(4) Before making an order under this section that contains provision which
would, if included in an Act of the Scottish Parliament, fall within the
legislative competence of that Parliament, the Secretary of State must consult
the Scottish Ministers.

(5) 5The power conferred by this section is not restricted by any other provision of
this Act.

(6) In this section, “enactment” includes—

(a) an enactment contained in subordinate legislation (within the meaning
of the Interpretation Act 1978), and

(b) 10an enactment contained in, or in an instrument made under, an Act of
the Scottish Parliament, an Act or Measure of the National Assembly
for Wales or Northern Ireland legislation,

and references to an enactment include a reference to an enactment passed or
made after the passing of this Act.

302 15Regulations, orders and directions

(1) A power to make regulations under this Act is exercisable by the Secretary of
State.

(2) Regulations under this Act, and orders by the Secretary of State, the Welsh
Ministers or the Privy Council under this Act, must be made by statutory
20instrument.

(3) Subject to subsections (4) to (6), a statutory instrument containing regulations
under this Act, or an order by the Secretary of State or the Privy Council under
this Act, is subject to annulment in pursuance of a resolution of either House of
Parliament.

(4) 25Subsection (3) does not apply to an order under section 304 (commencement).

(5) A statutory instrument which contains (whether alone or with other provision)
any of the following may not be made unless a draft of the instrument has been
laid before, and approved by a resolution of, each House of Parliament—

(a) regulations under section 60 (extension of Monitor’s functions to adult
30social care services);

(b) regulations under section 105(7)(b) or (c) (percentage to be prescribed
in cases of objections to proposals to modify standard licence
conditions);

(c) regulations under section 110(4) (manner in which turnover to be
35calculated for purposes of penalty for breach of licence conditions etc.);

(d) regulations under section 111(3)(d) (descriptions of action for
specifying in enforcement undertaking for breach of licence conditions
etc.);

(e) an order under section 116(10) (variation of period of designation for
40failing NHS foundation trust);

(f) regulations under section 123(2)(a), (b) or (c) (percentage to be
prescribed in cases of objections to proposals for national tariff);

(g) regulations under section 133 (health special administration
regulations);

(h) 45an order under section 143 (maximum amount that may be raised from
levy to raise funds for health special administration cases);

(i) regulations under section 145(2)(b) (percentage to be prescribed in
cases of objections to proposals to impose levy);

(j) an order under section 289(4) (addition to list of bodies subject to duty
co-operate);

(k) 5an order under section 290(5) (order prohibiting bodies subject to duty
to co-operate from exercising specified functions etc.);

(l) an order under section 301 (consequential provision) which includes
provision that amends or repeals a provision of an Act of Parliament;

(m) regulations which, by virtue of subsection (8)(a), include provision that
10amends or repeals a provision of an Act of Parliament.

(6) A statutory instrument containing an order by the Privy Council under this Act
that includes provision which would, if it were included in an Act of the
Scottish Parliament, be within the legislative competence of that Parliament is
subject to annulment in pursuance of a resolution of—

(a) 15either House of Parliament, or

(b) the Scottish Parliament.

(7) A power to make regulations under this Act, a power of the Secretary of State,
the Welsh Ministers or the Privy Council to make an order under this Act, and
(subject to section 66(3)) a power to give directions under or by virtue of this
20Act—

(a) may be exercised either in relation to all cases to which the power
extends, or in relation to those cases subject to specified exceptions, or
in relation to any specified cases or descriptions of case,

(b) may be exercised so as to make, as respects the cases in relation to
25which it is exercised—

(i) the full provision to which the power extends or any less
provision (whether by way of exception or otherwise),

(ii) the same provision for all cases in relation to which the power
is exercised, or different provision for different cases or
30different descriptions of case, or different provision as respects
the same case or description of case for different purposes of
this Act,

(iii) any such provision either unconditionally or subject to any
specified condition, and

(c) 35may, in particular, make different provision for different areas.

(8) Any such power includes—

(a) power to make incidental, supplementary, consequential, saving or
transitional provision (including, in the case of a power to make
regulations, provision amending, repealing or revoking enactments),
40and

(b) power to provide for a person to exercise a discretion in dealing with
any matter.

(9) A power to give directions under or by virtue of this Act includes power to
vary or revoke the directions by subsequent directions.

(10) 45A direction under this Act by a Minister of the Crown (acting alone) must be
given by regulations or an instrument in writing.

(11) A direction under or by virtue of this Act by any other person (or persons) must
be given by an instrument in writing.

303 Financial provision

There is to be paid out of money provided by Parliament—

(a) any expenditure incurred by virtue of this Act by the Secretary of State,
and

(b) 5any increase attributable to this Act in the sums payable under any
other Act out of money so provided.

304 Commencement

(1) The following provisions come into force on the day on which this Act is
passed—

(a) 10section 222 (Health and Care Professions Council: power to make
arrangements with other health or social care regulators);

(b) section 224(3) (power of Secretary of State to make arrangements with
Health and Care Professions Council to discharge General Social Care
Council’s functions during period preceding abolition);

(c) 15the provisions of this Part;

(d) any other provision of this Act so far as is necessary for enabling the
exercise on or after the day on which this Act is passed of any power to
make an order or regulations or to give directions that is conferred by
the provision or an amendment made by it.

(2) 20Sections 31 to 33 come into force on such day as the appropriate authority may
by order appoint.

(3) In subsection (2) “the appropriate authority” means—

(a) in relation to England, the Secretary of State;

(b) in relation to Wales, the Welsh Ministers.

(4) 25The other provisions of this Act come into force on such day as the Secretary of
State may by order appoint.

(5) Different days may be appointed under subsection (2) or (4) for different
purposes (including different areas).

(6) An order under subsection (2) or (4) may include transitory provision; and
30such provision may, in particular, modify the application of a provision of this
Act pending the commencement of—

(a) another provision of this Act, or

(b) any other enactment (within the meaning of section 301).

(7) Where a provision of this Act (or an amendment made by it) requires
35consultation to take place, consultation undertaken before the commencement
of the provision is as effective for the purposes of that provision as consultation
undertaken after that commencement.

305 Extent

(1) Subject to subsections (2) to (5), this Act extends to England and Wales only.

(2) 40Any amendment, repeal or revocation made by this Act has the same extent as
the enactment amended, repealed or revoked.

(3) The following provisions extend to England and Wales, Scotland and Northern
Ireland—

(a) sections 52(1) and (3), 53, 54 and 56 (public health functions);

(b) section 153(2) and paragraph 1 of Schedule 13 (references to Monitor in
instruments etc.);

(c) section 217(1) (the Health and Care Professions Council);

(d) 5section 225(1) (the Professional Standards Authority for Health and
Social Care);

(e) section 233(1) to (4) and (6) and paragraphs 47 and 54 of Schedule 16
(Part 7: consequential provision etc.);

(f) section 234(1), (3) and (4) and Part 4 of Schedule 16 (abolition of the
10Office of the Health Professions Adjudicator);

(g) section 278(1) and (3) and Part 2 of Schedule 21 (abolition of the
Appointments Commission);

(h) sections 299 and 300 (transfer schemes) insofar as they confer powers in
connection with the abolition of the Health Protection Agency;

(i) 15this Part.

(4) Section 294 (arrangements between the Board and Northern Ireland Ministers)
extends to England and Wales and Northern Ireland.

(5) The following provisions extend to England and Wales and Scotland—

(a) sections 131 to 136 (health special administration);

(b) 20section 295 (arrangements between the Board and Scottish Ministers).

(6) The Secretary of State may by order provide that specified provisions of this
Act, in their application to the Isles of Scilly, have effect with such
modifications as may be specified.

306 Short title

25This Act may be cited as the Health and Social Care Act 2011.

SCHEDULES

Section 6(2)

SCHEDULE 1 The National Health Service Commissioning Board

Section 1E4

“Schedule 1 5The National Health Service Commissioning Board

Status

1 (1) The Board is not to be regarded as a servant or agent of the Crown,
or as enjoying any status, privilege or immunity of the Crown.

(2) The Board’s property is not to be regarded as property of, or
10property held on behalf of, the Crown.

Membership

2 (1) The Board is to consist of—

(a) a chair appointed by the Secretary of State,

(b) at least five other members so appointed, and

(c) 15the chief executive and other members appointed in
accordance with paragraph 3.

(2) In this Schedule—

(a) references to non-executive members of the Board are
references to the members appointed in accordance with
20sub-paragraph (1)(a) and (b), and

(b) references to executive members of the Board are
references to the other members.

(3) The number of executive members must be less than the number
of non-executive members.

25The chief executive and other executive members: appointment and status

3 (1) The chief executive and the other executive members of the Board
are to be appointed by the non-executive members.

(2) A person may not be appointed as chief executive without the
consent of the Secretary of State.

(3) 30The chief executive and the other executive members are to be
employees of the Board.

(4) The first chief executive of the Board is to be appointed by the
Secretary of State.

Non-executive members: tenure

4 (1) A person holds and vacates office as a non-executive member of
the Board in accordance with that person’s terms of appointment.

(2) A person may at any time resign from office as a non-executive
5member by giving notice to the Secretary of State.

(3) The Secretary of State may at any time remove a person from office
as a non-executive member on any of the following grounds—

(a) incapacity,

(b) misbehaviour, or

(c) 10failure to carry out his or her duties as a non-executive
member.

(4) The Secretary of State may suspend a person from office as a non-
executive member if it appears to the Secretary of State that there
are or may be grounds to remove that person from office under
15sub-paragraph (3).

(5) A person may not be appointed as a non-executive member for a
period of more than four years.

(6) A person who ceases to be a non-executive member is eligible for
re-appointment.

20Suspension of non-executive members

5 (1) This paragraph applies where a person is suspended under
paragraph 4(4).

(2) The Secretary of State must give notice of the decision to the
person; and the suspension takes effect on receipt by the person of
25the notice.

(3) The notice may be—

(a) delivered in person (in which case the person is taken to
receive it when it is delivered), or

(b) sent by first class post to the person’s last known address
30(in which case, the person is taken to receive it on the third
day after the day on which it is posted).

(4) The initial period of suspension must not exceed six months.

(5) The Secretary of State may at any time review the suspension.

(6) The Secretary of State—

(a) 35must review the suspension if requested in writing by the
person to do so, but

(b) need not review the suspension less than three months
after the beginning of the initial period of suspension.

(7) Following a review during a period of suspension, the Secretary of
40State may—

(a) revoke the suspension, or

(b) suspend the person for another period of not more than six
months from the expiry of the current period.

(8) The Secretary of State must revoke the suspension if the Secretary
of State —

(a) decides that there are no grounds to remove the person
from office under paragraph 4(3), or

(b) 5decides that there are grounds to do so but does not
remove the person from office under that provision.

6 (1) Where a person is suspended from office as the chair under
paragraph 4(4), the Secretary of State may appoint a non-executive
member as interim chair to exercise the chair’s functions.

(2) 10Appointment as interim chair is for a term not exceeding the
shorter of—

(a) the period ending with either—

(i) the appointment of a new chair, or

(ii) the revocation or expiry of the existing chair’s
15suspension, and

(b) the remainder of the interim chair’s term as a non-
executive member.

(3) A person who ceases to be the interim chair is eligible for re-
appointment.

20Payment of non-executive members

7 (1) The Board must pay to its non-executive members such
remuneration as the Secretary of State may determine.

(2) The Board must pay or make provision for the payment of such
pensions, allowances or gratuities as the Secretary of State may
25determine to or in respect of any person who is or has been a non-
executive member of the Board.

(3) If a person ceases to be a non-executive member and the Secretary
of State decides that there are exceptional circumstances which
mean that the person should be compensated, the Board must pay
30compensation to the person of such amount as the Secretary of
State may, with the approval of the Treasury, determine.

Staff

8 The Board may appoint such persons to be employees of the Board
as it considers appropriate.

9 (1) 35Employees of the Board are to be paid such remuneration and
allowances as the Board may determine.

(2) Employees of the Board are to be appointed on such other terms
and conditions as the Board may determine.

(3) The Board may pay or make provision for the payment of such
40pensions, allowances or gratuities as it may determine to or in
respect of any person who is or has been an employee of the Board.

(4) Before making a determination as to remuneration, pensions,
allowances or gratuities for the purposes of this paragraph, the

Board must obtain the approval of the Secretary of State to its
policy on the matter.

Committees

10 (1) The Board may appoint such committees and sub-committees as it
5considers appropriate.

(2) A committee or sub-committee may consist of or include persons
who are not members or employees of the Board.

(3) The Board may pay such remuneration and allowances as it
determines to any person who—

(a) 10is a member of a committee or a sub-committee, but

(b) is not an employee of the Board,

whether or not that person is a non-executive member of the
Board.

Trust funds and trustees

11 (1) 15The Secretary of State may by order provide for the appointment
of trustees for the Board to hold property on trust—

(a) for the general or any specific purposes of the Board, or

(b) for any purposes relating to the health service in England.

(2) An order under sub-paragraph (1) may—

(a) 20make provision as to the persons by whom trustees must
be appointed and generally as to the method of their
appointment,

(b) make any appointment subject to such conditions as may
be specified in the order (including conditions requiring
25the consent of the Secretary of State),

(c) make provision as to the number of trustees to be
appointed, including provision under which that number
may from time to time be determined by the Secretary of
State after consultation with such persons as the Secretary
30of State considers appropriate, and

(d) make provision with respect to the term of office of any
trustee and his or her removal from office.

(3) Where trustees have been appointed by virtue of sub-paragraph
(1), the Secretary of State may by order provide for the transfer of
35any trust property from the Board to the trustees.

Procedure

12 (1) The Board may regulate its own procedure.

(2) The validity of any act of the Board is not affected by any vacancy
among the members or by any defect in the appointment of any
40member.

Exercise of functions

13 The Board may arrange for the exercise of any of its functions on
its behalf by—

(a) any non-executive member,

(b) 5any employee (including any executive member), or

(c) a committee or sub-committee.

Provision of information to Secretary of State

14 (1) The Secretary of State may require the Board to provide the
Secretary of State with such information as the Secretary of State
10considers it necessary to have for the purposes of the functions of
the Secretary of State in relation to the health service.

(2) The information must be provided in such form, and at such time
or within such period, as the Secretary of State may require.

Accounts

15 (1) 15The Board must keep proper accounts and proper records in
relation to the accounts.

(2) The Secretary of State may, with the approval of the Treasury, give
directions to the Board as to—

(a) the content and form of its accounts, and

(b) 20the methods and principles to be applied in the
preparation of its accounts.

(3) In sub-paragraph (2) the reference to accounts includes a reference
to the Board’s consolidated annual accounts prepared under
paragraph 16 and any interim accounts prepared by virtue of
25paragraph 17.

(4) The chief executive of the Board is to be its accounting officer.

Annual accounts

16 (1) The Board must prepare consolidated annual accounts in respect
of each financial year.

(2) 30The consolidated annual accounts must contain—

(a) the Board’s annual accounts, and

(b) a consolidation of the Board’s annual accounts and the
annual accounts of each commissioning consortium.

(3) The Board must send copies of the consolidated annual accounts
35to—

(a) the Secretary of State, and

(b) the Comptroller and Auditor General,

within such period after the end of the financial year to which the
accounts relate as the Secretary of State may direct.

(4) 40The Comptroller and Auditor General must—

(a) examine, certify and report on the consolidated annual
accounts, and

(b) lay copies of the accounts and the report on them before
Parliament.

(5) In this paragraph, “financial year” includes the period which
begins with the day on which the Board is established, and ends
5on the following 31 March.

Interim Accounts

17 (1) The Secretary of State may, with the approval of the Treasury,
direct the Board to prepare accounts in respect of such period or
periods as may be specified in the direction (“interim accounts”).

(2) 10The interim accounts in respect of any period must contain—

(a) the Board’s accounts in respect of that period, and

(b) a consolidation of the Board’s accounts in respect of that
period and any accounts of commissioning consortia in
respect of that period which are prepared by virtue of
15paragraph 14(3) of Schedule 1A.

(3) The Board must send copies of any interim accounts to—

(a) the Secretary of State, and

(b) if the Secretary of State directs, the Comptroller and
Auditor General,

20within such period as the Secretary of State may direct.

(4) The Comptroller and Auditor General must—

(a) examine, certify and report on any interim accounts sent
by virtue of sub-paragraph (3)(b),

(b) if the Secretary of State so directs, send a copy of the report
25on the accounts to the Secretary of State, and

(c) if the Secretary of State so directs, lay copies of the accounts
and the report on them before Parliament.

Seal and evidence

18 (1) The application of the Board’s seal must be authenticated by the
30signature of any member of the Board or any other person who has
been authorised (generally or specially) for that purpose.

(2) A document purporting to be duly executed under the Board’s
seal or to be signed on its behalf must be received in evidence and,
unless the contrary is proved, taken to be so executed or signed.”