Health and Social Care Bill (HL Bill 119)

Health and Social Care BillPage 270

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

(6) An order by the Privy Council under this Act that includes provision which
would, if included in an Act of the Scottish Parliament, fall within the
5legislative competence of that Parliament is subject to the negative procedure
in that Parliament (in addition to the statutory instrument containing the order
being subject to annulment under subsection (3)).

(7) Sections 28 and 31 of the Interpretation and Legislative Reform (Scotland) Act
2010 (negative procedure etc.) apply in relation to an order of the description
10given in subsection (6) as they apply in relation to devolved subordinate
legislation (within the meaning of Part 2 of that Act) that is subject to the
negative procedure, but as if references to a Scottish statutory instrument were
references to a statutory instrument.

(8) Section 32 of that Act (laying) shall apply in relation to the laying of a statutory
15instrument containing an order of the description given in subsection (6) before
the Scottish Parliament as it applies in relation to the laying of a Scottish
statutory instrument (within the meaning of Part 2 of that Act) before that
Parliament.

(9) A power to make regulations under this Act, a power of the Secretary of State,
20the Welsh Ministers or the Privy Council to make an order under this Act, and
(subject to section 69(3)) a power to give directions under or by virtue of this
Act—

(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
25in relation to any specified cases or descriptions of case,

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

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

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

(iii) 35any such provision either unconditionally or subject to any
specified condition, and

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

(10) Any such power includes—

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

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

(11) 45If a draft of a statutory instrument containing an order under section 112
would, but for this subsection, be treated for the purposes of the Standing
Orders of either House of Parliament as a hybrid instrument, it is to proceed in
that House as if it were not a hybrid instrument.

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

(13) A direction under this Act by a Minister of the Crown (acting alone)—

(a) must, in the case of a direction under any of the following provisions,
5be given by regulations or an instrument in writing—

(i) section 69(2) (direction to Monitor to perform functions);

(ii) section 233(1) (direction to NICE to prepare quality standards);

(iii) section 244(1) (direction to NICE to perform functions);

(iv) section 248(8) (direction to Board to be transitional
10commissioner in relation to pre-commencement statements of
quality standards);

(v) section 253(1) (direction to Information Centre to establish
information systems);

(vi) section 254(5) or (6) (direction to Information Centre to comply,
15or not to comply, with request to establish information
systems);

(vii) section 258(2)(d) (direction to Information Centre that
information of specified description is not subject to duty to
publish);

(viii) 20section 268(1) (direction to Information Centre to perform
functions);

(ix) paragraph 7 of Schedule 6 (direction to Board to exercise
functions of Secretary of State relating to Primary Care Trusts),
and

(b) 25must, in the case of any other direction, be given by an instrument in
writing.

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

301 Financial provision

30There 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) any increase attributable to this Act in the sums payable under any
other Act out of money so provided.

302 35Commencement

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

(a) section 218 (Health and Care Professions Council: power to make
arrangements with other health or social care regulators);

(b) 40section 220(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) the provisions of this Part;

(d) any other provision of this Act so far as is necessary for enabling the
45exercise 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.

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(2) Sections 34 to 36 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) 5in relation to Wales, the Welsh Ministers.

(4) The 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) 10Transitory provision in an order under subsection (2) or (4) 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 299).

(7) 15Where a provision of this Act (or an amendment made by it) requires
consultation 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.

303 Commencement: consultation with Scottish Ministers

(1) 20The Secretary of State must consult the Scottish Ministers before making an
order under section 302(4) relating to—

(a) section 57 (radiation protection functions), so far as relating to the
Scottish Ministers,

(b) section 59 (co-operation in relation to public health functions), so far as
25relating to the exercise of functions in relation to Scotland by a person
to which the provision inserted by subsection (1) of that section applies,

(c) section 222(4) (requirement for persons advised etc. by the Professional
Standards Authority for Health and Social Care to pay fee), so far as
relating to the Scottish Ministers,

(d) 30section 223(1) (funding of the Professional Standards Authority for
Health and Social Care), so far as relating to a body that regulates a
profession in Scotland which does not fall within Section G2 of Part 2 of
Schedule 5 to the Scotland Act 1998 (health professions),

(e) section 223(4) and (5) (power of the Professional Standards Authority
35for Health and Social Care to borrow), so far as relating to functions of
the Professional Standards Authority for Health and Social Care which
are exercisable in relation to—

(i) unregulated health professionals in Scotland, unregulated
health care workers in Scotland or relevant students in
40Scotland,

(ii) a body that maintains a register of persons within sub-
paragraph (i),

(iii) a profession in Scotland which does not fall within Section G2
of Part 2 of Schedule 5 to the Scotland Act 1998, or

(iv) 45a body that regulates a profession within sub-paragraph (iii),

(f) section 224(1) (power of the Professional Standards Authority for
Health and Social Care to advise regulatory bodies etc.), so far as

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relating to a body that regulates a profession in Scotland which does
not fall within Section G of Part 2 of Schedule 5 to the Scotland Act 1998
(architects, health professions and auditors),

(g) section 225(8) (requirement for the Professional Standards Authority
5for Health and Social Care to lay copy strategic reports before
Parliament etc.), so far as relating to the Scottish Parliament,

(h) section 226 (appointments to regulatory bodies), so far as relating to—

(i) the exercise of the appointment functions under subsection
(8)(f) of the provision inserted by that section, or

(ii) 10subsection (4) of that provision,

(i) section 227 (establishment of voluntary registers), so far as relating to
the establishment and maintenance of relevant registers,

(j) section 228 (accreditation of voluntary registers), so far as relating to the
functions of the Professional Standards Authority for Health and Social
15Care in relation to relevant registers,

(k) Part 2 or 3 of Schedule 16 (amendments relating to the Health and Care
Professions Council or the Professional Standards Authority for Health
and Social Care) and section 229(1) so far as relating to the Part in
question, and

(l) 20paragraphs 1 to 4 of Schedule 22 (amendments of the National Health
Service (Scotland) Act 1978 relating to the relationships between the
health services) and section 293 so far as relating to those paragraphs.

(2) In this section—

  • “relevant registers” means—

    (a)

    25registers of unregulated health professionals in Scotland,

    (b)

    registers of unregulated health care workers in Scotland, or

    (c)

    registers of relevant students in Scotland,

  • “relevant students in Scotland” means persons participating in studies in
    Scotland for the purpose of becoming—

    (a)

    30an unregulated health professional,

    (b)

    an unregulated health care worker, or

    (c)

    a member of a profession which does not fall within Section G2
    of Part 2 of Schedule 5 to the Scotland Act 1998,

  • “unregulated health professional” means a person who is or has been
    35practising as an unregulated health professional (within the meaning of
    the provisions inserted by section 227) and “unregulated health
    professional in Scotland” means a person who is or has been practising
    as such in Scotland, and

  • “unregulated health care worker” means a person who is or has been
    40engaged in work as an unregulated health care worker (within the
    meaning of those provisions) and “unregulated health care worker in
    Scotland” means a person who is or has been engaged in such work in
    Scotland.

304 Extent

(1) 45Subject to subsections (2) to (5), this Act extends to England and Wales only.

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

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

(a) section 45 insofar as it inserts section 252A(8) of the National Health
Service Act 2006;

(b) 5sections 55(1) and (3), 56, 57 and 59 (public health functions);

(c) section 149(2) and paragraph 1 of Schedule 13 (references to Monitor in
instruments etc.);

(d) section 213(1) (the Health and Care Professions Council);

(e) section 221(1) (the Professional Standards Authority for Health and
10Social Care);

(f) section 229(1) to (4) and (6) and paragraphs 53 and 59 of Schedule 16
(Part 7: consequential provision etc.);

(g) section 230(1), (3) and (4) and Part 4 of Schedule 16 (abolition of the
Office of the Health Professions Adjudicator);

(h) 15section 275(1) and (3) and Part 2 of Schedule 21 (abolition of the
Appointments Commission);

(i) sections 296 and 297 (transfer schemes) insofar as they confer powers in
connection with the abolition of the Health Protection Agency;

(j) this Part.

(4) 20Sections 127 to 132 (health special administration) extend to England and
Wales and Scotland.

(5) 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.

305 25Short title

This Act may be cited as the Health and Social Care Act 2012.

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SCHEDULES

Section 8(2)

SCHEDULE 1 The National Health Service Commissioning Board

Section 1G(4)

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.

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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.

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(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

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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.

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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 clinical commissioning group.

(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