pay tribute to the Secretary of State for Wales for the clout he had in relation to securing that slot. What happened originally, as you will know, is we secured it through the Care Standards Bill which was being presented and we amended that. That was the most appropriate route initially, to amend that. We then went on to secure the Children's Commissioner Bill in order to strengthen the Children's Commissioner role and remit. I think there was a joint ministerial response to Waterhouse, it was not just seen as a Welsh issue, it was seen as an issue certainly for the Department of Health, and the Secretary of State for Health led a joint ministerial working group to produce the UK Government’s response to Waterhouse.

In terms of achieving that legislative slot there was huge cross-party support from the Assembly which came through the Health and Social Services Committee and also from Welsh MPs and indeed from wider stakeholders in the children’s and voluntary sectors.

LORD RICHARD: What was the rationale in saying, good for Wales, not good for England?

MS HUTT: The Department of Health had decided they were going to go down another route and appoint children's rights directors in their government regional offices, which was not one of the recommendations from the Waterhouse Report. I think it was a real victory for devolution that we did stick to our guns and say, no we want to implement this first and most important recommendation of the Waterhouse Report. It is a very significant comment on the fact that the United Kingdom Government was prepared to support this, and obviously it got the approval of the legislative committee, although they were not intending to go down this road in England. It was not deemed by them to be controversial in the sense that they said, Wales perhaps have a particular reason because the tribunal came from a Welsh situation and circumstance, but we also want to learn how Wales is doing their Children's Commissioner. To go on to succeed in getting that additional powers for the Children's Commissioner, which, if you recall, initially the powers were linked to the Care Standards Bill, which related to care and social care settings, we had a very strong view that we wanted the Children's Commissioner to have powers in relation to all of the devolved functions and to reserved functions as well. As you read from my evidence in fact a government amendment secured a window of opportunity for reserve powers for the Children's Commissioner.

One of the things I would like to say about the Children's Commissioner and the whole history - it is history now, it is two or three years ago, although we have an independent Children's Commissioner in place - is it was a very important point of confidence for the National Assembly for Wales because it was something where there was cross-party support and we had engaged widely and, indeed, our colleagues in Westminster and the Welsh MPs were very supportive as well, backed by the Secretary of State. It could not have been a better opportunity, particularly as it was addressing the needs of our most vulnerable people in Wales.

LORD RICHARD: How long was it from the time you took the decision from the Waterhouse Report, from then until it actually got into the statute books?

MS HUTT: "Lost in Care" was laid before Parliament on 15 February 2000 and we got the Commission for Wales Bill and Royal Assent on 11 May 2001, it was just over a year from the publication of the Report to Royal Assent. We made the appointment of the Commissioner in November/December 2000, so within 9 or 10 months we had also allocated the funding because we were going to fund the Commissioner's Office. All of those political decisions and the policy development took place very rapidly, really from February through to July. I think our plenary debate on the Report from the committee was on 7 June 2000, so it was a very fast-track policy development.

LORD RICHARD: Here in Cardiff. What about in Westminster?

MS HUTT: In terms of the Commissioner Bill it was announced in the Queen's Speech in November 2000, the draft Bill went through the Legislative Programme Committee and it received Royal Assent in May. Clearly that all worked like clock work because there was cross-party support and there were no divisions. It went through the Commons, Lords and we got that government amendment which strengthened it even further. It is a very good bit of history for the record.

LORD RICHARD: Yes, it is.

MS HUTT: It goes back to the wider issue about where we are in terms of our constitutional arrangements and what we have the capacity to do. Looking at the situation compared with Scotland you have to look at it from a pre and post devolution context. In Scotland policy and legislative capacity is already in operation. I think in Wales we still have a great deal to do in developing our policy capacity as well as whether there is the opportunity to develop our legislative capacity. I have to say in terms of secondary legislation the opportunities we have to build on that, as well as getting primary legislative opportunities, we have been flat out.

If you look at my history, if you like, and what we have achieved within the constitutional settlement, I think as far as we are concerned it has worked extremely well - to be able to have that part of the legislation move as swiftly and successfully as it did. It is a good example through Westminster, and we would not have the capacity to do that. I also think the other issue is that we have ---

LORD RICHARD: What capacity? You say that you did not have the capacity to do that, do you mean legislative?

MS HUTT: Under the present arrangements, under the present settlement we do not have the capacity.

LORD RICHARD: Drafting capacity or legislative capacity?

MS HUTT: For drafting capacity the current arrangements are we give our officials our instructions but we are not set up in order for the drafting --

LORD RICHARD: To be done in Cardiff.

MS HUTT: -- capacity that is required. If we were going to have primary legislation of that kind, what I am trying to say is, do we walk before we run? Do we deliver what we can within our powers within the settlement, both in terms of robust policy development and therefore robust scrutiny? In terms of scrutiny, we can, perhaps, go on to the NHS in a short time, where it is much more challenging in terms of our reforms and our relationship with Westminster and the United Kingdom Government, where our reforms may be going down a different route to some of the English reforms. I think we have been able to get our act together in Wales in terms of policy development and scrutiny partnership, with our colleagues in Westminster recognising that we have one body politic for Wales and it is within that body politic - obviously our colleagues in Westminster have a very strong role to play in that scrutiny - that we should ensure through our officials and through the committee system that we are robust in developing our policy.

Talking to some of my colleagues in Scotland, obviously in pre-devolution arrangements they spent a lot of time on the legislative process and I feel we have to get our policy act together and get the legislative system and process secured. I feel at the moment I have identified that and I have managed to do it so far successfully as a minister.

VIVIENNE SUGAR: I want to pick up on a couple of practical examples if I might. One you mention in your paper is around youth justice. I would like to ask you if you could describe the current liaison arrangements with the Youth Justice Board, the arrangements within the Welsh Assembly Government for you to relate your portfolio to the crime and disorder portfolio and how that relates to the Home Office and how it relates to the provision of secure estates. If I can ask you to take as an example the current concerns about the level of suicides amongst young offenders and the secure estate provision in Wales?

MS HUTT: In terms of the Justice Board and my responsibilities you know that I jointly chair an all Wales youth offending group with Lord Warner.

VIVIENNE SUGAR: That only happened recently.

MS HUTT: Within the last year. That was as a result of us recognising that having regular meetings with Lord Warner, as the Chairman of the Youth Justice Board, when I have responsibilities for youth justice in Wales and indeed my officials having meetings with the Youth Justice Board and Home Office officials, was not sufficient to ensure we had a Welsh perspective on youth justice issues and we needed an all Wales youth strategy. In fact the All Wales Youth Justice Strategy and the group that I chair with Lord Warner is a partnership because it includes, as you know, local government, health, police, prisons, voluntary sector, children and young people's interests and they all sit round the table with me and we are now developing what is very much tailored to Welsh needs. Of course part of that is to deal with the issues round the secure estate, which we very severely want in Wales because of the number of young people who have to leave Wales because of the lack of provision, so our relationships with the Home Office via the Youth Justice Board and directly with ministers are very important, particularly round the Spending Review and issues arising in terms of decisions that might affect Wales in relation to the secure estate. I think that is an area where good communication at ministerial level and indeed in relation to the Youth Justice Board, with the chair and his officials, is of critical importance. It may be the case that in the first year post devolution we did not grasp that opportunity early enough, but having grasped it now in this way I believe it is going to deliver a Welsh perspective. Obviously that will be seen in whether we do get the facilities which we need, which are wanting.

Also the link to the crime and disorder partnerships, there are very close working relationships between myself and Edwina Hart, the Minister for Local Government Finance and Community. It ensures that we work very closely together and also that the crime reduction director DavidA’Herne, who works partially for the Assembly and partially for the Home Office, although he principally works to Edwina Hart as Minister for Community Safety he is now leading that area of competence in her portfolio. I also work with him as well, he sits at the table on the youth justice issues and also on domestic violence, which I am also responsible for. Those are areas, where it is about working relationships, it is about direct relationships with Home Office ministers and indeed it is also about joint bilateral working between ministers within Welsh Assembly Government. It is critical to join up the government at a Welsh level.

VIVIENNE SUGAR: To try and explain this structure outside this room it would appear strange to the ordinary individual: you have a director employed half by the Assembly and half by the Home Office who reports to two ministers in the Welsh Assembly Government and whose funding streams will come from a variety of sources, the same with the Youth Justice Board. I can understand how currently goodwill and working hard at relationships is giving the opportunity for an all Wales strategy but this whole structure does rely enormously on goodwill and, as you put it, communications. It would collapse if that goodwill was not there.

MS HUTT: Good government is so much predicated on good communications and clear protocols and concordats, which we have with Whitehall departments. We also have to recognise I think in the first term of a devolved administration we were always going to be the ones who were going to have to develop and understand there may be gaps as well as openings in terms of those relationships. Of course David A’Herne provides services to the Home Office under an agency arrangement since this autumn, so that clearly provides the protocol in terms of his working relationship to Ministers in the Welsh Assembly Government.

There is no doubt that in communities they are benefiting from Home Office investment and initiatives alongside Welsh Assembly Government and indeed local government and health investment. The importance is how you get those local partnerships to grasp the opportunities. Some of the funding is coming from the Home Office and some from the Assembly and indeed other sources but it is how those local partnerships grasp those opportunities and, indeed, at an all Wales level. In fact in my youth justice responsibilities there is going to be an All Wales Youth Funding Strategy which our partners can understand. That is the most important public and political arena. People need to understand that there is an accountability in the Assembly but that it also does link to provisions and legislation investment from the United Kingdom government.

VIVIENNE SUGAR: Trying to unpick the different arrangements that there are within the Assembly and between the Assembly and the national Government, could I pick care homes as another example I would like you to talk about. Earlier this year there was a severe crisis when private care home owners threatened to withdraw from the system. I know there was a considerable difference of approach between England, Scotland and Wales. Can you just describe to me what the relationship is and how that worked, or does it work, to try and get a provision, a budgetary settlement and get something which secures supply when you are dealing with a United Kingdom market rather than a Wales market?

MS HUTT: To a certain extent one could say that was an issue for the delivery of all of our public services in terms of the private sector care homes, in terms of the statutory provision of services that has to be seen in a Welsh context which relates to local communities, local needs, discharge from local hospitals into our care homes which are provided at a local level. Interestingly in Wales we have very few of the large United Kingdom private care home owners. A large proportion of our private sector in the provision of residential nursing home care through local providers, and they are not part of the big plcs which operate on a United Kingdom level.

In working and developing our partnerships particularly in relation to care homes and the care sector we are part of the provision of the Care Standards Act, which was an England and Wales Bill, England and Wales legislation, so we fed into that throughout consultation. Clearly we reserve the right through secondary legislation to implement the aspects of the Care Standards Act to meet the needs of Welsh communities and Welsh people and circumstances.

Just to give you an example of changes that occurred in the summer, where Mr Milburn, my colleague, the Secretary of State for Health, decided to downgrade some of the standards that were in the Care Standards Act relating to English minimum standards, downgrade them to good practice. In Wales through secondary legislation and through consultation we had already consulted on those standards and our standards were designed to meet Welsh needs and circumstances for our private sector. We felt after consideration and also consultation with the care homes themselves and representatives of the private sector that we would not change our minimum standards but we would produce operational guidance in relation to the registration and inspection of care homes so that we could be more flexible about the implementation of the standards that had come through secondary legislation in relation to the detail of those standards, under the Care Standards Act.

I think that, hopefully, demonstrates how we can be flexible through secondary legislation, the interpretation of it and how we manage and implement a regime which is about securing and safeguarding the care of some of the most vulnerable people in Wales and in our care homes.

In terms of the budget we all face the same situation in relation to the overall market, so in terms of policy the Department of Health and the Welsh Assembly Government decided to invest extra money last year to support not only care homes but also tackling delayed transfers of care so that we could fund more community care packages and fund more care home packages. We separately, but very much in discussion, as I said, put in an extra allocation of funding directly to local government to enable them to do that. The fact that our guidance is very similar to the Department of Health guidance in that respect in relation to the funding is because we work closely together, our officials work closely together and clearly the sector itself on a UK level works closely together, so what emerged was very compatible. I think the other issue about the implementation of minimum standards is we decided to take a different route from the Secretary of State in England in order to reflect Welsh circumstances.

LORD RICHARD: That was not a problem, taking a different route?

MS HUTT: People can judge whether they think we should have taken the ---

LORD RICHARD: It was a not a problem within the government machine or relations between Westminster, they did not say you should not do this, we have another approach?

MS HUTT: Certainly not. In Scotland they also took the same route as we did in looking at the guidance rather than changing the standards or downgrading them to good practice. A lot of this is about the signs of competence and maturity in the Welsh Assembly Government and also in our United Kingdom Government, recognising that we can do things differently for Welsh needs and circumstances, because that is what our policy development, scrutiny, and the evidence base steers us towards. Clearly we meet and we discuss the different routes that we are taking as ministers.

VIVIENNE SUGAR: Does the process of doing that sometimes cause difficulty? We heard in a previous session another witness say that the Assembly committees were not given the opportunity properly to scrutinise proposals to introduce local health boards. Was that purely an accident of timetabling or would you like to comment on whether that is a fair comment?

MS HUTT: The interesting situation about the NHS reforms and the development of our local health boards is that the policy origins predate devolution to "Putting Patients First", which was the White Paper - I think Wyn Griffiths was the health minister at the time - which proposed the development of local health groups that would be coterminous with local authorities within Wales, so the origins of the NHS reform are pre devolution.

Taking this forward, to reflect on that, once we had an elected National Assembly for Wales and we had publicly appointed health authorities between the Assembly and the local health groups, which were primary care professionals working together with local government on health and social care issues, and we had NHS trusts providing health services, we felt that we no longer had a need for that publicly appointed tier in between the Assembly and the local health and social care communities. The origins are very much from "Putting Patients First" which, as I said, is pre devolution. When we announced in February 2001 that we would take this forward and abolish our health authorities we launched our plan "Improving Health in Wales" and in February 2001, we said we will abolish health authorities and strengthen our local health groups, which were already in existence, so they can become fully fledged health boards to take on the funding responsibilities of the health authorities and involve local government as clear partners and members of those health boards.

We then spent many months, from February right through until the time it was debated in Westminster and in the Assembly as part of the NHS Reform and Health Professions Bill. There were numerous Committee discussions, numerous plenary debates and indeed in Westminster as well in terms of the Committee stages of the Bill, the NHS Reform and Health Professions Bill where we sought primary legislative opportunities. I think there has been so much debate and discussion about our reforms that the important point for the record is they really very much originate from Welsh needs and policy directions that came in before we came into existence as an Assembly.

HUW VAUGHAN THOMAS: I am not so much concerned with the policy change that led to the health boards but rather the provisions which were incorporated into the NHS Reform Bill. The House of Lords Constitution Select Committee heard evidence that the Bill was discussed in the Commons before its provisions were discussed by the Assembly. At the committee stage it was only that morning that documents were tabled on the issues about the extent of consultation that had been carried on in Wales relating to those various provisions.

The feeling one gets from reading that evidence is that this is a Bill which, in a sense, has been mishandled in terms of the role and the ability of the Assembly's Committee to make a real input into it. You have talked about the pluses of the NHS (Wales) Bill, the latest, is that something that you have come to because of lessons you have learned through the handling of the NHS Reform Bill?

MS HUTT: I think in terms of the reforms let us look at the policy issue; this is about policy and then getting statutory backing. We launched the plan in February 2001 and because I am a member of the Health and Social Services Committee where we have scrutiny and policy discussions virtually on a weekly basis, the plan and the whole remit of any legislation that we require was debated regularly throughout every session of the Health and Social Services Committee through bimonthly reports and also through dedicated slots, and, indeed, plenary debates and statements that I made. What we then sought was primary legislation to give statutory backing to our local health boards. I put that bid in, again backed by the Cabinet, to the Secretary of State for Wales. In fact it was announced in the Queen's Speech post election, June/July 2001, that we would have a slot for an NHS (Wales) Bill. Because it was time critical that we needed to get Royal Assent and statutory backing because my proposals were that these local health boards should come into existence with full statutory force from next April, it was felt by the Secretary of State and the Legislative Committee that the most appropriate thing would be to have Welsh-only clauses in the NHS Reform and Health Professions Bill. I know you read from my evidence that that meant we had to separate the primary legislation we were looking for from our other reforms by having those clauses in that Bill and having a separate stand-alone NHS (Wales) Bill, which we have just had the draft of for pre legislative scrutiny.

In terms of how you would timetable this, we had extensive policy discussion in the Assembly. We then went out to consultation and we set up a lot of task and finish groups involving local government, the health service, stakeholders, voluntary sector and staff organisations and then we went out to consultation on the detail of how we would implement it and what we would seek statutory backing for in July. That consultation was from July to October and the consultation was open to all of our partners and stakeholders, including our colleagues in Westminster. We then came back in October and in fact the NHS Reform and Health Professions Bill - it had already been announced in the Queen's speech - went into First Reading, I think it was 6 November, at the same time we were debating the results of the consultation, the three month consultation in the Assembly. I do not know how else one could manage that in terms of seeking legislative slots because some are time critical. I think I had made two statements, had a plenary debate and we certainly had two or three Committee discussions and I made amendments to the policies as a result of the consultation and those amendments were not necessarily amendments that needed to be reflected in clauses of the NHS Reform and Health Care Professions Bill but they were amendments that came as a result of very full consultation. That is where the issue about scrutiny and consideration of policy development in the Assembly, alongside getting primary legislation through in the Westminster in both stages in Commons and the Lords, does inevitably come together if you have time critical imperatives in terms of getting the legislation through. I do not know whether that answers the point. Clearly it was happening at the same time in Westminster and the Assembly that the results of the consultations and the beginning of the legislative scrutiny was occurring.

HUW VAUGHAN THOMAS: I can understand the imperative of getting a Bill through but it does seem to me where we are having to take into account the issues of the Assembly and Westminster in preparing legislation then there needs to be thought given to the proper role various bodies have, what the Assembly does and what Westminster does. With the Reform Bill as you described it it appears that everything came together and there was not a full debate in the Assembly, am I reading it correctly, on the results of the consultation prior to the Bill passing into its committee stage in the Commons, is that the case?

MS HUTT: Yes. I cannot remember the exact dates of our debates in the Assembly but they were certainly in October and November, I mean the regular debates, and in the Committee as well. I think the other thing of course which you are probably aware of is because of the uncertainty of the timing of Royal Assent we also agreed that we would consider secondary legislation for this Bill in the Assembly through the Health and Social Services Committee to make sure that the Assembly started to discuss some of the detail that we would implement.

TIM KIRBY: Once it was absolutely certain that the Bill was going through Parliament and it had been accepted that the restructuring would take place, so that it was felt by lawyers that that gave sufficient backing to allow full discussion by the Committee on the principles of the secondary legislation that was going to follow from it; that would have been late spring, early summer.

MS HUTT: That was following after Christmas. At the time I made a comment, I think during the debates in the autumn, they would have had that opportunity.

TED ROWLANDS: May I just chase Huw's point there. John Osmond in the evidence he gave to the House of Lords on 27 May focused on this particular process and this is what he said, I think somebody in Whitehall... suddenly woke up and realised if they had a Wales Bill to affect the organisation of Wales that would mean they would need to have an England only Bill that would serve England and that would set a precedent of some constitutional enormity because you would then de facto be embarking on some kind of federal court of legislation with the United Kingdom. At that stage they drew back and said they did not want to go down this path. Do you recognise that as the reason and cause for putting aside the Wales only Bill and the introduction of a joint England and Wales Bill?

MS HUTT: No, not at all. The decision was made that it was time critical and we would have to get those clauses in to have an England and Wales Bill in order to get the statute for the health boards which are going to take up their powers from next April, and we could not have guaranteed that. That is why our current NHS (Wales) Bill has the remainder of the reforms, as you know, it has only just had its draft pre legislative scrutiny. There is no question that there was anything other than practicalities.

TED ROWLANDS: The second point made by Mr Osmond in his evidence refers to complaints by Welsh members of Parliament that they were faced with it on the Second Reading of this Bill and they did not even get consultation document and information from yourself and the Assembly until the morning of the Second Reading.

MS HUTT: We did dispute that at the time because the consultation was made available extensively in July of last year.

TED ROWLANDS: Circulated to the members in Westminster.

MS HUTT: Yes and, of course, it was available on the Internet, as all our consultation documents are. Also, we had had 6 months discussions about these reforms, in fact we launched them in February, we widely circulated the plan Improving Health in Wales and it was the subject of vigorous debate locally as well as nationally and indeed debate and discussion with my colleagues in Westminster. Many of them did respond very vigorously to the consultation process.

TED ROWLANDS: May I just pursue one further point, my legislative experience over many years is that to every Bill is attached a financial memorandum indicating the public expenditure consequences of any measure. When you have a Bill like the National Health Service Reform Bill, who takes the responsibility for making that statement that is attached to a Bill saying, this is the public expenditure consequences of the proposals. Do you or does the Secretary of State take responsibility?

MS HUTT: I think it is a joint responsibility.

TED ROWLANDS: You jointly sign the memorandum which says the cost of this bill is going to be this or cost neutral.

MS HUTT: We both have to take responsibility for that. Because of policy origins from the Assembly and policy developments from us we have to provide the financial framework. Obviously we both have to take responsibility for the memorandum being there because it is a pre legislative ---

LORD RICHARD: He is the only one accountable.

TED ROWLANDS: Does he sign it or do you both sign it?

MS HUTT: I am not sure about that. He signs it, yes.

TED ROWLANDS: You accept joint responsibility for any statement made of that kind.

MS HUTT: Clearly the delivery is in Wales as a result of our policies and our financial profile and we would have to provide that backing for the Secretary of State.

LORD RICHARD: Can I ask you the same question I asked about the Commissioner: if you had the powers how much easier might it have been or more difficult might it have been?

MS HUTT: Because we had a short period of time to get the legislation through perhaps the Children's Commissioner was a one-off in being very quick, as you said, from receiving the report and getting Royal Assent it was very rapid because we had to split it into the England and Wales Bill and then our separate Wales only Bill, and that has complicated it. On the other hand, one has to say I got the slot, I got the backing through with very, very good close working relationships with the secretaries of state. It is not just the Wales only clauses, there is a lot in the NHS Reform and Health Professions Act, which is England and Wales, that covers not just the clauses relating to our local health boards and health and well-being strategies, which are the key Welsh clauses, those England and Wales clauses would have been very difficult for us to have separately taken through. It seems to me that, in the circumstances that we have and the constitutional settlement that we have, we have succeeded in getting the statute that we need.

LORD RICHARD: This is the issue this Commission is supposed to look at, whether the constitutional settlement makes sense in terms of the operation of ministries like yours. It seems to me that, as far as the National Health Service in Wales was concerned, if you had the powers to do it yourself you would have probably done it quicker. As far as the rest of it is concerned it makes sense to do it on an England and Wales basis.

MS HUTT: There has been some importance about having part of it as an England and Wales Bill because of the crossover in terms of responsibilities and also because we do have to work cross border and the arrangements that have developed in England and how they affect and impinge on us, particularly on the borders of Wales, are very important. There is some benefit in being lodged in the same debate because it does mean that scrutiny is quite robust because you are scrutinised from all levels, you are being scrutinised about whether this fits in with the development of primary care trusts in England, which are going to serve some Welsh patients, and equally how will local health boards impinge on the developments across the board.

LORD RICHARD: Who is scrutinising that?

MS HUTT: In having an England and Wales piece of legislation then obviously it is our colleagues in Westminster who are Welsh representatives who are going to be scrutinising how this impacts on Welsh needs and Welsh circumstances. It is also helpful in terms of the fact that the NHS clearly is devolved to Wales but we have to work in partnership, as we do. I am only saying that is one argument for being engaged in a wider debate about reform and wider legislative framework for reform.

If we were not moving forward in our time scale it could have waited, we could have had one NHS Wales Bill, which would include the critical parts of where we were seeking that statutory backing. That is part of learning and history, is it not? We have to get this through, this is the plan, where is the most appropriate place to get the legislative slot, and in this case it was by being part of an England and Wales Bill. I have to say at this stage in our constitutional arrangements we do not have the capacity to drive that through and it seems to me that this goes back to some earlier comments that I made. We have to learn to walk and learn to develop robust policies which reflect Welsh needs and circumstances, being confident about them and demonstrate that we can deliver them. We are not at the stage yet where I believe we can take on the whole remit in terms of that wider legislative responsibility.

TED ROWLANDS: Giving your legislative experience what do you think of Rawlings principles, how do you think they would help in the future? Have you talked to your English counterparts about the Rawlings principles? Does the Assembly endorse these as a new kind of structure for handling Bills and the way those Bills are drafted and presented? You have not had a chance to think the consequences of Rawlings through or discuss them with your English counterparts?

MS HUTT: We have not discussed them. I think the experience that we had most recently, because we were subject to one of the first draft Bills to be the subject of pre legislative scrutiny, that was all new territory for us. I know draft Bills in Westminster have had the same treatment, I think the territory that we explored has been very valuable, particularly in relation to the Welsh Affairs Committee and the Health and Social Services Committee playing their part in considering the draft Bill, adding value to it and, indeed, scrutinising it very carefully and me appearing in front of the Welsh Affairs Committee and our Wales Office minister appearing at our Health and Social Service Committee has been a valuable experience. We have not got beyond that in terms of Rawlings.

LAURA McALLISTER: Can I ask you a question about accountability, you do touch upon it twice in your paper. What I would like you to elaborate on is how you think the new organisational structure will create and enhance accountability in the NHS in particular, but also across your brief? I think there are two different dimensions to accountability: there are the inter-accountability issues and the intra-accountability issues. Policy delivery and policy evaluation is clearly a matter which devolution will be judged upon and it was not clear from your statement how the new organisational framework, and to a certain extent the personal relationships you have with your colleagues elsewhere, would enhance the whole accountability framework. Can you explain a little bit more about that?

MS HUTT: Yes. As I said, one of the issues about accountability that drove us forward with the abolition of health authorities is that we had too many tiers in Wales and, of course, the health authorities were public bodies, equivalent to ASPBs, although they are more agents of government than a semi autonomous public body. Clearly part of the reform is to drive up the clear line of accountability between the Assembly that provides the money and those who plan and deliver the services. The accountability line between the Assembly and the minister and indeed the director of the NHS in Wales to NHS trusts who deliver the services and the local health boards, who will be commissioning the services, has to be sharpened as a result of these reforms in order to improve delivery.

On a formal basis the NHS trusts who deliver the services in Wales are independent. The leverage is through the accountable officer who is the chief executive of the trust and with our accounting officer, the director of NHS in Wales; I appoint the chairs of the trusts and the leverage in terms of monitoring the delivery comes through new arrangements, a performance management arrangement that we have, which is the service and financial framework which every trust has to sign off with the Assembly and we have to monitor against the delivery of that financial framework. With the local health boards there is only one formal public appointment made by the Minister and that is the chair. There will be a strong performance management arrangement in place between the accountable officer of the LHB and the NHS Directorate in the Assembly. We are abolishing health authorities, but in order to provide that regional interface in Wales, which is very important, the Assembly is creating three regional which are going be the main line of accountability to the local health boards and the trusts in terms of the delivery of services. We have the NHS directorate in the Assembly, obviously accountable to me as minister, and we are going to have three regional offices of the Assembly working closely with the local health boards and the NHS trusts, who are respectively the commissioners and the delivers of services.

I think the most important thing, which is not related to legislation, is the leverage we have through performance management. We do have the power to direct a single NHS trust or indeed all of them through the 1999 Health Act, but it is really this framework of accountability in terms of expenditure and also delivery of services, as you say.

LAURA McALLISTER: Would you say that the powers the Assembly currently has are sufficiently broad and deep to enable you to operate this accountability framework or would something additional make the accountability easier to manage?

MS HUTT: I do not think there is anything additional we would need to improve delivery of service through powers. I appoint the chairs, as with the previous situation, on both the trusts and the local health boards, but it is the performance management arrangements in terms of the service and financial framework and service delivery that is absolutely critical to improved delivery and indeed to all of the other policy deliveries, such as national service frameworks and strategies, which will enable us to monitor and scrutinise how the services trusts and health boards are delivering.

PAUL VALERIO: Forgive me for returning to the subject of primary legislation but you will appreciate it is an important aspect of our work. I read with interest your evidence and that of the other ministers who have so far submitted it. I get the sense that by and large the feeling is that the system at present and relationships are working very well. If you consider that these ministerial reports of good working, as you have said here, rely on a lot of good will, you suggested there is good communications and good concordats with Westminster's relationship with the Assembly Government, this is fine under the existing situation but it may well be in the future there might not be the same political complexion in Westminster and in Wales, on that basis how would the Assembly cope if it did not have the sanction of having primary legislation but is dependent on goodwill, which may no longer exist? How do you feel? I know I am asking you to look into a crystal ball, but nevertheless this will happen sooner or later?

MS HUTT: Obviously the issue about primary legislation is that it must be enabling legislation and there must be some respect as to where policy development has come from in relation to it and the democratic legitimacy of that policy development, obviously through scrutiny, and that it is supported and that if we need enabling legislation that the detail will come through our secondary legislation.

It is interesting because we operate through such open government principles and with proportional representation we have clear cross-party scrutiny of every dot, dash and line of any proposals that come through. There is a recognition when the Assembly endorses a policy that that should then receive recognition, again through the process from Westminster in order to get our primary legislative slot.

I think that the wide consultation that we have in Wales gives us that endorsement. Clearly time will tell how this will be tested out. A Secretary of State for Wales would have a responsibility to justify himself or herself to an elected body that has approved and endorsed a policy direction. That is going to be the real test of devolution settlement.

PAUL VALERIO: Thank you.

EIRA DAVIES: Obviously the Barnett Formula is very controversial at the moment, what are your views on the Barnett Formula?

MS HUTT: So far as the health budget is concerned we have been very fortunate in doubling the budget over the last three and a half years, so in terms of the settlement and the ability for us now to alter the budget within the Assembly, health and social services has benefited and has been the main beneficiary of additional money coming into the Assembly. We spend more money on health per head, as you saw from my written evidence, and clearly we recognise that we have to deliver because in terms of our health status we have very poor statistics and high levels of morbidity in Wales and health inequalities.

As far as I am concerned at present we have been able to deliver that extra funding. There is not clear evidence in terms of the Barnett Formula, the Barnett squeeze that that would have an adverse impact on health as we have had that extra funding coming through our budget settlements.

EIRA DAVIES: It is in your favour because at present you have the funding. This Commission has to look forward, would it still be sufficient for your needs?

MS HUTT: We obviously have to look at service needs and the health of the population in terms of the funding. Clearly it is an issue to look at in terms of future financial arrangements but I think that is more of a question for some of my colleagues than for myself. As far as I am concerned my job is to get funding for the Health Service and I have managed to do that; health has been the main beneficiary. Now I have to make sure that that health spend actually delivers better services for people.

EIRA DAVIES: Thank you.

PETER PRICE: You were asked about the impact of a Government of a different political complexion in Westminster, I would like to take this on, on the basis that there was no difference in the political complexion. If we look at what happened so far, primary legislation that you are able to secure – I am not just talking about health, this is just an example – really falls into one of two categories: either it is seen as being exclusively Welsh and having no impact in England, or alternatively it is seen as in some way a joint interest, largely because it is an experimentation in a field where they would like to see how it works out. If in fact you are in any way clashing in policy terms then actually you have not got that legislation, even under a government of a similar political complexion.

MS HUTT: I do not think that is entirely true in terms of that interpretation because as Lord Richard said the Department of Health did not favour the recommendation to appoint a Children's Commissioner although there was a very strong swell of feeling in England as well as Wales and indeed in Scotland, as they are also going down this road, that there should be a Children's Commissioner in England. As a result of our Bill there has been a very strong enduring campaign to have a Children's Commissioner in England and, as I said, Scotland and Northern Ireland have taken that route.

The other example which has been very controversial as well is the retention of the community health councils in Wales which we sought to do in the NHS Reform and Health Professions Bill. The Department of Health was seeking to abolish community health councils and this has been the subject of much debate in Westminster, as you and your colleagues will know, and had an impact on the NHS Reform and Health Professions Bill in its passage.

There was a respect for the fact that in Wales we decided to retain our community health councils; that was reflected in the NHS Reform and Health Professions Act in that we were opting out of the abolition clause, and in the new NHS (Wales) Bill not only are we recognising the role of the CHCs but we are strengthening their powers so they have the power of inspecting primary care premises as well as secondary care and also supporting their rights to have some of the same opportunities as the patients' forums, which are kind of successor bodies in England to community health councils. I think that is a good example, Peter. I think it is about confidence and respect and good working relationships that we can go down one route which may be quite opposite to the route in Westminster. Those are my two examples.

PETER PRICE: Can I follow the scope for the policy difference a little further through the results of the Barnett Formula. Broadly speaking the amount of resource you have available is similar to that available in England, although within the margins of what can be achieved in redistributing, particularly, the Welsh budget, you have been able to push up the percentage somewhat. There is a constraint, according to the proposals for health expenditure in England, that that will have its direct impact on how much money is made available through the Barnett Formula to Wales. To what extent does that constrain you in policy terms? You may be able to change your organisation to some extent, but in other senses are you constrained because the financial resources have to be similar.

MS HUTT: Clearly we have to take account of the Barnett Formula. We also have to take account of all of the other issues such as financial settlements and ensure that we are getting our full consequentials across a whole range of areas where there are England and Wales responsibilities. I think that is as important as questioning the impact of the Barnett Formula.

I think for the NHS, funding is always going to be a constraint. However much money comes into the NHS it does go back to Laura's question about delivery and performance and shaping services to our circumstances. In terms of the Barnett Formula we have to be very careful that we do not disadvantage ourselves in terms of that debate, I think, because we have to also, equally importantly, to demonstrate that we can deliver on the extra resource that we are levering into the Health Service.

PETER PRICE: So far as the arguments that you put so far may suggest that the whole system is actually working quite well, where is the argument, if there is one, in your area for having primary legislative powers?

MS HUTT: Obviously it is very early days and it is very helpful having this review looking at our performance for the first three and a half years of the National Assembly. I hope I have demonstrated that through good working relationships and clear determination in our policy development that the settlement has worked well. In terms of primary legislation I think we have touched on the issues where it might have been more comfortable to have a Welsh Bill which could have collected all of our particular reforms together, which arguably we could say we could have taken through primary legislative powers more coherently. As I said, there is an issue about the England and Wales crossover which is also a very a powerful argument for having Welsh clauses in an England and Wales body. I think we are substantially different in Wales in terms of our structures and that is where maybe there is a case for looking at how we can route - we have not looked enough at what we can do with our secondary legislative powers yet - some of our policy directions through a primary legislative route. Perhaps I could mention in this respect a draft Bill that has received a lot of controversy and consultation over the last few months, the draft Mental Health Bill where in fact in Wales we have very different structures in terms of our delivery of mental health services and we have a very strong national service framework. That is an area where one does need reform and one might consider, perhaps, we need to have a Welsh Mental Health Bill.

PETER PRICE: What you described about many of the differences are organisational rather than major policy differences; is there in fact such a coherence of policy that scope for difference is much more akin to organisational and that is why that is reflected in major changes that you made being more organisational than policy?

MS HUTT: Obviously the interface between structure and policy - structure is only a means to an end - is often difficult to distinguish very clearly. I think there are major policy differences in the routes that we take to deliver our services, particularly in health and social care, because we have engaged local government fully into our health boards. That is a very different approach to the English approach; it is partly structural, but it is partly about policy that we believe it is essential that we have joined-up health and social care. Certainly that is a policy recommendation from the Derek Wanless report on the funding of the NHS. We also believe that patients should have a strong voice in the planning and delivery of care. That is part of the case for keeping our community health councils because we believe very strongly in a collective approach to the planning and delivery of our public services. That means that you need to engage not just structurally but also through genuine partnership with our partners in local government and the voluntary and community sector, and indeed the independent sector.

We also give great credence to the development of our public capital programme, which is, again, a difference of route and direction to the English developments. I think in the interface between structure and policy there are substantial differences emerging, but at the root of our joint policy directions and commitment – certainly in terms of the NHS – we are as one with the United Kingdom Government. It may be the routes to provision and delivery that are going in different directions.

TED ROWLANDS: If I can just explore how far you want to go and whether your powers will allow you to go and create a separate health service. Once upon a time there was a National Health Service, now it appears there is a Welsh one, an English one, a Scots one and a Northern Ireland one. Very recently, differences occurred in the way consultants voted on the New Deal. In Scotland and Northern Ireland consultants voted for the New Deal; do you have the power or would you seek the power to do a separate deal if it turns out that Welsh consultants, as with the Scots and Northern Ireland, wish to accept the Milburn proposals?

VIVIENNE SUGAR: Can I declare an interest before the Minister answers that.

MS HUTT: It is a very important workforce issue, there is a United Kingdom workforce for the health service. Obviously there are also now currently negotiations on a GP contract covering the four countries and the four health ministers and also for Agenda for Change for the bulk of people who work in the Health Service. As far as having a workforce in terms of recruitment and retention it is critically important that we do not have NHS borders and boundaries.

TED ROWLANDS: You can have them for consultants now.

MS HUTT: In Scotland they implemented the contract with the vote from the consultants, this may be the start of a divergence. Obviously there are going to be other issues apart from pay and the contract which will attract or detract staff in terms of recruitment and retention across the four countries. Clearly the infrastructure, the morale and the provision of support and services and a healthy budget is going be as attractive as a contract.

TED ROWLANDS: Do you have the power that your Scots opposite number has to make a deal with consultants on an all Wales basis which she has in Scotland?

MS HUTT: We have the power. There are also ways in which we can consider rewarding and varying the conditions, to that extent there are opportunities even within trust themselves in Wales to exercise that, particularly in relation to pay and conditions. Clearly, we need to try and have a level playing field and opportunities for recruitment and retention because many will want to have experience of more than one country within the United Kingdom in terms of training post qualifications.

TED ROWLANDS: You have the power, it is a question of making a policy decision.

MS HUTT: It is a power that we could exercise, yes.

LORD RICHARD: My impression listening to you was you did not have the power to say this is what will happen but there are other ways of doing it.

TIM KIRBY: I do not know, this is not my area. We can look into that. My understanding is that this was done through agreement rather than through the use of a particular power and so we would be able to come to some agreement with these trusts if we so wished.

TED ROWLANDS: Your Scots opposite number took a very different decision on the whole question of the responsibility for the cost of personal care in nursing homes. Do you have such power to alter the basis on the responsibility of the costs on individuals in nursing homes, as in Scotland, or would you require primary power legislation or further legislation?

MS HUTT: It does require primary legislative backing to implement free personal care.

TED ROWLANDS: Your decision not to do that, was that a decision because you did not have the power or you did not think that was a priority in terms of expenditure?

MS HUTT: We did give very extensive consideration to this in the consultation on the strategy for older people and in fact we had a very vigorous advisory group of representatives, pensioners, local government and health service stakeholders who considered this very carefully and we had a debate about this, as I am sure you are aware, last summer. Basically the view of the advisory group was that this was the responsibility of the United Kingdom Government because it is certainly not within our powers to raise money in order to fund free personal care, and in terms of the Scottish arrangements they have the powers to raise the money and make decisions on free personal care. The advisory group asked us as the Welsh Assembly Government to make representations to the United Kingdom Government on this matter to ask them to reconsider the issue relating to free personal care because they felt this should be seen in the context of United Kingdom taxation benefits and inheritance policy, as the Royal Commission had intended. The Royal Commission had not intended this to be a matter for devolved administrations.

There was a recognition in the advisory group and in the Welsh Assembly Government's response that there is an issue in terms of the diagnostic equity issue around free personal care and that is why we did take forward that representation to the United Kingdom government on that matter.

HUW VAUGHAN THOMAS: This moves us on to the Joint Ministerial Committee. You refer to it in your written evidence, yet in your presentation you talk about almost bilateral discussion: how do you see the Joint Ministerial Committee? What are the kind of issues that you have had to use that machinery to deal with?

MS HUTT: Importantly, on the negotiations around the United Kingdom-wide consultants' contracts, GP contracts and Agenda for Change, that is a matter where we all have to sign up to agreements, the frameworks and the negotiating arrangements, so that is a key part of our discussions; but we also share, particularly around pressure points such as managing winter pressures and waiting times and those areas where we are working together – such as the National Institute for Clinical Excellence, the Commission for Health Improvement, and the Food Standards Agency – where there are cost responsibilities. Clearly those are bilateral between England and Wales because they have separate bodies in Scotland, and Northern Ireland is engaged in some of those discussions. Basically it goes back to the principle of there is a National Health Service for the United Kingdom as well as a National Health Service for England, Scotland, Wales and Northern Ireland where we have common aims, common principles and common issues to discuss and debate and learn from each other.

SIR MICHAEL WHEELER BOOTH: Minister, earlier on you used, more than once, the expression "the deadline of Royal Assent". I do not quite understand that, because Royal Assent, subject to the end of a session of Parliament, is in practice within the discretion of the government. What do you mean by, "the deadline of Royal Assent"?

MS HUTT: It is an important stage in the legislative process to assure --

SIR MICHAEL WHEELER BOOTH: It is the final stage, it is either birth or death, you might say. It is a very important stage.

MS HUTT: -- in the final stage in the policy process. In terms of implementation it is a stage because if we seek to implement from next April our plans to abolish health authorities and instigate local health boards with their full powers we need to be assured of Royal Assent and of the timetable of Royal Assent.

SIR MICHAEL WHEELER BOOTH: By when?

MS HUTT: We have secured what we need in that we have received Royal Assent in July but we want to move on to our secondary legislation. In fact that is why I mentioned earlier on, perhaps out of context, that we decided in the Committee to start work on our secondary legislation before Royal Assent. That was an interesting perspective of what one can do with our powers, because if we want to try to reduce the amount of executive use of our secondary legislative process – if we accept procedure and follow the full processes – we need to have plenty of time and that is why we decided to start on the secondary legislation before Royal Assent.

SIR MICHAEL WHEELER BOOTH: You say, Minister, "we start", is it actually the Welsh Assembly Government who are going to be responsible for drafting and if so how many draftsmen do you have?

MS HUTT: We certainly do the drafts, I am sure we do not have enough people.

TIM KIRBY: I do not know the exact number, but we do have a team within the office who are now fairly expert in producing secondary legislation. We are not talking about very many people. One of the factors of secondary legislation is committee time and plenary time.

SIR MICHAEL WHEELER BOOTH: Going back to the questions asked earlier which referred to the evidence given to the House of Lords Constitution Committee, without quoting it I think it is not unfair to say that there is a complete difference of view between the view expressed on page 6 of your paper and the view expressed to the Constitution Committee in the House of Lords. Just as a way of trying to understand it a bit better I wonder if it would be in order to have the formal record, the Hansard proceedings of that Bill so that one could look through them. The two pictures which emerge do not entirely tie up and I just want to understand, and I am sure the Commission would like to understand. Would that be an unreasonable thing to ask for?

MS HUTT: I would be very grateful to give them to you. I have given you the benefit of my oral and written evidence.

SIR MICHAEL WHEELER BOOTH: Thank you very much.

MS HUTT: I think it would be very instructive.

SIR MICHAEL WHEELER BOOTH: My third question goes back to something you said I think more than once, certainly once, you referred to the Welsh Assembly as one body politic - I think that is what you said - then you referred later on to the Welsh MPs at Westminster as Welsh representatives. If you take that view do you think there is a sufficient role for MPs from Welsh constituencies in Westminster and for the Secretary of State for Wales in the Cabinet?

MS HUTT: What I intended to say about the Welsh body politic was that Welsh MPs are part of that body politic and the body politic of Wales, as far as I am concerned, is wider than the institutions per se, it is about the body politic which includes our elected representatives to Westminster, to Europe, and our local government colleagues, that is the wider body politic. I think it is very important that we recognise that and obviously that is something for your Commission in terms of the roles that everyone is playing with the democratic mandate as part of that body politic.

LORD RICHARD: You drew a distinction, quite a long time ago now - I am sorry to keep you so long, I think we can see the conclusion in sight, as far as I am concerned, anyway - that the Assembly in effect is developing in the policy direction and developing in the legislative direction, it is fair to say in your view its concentration on policy is rather more important given the set up that you have rather than changing the constitutional nature of that settlement. Again it seems to me, and there is room for argument here, if you do well on policy formulation you go to London and London say, "yes, we agree", are the Londoners in danger of becoming a rubber stamp to what the Assembly wants or alternatively of acting as a restraint on what the Assembly wants to do, in which case that is unfair to the Assembly. How do you face up to that particular dilemma, particularly if you do have a situation, as you might well have, where a different party is in government in Westminster?

MS HUTT: I am sure this is going to be a big discussion point and a large part of this Commission's work. I think it does go back to the fact that my experience has demonstrated that Westminster has not just accepted what has come before it in terms of my policy directions and turning it into a legislative opportunity but there has been vigorous debate and discussion in Westminster as well as in the Assembly.

LORD RICHARD: What has it held back?

MS HUTT: It has not held back but it has scrutinised very vigorously and we have this issue about different interpretations of the way the legislation has been handled. It proves that Westminster has a strong voice, that is all that I am saying. It has a voice, it has not constrained us so far, there has been no constraint on what we have sought to achieve.

I think the scrutiny that has come as a result of the Welsh Affairs Committee playing its role, draft legislation, and indeed through the Committee stages of both the Children's Commissioner and the Reform Bill, has been very constructive.

TED ROWLANDS: Let us take one of the examples you have given us where you feel very frustrated, mental health, why could you not get in the existing Mental Health Bill the powers and arrangements that you wanted to carry out your separate policy on this?

MS HUTT: We await to see the results of the consultation because that was a draft bill that was subject to consultation over the summer. We undertook extensive consultation in Wales on behalf of the Department of Health and the Home Office. There was very strong and negative reactions to many parts of the draft Mental Health Bill and I think that is just an example I have put into the discussion of where we hope that some of our views are going to be reflected in the resulting legislation. Hopefully it will be enough of an enabling Bill to ensure that we can develop our own secondary legislation to steer those provisions towards our own circumstances in terms of our mental health services in Wales.

VIVIENNE SUGAR: I just want to pursue this accountability issue again, you explain in areas where you have bilateral responsibility you are able to sit down with your English ministerial colleagues and talk about things like NICE and CHI, and so on. How does the Assembly hold those bodies to account where they have England and Wales responsibility?

MS HUTT: Principally they hold them to account via myself as minister responsible through scrutiny, my monthly reports and any regulations that are coming forward as a result of NICE, CHI or the Food Standards Agency. I am the principle port of call in terms of being held to account. Also, all of those organisations do engage with the Assembly and meet regularly with the Health and Social Services Committee. The Food Standards Agency has an office of its Executive Committee in Wales, and NICE, and all three organisations have Welsh representatives in public appointments made through my office. It is accountability via the Welsh minister.

LORD RICHARD: Would you say there is haggling, it is rather splendid if you can. I do not think your Westminster colleague would be quite so forthcoming, would he?

MS HUTT: Clearly I have acted in accordance with what I feel is the appropriate framework in partnership; it is in partnership because it is an England and Wales body, it relates to the England and Wales context and we have dual responsibilities and that is how it should be.

PETER PRICE: The list you have given on the final page of your evidence of areas where you lack full powers to carry out areas of work, these are things that you have come across that have constrained you, I assume. Are there areas of policy which you have not really even needed to give consideration to because clearly at the moment they are outside your scope and powers – the whole area is outside, not just that there is some division of responsibility and therefore you are working daily against that constraint but a whole area that do you not, as it were, venture into, because it is off limits – can you think of areas within your general areas of competence which would fall into that category?

MS HUTT: I cannot at the moment. Obviously I can get involved and I do certainly get involved in ministerial discussions in areas, for example benefits arrangements, which have an impact on my portfolio; prison health is another area where I would have ministerial discussion and indeed through policy developments we can make strides in Wales as well.

LORD RICHARD: Minister, can I thank you very much indeed for coming. I am afraid that you have had a lengthy and I hope not too gruelling a session. It is terribly useful for us to hear the sort of evidence that you give. Thank you very much indeed for coming.

MS HUTT: Thank you very much.