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Session 2003 - 04
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Health Protection Agency Bill [HL]


 

     THESE NOTES REFER TO THE HEALTH PROTECTION AGENCY BILL      AS BROUGHT FROM THE HOUSE OF LORDS ON 29 APRIL 2004 [BILL 99]      

HEALTH PROTECTION AGENCY BILL [HL]

     


     EXPLANATORY NOTES

INTRODUCTION

    1.     These explanatory notes relate to the Health Protection Agency Bill as brought from the House of Lords on 29 April 2004. They have been prepared by the Department of Health in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

    2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY AND BACKGROUND

3.     The purpose of the Bill is to establish the Health Protection Agency as a UK-wide non-departmental public body. The Agency will be able to undertake both health functions and radiation protection functions (including functions currently carried out by the Health Protection Agency Special Health Authority and the National Radiological Protection Board, both of which will be wound up). These more integrated arrangements are intended to improve the UK's ability to tackle the problems posed by infectious disease and other hazards, including the UK's response to chemical, biological, radiological and nuclear (CBRN) terrorism.

4.     The intention to create a Health Protection Agency with this range of functions was first announced in Getting Ahead of the Curve, the infectious disease strategy which was published by the Chief Medical Officer in January 2002. Further details of the Agency's proposed role in England, Wales and Northern Ireland were set out in Health Protection: A Consultation Document on creating a health protection agency (June 2002), and its role in Scotland was considered in Health Protection in Scotland: A Consultation Paper, issued by the Scottish Executive (November 2002).

[Bill 99—EN]     53/3

5.     The decision was announced in November 2002 to create the Agency:

    i)     from 1 April 2003, as a special health authority in England and Wales, which is able to carry out functions under the NHS Act 1977; and

    ii)     subsequently, when legislative time allows, as a non-departmental public body, which will be able to carry out a wider range of functions.

6.     Scottish Ministers announced on 29 October 2003 that they had decided that the Health Protection Agency should take responsibility for the functions which the National Radiological Protection Board currently carries out for the Scottish Executive, and should also be able to provide some other services for Scotland.

OVERVIEW

7.     The Bill has 13 clauses and 4 Schedules.

COMMENTARY

Clause 1: Health Protection Agency

8.     Clause 1 subsection (1) establishes the Health Protection Agency or in Welsh Yr Asiantaeth Diogelu Iechyd as a body corporate. (These names are already in use for the Health Protection Agency Special Health Authority, which will be wound up on the establishment of the non-departmental public body).

9.     Subsection (2) introduces Schedule 1, which makes detailed provisions on the constitution of the Agency. The Schedule includes provisions about the membership of the Agency, its status, the chief executive, general provisions about terms of appointment and disqualification for appointment, proceedings, staff, finance, annual report, the authentication of the Agency's seal and regulations.

Clause 2: Health Functions

10.     Clause 2 subsection (1) gives the Agency certain functions in the area of health protection. These are similar to those currently exercised by the Health Protection Agency Special Health Authority.

11.     Subsections (2) to (4) provide that the Secretary of State or the National Assembly for Wales, after consulting the other, may direct the Agency to take on other functions in relation to health. A similar flexibility already exists in relation to the Health Protection Agency Special Health Authority, although the only functions it can take on are functions under the National Health Service Act 1977 (c. 49). These provisions are included to provide future flexibility.

12.     Subsection (5) makes it clear that the giving of a direction under subsection (3) or (4) does not alienate the function from the appropriate authority.

13.     Subsection (6) exempts from the application of clause 2(1) functions of the Scottish Ministers and the Department of Health, Social Services and Public Safety in Northern Ireland. However the Scottish Ministers will be able to confer and remove their functions falling within subsection (1) on the Agency subject to the requirements and procedures described at subsections (7), (8) and (9). The Department in Northern Ireland will have similar powers as provided at subsections (10), (11) and (12).

Clause 3: Radiation Protection Functions

14.     Clause 3 subsection (1) gives the Agency certain functions in the area of radiation protection. These are similar to those currently given to the National Radiological Protection Board by the Radiological Protection Act 1970 (c.46), although they go wider than those functions in that the Health Protection Agency will also be able to undertake activities in relation to ultrasound.

15.     Subsection (2) allows the appropriate authority (as defined in clause 6) to direct the Agency to take responsibility for functions which are carried out at the date of commencement by the National Radiological Protection Board. The National Radiological Protection Board currently provides a secretariat for one advisory non-departmental public body (the Committee on Medical Aspects of Radiation in the Environment) and a support unit for another (the Administration of Radioactive Substances Advisory Committee). This power will make it possible to direct the Agency to take over those functions. The power is subject to prior consultation as provided for by subsection (6).

16.     Subsection (3) provides a power for the appropriate authority (as defined in clause 6) to direct the Agency to exercise additional radiation protection functions. The power is similar to that currently provided by section 1(6)(a) and (c) of the Radiological Protection Act 1970, under which the Secretary of State for Health is able to confer additional radiation protection functions on the National Radiological Protection Board. (Again, ultrasound is not excluded from the matters in which the Agency may undertake a role). The new power is a direction-making power, whereas the power in the 1970 Act is exercisable by order subject to the affirmative resolution procedure. Subsection (6) qualifies the power in subsection (3) by making it subject to prior consultation.

17.     Subsection (4) provides a power, similar to that currently provided by section 1(7A) of the Radiological Protection Act 1970. Under the old power Health Ministers (as defined in the 1970 Act) may direct the National Radiological Protection Board to enter into an agreement with the Health and Safety Commission for the Board to carry out on behalf of the Commission certain of the Commission's functions. The new power applies also in respect of an agreement with the Health and Safety Executive for Northern Ireland. The power is subject to prior consultation as provided for by subsection (6).

18.     Subsection (5) together with subsection (7) provide that the Agency must consult the Health and Safety Commission in relation to Great Britain or the Health and Safety Executive for Northern Ireland and have regard to those bodies' policies in exercising any function in which the Commission or the Executive has an interest. This is similar to the obligation currently placed on the National Radiological Protection Board by section 1(6A) of the Radiological Protection Act 1970.

19.     Subsection (8) makes it clear that the giving of a direction under subsection (2) or (3) does not alienate the function from the appropriate authority.

Clause 4: Functions: supplementary

20.     Clause 4 subsections (1)-(5) set out various powers, including the power to make charges, which the Agency may use in the exercise of its functions.

21.     Subsection (6) provides that the Agency must exercise its functions efficiently and cost-effectively.

22.     Subsection (7) gives the appropriate authority (defined in clause 6) the power to direct the Agency to have regard to aspects of the policy of the authority. Subsection (8) requires the Agency to comply with any such direction.

23.     Subsection (9) gives the appropriate authority (as defined in clause 6) the power, if it thinks that the Agency is to a significant extent failing to discharge any of its functions or failing to discharge any of its functions properly, to give the Agency such a direction as it thinks appropriate for remedying that failure. The power is subject to relevant consultation, described at subsection (13).

24.     Subsection (10) allows the appropriate authority (as defined in clause 6), instead of the Agency, to take such action as the authority thinks appropriate for remedying the failure, if the Agency fails to comply or unreasonably delays in complying with a direction under subsection (9).

25.     Subsection (11) ensures that a disclosure of information to or by the Agency is lawful where the Agency is carrying out a function pursuant to an arrangement under section 31 of the Health Act 1999 (c.8) (arrangements between NHS bodies and local authorities) or under section 15 of the Community Care and Health (Scotland) Act 2002 (asp 5), or where the Agency acts in accordance with its duty of co-operation in clause 5. However subsection (12) makes it clear that any such disclosure must not contravene the Data Protection Act 1998 (c. 29).

Clause 5: Co-operation

26.     Clause 5 puts the Agency and other bodies which exercise functions relating to the Agency's functions under a mutual duty of co-operation.

Clause 6: Appropriate authority

27.     Clause 6 identifies the authorities which have the power to direct the Agency, and the functions in relation to which they have that power.

Clause 7: Publication of information

28.     As proposed in the June 2002 consultation paper and supported by respondents who commented on this point, clause 7 gives the Agency a power to publish its advice and information. (The Health Protection Agency Special Health Authority has a similar power, under regulation 12 of the Health Protection Agency Special Health Authority (Yr Asiantaeth Diogelu Iechyd) Regulations 2003 S.I. 2003/506).

Clause 8: Transfer of property and staff etc.

29.     Clause 8 subsections (1) to (4) enable the Secretary of State to make one or more schemes for transferring property, rights and liabilities from the Agency's predecessor bodies to the Agency, subject to prior consultation of the relevant devolved administrations in each case. Subsections (5) and (6) enable the appropriate authority (defined in clause 6) to make such schemes in respect of relevant non-statutory bodies as defined: this power might be used, for example, if additional functions are conferred on the Agency by means of a direction or order made under the powers in clauses 2 and 3. Subsections (7) to (11) enable the appropriate authority to make a scheme to transfer rights and liabilities relating to relevant staff from the Agency, thereby ensuring that their continuity of employment is not broken, if a direction or order under clause 2 or 3 is varied or revoked. Subsection (12) introduces Schedule 2, which makes provision in relation to a scheme.

Clause 9: Directions

30.     Clause 9 makes provision for directions.

Clause 10: Health care provision: standards

31.     Clause 10 makes provision for the Agency to be treated in England and Wales as a body subject to standards set by the Secretary of State in relation to the provision of health care and to inspection by the Commission for Healthcare Audit and Inspection, under Chapters 2, 3 and 10 of Part 2 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43). Currently, the Health Protection Agency Special Health Authority is such a body.

Clause 11: Amendments and repeals

32.     Clause 11 introduces Schedules 3 and 4 which contain amendments to and repeals of existing legislation.

Clause 12: Commencement

33.     Clause 12 subsection (3) provides for one of the amendments in Schedule 3 to come into effect two months after Royal Assent. (This will enable the Secretary of State for Health to delegate the appointment of medical inspectors under the Immigration Act 1971 (c.77) to the National Assembly for Wales, in Wales, and to the Health Protection Agency Special Health Authority, in England). Subsections (1) and (2) provide for the remaining provisions of the Bill to be brought into effect by order made by statutory instrument on such day or days as the Secretary of State may appoint, subject to prior consultation with those specified in subsection (4). Subsections (5) to (9) provide order making powers subject to the procedures described for an appropriate authority to make provision in consequence of the coming into effect of the Act.

ESTIMATE OF PUBLIC SECTOR FINANCIAL EFFECTS AND PUBLIC SECTOR MANPOWER EFFECTS

34.     The Bill does not entail additional public expenditure or changes to public service manpower. (The staff and budgets which will transfer to the Agency on its creation as a non-departmental public body will be those which currently rest with the Health Protection Agency Special Health Authority and the National Radiological Protection Board). There are some transitional costs involved in widening the powers of the Health Protection Agency Special Health Authority, which will be met from the resources available to the Department of Health and the NHS. There are no tax implications.

REGULATORY IMPACT ASSESSMENT

35.     A copy of the full Regulatory Impact Assessment of the costs and benefits that this Bill would have is available to the public from www.doh.gov.uk/regulatoryimpact/index.htm or contact Ben Cole, Room 601A, Skipton House, 80 London Road, Elephant and Castle, LONDON SE1 6LH, email: Ben.Cole@doh.gsi.gov.uk, telephone 020 7972 5089.

36.     In general, the changes will not affect charities, voluntary organisations or business, except those which are currently suppliers or customers of the National Radiological Protection Board. Arrangements will be made, for example to ensure the smooth transfer of contracts to the Agency where appropriate. No impact on small business has been identified.

EUROPEAN CONVENTION ON HUMAN RIGHTS

37.     The department does not consider that the provisions of the Bill give rise to any Convention issues.

38.     The Parliamentary Joint Committee on Human Rights responded to the consultation on the establishment of the Agency. It drew attention to the contribution of the bodies whose functions are to be taken over by the Agency to the discharge by the UK of positive obligations under Articles 2 (right to life), 3 (prohibition of torture) and 8 (right to respect for private and family life) of the ECHR to take reasonable steps to protect people against threats to public health where they give rise to a risk of death, serious illness or injury, or to a threat to a person's home and private life. If there are such positive obligations, the Department believes that the establishment of the Agency will assist the UK to meet the obligations.

39.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before second reading. The Secretary of State has made the following statement:

         In my view the provisions of the Health Protection Agency Bill are compatible with the Convention rights.

 
 
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Prepared: 10 May 2004