Health and Care Bill (HL Bill 71)

Health and Care BillPage 40

  • ““regulatory functions”, in relation to NHS England, has the meaning
    given by section 13SA,”.

30 Modification of standard licence conditions

(1)Section 100 of the Health and Social Care Act 2012 (modification of standard
5conditions) is amended as follows.

(2)After subsection (1) insert—

(1A)Before making modifications under subsection (1) that NHS England
consider to be a major change, NHS England must—

(a)carry out an assessment of the likely impact of the
10modifications, or

(b)publish a statement setting out its reasons for concluding that
such assessment is not needed.”

(3)In subsection (2), for “such modifications” substitute “modifications under
subsection (1)”.

(4)15In subsection (4), after paragraph (b) insert—

(ba)set out any impact assessment carried out by NHS England
under subsection (1A)(a),”.

31 Abolition of NHS Trust Development Authority

(1)The Special Health Authority called the National Health Service Trust
20Development Authority is abolished.

(2)The following are revoked—

(a)the National Health Service Trust Development Authority
(Establishment and Constitution) Order 2012 (S.I. 2012/901);

(b) the National Health Service Trust Development Authority Regulations
252012 (S.I. 2012/922);

(c) the National Health Service Trust Development Authority (Directions
and Miscellaneous Amendments etc.) Regulations 2016 (S.I. 2016/214).

(3)In section 9 of the Mental Health Units (Use of Force) Act 2018 (investigation
of deaths or serious injuries), omit paragraph (d).

(4)30In section 15 of the Domestic Abuse Act 2021 (duty to co-operate with the
Domestic Abuse Commissioner), in subsection (7), omit paragraph (e) of the
definition of “NHS body in England”.

32 Merger of bodies: consequential amendment

In section 1H of the National Health Service Act 2006 (NHS England and its
35general functions), in subsection (3)(b), before “so as to secure” insert “, NHS
trusts established under section 25 and NHS foundation trusts”.

33 Transfer schemes in connection with abolished bodies

(1)The Secretary of State may make one or more schemes for the transfer of
property, rights and liabilities from Monitor or the National Health Service
40Trust Development Authority to NHS England.

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(2)The things that may be transferred under a transfer scheme include—

(a)property, rights and liabilities that could not otherwise be transferred;

(b)property acquired, and rights and liabilities arising, after the making of
the scheme;

(c)5criminal liabilities.

(3)A transfer scheme may—

(a)create rights, or impose liabilities, in relation to property or rights
transferred;

(b)make provision about the continuing effect of things done by the
10transferor in respect of anything transferred;

(c)make provision about the continuation of things (including legal
proceedings) in the process of being done by, on behalf of or in relation
to the transferor in respect of anything transferred;

(d)make provision for references to the transferor in an instrument or
15other document in respect of anything transferred to be treated as
references to the transferee;

(e)make provision which is the same as or similar to the TUPE regulations;

(f)make other consequential, supplementary, incidental or transitional
provision.

(4)20In subsection (3)(e), “the TUPE regulations” means the Transfer of
Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246).

(5)In this section references to rights and liabilities include rights and liabilities
relating to a contract of employment.

34 Transfer schemes under section 33: taxation

(1)25The Treasury may by regulations make provision varying the way in which a
relevant tax has effect in relation to—

(a)anything transferred under a scheme under section 33, or

(b)anything done for the purposes of, or in relation to, a transfer under
such a scheme.

(2)30The provision which may be made under subsection (1)(a) includes in
particular provision for—

(a)a tax provision not to apply, or to apply with modifications, in relation
to anything transferred;

(b)anything transferred to be treated in a specified way for the purposes
35of a tax provision;

(c)the Secretary of State to be required or permitted to determine, or
specify the method for determining, anything which needs to be
determined for the purposes of any tax provision so far as relating to
anything transferred.

(3)40The provision which may be made under subsection (1)(b) includes in
particular provision for—

(a)a tax provision not to apply, or to apply with modifications, in relation
to anything done for the purposes of or in relation to the transfer;

(b)anything done for the purposes of, or in relation to, the transfer to have
45or not have a specified consequence or be treated in a specified way;

(c)the Secretary of State to be required or permitted to determine, or
specify the method for determining, anything which needs to be

Health and Care BillPage 42

determined for the purposes of any tax provision so far as relating to
anything done for the purposes of, or in relation to, the transfer.

(4)Regulations under this section are subject to annulment in pursuance of a
resolution of the House of Commons.

(5)5In this section—

  • “relevant tax” means income tax, corporation tax, capital gains tax, value
    added tax, stamp duty or stamp duty reserve tax;
    “tax provision” means a provision of an enactment about a relevant tax.

Secretary of State's functions

35 10Report on assessing and meeting workforce needs

After section 1G of the National Health Service Act 2006 (but before the italic
heading after it) insert—

1GA Secretary of State’s duty to report on workforce systems

(1)The Secretary of State must, at least once every five years, publish a
15report describing the system in place for assessing and meeting the
workforce needs of the health service in England.

(2)NHS England and Health Education England must assist in the
preparation of a report under this section, if requested to do so by the
Secretary of State.”

36 20Arrangements for exercise of public health functions

For section 7A of the National Health Service Act 2006 substitute—

7A Exercise of Secretary of State’s public health functions

(1)The Secretary of State may arrange for any of the public health
functions of the Secretary of State to be exercised by one or more
25relevant bodies.

(2)In this section “relevant body” means—

(a)NHS England,

(b)an integrated care board,

(c)a local authority (within the meaning of section 2B),

(d)30a combined authority, or

(e)such other body as may be prescribed.

(3)Arrangements under this section may be made on such terms as may
be agreed between the parties including—

(a)terms as to payment;

(b)35terms prohibiting or restricting a relevant body from making
delegation arrangements in relation to a function that is
exercisable by it by virtue of arrangements under this section.

(4)In subsection (3)(b) “delegation arrangements” means arrangements
made by a person for the exercise of a function by someone else.

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(5)Any rights acquired, or liabilities (including liabilities in tort) incurred,
in respect of the exercise by a relevant body of any function by virtue of
this section are enforceable by or against that body (and no other
person).

(6)5The reference in subsection (1) to the public health functions of the
Secretary of State includes any functions of the Secretary of State
exercisable in connection with those functions (including the powers
conferred by section 12).”

37 Power of direction: public health functions

(1)10The National Health Service Act 2006 is amended as follows.

(2)After section 7A (inserted by section 36 of this Act) insert—

7B Directions requiring NHS bodies to exercise public health functions

(1)The Secretary of State may by direction provide for any of the public
health functions of the Secretary of State to be exercised by one or more
15relevant bodies.

(2)In this section “relevant body” means—

(a)NHS England, or

(b)an integrated care board.

(3)A direction under subsection (1) may include provision prohibiting or
20restricting the relevant body from making delegation arrangements in
relation to a function that is exercisable by it by virtue of the direction.

(4)In subsection (3) “delegation arrangements” means arrangements
made by a person for the exercise of a function by someone else.

(5)The Secretary of State may make payments to a relevant body in respect
25of the exercise by it of a function by virtue of a direction under
subsection (1).

(6)The Secretary of State may give directions to an integrated care board
as to the exercise by it of any functions by virtue of this section.

(7)For power to give directions to NHS England as to the exercise of
30functions, see section 13ZC.

(8)As soon as reasonably practicable after giving a direction under
subsection (1) or (6), the Secretary of State must publish it.

(9)Any rights acquired, or liabilities (including liabilities in tort) incurred,
in respect of the exercise by a relevant body of any function by virtue of
35this section are enforceable by or against it (and no other person).

(10)The reference in subsection (1) to the public health functions of the
Secretary of State includes any functions of the Secretary of State
exercisable in connection with those functions (including the powers
conferred by section 12).”

(3)40In section 73 (directions and regulations under Parts 1 and 2), in subsection (1),
after paragraph (a) insert—

(aa)section 7B,”.

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38 Power of direction: investigation functions

(1)The National Health Service Act 2006 is amended as follows.

(2)After section 7B (inserted by section 37 of this Act) insert—

7C Power of direction: investigation functions

(1)5The Secretary of State may direct—

(a)NHS England, or

(b)any other public body,

to exercise any of the investigation functions which are specified in the
direction.

(2)10A direction under subsection (1) may include provision prohibiting or
restricting the body directed from making delegation arrangements in
relation to a function that is exercisable by it by virtue of the direction.

(3)In subsection (2) “delegation arrangements” means arrangements
made by a person for the exercise of a function by someone else.

(4)15The Secretary of State may make payments to NHS England or any
other body in respect of the exercise by it of a function by virtue of a
direction under subsection (1).

(5)The Secretary of State may give directions to any body on whom
functions are conferred by virtue of subsection (1)(b) as to the exercise
20of those functions.

(6)For power to give directions to NHS England as to the exercise of
functions, see section 13ZC.

(7)As soon as reasonably practicable after giving a direction under
subsection (1) or (5), the Secretary of State must publish it.

(8)25Any rights acquired, or liabilities (including liabilities in tort) incurred,
in respect of the exercise by NHS England or any other body of any
function by virtue of this section are enforceable by or against it (and no
other person).

(9)In this section “the investigation functions” are functions which,
30immediately before the coming into force of section 31 of the Health
and Care Act 2021, were exercised by the Special Health Authority
called the National Health Service Trust Development Authority
pursuant to—

(a)the National Health Service Trust Development Authority
35(Healthcare Safety Investigation Branch) Directions 2016 made
under sections 7 and 8 of the National Health Service Act 2006,
or

(b)the National Health Service Trust Development Authority
(Healthcare Safety Investigation Branch) (Additional
40Investigatory Functions in respect of Maternity Cases)
Directions 2018 made under sections 7 and 8 of the National
Health Service Act 2006.

7D Transfer schemes in connection with a direction under section 7C

(1)The Secretary of State may, in connection with a direction under section
457C, make one or more transfer schemes.

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(2)A “transfer scheme” is a scheme for the transfer to NHS England or any
other public body of any property, rights or liabilities relating to the
discharge of functions pursuant to any directions made by the
Secretary of State under the power conferred by section 7C.

(3)5The things that may be transferred under a transfer scheme include—

(a)property, rights and liabilities that could not otherwise be
transferred;

(b)property acquired, and rights and liabilities arising, after the
making of the scheme;

(c)10criminal liabilities.

(4)A transfer scheme may—

(a)create rights, or impose liabilities, in relation to property or
rights transferred;

(b)make provision about the continuing effect of things done by, or
15on behalf of or in relation to the transferor in respect of anything
transferred;

(c)make provision about the continuation of things (including
legal proceedings) in the process of being done by, on behalf of
or in relation to the transferor in respect of anything transferred;

(d)20make provision for references to the transferor in an instrument
or other document in respect of anything transferred to be
treated as references to the transferee;

(e)make provision for the shared ownership or use of property;

(f)make provision which is the same as or similar to the TUPE
25regulations;

(g)make other consequential, supplementary, incidental or
transitional provision.

(5)A transfer scheme may provide—

(a)for modifications by agreement;

(b)30for modifications to have effect from the date when the original
scheme came into effect.

(6)In subsection (4)(f), “the TUPE regulations” means the Transfer of
Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/
246).

(7)35For the purposes of this section—

(a)references to right and liabilities include rights and liabilities
relating to a contract of employment;

(b)references to the transfer of property include the grant of a
lease.

(8)40For the purposes of subsection (7)(a)

(a)an individual who holds employment in the civil service of the
State is to be treated as employed by virtue of a contract of
employment, and

(b)the terms of the individual’s employment in the civil service are
45to be regarded as constituting the terms of the contract of
employment.

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7E Transfer schemes under section 7D: taxation

(1)The Treasury may by regulations make provision varying the way in
which a relevant tax has effect in relation to—

(a)anything transferred under a scheme under section 7D, or

(b)5anything done for the purposes of, or in relation to, a transfer
under such a scheme.

(2)The provision which may be made under subsection (1)(a) includes in
particular provision for—

(a)a tax provision not to apply, or to apply with modifications, in
10relation to anything transferred;

(b)anything transferred to be treated in a specified way for the
purposes of a tax provision;

(c)the Secretary of State to be required or permitted to determine,
or specify the method for determining, anything which needs to
15be determined for the purposes of any tax provision so far as
relating to anything transferred.

(3)The provision which may be made under subsection (1)(b) includes in
particular provision for—

(a)a tax provision not to apply, or to apply with modifications, in
20relation to anything done for the purposes of or in relation to the
transfer;

(b)anything done for the purposes of, or in relation to, the transfer
to have or not have a specified consequence or be treated in a
specified way;

(c)25the Secretary of State to be required or permitted to determine,
or specify the method for determining, anything which needs to
be determined for the purposes of any tax provision so far as
relating to anything done for the purposes of, or in relation to,
the transfer.

(4)30In this section references to the transfer of property include the grant of
a lease.

(5)In this section—

  • “relevant tax” means income tax, corporation tax, capital gains tax,
    value added tax, stamp duty or stamp duty reserve tax;
    35“tax provision” means a provision of an enactment about a
    relevant tax.”

(3)In section 73 (directions and regulations under Parts 1 and 2), in subsection (1),
after paragraph (aa) (inserted by section 37 of this Act) insert—

(ab)section 7C,”.

(4)40In section 272 (orders, regulations, rules and directions)—

(a)in subsection (4), after “subsections” insert “(4A),”, and

(b)after that subsection insert—

(4A)A statutory instrument containing regulations under section
7E(1) is subject to annulment in pursuance of a resolution of the
45House of Commons.”

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39 General power to direct NHS England

(1)The National Health Service Act 2006 is amended as follows.

(2)Before section 13Z1 (and the italic heading before it) insert—

“Powers of direction
13ZC 5Secretary of State directions as to exercise of NHS England functions

(1)The Secretary of State may give NHS England directions as to the
exercise of any of its functions.

(2)The directions that may be given include a direction as to whether a
power is to be exercised or not.

(3)10The directions that may be given include a direction as to—

(a)when or how a function is, or is not, to be exercised;

(b)conditions that must be met before a function is exercised (for
example, conditions relating to the provision of information,
consultation or approval);

(c)15matters to be taken into account in exercising a function.

(4)For exceptions to the power to give directions under subsection (1), see
section 13ZD.

(5)A direction under subsection (1) must include a statement that the
Secretary of State considers the direction to be in the public interest.

(6)20As soon as reasonably practicable after giving a direction under
subsection (1), the Secretary of State must publish it.

(7)The fact that the Secretary of State has a function under any other
enactment in relation to NHS England’s exercise of functions is not to
be read as limiting the power conferred by subsection (1).
25The reference in subsection (7) to a function of the Secretary of State
does not include a function of making subordinate legislation.

13ZD Power to give directions: exceptions

(1)A direction under section 13ZC may not be given in relation to a
function relating to the appointment or employment of a person.

(2)30A direction under section 13ZC may not be given in relation to a
decision about the services to be provided to a particular individual for
or in connection with the prevention, diagnosis or treatment of illness.

(3)A direction under section 13ZC may not be given in relation to the
provision of any drug, medicine or other treatment, or the use of any
35diagnostic technique, unless NICE has made a recommendation or
issued guidance as to its clinical and cost effectiveness and the direction
is not inconsistent with that recommendation or guidance.

13ZE Compliance with directions: significant failure

(1)This section applies where—

(a)40NHS England is given a direction under section 13ZC,

(b)the direction —

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(i)states that the Secretary of State considers that NHS
England is failing or has failed to discharge any of its
functions, and

(ii)states that the Secretary of State considers that the
5failure is significant and explains why,

(c)the direction states that it is given for the purposes of
addressing that failure, and

(d)NHS England fails to comply with the direction.

(2)The Secretary of State may—

(a)10discharge the functions to which the direction relates, or

(b)make arrangements for any other person to discharge them on
the Secretary of State’s behalf.

(3)Where the Secretary of State exercises the power under subsection (2),
the Secretary of State must publish the reasons for doing so.

(4)15For the purpose of this section—

(a)a failure to discharge a function includes a failure to discharge
it properly, and

(b)a failure to discharge a function properly includes a failure to
discharge it consistently with what the Secretary of State
20considers to be the interests of the health service.

13ZF Secretary of State directions to provide information

(1)The Secretary of State may direct NHS England to provide the Secretary
of State with any documents or other information that may be specified
in the direction.

(2)25The directions that may be given include a direction to provide
documents or other information that NHS England would need to
obtain from others in the exercise of some other power.

(3)The directions may include provision as to—

(a)the form or manner in which the documents or information
30must be provided;

(b)the time at which or period within which the documents or
information must be provided.”

(3)Omit section 13Z2 (failure to discharge functions) and the italic heading before
it.

(4)35In Schedule A1 (constitution of NHS England), omit paragraph 14 and the italic
heading before it.

40 Reconfiguration of services: intervention powers

(1)After section 68 of the National Health Service Act 2006 insert—

“Reconfiguration of NHS services
68A 40 Reconfiguration of NHS services

Schedule 10A confers intervention powers on the Secretary of State in
relation to the reconfiguration of NHS services.”

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(2)Schedule 6 inserts into the National Health Service Act 2006 a new Schedule
10A to that Act (intervention powers in relation to the reconfiguration of NHS
services).

NHS trusts

41 5NHS trusts in England

In the Health and Social Care Act 2012, omit section 179 (abolition of NHS
trusts in England).

42 Removal of power to appoint trust funds and trustees

In Schedule 4 to the National Health Service Act 2006, omit paragraph 10
10(power to appoint trustees for an NHS trust) and the italic heading before it.

43 Sections 41 and 42: consequential amendments

Schedule 7 contains amendments that are consequential on sections 41 and 42.

44 Licensing of NHS trusts

(1)In the National Health Service (Licence Exemptions, etc) Regulations 2013
15(S.I. 2013/2677), omit regulation 4 (which exempts NHS trusts in England from
the requirement to hold a licence).

(2)After section 87 of the Health and Social Care Act 2012 insert—

87A Application and grant: NHS trusts

(1)An NHS trust established under section 25 of the National Health
20Service Act 2006 is to be treated, on its establishment, as—

(a)having made an application for a licence under section 85, and

(b)having met the criteria for holding a licence for the time being
published under section 86.

(2)An NHS trust established under section 25 of the National Health
25Service Act 2006 before the day on which section 44(1) of the Health and
Care Act 2021 comes into force is to be treated, for the purposes of
subsection (1), as having been established on that day.”

45 NHS trusts: wider effect of decisions

After section 26 of the National Health Service Act 2006 insert—

26A 30 Duty to have regard to wider effect of decisions

(1)In making a decision about the exercise of its functions, an NHS trust
established under section 25 must have regard to all likely effects of the
decision in relation to—

(a)the health and well-being of the people of England;

(b)35the quality of services provided to individuals—

(i)by relevant bodies, or

(ii)in pursuance of arrangements made by relevant bodies,