Health and Social Care Committee

Item 3: the committee is undertaking Stage 2 proceedings for the Health Service Procurement (Wales) Bill. The marshalled list shows the amendments tabled at Stage 2 in the order in which they will be disposed of today. This reflects the order of consideration agreed by committee on 10 May this year. The grouping list shows how amendments have been grouped for the purposes of the debate. So, for the record, and in accordance with convention agreed by the Business Committee, as Chair, I will move the Minister's amendments. I will assume that the Minister wishes me to move her amendments unless she indicates otherwise. In line with usual practice, legal advisers to the committee and the Minister are not expected to provide advice on the record. If Members wish to seek legal advice during proceedings, please pass a note to the legal advisers or the Clerk to request a short break in proceedings.

So, this morning I'd like to welcome the Minister, Eluned Morgan MS, the Minister for Health and Social Services, and with her are her officials today, Dafydd Evans, Leanne Roberts, Mari Williams and Nick Lambert. So. I'd like to welcome them to the meeting also.

The first group of amendments today relates to the procurement of social care services connected to health services as part of mixed procurements. The lead amendment in this group is amendment 1, and I call on Gareth Davies to move and speak to the lead amendment and the other amendments in the group. Gareth Davies.

Thank you very much, Chair. Good morning, everybody. I will be speaking to amendments 1 and 9. Firstly, I tabled amendment 1 to amend a provision under section 3(2). This amendment sees that 'including social care services' is added to the end of the following sentence,

'goods or other services that are connected to those health services'.

This amendment simply seeks to ensure that, in relation to the procurement of goods or other services in connection to the Welsh health service, that social care services are explicitly mentioned on the face of the Bill. This intends to prevent any loopholes from happening wherein, if social care services were not mentioned, they would fall under the scope of section 3.

Amendment 2 is relatively similar to amendment 1, in that it seeks to ensure 'social care services' are again mentioned on the face of the Bill. This amendment would ensure that any guidance published under section 3 would include guidance about compliance with the regulation when social care services are procured. Again, I have tabled this to simply ensure that social services are falling within the scope of section 3 and do not fall victim to any potential future loopholes. Thank you.

Thank you. Is there any other Member that wishes to contribute? Minister.

Diolch, Cadeirydd. As the Member has set out, amendments 1 and 9 are in relation to the provision of social care as part of the proposed new health service procurement regime. Now, as part of Stage 1 scrutiny of the Bill, I set out our policy position on the issue of procurement of stand-alone social care services under the proposed new procurement regime. So, I'm not going to reiterate those reasons here today. But, in relation to amendment 1, social care services are already included within the definition of mixed procurement when connected to health services being procured. So, adding the proposed wording 'including social care' on the face of the Bill will not change that position. So, in doing so, explicitly referencing social care as part of mixed procurement on the face of the Bill, I think, could lead to some confusion that social care services are being treated differently to other goods or services under mixed procurement, and, as such, I feel the inclusion of the suggested wording in amendment 1 will only serve to cause confusion for the relevant authorities.

Now, in relation to amendment 9, the detail of how mixed procurement and including how social care can be procured alongside health services will be clearly set out as part of the statutory guidance that relevant authorities will need to comply with when implementing the proposed new health service regime. So, as such, I feel amendment 9 is unnecessary and don't see the need for a specific reference to this on the face of the Bill. And, for these reasons, I ask Members to reject both amendment 1 and amendment 9.

Thank you, Minister. Gareth Davies.

Thank you, Chair, and thank you, Minister, for your response. I would like to voice my disappointment at the amendments not being supported, as we often talk about the integration of health and social care. With this being a new Bill, it's disappointing to not see the social care aspect factored in, seeing as we're trying to achieve some parity of esteem between the two sectors. These amendments would ensure that social care services are explicitly mentioned on the face of the Bill and guarantee that they fall under the Bill's scope. I would have hoped that the Minister would have supported this.

Thank you, Gareth. The question is that amendment 1 be agreed. Those in favour please raise—[Interruption.] Sorry, I beg your pardon. The question is that amendment 1 be agreed. Does any Member object? [Objection.] Objection. Thank you. Those in favour, please raise your hands with regard to amendment 1. Those against, please raise your hands. In relation to amendment 1, two voted in favour, and four against. The amendment is therefore not agreed.

The second group of amendments relates to the definition of goods or services connected to health services. The lead amendment in this group is amendment 2, and I call on Gareth Davies to speak to and move his lead amendment. Gareth Davies.

Thank you, Chair. I'll be speaking to the one amendment, which is amendment 2. This amendment is simply a technical amendment that I have tabled to make the provision more narrow in scope. It seeks to amend the existing line in the Bill from

'goods or other services that are connected to those health services'

to

'goods or other services that are directly connected to those health services'.

Thank you.

Do any other Members wish to speak? No. Minister.

Thanks very much. So, as the Member suggested, amendment 2 seeks to narrow that which may be procured as part of ‘mixed procurement’ under the proposed regime. Whilst I understand the reasons behind this amendment, as I set out in Plenary in response to recommendation 3 from this committee, including this or similar words would cause ambiguity without a subsequent definition. It could also impede our ability to align with the Department for Health and Social Care’s provider selection regime regulations, as the definition of what could be captured by the regulations under this section would be different. Now, I understand the committee’s view that ‘mixed procurement’ under the proposed regime will need to be clearly defined, and we remain of the view that the best place is within the regulations rather than on the face of the Bill. This is the same approach being taken by the Department for Health and Social Care for the provider selection regime. So, for reassurance, I am aware that DHSC’s regime will only allow in-scope healthcare services to be mixed with goods or other services that would normally be procured outside of the PSR when these cannot reasonably be supplied under a separate contract and where the healthcare service element is the higher value within the contract. For these reasons, I ask Members to reject amendment 2.

Thank you, Minister. Gareth Davies.

Thank you, Chair. Thank you, Minister. Whilst I appreciate that this amendment was more technical in nature, it's still disappointing to know that this is not supported.

The question is that amendment 2 be agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 2 be agreed. Those in favour, please raise your hands. Three. Those against, please raise your hands. Four. Can I just check?

Against.

Two in favour, four against. Thank you. In relation to amendment 2, there voted two in favour, and four against. Therefore, the amendment is not agreed.

So, the third group of amendments relates to the health service procurement principles and governance. The lead amendment in this group is amendment 14, and I call on Rhun ap Iorwerth to move and speak to his amendment and the other amendments in the group. Rhun.

Thank you very much, Chair. Good morning, everyone. I speak to, and I'm going to be formally moving, a series of amendments in group 3. And forgive me, Chair, as there is a great deal of work to do to explain the background to this, and this will be my longest contribution this morning.

I start with the main amendment in the group, amendment 14. The purpose of this amendment is to reflect that those who are at the heart of the health services that we are discussing here under this Bill are people—the service users. What we're doing here is making the need to include service users in discussions about service procurement a core element of the Bill. And that's particularly important, I believe, particularly when taken alongside some of the other amendments related to consultation.

Amendment 15 in the same group achieves several objectives: (1), it provides a definition of what exactly is meant by transparency and fairness, but (2), let me make it very clear, at the beginning of our discussions, that a clear priority for me in responding to this legislation is trying to ensure to the greatest possible extent that it doesn't open the door to more privatisation in the health service. On top of that, where services are procured externally, those should be procured by organisations that don't operate for profit. And further, where services are procured from the private sector, as some specialist services are at the moment, everything should be done to try to prevent cronyism. I think 'cronyism' is the clearest word that we could use here. We've seen with procurement systems during the pandemic, for example, what happens when usual procurement processes are set aside, and people benefit on the basis of who they might know, and what their connections might be, and that can never be acceptable, and amendment 15 tries to prevent that cronyism. I encourage members of the committee to support that amendment, so that we can achieve that aim.

Also in the same group, we have amendment 16, which achieves a similar objective and, indeed, makes it even more clear that we have to ensure that there are no conflicts of interest. I call on the committee to support that amendment. These are key principles to support. Seeking a way of ensuring that there is compliance with the principles—that these principles are implemented—is what I try to achieve with amendment 18 in this group, by adding to the Bill a clause that asks for independent oversight. I considered including exactly what kind of oversight that might be—for example, establishing some sort of independent procurement oversight office, or another kind of compliance office—but I do think that we could achieve this objective in different ways. But this is about ensuring that that oversight is independent. We have to have confidence throughout the procurement process that nobody can try to exploit processes in any way, and specifically that this legislation doesn't make exploitation, cronyism and privatisation easier. And I think that these are principles that the Minister shares with me, and I do encourage the committee to support that amendment, too.

I turn finally in this group to amendment 22. This also is a significant and important amendment, and, specifically, it tries to limit privatisation again. That is the objective. I invite Labour Members specifically to support the principle that I'm trying to achieve here and the way I'm trying to go about doing that. You will see that what we have here first of all is a call for a statement of principles with regard to procurement. I hope that the current Government would share the same principles as I hold in that regard, and one of those principles is to try to prevent privatisation, as I say. The amendment states clearly what I want to see in the declaration of principles. First of all is what should be a priority in terms of the model of service provision—the service itself, first of all, providing. That's what I would wish to see being set as a priority for us—an internal NHS service for the NHS, by the NHS. If that isn't possible, then we should try to provide through partnership with another public body. If that isn't possible, then it should be procured from the voluntary sector or third sector. That should be the next option. And only then, if all those things are impossible, should we turn to a private sector provider.

That reflects, I think, the pragmatic need sometimes to procure through the private sector, as I have already referred to, for some specialist services, as currently happens, but stating, as a principle, that that should be the very last option. Getting the Government to incorporate that into a statement of procurement principles would be very valuable. And also, I would like the statement to include comments about limiting how many contracts are provided to one provider, to prevent multiple contracts being awarded across a number of health boards, to prevent contracts from being automatically rolled over. As I say, the goal is to try to get control of that process, and that, I hope, echoes principles that are important to the majority of us, if not everyone on this committee.

Thank you, Rhun. Are there any other Members who wish to speak? No. I call on the Minister.

Diolch yn fawr. With regard to amendment 14, I recognise the importance of ensuring that services meet the needs of service users. We do, however, have to ensure that we have a procurement regime that is efficient and that’s effective and one that allows relevant authorities to make procurement decisions based on sound evidence and in a timely manner.

One of the key purposes of this Bill is to streamline decision-making procedures and to remove unnecessary layers of bureaucracy. To achieve this aim, the future regulations will set out the criteria that relevant authorities will need to consider when making procurement decisions. These are likely to include a number of principles that will take into consideration the needs of service users.

In Wales, we have a new independent body—it’s called Llais—whose role is to gather the views and experiences of service users and convey these messages in order to shape health service delivery in Wales. What I don’t want to do is to duplicate the remit and the function of Llais via these future procurement regulations.

Going further than this and placing a provision in regulations to require service users to be directly involved in decisions over the award and delivery of individual contracts is highly likely to be unworkable, adding time and costs to the relevant authorities procuring the services, potentially delaying the delivery of critical services for the citizens of Wales. This overly onerous approach would have the opposite effect of streamlining current procurement practices and potentially increase bureaucracy. This is especially so as the current public procurement regime and the Public Contracts Regulations 2015 do not require service users to be consulted on individual contracts. This is also not proposed in the forthcoming new regime proposed under the UK Government’s Procurement Bill.

Accepting amendment 14, and including in regulations the need for service user consultation, would make the procurement of health services in Wales an anomaly when compared to the existing and proposed public procurement regimes for other goods and services. I firmly believe that the most effective way to achieve the aims of amendment 14 is via the inclusion of appropriate decision-making criteria in the future regulations, supported by the role of Llais. So, I would ask Members to reject amendment 14.

Turning to amendments 15 and 16, which are in relation to transparency and fairness of the proposed new regime and the implementation of measures to prevent conflict of interest arising in procurement procedures, these key procurement principles are already covered under the existing provisions on the face of the Bill. I went and double-checked that last night just to make absolutely sure. It is written on the face of the Bill, so it’s there already.

I call on Rhun ap Iorwerth to reply to the debate.

Diolch yn fawr iawn, Gadeirydd. Thank you, Minister, for your full response to what were pretty comprehensive amendments. Other than amendment 25, I'm naturally disappointed that the Government doesn't feel able to support these amendments today. The Minister has explained this morning how she does in fact agree with a number of the principles that I laid out, certainly on consultation, for example, but that she believes that, either on the face of the Bill or through current regimes, the assurances that I am seeking can already be found. I haven't been convinced yet, which is why I brought forward these amendments today. I think when the Minister talks about the need to remove unnecessary bureaucracy, I'm keen that we do have bureaucracy in place, if bureaucracy protects the kinds of principles that I think are very, very important.

On putting the user, the patient, the Welsh public at the heart of procurement policy, the Minister said that she doesn't want to duplicate the work of Llais. I'm wondering at this stage if there is a way at Stage 3 to make it more explicit that Llais could play a role in oversight and in consultation, perhaps, and maybe this is a discussion that we could have between now and Stage 3.

On key principles of transparency being already included in current legislation and this, I'm making it quite open that I'm looking for belt and braces here, because of the real potential for the misuse and exploitation of the new legislation that we are discussing here—i.e. we have been given some assurances about what might be included in statutory guidance at later stages. Just before I end, on that key principle of the need to stop this being a Trojan horse by some, maybe not people in this room, but by some who would wish to see an expansion of privatisation, the Minister didn't refer to a wish to stop the expansion of privatisation in her response to me this morning. That might have been an omission that was on purpose; it may be not. But I want to hear that being said explicitly by Government. I want, between now and Stage 3, to explore again how we can have those assurances built in to this framework legislation, because I do believe these are principles that we share. Yes, I'm disappointed, clearly, in the amendments not being supported today. We have to protect the public nature of services that are so valuable to us, and I don't want to miss this opportunity to do so through the Bill that we have in front of us.

Thank you, Rhun. Gareth Davies, you've indicated you want to come in.

Thanks. Yes. I just want to respond to some of Rhun's remarks around some of the expansion of the privatisation. I'm not sure, in all the evidence we've received in the progress to Stage 2, how that would've been advocated in any point of this procedure, nor from any Member or any party. So, I just wish you could expand on those comments to see where those findings have been sourced.

Do you wish to come back, Rhun?

I'm more than happy to come back on that. I wouldn't have expected anybody to volunteer that this should be seen as legislation that would encourage more privatisation in the NHS. What I'm worried about is that it could be used by future Governments as a means to make it easier to give out contracts without full competition, for cronyism to be an element of the giving out of those contracts. This is our opportunity, this is the Bill that's in front of us now, and it's incumbent on us to make sure that we use every opportunity to protect future Senedds from having legislation in place that facilitates, potentially, an expansion of privatisation.

Huw Irranca-Davies, you wanted to come in.

Thank you, Chair. Just briefly, I wonder if we can ask the Minister, just in her response to these interventions, whether she can just give additional assurance of the trajectory of this current Government. Because I do understand Rhun's points here—it's totally within the gift of any future Government to pursue an approach to the NHS, through procurement, that is in their own programme of Government. But what we do need within this is transparency, openness, the defence against that cronyism that you referred to in your opening remarks in pushing these amendments, and I'd be interested to see how the Minister can bring that forward in the subsequent guidance, regulations, explanatory memorandum, with some real strength. But I think I'd be interested in the Minister's response here, because, whilst we all have different political positions here within this committee, there is no defence against a future Government because they could change the primary legislation. But what we can do within this is make sure that there's full transparency and accountability and fairness driven within it, and if it's not on the face of the Bill, I think where I'd share with Rhun is the desire to have it subsequently really clear, really rammed home, and also perhaps a reassurance of where this Government is going on that balance—because Rhun did mention the third sector as well—so that there is appropriate procurement, to appropriate providers, and that balance is done well. Sorry.

No, thanks, Huw.

Minister, do you wish to respond?

Look, this is the Bill, right? It says: 'Ensuring transparency, ensuring fairness, ensuring that compliance can be verified, managing conflicts of interest'. It is there in black and white, it is there. So, saying it in other places as well is not going to be particularly helpful. It's there. Let's not forget that what we're trying to do here is to, if we want, align with England—okay? But we don't know where they're going to land, and if they land in a place where we don't like, we don't have to follow them. Okay? But at the moment, we want the opportunity to align, if we like, where they want, because actually that would be more straightforward. And don't forget, you've taken evidence, and they've all said, 'Actually, we'd quite like to align with England'. Most of them have said that. So, let's just be—. If it looks like they're going to land somewhere where it's a Trojan horse for the private sector, then, clearly, we won't follow them through that door.

Okay. Rhun, then Huw. Rhun.

To push my point further: again, it's to try to stop the expansion of privatisation. You could have a fully transparent and a very, very fair fully privatised NHS, and I don't want to see that. You could have a system that is wholly procured through the private sector in a very transparent and a very fair way—I don't want that. So, it's not just about the transparency, which is why I've laid out in these amendments—'Lay out what the principles are'. We want it run in the NHS, by the NHS, for the NHS for the Welsh public, and if, after going through all the other options, some services have to be procured through the private sector, then make those transparent, and make those fair. That's the key point here, and I'm looking for more assurances around that.

Look, there are some services that are super, super, super specialised that only the private sector offer. So, you think about some very highly specialised eating disorder services that don't exist in Wales, and that actually don't exist in England unless they're in the private sector. So, we've got to be really, really careful here that we don't cut off our opportunity either to actually be able to contract services. So, yes.

There we are. Huw Irranca-Davies.

I just want to seek to clarify—I'm doing this because I haven't been on the committee hearing all the evidence, but from a legal point of view of the drafting of this. There is nothing within this Bill that forces us down the road of wholesale privatisation. It is in the ability of what is written within this Bill, on the face of it and regulations and the memorandum and subsequent guidance and the practice of procurement that Welsh Government can pursue in that openness and transparency whichever route they want. Similarly, it is open to any future Government, of a different political perspective, to pursue another thing. So, I can see where Rhun is going on this, but the acid test of this, I would argue to the Minister and to Rhun, is what we need and what is delivered by this is the full transparency and accountability. And if a Government here, Rhun, were to pursue a full privatisation, market-driven approach, recklessly, then we would hold them to account through this Bill. I'm seeking that assurance. I can see it here, I'm just seeking that assurance from Ministers that we would see that coming, and we would be able to challenge.

Gareth Davies.

Right. I just want to say what I've said in evidence in the progress of this Bill, which is that, obviously, protecting the NHS—. The NHS itself is the public body, but the NHS don't make the drugs, they don't make the equipment, they don't make anything else, which is the nature of this Bill: procurement, how the NHS outsources its service to the private sector. So, I think what Rhun and what Huw have talked about is obviously preventing the expansion of that, but we've got to accept the reality that the NHS has to, in order to survive as a public service, reach out to that private sector and have good relationships. I've said in evidence before that we use the old paracetamol test, don't we, and say, 'Why can we go to Home Bargains and buy 48 Ibuprofens for 20p, but then the private sector will charge the NHS a fiver for the same brand?', because under regulations, the drugs are made by very small-part companies who make these products. So, it's about protecting the NHS, but making sure—. I don't mean to sound casual, but to make sure that they're not being ripped off in that sense, that they're getting value for their money, and that public money is being spent on good relationships between the public and private sectors.

Does any other Member want to speak? Minister.

I want to give you that reassurance, and there is a system also—there's a belt-and-braces system—that is, if it looks like—. I mean, first of all, we're going to have a consultation, but if it looks like the regulations are going to land in the wrong place, then you've got a break. You've got an affirmative procedure, and you can stop it.

Okay. The question is that amendment 14 be agreed. Does any Member object? [Objection.] Okay. Therefore, we'll proceed to a vote. The question is that amendment 14 be agreed. Those in favour, please raise your hands. Those against, please raise your hands. Therefore, there were three Members against, three Members for. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

The fourth group of amendments relates to consultation regarding regulations under section 10A(1) of the NHS (Wales) Act 2006. The lead amendment in this group is amendment 11 tabled in the Minister's name.

As Chair, I move amendment 11 and I call on the Minister to speak to the lead amendment and other amendments in this group. The Minister.

Diolch, Gadeirydd. This committee’s Stage 1 recommendation 5, together with recommendation 4 from the Legislation, Justice and Constitution Committee, asked that we add a duty to consult in developing the regulations to be made under the new section 10A. I confirmed at the time that the Government accepted those recommendations in principle, and that we would bring forward an amendment at Stage 2. So, amendment 11 is my proposed suggestion to meet those recommendations. My amendment would require the Welsh Ministers to carry out such consultation as they consider appropriate before making regulations under new section 10A of the National Health Service (Wales) Act 2006, as inserted by section 3 of the Bill.

If agreed, my amendment applies to all iterations of the regulations, not just the first one, as recommended by this committee at Stage 1 and by amendment 4 in the name of Gareth Davies, and therefore goes further. My proposed amendment has been drafted to allow discretion in terms of the length of consultation and who must be consulted, which provides necessary flexibility if only minor or technical changes are required, with the safeguard that the explanatory material would set out what consultation has been undertaken.

Whilst amendment 4 only applies to the first use of the power to make regulations, both amendment 4 and amendment 23, tabled in the name of Rhun ap Iorwerth, propose a 12-week consultation on the actual draft of the regulations. Now, I have already committed, during Stage 1, both to all three scrutiny committees and in the Senedd that we would undertake a full 12-week consultation in the development of the first set of regulations. I also set out that we will be working closely with the NHS and other relevant authorities, as defined under the Bill in the development of the operational principles, the regulations and the supporting statutory guidance to be made under the Bill. I'm therefore of the view that, to consult for 12 weeks on the draft of the regulations, which will have been developed in partnership with those to whom they will apply, and the underpinning policy for which will have been consulted upon, is unnecessary.

In addition, given that the purpose of the fast-tracked timing of this Bill is to align with the timing of other procurement changes in order to minimise any risk to health services in Wales, including a 12-week consultation on the draft regulations would increase the implementation time significantly. As a result, this would increase the risk associated with having a misalignment in procurement procedures for health services in England and Wales.

Furthermore, whilst I understand the thinking behind amendment 23, I am of the view that it provides no flexibility for futureproofing. It would tie Welsh Ministers to consulting for 12 weeks on every change to those regulations, whether they be for wholesale changes or simply for minor and technical ones. Whilst I agree that the consultation duty should apply to each time the power is used, I feel that flexibility is needed for different circumstances in the future, whether that be for technical changes to keep in line with England, or for emergency situations, such as another pandemic. My amendment provides that flexibility whilst also ensuring that consultation is undertaken as is appropriate and proportionate.

For these reasons, I ask that Members support my amendment 11 and reject amendments 4 and 23 tabled in the names of Gareth Davies and Rhun ap Iorwerth, respectively.

Do other Members wish to speak? Rhun ap Iorwerth.

Thank you very much, Chair, and thank you, Minister. I'll refer to the Government amendment itself in the first instance. I'm very pleased that this amendment does acknowledge the principle of the importance of consultation, but we'll see, in comparison with other amendments that are related to consultation, that this amendment represents a model that is, shall we say, less comprehensive of consultation than I would wish. We're talking here about a standardised, general vocabulary from the Government, referring to consultation on whatever terms the Government itself decides are appropriate. I would wish to see more than that, so I will be voting against in the hope that we can discuss and debate with the Government later a wording that would offer something far more comprehensive at Stage 3.

Amendment 4 by Gareth Davies in the same group provides a fuller model of public consultation, and I'm very willing to support that.

Amendment 23, then, in my name, does offer a far fuller response, including listing the members of the royal colleges, trade unions, the third sector organisations and patient representative groups in consultation. It also sets a period of 12 weeks. If we are going to consult, we need to ensure that that consultation happens in the right place. I encourage Members to support, but if it's a matter of disagreeing with the exact content that I've listed here in terms of those who should be consulted, perhaps the Minister and the Conservative Member could comment on that. But I'm very happy to try and come to a list that we could agree on in terms of Stage 3, and indeed I am happy to have those further conversations about any way that we can strengthen this element of consultation.

Thank you. Do any other Members wish to speak? Gareth Davies.

Thank you, Chair. Firstly, I'll speak to amendment 4, which I put forward. The amendment would require Welsh Ministers to carry out a public consultation allowing for a minimum of 12 weeks for people to make those representations on the draft, consider the representations made and publish a summary of those representations. I tabled this amendment as I believe we can all agree that it is important that the public and appropriate persons are able to voice their opinions on any proposed regulations made under the Bill. A consultation will help to ensure transparency over regulations and ensure that regulations made under Welsh Ministers are thoroughly scrutinised.

Amendment 11 was tabled by the Minister for Health and Social Care, Eluned Morgan. The amendment would insert a new subsection onto the face of the Bill that states that, quote,

'Welsh Ministers must carry out such consultation as they consider appropriate.'

Whilst I agree with the principle and will be supporting the amendment, I do want to note that this amendment is broad. It fails to reference a public consultation, nor does the amendment provide a time period. Again, I will be supporting the amendment, as I think consultation is required. However, I would encourage Members to vote for amendment 4, which is more substantial.

Moving to amendment 23, which was tabled by and spoken to by Rhun ap Iorwerth, this amendment also calls for a consultation, and I am encouraged that Rhun also called for a 12-week period. My concern with this amendment is that it contains an exhaustive list of bodies and persons that the Welsh Government should consult with. I'm going to vote against this amendment for that reason, because I don't believe there should be an exhaustive list, as it risks Welsh Ministers only including those mentioned on the face of the Bill, which risks insufficient scrutiny of the proposed regulations. Thank you.

Are there any other Members that wish to speak? No. I call on the Minister to close the debate.

Thanks very much. I understand that consultation is really critical. We've got this 12 weeks that we've already said that we're going to do. If there's anything new that comes in future, I recognise that people need to be consulted on those as well. I understand that there may be a little bit of frustration in relation to 'as the Government considers appropriate'. I can see that, because it gives us all the cards. I don't mind having a further conversation on how we get somewhere, because, actually, I don't think you'd want either to see a 12-week consultation on something that is small and technical. So, I'm happy—. They're not even listening.

I think they're consulting.

Okay. They're not listening to me making an offer, though. Shall I say that again?

That's noted. Yes, please. Thank you, Minister.

Is that okay? Shall I say that again? I recognise that consultation is important, so I've said we'll do 12 weeks, and anything new that comes in—. I recognise the frustration that you might see that we've said 'as we consider appropriate', but I don't mind seeing if we can talk further about a technical amendment. If it's a technical amendment, I don't think you'd want a 12-week consultation either. So, I don't mind a further conversation, and let's see if we can find a middle ground there.

If I may, Chair, I think there's an opportunity here to debate this further at Stage 3 in the process, to discuss this further and make further points around that. So, based on what I've heard from you, Minister, I'd be happy to take that to Stage 3, and discuss it in more depth to understand more about the elements of that 12-week period and what that would mean in more detail in future discussions.

I think the Minister was suggesting that the conversation could be before Stage 3, and liaise—. Rhun, did you want to come in?

Just to be clear, are you willing to go as far as not moving this particular amendment today, so we can try to strengthen it as an amendment at Stage 3?

What I'd like to do is to keep this, but if we find something better, we can remove it and put something better in its place. I'd like to have something for now.

There seems to be a little bit of room for manoeuvre there.

Otherwise we won't have anything on consultations. I want to get something on there, so if we can find—. I am content to include a duty on consultation. I'm also of the view that flexibility and proportionality is required, and that's where the conversation I think needs to be had. So, if you could support my amendment 11, reject amendments 4 and 23, and obviously I've made that offer to see if we can go a bit further.

Thank you, Minister. The question is that amendment 11 be agreed. Does any Member object?

I'll object, because I want to abstain.

Okay. That's noted. In that case, we'll proceed to a vote. Those in favour, please raise your hands. There are three in favour. And those against, please raise your hands. Just to confirm, no abstentions—. Those abstaining, please raise your hands. Are you abstaining or are you not voting?

You can't abstain and—. You voted against.

I did check, and I think I asked Gareth was he against, and he said 'no'. So, can I just check, Gareth, are you in favour, against, or abstaining?

I'm happy for this to be discussed at the—

No, I'm just asking on the voting process. Are you in favour, against, or abstaining?

I will abstain, Chair.

Abstain. In that case, if I've got this correct, then there are three in favour, none against, and three abstentions. I think we're all agreed. Okay. In that case, the amendment is agreed.

The fifth group of amendments relates to the impact of regulatory alignment or divergence. The lead amendment in this group is amendment 3, and I call on Gareth Davies to move and speak to the lead amendment and the other amendments in the group.

Thank you, Chair. I will firstly speak to my amendment in this group, amendment 3. This amendment serves to guarantee that the continuity of effective cross-border health services is explicitly stated in relation to regulation under subsection (1). My reason for this is a straightforward one: I am simply seeking clarity and certainty regarding cross-border health services, and I am certain that the sector will want to see that also.

As for amendment 24, which seeks to ensure that any explanatory material that accompanies regulations must set out the extent to which they mirror or diverge from section 12ZB as well as any risks associated with this, I'm happy to support. It is important that any divergence or lack thereof is noted and understood. Thank you, Chair.

Are there any other Members that wish to speak in this debate? Rhun ap Iorwerth.

Thank you very much. I have no problem in supporting amendment 3. There are people who live on both sides of the border who receive services on the other side, and, of course, where that happens, we need to ensure that that cross-border relationship is maintained and that it works effectively.

If I may turn to my amendment in this group, this is an amendment to test whether there really is a need to align the procurement policy in England and Wales. That's quite fundamental to why this Bill is before us at all, I would argue, this concern that we in Wales could face a risk if we did things differently to what they do in England in terms of procurement rules. What this amendment does, in a way, is that it turns that upside down. It calls for making it clear in explanatory material not only what the risk would be of not following the procedure in England, but also what could be the risk of following the procedure over the border. It's something I think could give people confidence in why we need to be introducing this legislation at all.

Gareth, I can see you want to come in, but you can come back in when the debate closes, if that's okay. Is there any other Member that wishes to speak? Minister.

Thanks. I understand why the Member has raised amendment 3 on the issue of continuity of cross-border services—the Chair, who represents a constituency on the border, will certainly be aware of the importance of this—under the proposed new health service procurement regime. Maintaining continuity of existing service levels for the citizens of Wales is, I think, vital, and is one of the key reasons why we're seeking to align with the Department of Health and Social Care’s provider selection regime.

We need to understand how the provider selection regime in England and the proposed new regime in Wales will interoperate. As such, we'll need to see the final regulations and statutory guidance from the Department of Health and Social Care to understand further any potential impact on the continuity of cross-border services. But the continuity of cross-border services is one of the key reasons for this Bill, to ensure that we're able to align as far as possible in order to safeguard against potential issues with the continuity of services. But without seeing this detail, the inclusion of specific provision on cross-border services on the face of the Bill could hamper our ability to align with or diverge from the provider selection regime if we want to on this important issue. Furthermore, the amendment could raise competence issues, as it would potentially require the regulations to make provision in relation to English contracting authorities. We obviously don't have the power to do that, but that's what the amendment is actually saying, so obviously, that's beyond the scope of the Bill. So, for these reasons, I ask Members to reject amendment 3.

In relation to amendment 24, our primary policy is to have the opportunity—if we want to—to align with the Department of Health and Social Care's provider selection regime, but in a manner that best suits the future needs of the citizens of Wales. As such, once we see the final details of regulations for the provider selection regime, we may decide that there may be areas of policy where we do want to diverge from the approach in England, to allow us to implement a regime that is in the best interests of the people of Wales. The guidance will set out the practical differences between the new regimes, and I'm of the view that this is the most appropriate place to do this, as this is where relevant authorities implementing the new regime will seek the appropriate guidance. The guidance is also more appropriate, as it can be updated should any future changes be made to the PSR in England. So, if you put it on the face of the Bill here, and then it changes in England, and you've made this assessment, then it's still on the face of the Bill, and things might have changed in England. So, I think there's a danger there, whereas the explanatory material would only be updated following changes to the Welsh regulations. So, the proposed amendments, I think, are not necessary, and for these reasons, I ask Members also to reject amendment 24.

Just very briefly—thank you, Minister—if you could confirm that the guidance that will subsequently be produced will allow for risk assessments of doing things differently and not doing things differently—doing things differently or following what's being done in England.

I guess that's part of the consultation, isn't it? That's where the discussion will happen. That's where the people who procure these services will want to get involved. So, that's the place, I think, where that conversation needs to take place.

Gareth Davies to close the debate.

Thanks. I just want to expand, if I may, first, on amendment 3 on the cross-border working and some of the reasons why I tabled this amendment. Because, obviously, we look at the reality of health services, particularly in the eastern strip of Wales: Denbighshire and Flintshire use Cheshire services; for cancer support, you go to Clatterbridge on the Wirral; for brain injuries, you go to Royal Stoke, or the Christie in Manchester, say; Powys Teaching Health Board uses the Royal Shrewsbury Hospital. And the further down you go, it's the same sequence of events. And the only reason for tabling that amendment 3 was just to make us aware that we need to have that fluidity within the system to incorporate the realities of what the health needs are of people, particularly in the east of Wales. And probably not just explicitly for the people of east Wales; it's probably across the country as well. The reality is that Welsh people do use English services, and likewise, English people use Welsh services, particularly around the summer months and when we have influxes of tourism et cetera. So, the only reason for tabling that amendment 3 was due to that fact, that we just need to be awake to some of those realities. So, whilst I'm disappointed that my amendment did not find support, I'd like to take this opportunity to take into consideration those facts around that important topic of cross-border services.

Thank you. I can see the Minister was nodding on some of your comments there, so I'll take it that the Minister is agreeing with some of the comments you made.

Part of the purpose of this Bill is to make sure that we don't have those frictions, and that we can continue to get those services on a cross-border basis, so you're absolutely right in that sense. Where I think you're not right on the amendment is to write an amendment that says that we're going to do something that, in effect, legislates for England. That's just not possible.

Obviously, I can't put those comments into an amendment—

Sure. It's worth a debate. It's worth a debate.

—that's acceptable to table to the Government. So, that's why I used the position in committee—

Let's have a debate.

—in order to put that in a real aspect for you to understand fully, with respect.

Fine.

All understood. The question is that amendment 3 be agreed. Does any Member object? [Objection.] Okay. Therefore, we'll proceed to a vote. The question is that amendment 3 be agreed. Those in favour, please raise your hands. That's three in favour. Those against, please raise your hands. There are three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

In accordance with the marshalled list, we now dispose of amendment 4. Gareth Davies, do you move amendment 4?

Move.

Move. Okay. The question is that amendment 4 be agreed. Does any Member object? [Objection.] Okay, we now move to a vote. The question is that amendment 4 be agreed. Those in favour, please raise your hands. There are three in favour. Those against, please raise your hands. There are three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

The sixth group of amendments relates to compliance with the public sector equality duty. The lead amendment in this group is amendment 6—[Interruption.] Amendment 5, sorry; the clerk has corrected me. The lead amendment in this group is amendment 5, and I call on Gareth Davies to move and speak to this lead amendment. Gareth Davies.

Thanks, Chair. I will speak to my amendment—the only amendment in this group—amendment 5. With this amendment, I wish to ensure that Welsh Ministers must lay a statement before the Senedd to confirm they have complied with the public sector equality duty in section 149 of the Equality Act 2010.

Similar to my amendments in the previous group, I am seeking, with this amendment, to create formal confirmation of a desired trait regarding the regulations—in this instance, the compatibility of potential regulations with the Equality Act 2010. Whilst I do not doubt that any regulations made under subsection 1 would be made in such a way as to deliberately clash with the Equality Act, I feel there is no harm in having this confirmed at each juncture to ensure that this is not done inadvertently.

Are there any other Members who wish to speak? No. So, I call the Minister.

Thanks, Chair. As the Member set out, amendment 5 would require Welsh Ministers to lay a statement before the Senedd prior to making regulations under what would be the new section 10A, as inserted by section 3 of the Bill, explaining how the Welsh Ministers have complied with the public sector equality duty under the Equality Act 2010. But what’s not clear is the reasoning for this amendment, given that Welsh Ministers are already required to comply with that duty under existing legislation. So, this would simply be a duplication.

Equally, the amendment as drafted is, I think, slightly confusing as it does not clarify what is required in the statement in terms of compliance with the public sector duty and I think the amendment could cause significant ambiguity as it could be read to mean several different things. And for that reason, I ask Members to reject amendment 5.

I call on Gareth Davies to reply to the debate.

Thank you, Chair, and just for clarity, the reason I tabled this amendment was to ensure the due diligence. And maybe duplication isn't always the worst thing in some cases, in the fact that we can consider these in a more rounded way and make sure that those are at the forefront of Ministers' decisions when they are being made. And that's the only reason why I supported this—just to make sure that there is maybe a reinforced safety net in place in order to capture some of those things in the Equality Act 2010. It's unfortunate that my amendment is not considered necessary, and whilst I, obviously, commend the confidence and assurances of the Minister, I must stress that checks and balances and more due diligence are rarely a bad thing.

Okay. The question is that amendment 5 be agreed. Does any Member object. [Objection.] Okay, we'll proceed to a vote. The question is that amendment 5 be agreed. Those in favour, please raise your hands. There are three in favour. Those against, please raise your hands. There are three against. As there was a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

The seventh group of amendments relates to the interaction with the wider policy, legislative and strategic context. The lead amendment in this group is amendment 6, and I call on Gareth Davies to move and speak to the lead amendment and other amendments in the group. Gareth Davies.

Thank you, Chair, and the purpose of my amendments in this group is to ensure that any regulations made do not step on the toes of other bodies of legislation, an eventuality that could easily result in compromising the effectiveness of all involved legislation.

I will first speak to amendment 6, in which I aim to clarify that regulations made do not conflict with the United Kingdom Internal Market Act 2020. This amendment would mean that an assessment of potential interactions between this amendment and the UK internal market Act would be made available as part of any explanatory materials produced to accompany regulations made under subsection 1.

My other amendment, amendment 7, serves to—serves a similar purpose, sorry. With this, I seek clarification that regulations made do not conflict with several other pieces of legislation, including the Well-being of Future Generations (Wales) Act 2015, and any Act of the Senedd resulting from the Social Partnership and Public Procurement (Wales) Bill. It also serves to avert collision with the programme for transforming and modernising care and reducing waiting lists for health services, as well as any commitments related to other efforts, like being a free trade nation and a deforestation-free nation, developing the foundational economy, eliminating modern slavery from our public sector supply chains, and measuring consumption emissions and pursuing our net-zero and biodiversity targets. Thank you.

Are there any other Members that wish to speak? No. I call the Minister.

In relation to amendment 6, I made a commitment during the general principles debate to include within the explanatory memorandum that will accompany the future regulations an assessment of whether the future regulations engage the United Kingdom Internal Market Act 2020. As I have already made a commitment to undertake this, I don't feel it is necessary to include a provision as well on the face of the Bill. I ask that Members reject, therefore, amendment 6.

Turning to amendment 7, and the request that a provision is placed on the face of the Bill to undertake an assessment within the explanatory memorandum on whether the Act is consistent with, and contributes to, a number of policy objectives under the Well-being of Future Generations (Wales) Act 2015, the Social Partnership and Public Procurement (Wales) Act 2023, the programme for transforming and modernising planned care and reducing waiting lists, and various other commitments relating to free trade, deforestation, modern slavery, net zero and other matters, whilst the intention for this amendment is likely to be for an assessment of this Bill, as section 10A will be inserted into the National Health Service (Wales) Act 2006, the requirement will be read as an assessment of the 2006 Act instead. To include an assessment of the whole of the NHS Act in relation to these matters within the explanatory memorandum for the regulations under this power I'm afraid would be unworkable and certainly unconventional, to say the least.

If the intention is to instead refer to this Bill, as opposed to the NHS (Wales) Act 2006, then, again, it's likely to be unworkable. This is a short, single-issue Bill, which deals with enabling the Welsh Ministers to make provision for a procurement regime for NHS health services and connected goods and services, and many of the requirements or commitments listed in this amendment seem unrelated to the Bill's primary aims. I therefore ask that Members reject amendment 7.

I call on Gareth Davies to close the debate.

Thank you, Chair, and thank you for your response, Minister. Yet again, I struggle to see why the clarity and assurance that I feel my amendments bring to the table are so resoundingly rejected. However, again, I implore the Minister to nevertheless consider the points made and pledge to guarantee that any regulations produced under subsection 1 will not collide with other pieces of legislation, whether they originate from either the UK Government or the Senedd.

The question is that amendment 6 be agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 6 be agreed. Those in favour, please raise your hands. There are two in favour. Those against, please raise your hands. There are four against. So, the amendment is therefore not agreed.

Gareth Davies, amendment 7—do you move?

Yes. Move.

The question is that amendment 7 be agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 7 be agreed. Those in favour, please raise your hands. There are two in favour. Those against, please raise your hands. There are four against. Therefore, the amendment is not agreed.

The eighth group of amendments relate to the requirement to promote public awareness of regulations under section 10A(1). The lead and only amendment in this group is amendment 8, and I call on Gareth Davies to move and speak to that amendment. Gareth Davies.

Thank you, Chair. I will speak to my amendment, and the only amendment, in this group. This amendment aims to increase transparency and public awareness of the impacts that the law that will become regulations will have before they come into force. A concern around the possible lack of transparency, communication on processes surrounding the implementation of these laws have been raised throughout the legislation process, with many stakeholders being concerned about the possible constraints. This amendment helps to address these concerns. It is for this reason that I encourage you to accept this amendment. Thank you.

Are there any other Members who wish to speak? No. The Minister.

Diolch, Cadeirydd. This amendment would require the promotion of the new regulations and changes to the law with the general public. I've already committed to a public consultation in the preparation of the regulations and statutory guidance. It is through the consultation that there will be a programme of engagement on the proposals. I am of the view that it is at the consultation stage that we should involve and engage with the public, rather than promoting the legislation before it comes into force. There is also a statutory duty to publish guidance about compliance with the regulations, and this should assist any interested members of the public to understand the regulations and changes to the law, as well as relevant authorities. I therefore don't believe this amendment is appropriate in this circumstance, and I ask that Members reject amendment 8.

I call on Gareth Davies to reply to the debate.

Thank you, Chair, and thank you for your response, Minister. I'm disappointed that you've rejected my amendment. On the face of the Bill, it states that these regulations will help to ensure transparency and fairness, however it's important that the Welsh Government also practise being transparent and fair, which they could have achieved through this amendment.

The question is that amendment 8 be agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 8 be agreed. Those in favour, please raise your hands. There are three in favour. Those against, please raise your hands. There are three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

Rhun ap Iorwerth, amendment 15.

Formally move.

The question is that amendment 15 is agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 15 be agreed. Those in favour, please raise your hands. There are three in favour. Those against, please raise your hands. There are three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

Rhun ap Iorwerth, amendment 16.

Formally move.

The question is that amendment 16 be agreed. Does any Member object? [Objection.] The question is that amendment 16 be agreed. Those in favour, please raise your hands. There are three in favour. Those against. There are three Members against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

The ninth group of amendments relates to the operation and regulations under section 10(A)1. The lead amendment in this group is amendment 17, and I call on Rhun ap Iorwerth to move and speak to the lead amendment and the other amendments in this group. Rhun ap Iorwerth.

Thank you very much, Chair. There are several amendments that I need to move and explain here. I start by moving amendment 17 formally. Perhaps the greatest challenge that we face in the NHS at the moment is the workforce challenge, with job vacancies, problems with retention, recruitment difficulties and so on. One element of this that we must get right is wages. We must ensure that people at every level in the workforce receive a fair wage for the work that they do, and this amendment calls very simply for ensuring that no contract can be awarded to any provider unless the real living wage is being paid to staff and anyone else connected to the delivery of that contract. This is an opportunity to write this into legislation, so I invite the committee to support the amendment.

Amendment 19 is another part of the effort to limit cronyism, this time by ensuring that competitive tendering happens if the size of a contract is greater than a specific threshold. The concern, of course, is that legislation could make it easier to offer contracts without going through a fulsome process. This is at least an attempt to prevent contracts that are too large from being awarded and shared in this way.

Amendment 20 acknowledges that it is sometimes advantageous for contracts to be rolled over, and, for my part, I am talking here about voluntary sector contracts or third sector contracts where it could be beneficial for the NHS to extend a relationship with a charity providing mental health services, for example. But, to limit the possibility of the misuse of that process, this amendment calls for a limit to be imposed on how many times contracts can be renewed or rolled over automatically, again to prevent private contracts from being extended time and time again too easily. That's the aim here.

Finally, amendment 26 in this group is a substantial one. I propose the introduction of a new section, 10(B), and that is another attempt to put the brakes on privatisation in future. This time, I propose that this should be done by running a public interest test when making procurement decisions. In simple terms, there would be a requirement to prove that going through a procurement process provides better value to the public than providing a service directly. And it details, in section 10(B), how that work of evaluating public value should be done and what factors are important to consider. There is also a call for objectives to be published, for performance to be monitored, and also for regular reassessment—we propose every four years. But, as with one of the previous amendments, if details such as these would motivate others to vote against this important principle, I am of course willing to come back and collaborate with others to try to put forward an amended proposal at Stage 3. But, once again, I do ask for oral support, at least, for that principle, but, ideally, it would be support for the amendment itself. Thank you.

Thank you. Are there any other Members who wish to speak? No. The Minister.

Thanks. What I will give you is an agreement in principle that I agree with what you're trying to do here. I'm a Labour politician, after all, and one of our key raisons d'être is to make sure that workers receive payments that are acceptable and are in line with the real living wage, where that's possible. So, the problem is that this Bill is not the place to seek to achieve that; this Bill is about the processes that must be undertaken when relevant authorities procure health services, and, as such, this amendment is outside the scope of the Bill. So, I would ask Members to reject 17.

Amendments 19 and 20 seek to include provision on the face of the Bill that future regulations include principles for defined thresholds where contracts above a value are subject to a competition and also around the extension and renewal of contracts. Now, including principles for thresholds and explicitly referencing conditions and limitations around the extension and renewal of contracts in the future regulations could restrict our ability to align with the provider selection regime, if that's what we want to do, and it could impede our ability to respond to future changes brought forward by the Department of Health and Social Care. So, let's just keep on remembering that the people who are involved in this, who are the people who procure, have told this committee time and again that their ideal is to align with England. Now, if we get to a point where, actually, we really don't like what they're doing in England, we can come away from that. But, at this point in the process, because we don't know where they're going to land, we want to have the opportunity to maintain that position, and anything that takes us away from that could create a problem. So, we need to maintain a position where we can remain agile to ensure that there is sufficient flexibility to adapt to future changes brought about by provider selection regime regulations and also in response to feedback from relevant authorities, as and when appropriate.

So, accepting these amendments would also be contrary to the aims of the new procurement regime, which is to encourage relevant authorities to form collaborations and partnerships with independent health service providers. So, there are opportunities here for us to do things differently, and, as such, I believe the most appropriate place for consideration of these issues is as part of the development of future regulations and statutory guidance. And once the policy position on competition and the extension and renewal of contracts in the proposed provider selection regime is clear, that's when we should be doing it. So, this approach will also provide us with sufficient flexibility to react and update the statutory guidance as and when required in response to changes either brought forward by the Department of Health and Social Care, or as a result of operational feedback from relevant authorities. And it's for that reason that I ask Members to reject amendments 19 and 20.

Gareth Davies.

Tthank you, Chair, and thanks, Minister. I just wanted to pick up on one of the remarks you made about the Welsh Government doing its own thing if it doesn't agree with what the English system does. Would that be a political decision, or would that be a factual decision, based on evidence that would be presented to yourself as Minister? If it is a political decision, is that also awake to the fact of the way that Governments change, that political hues might change, over time? How awake is it to that fact, and also the case that that might also be applicable to the Welsh Government as well?

Huw Irranca-Davies.

I'm not one of the political 'hues'. [Laughter.]

I just wanted to seek clarity on amendment No. 17. If the legal advice that the Minister is receiving is that putting something into this Bill takes us straying into the areas of employment law, my interpretation would be that that could open this Bill up to legal challenge. And certainly, as this is progressing in parallel with England administration, the UK Government, it could derail entirely this. I just want to seek some clarity on that, because there is a moot point here, because I'm wholly sympathetic to the idea—more than sympathetic; I agree with the idea—that we should be extending the real living wage right across health and social care. The danger is that if the legal advice of the Minister is correct—and this is where I'm seeking your clarity, Minister—this could open it up to legal challenge. Sometimes, there's a good reason to have a legal challenge—we did it on our Agricultural Sector (Wales) Bill some years ago—but, actually, the devolution settlement has changed since then with another Government of Wales Act. So, I wouldn't want something that was well intentioned, and where there is probably agreement across, certainly, a broad range on this committee, to derail a very targeted Bill, actually. So, Minister, just seeking your clarification on that.

Minister.

Thanks. Just to answer Huw's point first of all, look, part of what we're doing here, part of why we're doing this as a fast-tracked process is because we want to align and we don't want a gap, and we don't want the potential of losing services that are happening at the moment if those procurement contracts come up in between times. So, anything that jeopardises that and where there's a question mark, then I think we've just got to be extremely careful. So, I think your point is well made.

And then, just in relation to Gareth's point on when this is done, so consultation is the answer to that. We will respond to the consultation. So, if the people involved in this procurement exercise say, 'We're unhappy with what's happening in England—we'd like to go our own way', then we've got to take that on board. You've sat around, you've heard evidence from these people who've come in and told you, 'Actually, this is how we'd like it to be done.' And at the moment what they're saying is, 'We'd like to see what England comes up with'. Now, if, when they see what England comes up with, they don't like it, then we've got the opportunity to step away from that. So, that's where we're at, but that's down to consultation, okay. That's the time—so, under those regulations—which is why we've given that commitment to a 12-week consultation.

And listen, if we want to be political, we will do that as well, Gareth. I'm not going to shy away from being political. If it looks like they're going for wholesale privatisation in England, my guess is that not only will the kind of people who are procuring this in Wales say, 'Not sure if we want to go down that path', but we as a Government might have something to say about it as well.

Okay. I call on Rhun ap Iorwerth to close the debate.

I was going to make a similar point. Absolutely, decisions should be taken on the basis of politics and principle. I'll take these amendments together. We hear the Minister, again, saying, 'Yes, we agree in principle but this is beyond the scope of the Bill.' I guess what I'm trying to do with a number of these amendments is to bring principles within the scope of the Bill—

I can see that.

—and to seek ways—innovative ways some of them, perhaps, challenging ways in other aspects—of seeing if we can write into this what the kind of safeguards are that we want in future. If I could perhaps, Chair, with your permission seek just one bit of clarity from the Minister, she said that there's a determination to encourage the formation of collaboration with independent health providers. That's the kind of thing that scares me politically, so—. Yes, Minister.

No. Look, we're trying to shift to a model, for example, where we want to see more services in the community. Now, those services could be provided, for example, between the clusters, the GP practices, and the third sector, okay. So, that's what I'm talking about there. And what I wouldn't want is that a threshold stops us from developing—those kinds of relationships from developing.

Thanks for that, but I guess I have put forward amendments today that, as a point of principle, would put the use of public sector providers, third sector, above seeking a collaboration or partnership with a private company seeking to make profit out of the delivery of healthcare. I think I'm placing on the record here some of the principles that are important to me, and there is time yet between now and the end of the passage of this Bill to try to bring these principles in.

The question is that amendment 17 be agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 17 be agreed. Those in favour, please raise your hands. There are three in favour. Those against, please raise your hands. There are three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

The question is—. Rhun ap Iorwerth, amendment 18.

Formally.

The question is that amendment 18 be agreed. Does any Member object? [Objection.] Therefore, we'll move to a vote. The question is that amendment 18 be agreed. Those in favour, please raise your hands. There are three in favour. Those against, please raise your hands. There are three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

Amendment 19.

Formally.

The question is that amendment 19 be agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 19 be agreed. Those in favour, please raise your hands.

Oh, sorry—.

Oh, go on, it's a good one. It's a particularly good one.

So, just to confirm, I'll just ask—

It's quite understandable.

I'll just ask again. Those in favour, please raise your hands.

We're going to have to take your first answer. [Laughter.]

There are three in favour. Those against, please raise your hands. There are three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, amendment 19 is not agreed.

The question is that—. Sorry, amendment 20. Rhun ap Iorwerth.

Formally.

The question is that amendment 20 be agreed. Does any Member object? [Objection.] Therefore, we'll move to a vote. The question is that amendment 20 be agreed. Those in favour, please raise your hands. [Interruption.] Yes. Sorry, yes. So, there are three in favour. And those against. There are three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

And I would suggest that we take a short comfort break. There we are. We'll be back in—let's just say 11 o'clock. Thank you.

Welcome back to the Health and Social Care Committee.

The tenth group of amendments relates to the involvement of the voluntary sector and the third sector. The lead amendment in this group is amendment 21, and I call on Rhun ap Iorwerth to move and speak to his lead amendment—Rhun ap Iorwerth.

Diolch yn fawr iawn. It's a shame that we took a break there because this followed on very nicely from some of the discussions that we were having prior to the break.

Amendment 21, which is the only amendment that I have in group 10, echoes part of what I have already discussed in relation to amendment 22, which is the need, in my opinion, to show preference towards different models of providing services. Amendment 22 sets the provision of NHS services directly as the first choice, the one to be preferred. But this amendment, amendment 21, expands on the voluntary sector and the third sector, in particular.

I am calling for it to be made necessary, before making regulations, for the Government to publish a statement of policy on encouraging the use of the third sector or the voluntary sector, where a person has decided to go out to procure a service. It is another attempt by me to try to limit activities that create private profit from NHS services. Keeping the NHS public is important to us. But, where it is necessary to work with partners—which is something that the Minister referred to earlier—there is certainly a desire to do everything that we can to prevent the loss of money in private profits, while building on the contribution that can be made, and is already being made in many ways, by third sector organisations or voluntary organisations. This is another one of the principles that I hope will be supported today in this Bill.

Does any other Member wish to speak? No. The Minister.

Amendment 21 requests that, prior to making the future regulations, Welsh Ministers should lay a statement of policy before, and for approval of, the Senedd, on the promotion of the involvement of the voluntary and third sectors in the procurement of health services. Now, the voluntary and third sectors play an important role in the delivery of health services in Wales, and these groups will be consulted with, as a part of the development of the future regulations and statutory guidance. This is something that we will undertake as a part of the consultation on the operational principles of the proposed new procurement regime, and for which I've brought forward amendment 11 to demonstrate our commitment to do this.

So, I don't see the necessity to include a specific reference to include additional processes over and above our commitment to consult as detailed in amendment 11. It's for these reasons I ask Members to reject amendment 21.

Rhun ap Iorwerth to close the debate.

I'm disappointed, of course, that we're not getting support for this, but, once again, I make the point that there's an attempt here to try to get into this Bill some reference to the need to stick to the core principles I think are important for us as a Senedd, and I think would set this legislation on more strong grounds. Those extra words are enough, I think.

The question is that amendment 21 be agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 21 be agreed. Those in favour, please raise your hands. Three in favour. Those against. Three against. As there was a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

Rhun ap Iorwerth, amendment 22.

Formally.

The question is that amendment 22 be agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 22 be agreed. Those in favour, please raise your hands. Three in favour. Those against. Three against. As there was a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

Rhun ap Iorwerth, amendment 23.

Yes, I move it.

The question is that amendment 23 be agreed. Does any Member object? [Objection.] Therefore, we move to a vote. The question is that amendment 23 be agreed. Those in favour, please raise your hands. Sorry, can I just check again? Amendment 23, those in favour, please raise your hands.

I went for my left hand this time, because I was sipping coffee with my right.

Okay, I'm just checking, just one in favour. So, one in favour. And those against, please raise your hands. Five against. The amendment is therefore not agreed.

Rhun ap Iorwerth, amendment 24.

Formally.

The question is that amendment 24 be agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 24 be agreed. Those in favour, please raise your hands. Those against, please raise your hands. Sorry, I should have said three against and three in favour. As there was a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, amendment 24 is not agreed. That was right, wasn't it? We've done 22, 23 and 24.

Amendment 25, Rhun ap Iorwerth.

Formally move.

The question is that amendment 25 be agreed. Does any Member object? Therefore, amendment 25 is agreed in accordance with Standing Order 17.34.

Amendment 9, Gareth Davies. Move, yes?

Move, yes. Sorry.

Move. The question is that amendment 9 be agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 9 be agreed. Those in favour, please raise your hands. Those in favour, please raise your hands. So, it's two in favour. And those against, please raise your hands. There are four against. There we are. So, the amendment is therefore not agreed.

Rhun ap Iorwerth, amendment 26.

Formally.

The question is that amendment 26 be agreed. Does any Member object? [Objection.] Therefore, we'll proceed to a vote. The question is that amendment 26 be agreed. Those in favour, please raise your hands. Three in favour. Those against. Three against. As there was a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

The eleventh group of amendments relates to scrutiny procedures for regulations under section 10A(1). The lead amendment in this group is amendment 27 and I call upon Rhun ap Iorwerth to move and speak to the amendment, and the other amendments in this group. Rhun ap Iorwerth.

Thank you very much, Chair. This is the last group in which I have amendments before us today. Amendment 27 is technical in nature, the lead amendment in this group. Amendment 29 is the more substantial amendment, with the intention of ensuring that consultation on regulations is as thorough as it can be, to ensure that different parties have an opportunity to consider regulations and to share their views with the aim of ensuring that decisions that are made on the procurement process aren’t made too quickly, taking the relevant issues into account. And this isn’t just my belief, of course; witnesses who gave evidence to us requested that we consult thoroughly. The Legislation, Justice and Constitution Committee also, of course, recommended further consultation, and this is my final opportunity at Stage 2 to try to ensure that that happens.

Thank you, Rhun. Any other Members wish to speak? The Minister.

Thanks very much. Well, all three of the amendments in this group, 27, 29 and 13, are interlinked, and essentially provide for a new super, superaffirmative procedure for the regulations to be made under a new section 10A, as inserted by section 3 of the Bill.

Now, I recognise that the power that we propose to insert as new section 10A is a significant power, which is reflected by the fact that the affirmative procedure is to be applied to it. And it's further reflected by the fact that I've tabled an amendment providing for consultation before making the regulations. But I don't agree that the procedure proposed in amendment 29 is appropriate. It would greatly add to the complexity of the Senedd processes and have a considerable impact on the timings. It's not provided for under Standing Orders. The purpose of the fast-track timing of this Bill is to align with the timing of other procurement changes in order to minimise risk to health services in Wales. So, to include a superaffirmative procedure to the future regulations would increase the implementation timeline and as a result, increase the risk associated with having a misalignment in procurement procedures for health services in England and Wales. As I say, we may or may not want that to happen in future, but at this point, we want the opportunity to align, if that's what we choose to do.

I also note that there is a resemblance in section 18 of the Legislative and Regulatory Reform Act 2006, but the power in that Act is very different from the power we're proposing in this Bill. That was a provision that gave Ministers the power by Order to remove or reduce burdens—such as financial cost or administrative inconvenience—resulting from any legislation. The power we're proposing to insert as new section 10A of the Wales NHS Act is in a very different category from that, and for that reason, I urge Members to reject amendments 27, 29 and 13.

And Rhun ap Iorwerth to close the debate.

It is a matter of concern, isn't it, when we hear Ministers saying how we've got to plough ahead with this because we've got to do it quick, because of the fear that quick legislation can be poor legislation. It's about managing risk here; they say if you're getting builders in to do some work, you can have any two of three things: fast, quick and cheap; you can have any two of them. You can have it fast and quick, but it won't be cheap. You can have it fast and—anyway.

We've got to make sure that this is good legislation that reflects the values that are important to us as a nation. I say don't be afraid of complexity if complex means better—but thank you. Diolch.

The question is that amendment 27 be agreed. Does any Member object? [Objection.] Therefore, we proceed to a vote. The question is that amendment 27 be agreed. Those in favour, please raise your hands. Three in favour. Those against, please raise your hands. Three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

Rhun ap Iorwerth, amendment 28.

Moved.

The question is that amendment 28 be agreed. Does any Member object? [Objection.] Therefore, we proceed to a vote. The question is that amendment 28 be agreed. Those in favour, please raise your hands. Three in favour. Those against. Three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

The twelfth group of amendments, and the last group, relates to the review of the impact and effectiveness of the Health Service Procurement (Wales) Act. The lead amendment in this group is amendment 10. I call on Gareth Davies to move and speak to the amendment and the other amendments in this group. Gareth Davies.

Thank you very much, Chair, and I’ll speak to my amendments 10 and 12. This group of amendments serves to hold the Welsh Government to account and enable the Senedd to review the impact and effectiveness that this Bill will have. The frequency of these reports being produced will enable enough time for the Bill to be fully implemented as well as ensuring that they are frequent enough for any ineffectiveness to be highlighted and addressed. Thank you.

Are there other Members who wish to speak? No. The Minister to speak.

Diolch, Gadeirydd. So, this committee Stage 1 recommendation 7, together with recommendation 4 from the Finance Committee, asked that we provide more information about how the impact and effectiveness of the Bill, regulations and guidance will be monitored and reviewed in future. Now, I accepted those recommendations and I stated that, in addition to the commitment to monitor and review the implementation of the Bill already set out in the explanatory memorandum, we would seek to ensure that provisions are built into statutory guidance to monitor the effectiveness of the new regime. But having considered the amendments tabled in this area by Gareth, I am content to include something on the face of the Bill to ensure that there are provisions for review. So, I think that ensuring the efficiency and efficacy of the proposed regime is paramount, but whilst we would look to ensure improvements whenever necessary, I think a broader, regular review does make sense.

But, unfortunately, whilst I agree with the principle of the amendments proposed, I’m afraid I can’t accept them as they’re drafted now. So, the amendment is not particularly effective because a review of this Bill would just be a review of two provisions that amend two other pieces of legislation. I’m also cognisant that any review period needs to allow us to monitor the approach that the Department of Health and Social Care will take on reviewing as well as aligning and reviewing mechanisms between relevant authorities and the Welsh Government that are already in place, such as the NHS intermediate medium-term plans, for example. As such, I urge Members to reject amendments 10 and 12, but I would be happy to work with Gareth to bring forward a workable amendment at Stage 3. So, that’s my final gift to you in this final group. [Laughter.]

Gareth Davies to close—sorry, Huw Irranca-Davies wants to come in. I'll bring you in to close the debate, Gareth. Huw Irranca-Davies.

Sorry, Gareth. I welcome the Minister's willingness to actually work on an appropriate mechanism to bring forward a review. I just want to seek clarity on one other issue. I assume, Gareth, that the nature of the first amendment that you had down in a series of three is also to coincide broadly with the electoral cycle here in this place as well, so that there's an opportunity at least once during a Senedd term for it to get its teeth into this. That's not a bad objective. The challenge, however, comes if we were to ever change within Wales the electoral cycle of this place. Because if that were to happen, we could end up being out of step—what we could put on the face of the Bill. So, I think some thought around this is key to enable us—. Because it is within our gift now to set electoral cycles here for the Senedd, so something needs to be reflected in your discussions as to how we incorporate that.

Gareth Davies to close the debate.

And of course, whatever our opinions are on Senedd reform, things are going to change in the future—boundary changes. We don't know what the future's going to hold and we don't have a crystal ball. I think that's key in terms of this Bill—it's about looking at some of those realities, and that's why I mentioned some of those political situations earlier on in the discussions.

I was going to say, it's not my birthday until September, so I'll take that as an early gift from you, Minister, and I know I don't get many. [Laughter.] But, no, I'll certainly take that. But I'm disappointed as well; there's the fact that we've got that chance to work together, but then you've still, technically, proposed rejection of my amendments. But I would just like to stress again the importance of ensuring that the impact and effectiveness of this Bill be tracked and that the Senedd has the chance to hold the Welsh Government to account.

Therefore, the question is that amendment 10 be agreed. Does any Member object? [Objection.] Therefore, we proceed to a vote. The question is that amendment 10 be agreed. Those in favour, please raise your hands. There are three in favour. Those against. Three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

Rhun ap Iorwerth, amendment 29.

Okay.

The question is that amendment 29 be agreed. Does any Member object? [Objection.] Therefore, we proceed to a vote. The question is that amendment 29 be agreed. Those in favour, please raise your hands. There are three in favour. Those against. There are three against. As there is a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

Gareth Davies, amendment 12.

Move, Chair.

The question is that amendment 12 be agreed. Does any Member object? [Objection.] Proceed to a vote. The question is that amendment 12 be agreed. Those in favour please raise your hands. There are two in favour. Those against. There are three against. Any abstentions?

I was in favour of that, sorry.

Sorry, okay. So, just to confirm, I'll just take that vote again. Those in favour, please raise your hands. There are three in favour. Those against. Three against. As the vote is tied, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore the amendment is not agreed.

That was amendment 12, I just did, wasn't it? Yes. Rhun ap Iorwerth, amendment 13.

Thank you very much for steering us all morning, Chair. I move formally the last amendment.

The question is that amendment 13 be agreed. Does any Member object? [Objection.] Therefore, we proceed to a vote. The question is that amendment 13 be agreed. Those in favour, please raise your hands. There are three in favour. Those against. There are three against. As there was a tied vote, I use my casting vote in the negative, that is against the amendment, in accordance with Standing Order 6.20. Therefore, the amendment is not agreed.

That completes Stage 2 proceedings in accordance with Standing Order 26.26. Stage 3 begins tomorrow. The relevant dates for Stage 3 proceedings will be published in due course, and Standing Orders make provision for the Member in charge to prepare a revised explanatory memorandum, taking into account the amendments agreed today. The revised EM must be laid five working days before Stage 3 proceedings.

Can I thank, first of all, the Minister and her officials for their attendance today? And can I say thank you also, on behalf of the committee, for the great support we've had from the clerking team and the researchers and the legal team during the course of Stage 2? Diolch yn fawr iawn. That brings the meeting to a close today.