Government's way of changing control of entry is ultra vires, Numark claims
The way the Government proposes to change control of entry regulations in England is “unlawful and ultra
vires”, Numark is saying after taking legal advice.
Lord Fowler: Parliament must have scrutiny of any changes |
Numark’s chairman, Lord Fowler, was Secretary of State for Health
and Social Services when the current regulations were introduced by the
NHS Amendment Act 1986. He said: “Rather than presenting a new
Bill to Parliament which, after debate and scrutiny by both Houses of
Parliament, would become an Act, the Government is proposing to introduce
secondary legislation which contradicts the already stated aim of Parliament.
“There is no guarantee that any draft Order would be debated and, even
if it were, the Commons would only be able to accept it or reject the
Order. In our view, that is wrong in principle. But more than that, it
is unlawful for a government to introduce secondary legislation which
contradicts the aim of Parliament as set out in an Act of Parliament.
Yet this is precisely what the Government is intending to do.”
Lord Fowler said that in 1986 the government of the day believed that
too many pharmacies were being opened. Restricting competition was one
of the issues debated at that time. Now the current Government is seeking
to use the same legislation as authority for an Order with an entirely
different purpose. “In the words of the consultation document,
it will do so by altering the statutory ‘necessary or desirable’ test
with the directly contradictory test of ‘competition and choice’.
We believe in doing this it is exceeding its own powers.”
Lord Fowler added that the decision as to whether the Government has
the legal powers to introduce such an Order of the kind proposed rests
with the Joint Committee on Statutory Instruments, which examines all
Orders presented, and ultimately with the courts. “We will not
hesitate to challenge any Order which contradicts the stated aim of Parliament.”
Lord Fowler believes that there will be strong cross-party support for
the need for any changes to be made through primary rather than secondary
legislation.
Stephen Lutener, head of regulation at the Pharmaceutical Services Negotiating
Committee, commented that requirements for the “necessary or desirable” test
are found in Regulation 4 of the NHS (Pharmaceutical Services) Regulations
1992 and in s42 of the National Health Service Act 1977 (as amended by
the 1986 Act).
“The PSNC is doubtful whether the proposed amendments are ultra
vires, given the wording of s42. This must be a matter for the Department
of
Health lawyers, and if appropriate, the courts,” Mr Lutener said.
Hemant Patel, chairman of the National Pharmaceutical Association, told
The Journal that he supported Lord Fowler’s call for Parliament
to have a greater say over how any changes are made. “It is vital
for pharmacists to keep lobbying about this.”
A spokesman for the DoH said that Numark’s comments would be considered
by its expert advisory group. |
