Clause 57:     Commission to exercise Privy Council's appointments functions

235.     Subsection (1) provides for the Appointments Commission to exercise the functions of the Privy Council to appoint members to the health regulatory bodies listed in Schedule 6 when and to the extent directed by the Privy Council.

236.     Subsection (2) provides for the Appointments Commission to exercise any function of the Privy Council relating to the appointment of members of the Council of the Royal Pharmaceutical Society of Great Britain.

237.     There are various minor consequential amendments to the legislation relating to these regulatory bodies in Schedules 8 and 9.

Clause 58:     Commission to exercise Assembly's appointment functions

238.     Clause 58 enables the National Assembly for Wales to direct the Appointments Commission to exercise its appointment functions relating to the appointment of members to the Healthcare Commission and the Health Protection Agency. There are consequential amendments to Schedule 6 to the 2003 Act and Schedule 1 to the Health Protection Agency Act 2004 in Schedule 8, and repeals in Schedule 9, to the Bill.

Clause 59:     Exercise of appointments functions

239.     Clause 59 provides that where directions are issued to the Appointments Commission by the Secretary of State, the Privy Council or the National Assembly for Wales in relation to their appointment functions referred to in clauses 55, 57 and 58, the Appointments Commission may exercise the functions it is directed to perform in such manner as it thinks fit subject to the provisions in any enactments which relate to the making of the appointments and anything contained in the directions relating to the manner in which the function is to be exercised. This includes those matters specified in subsection (5), and there is also a requirement to have regard to any guidance published by the Commissioner for Public Appointments or any government department, which is intended to ensure the Appointments Commission complies with best practice in relation to public appointments.

Clause 60:     Commission to assist other bodies with appointments

240.     Subsections (1) and (2) enable the Appointments Commission to enter into an arrangement with the board of governors of an NHS Foundation Trust to assist it with its functions relating to the appointment of chairmen and non-executive members of the board under paragraphs 17 and 19 of Schedule 1 to the 2003 Act to such extent as may be agreed. This provision does not enable arrangements to be made so that the Appointments Commission actually makes the appointment itself. That function is exercised by the board of the Foundation Trust.

241.     Subsections (3) and (4) enable the Appointments Commission to enter into arrangements to assist any Minister or any official acting on behalf of the Minister with his appointment powers relating to the appointment of the chairmen and non-executive members of any body to which the powers relate. This provision is limited to the Minister's powers in connection with his appointment functions for England. The Minister retains the power to make the appointments.

242.     Subsection (5) provides that any body to which the powers in subsections (3) and (4) relate may be a body with functions that are exercisable more widely than only in England.

243.     Subsection (6) limits the arrangements that a Minister may make with the Appointments Commission to assist with his appointment powers under subsection (4) to those powers that he may exercise alone and excludes any such powers that he may exercise jointly, concurrently or after consultation with a devolved administration or any other person who is not a Minister.

244.     Subsection (7) provides that the arrangements may be contractual or otherwise and cannot include arrangements to make appointments.

Clause 61:     Functions connected with appointments to bodies to which sections 55 or 57 applies

245.     Clause 61 allows the Appointments Commission to provide a range of additional services connected with appointments when it is directed to exercise appointment functions under clause 55 or 57 or when it makes arrangements under clause 60. These services include the giving of general advice, mentoring and other assistance and the provision of training to specified people.

Clause 62:     Prescribed functions

246.     Clause 62 provides that the Secretary of State may make regulations to confer additional functions on the Appointments Commission relating to appointments to bodies to which appointments may be made under clauses 55, 57 or 58 or to those to which assistance may be given as provided in clause 60.

247.     Subsection (2) includes some of the functions envisaged such as administering schemes in relation to the payment of remuneration and allowances to chairmen and non-executive members of specified boards.

Clause 63:     Exercise of functions

248.     This clause outlines the standards the Appointments Commission must maintain in the exercise of its functions and contains provisions about other things the Appointments Commission may do in connection with the exercise of its functions.

249.     Subsection (2) permits the Appointments Commission to engage in research, to obtain and analyse data, make available materials and facilities and provide information, advice and guidance generally and more specifically as provided in subsection (3) in relation to bodies to which appointments may be made under clauses 55, 57 or 58 or to those in relation to which assistance may be given as provided in clause 60.

250.     Subsection (d) enables the Appointments Commission to make material available for sale (otherwise than for profit) for use in connection with appointments to those bodies it may be directed to make appointments to or provide assistance to in connection with appointments. The Appointments Commission will be covered by the Data Protection Act 1998, and all powers exercisable under this section must be exercised subject to the restrictions of that Act.

Clause 64:     Annual reports

251.     Clause 64 requires the Appointments Commission to prepare an Annual Report at the end of each financial year and sets out specific requirements which must be met.

Clause 65:     Other reports and information

252.     Clause 65 requires the Appointments Commission to provide the Secretary of State, the Privy Council, the Commissioner for Public Appointments or any government department with such information or reports in connection with their functions as they may request.

253.     Subsection (2) requires the Appointments Commission to provide information to the National Assembly for Wales in connection with appointments to the bodies specified in clause 58 as it may request.

254.     Subsections (3) and (4) require the Appointments Commission to provide information to any of the bodies for which it has been directed to exercise appointments functions under clauses 55, 57 or 58, or to whom it is providing assistance with appointments functions under clause 60.

Clause 66:     Transfer of staff and property etc

255.     Clause 66 refers to Schedule 7, in which provision is made for the transfer of the staff, property, rights, and liabilities of the NHSAC to the Appointments Commission on the date to be appointed by the Secretary of State for the abolition of the NHSAC.

Clause 67:     Directions

256.     Subsection (1) provides that any direction given by the Secretary of State, the Privy Council or the National Assembly for Wales is to be given in writing and may be varied or revoked by another direction.

257.     Subsection (2) provides that where the Secretary of State, the Privy Council or the National Assembly for Wales has directed the Appointments Commission to exercise their appointments functions this does not preclude them from exercising those powers themselves.

Clause 68:     Interpretation

258.     This clause defines the terms used within Part 5.

259.     The definition of 'appointment' includes removal or suspension from office and includes any process involving an appointment and nominations for posts; and a "devolved authority" means the Scottish Ministers, the National Assembly for Wales and any Northern Ireland department.

PART 6

SOCIAL CARE BURSARY

Clause 69:     Exercise by the Special Health Authority of social care training functions

260.     The purpose of Clause 69 is to extend the powers of the Secretary of State to direct a Special Health Authority to enable it to carry out a function that relates to the training of social care workers.

261.     Clause 69 inserts a new section, 67A, after section 67 of the Care Standards Act 2000 to enable the Secretary of State to direct a Special Health Authority to administer such of his functions under section 67(4)(a) of the 2000 Act in relation to the social care bursary scheme as he may specify. These functions relate to the payment of grants, and travelling and other allowances to persons training in the work of social care workers.

262.     Subsection (2) in effect extends the Secretary of State's direction making power, under section 16D of the 1977 NHS Act, to enable him to direct a Special Health Authority for this purpose. It provides that a direction under new section 67A has effect as if it had been made under section 16D.

263.     Subsection (3) sets out that any directions made by the Secretary of State under section 67A are to be in writing and may be varied or revoked by further directions.

NHS COSTS RECOVERY

Clause 70:     NHS Costs Recovery

264.     Clause 70 amends section 153 of the Health and Social Care (Community Health and Standards) Act 2003 by substituting new wording for subsection (9) of that section. The substitution changes the meaning of "qualifying claim" for the purposes of subsection 153(10) of the 2003 Act so that it no longer refers solely to claims settled by mediation, but to any claim other than those identified in subsection (3) of section 153 or described in regulations. This will allow contributory negligence to be taken into account in cases where the primary claim is settled by a wide range of alternative dispute resolution mechanisms, rather than only where it has been settled by mediation.

TRANSFER OF CRIMINAL LIABILITY

Clause 71:     Transfer of criminal liabilities of certain NHS bodies

265.     The purpose of clause 71 is to address a lacuna which arose from the case of R v The Pennine Acute Hospitals NHS Trust formerly Rochdale Health Care NHS Trust 2003. In that case, the Court of Appeal held that the general power in paragraph 30 of Schedule 2 to the NHS and Community Care Act 1990 to transfer property, rights and liabilities on the dissolution of an NHS trust did not include the power to transfer criminal liabilities. The policy of the Department is that there should be a power to transfer the criminal liabilities of NHS bodies on their dissolution or abolition to other NHS bodies so that accountability for criminal offences committed by any such bodies can be retained within the NHS and will not wither away. Clause 71, therefore, gives the Secretary of State for Health the power to transfer the criminal liabilities of any English NHS body on its abolition or dissolution to another specified English NHS body and the National Assembly for Wales the power to transfer the criminal liabilities of a Welsh Special Health Authority, a Local Health Board and a Welsh NHS Trust on its abolition or dissolution to another specified Welsh NHS body.

266.     Subsection (1) amends the NHS Act 1977 to provide the power to transfer the criminal liabilities of a Strategic Health Authority on its abolition to another Strategic Health Authority, a Special Health Authority, a Primary Care Trust, an NHS trust and an NHS foundation trust.

267.     Subsection (2) amends the NHS Act 1977 to provide the power to transfer the criminal liabilities of a Special Health Authority on its abolition to another Special Health Authority, a Strategic Health Authority, a Primary Care Trust, a Local Health Board, an NHS trust and a NHS foundation trust.

268.     Subsection (3) amends the NHS Act 1977 to provide the power to transfer the criminal liabilities of a Primary Care Trust on its dissolution to another Primary Care Trust, a Strategic Health Authority, a Special Health Authority, an NHS trust and an NHS foundation trust. Subsection (4) amends the NHS Act 1977 to provide the power to transfer the criminal liabilities of a Local Health Board on its dissolution to another Local Health Board.

269.     Subsection (5) amends the National Health Service and Community Care Act 1990 to provide the power to transfer the criminal liabilities of an NHS Trust on its dissolution to another NHS trust, a Strategic Health Authority, a Special Health Authority, a Primary Care Trust, a Local Health Board and an NHS foundation trust.

270.     Subsection (6) amends the 2003 Act to provide the power to transfer the criminal liabilities of an NHS Foundation Trust on its dissolution to another NHS foundation trust, a Primary Care Trust and an NHS trust.

271.     Subsection (7) amends section 28 of the 2003 Act. Section 28 of the 2003 Act is a supplementary section to section 27 of the same Act regarding the merger of one NHS Foundation Trust with another NHS Foundation Trust or NHS Trust. The effect of the amendment is threefold. Firstly, it places a requirement on the applicant to set out in the application to the independent regulator of foundation trusts for authorisation to merge which criminal liabilities it proposes should transfer to the new NHS foundation trust. Secondly, where an authorisation for a merger is given, it places a requirement on the independent regulator of foundation trusts to specify the criminal liabilities to be transferred to the new NHS foundation trust and on the Secretary of State to make an order transferring those specified criminal liabilities to the new NHS foundation trust. Thirdly, it gives the Secretary of State the power to transfer any remaining criminal liabilities by order to another NHS foundation trust, a Primary Care Trust or an NHS trust.

PART 7

FINAL PROVISIONS

Clause 72: Offences by bodies corporate etc.

272.     Clause 72 clause provides that if an offence under any provision of the Bill is committed by a body corporate (e.g. a company), a partnership or some other unincorporated body, and it is proved that the offence was committed with the consent or connivance of an officer of the company, or of a partner in the case of the partnership, or of an officer or member of the unincorporated association, then that individual is guilty of the offence too. Proceedings can therefore be brought against that individual as well as against the company etc.

273.     Such an individual is similarly liable if the offence is proved to be attributable to any neglect on their part.

Clause 73: Offences committed by partnerships and other unincorporated associations

274.     Clause 73 contains provisions regarding certain procedural matters where criminal proceedings are brought against partnerships or other unincorporated associations. First, subsections (1) and (2) provide that proceedings are to be brought against the partnership (and not individual partners) or, in the case of an unincorporated association, against the association (and not any of the individual members). However, subsection (7) makes it clear that these provisions do not prejudice the liability of such individuals under clause 72. Secondly, subsections (3) and (4) provide that the rules of court applicable to a body corporate shall apply to a partnership or an unincorporated association. Thirdly, subsections (5) and (6) provide for fines to be paid out of partnership assets or the funds of the association.

Clause 74: Penalties for offences: transitional modification for England and Wales

275.     Certain offences under this Bill may be punished, on summary conviction, by terms of imprisonment, up to given maximum periods, These are the maximum periods permitted under the provisions of the Criminal Justice Act 2003. Clause 74 provides that where the offence concerned was committed prior to the commencement of those provisions in the Criminal Justice Act 2003, the maximum possible period of imprisonment on summary conviction shall be the (shorter) maximum period that was previously possible.

Clause 75: Orders and regulations

276.     Clause 75 provides that all regulation and order making powers will be subject to the negative resolution procedure, unless subsection (4) applies or the order is a commencement order under clause 79.

277.     Subsection (3) lists those orders and regulations which will be subject to greater Parliamentary scrutiny than the negative resolution procedure provides for. The orders and regulations, which will be subject to the affirmative resolution procedure, are as follows:

• regulations to specify the exemptions (cluse 3), designate additional smoke-free places (clause 4), standard scale of fine for the offences of failing to display no smoking signs (clause 6(8)), of smoking in a smoke-free place (clause 7(5)) and of failing, if controlling or concerned with the management of a smoke-fee place, to stop a person from smoking there (clause 9(6));
  
• regulations to make provision for or in connection with accountable officers (controlled drugs) where such provision would have the effect of amending or repealing any provision of an Act or of an Act of the Scottish Parliament (clause 16);
  
• an order amending the provisions of clause 42(2) to (6), which define the meanings of "NHS Body", "health service provider", "NHS contractor" and "statutory health body" for the purposes of the provisions relating to the protection of the NHS from fraud etc, and making such consequential amendments to these "counter fraud" provisions as are considered appropriate (clause 42(7));
  
• an order making supplemental or other provision for the purposes of or in consequence of the Act, or to give full effect to it, where such provision would amend or repeal any provision of an Act or of an Act of the Scottish Parliament (clause 76(3));
  
• regulations specifying the level of financial penalty (and discount for early payment) payable under a fixed penalty notice issued for a smoking related offence (paragraphs 5 or 8 of Schedule 1).

Clause 76: Amendments, repeals and revocations

278.     Clause 76 makes provision in respect of amendments, repeals and revocations.

Clause 77: Expenses

279.     Clause 77 makes provision for expenditure incurred under or attributable to the provisions of the Bill to be paid out of money provided by Parliament.

Clause 78: Interpretation

280.     Clause 78 makes provision regarding the interpretation of certain terms.

Clause 79: Commencement

281.     Clause 79 makes provision for the coming into force of the provisions of the Bill.

Clause 80: Short title and extent

282.     Clause 80 makes provision as to the short title and as to the extent of the provisions of the Bill. Clause 80(5) concerns the provisions of Chapter 2 of Part 3 of the Act, which amend provisions of the Medicines Act 1968 relating to pharmacies, pharmacists and retail supply of medicines. Section 109 of the Medicines Act provides that enforcement of the provisions of the Act in Scotland is the responsibility of the Secretary of State. Those enforcement functions have been transferred to the Scottish Ministers by the Scotland Act 1988 (Transfer of Functions to the Scottish Ministers etc) Order 1999. Clause 80(5) modifies the effect of the Order, so that the function of enforcing the new provisions of the Medicines Act relating to pharmacies does not transfer to the Scottish Ministers. Responsibility for enforcing the new provisions would therefore remain with the Secretary of State.

FINANCIAL EFFECTS

283.     There are financial implications for three of the provisions contained in the Bill. Details of these as well as information on the Appointments Commission are given below.

Smoke-free Provisions

284.     The estimated costs to the public sector of the smoke-free provisions in the Bill can be broken down as follows:

• Enforcement - costs to local authorities of between £7 and £20 million per annum. These costs will be met from existing Department of Health budgets.
  
• Falling cigarette sales - revenue losses to the Exchequer of between £859 and £972 million per annum.
  
• Education/communication - £1 million per annum, to be met from existing budgets.

285.     It is also estimated that between £40 and 100 million per annum of NHS expenditure will be saved through reduced smoking prevalence. There will also be considerable benefits for public health, estimated to be worth between £2,321 and £2,601 million per annum in averted deaths.

Health Care Associated Infections

286.     The estimated costs to the NHS of the provisions in the Bill to tackle health care associated infection can be broken down as follows:

• Additional investment in infection control - £50 million per annum.
  
• Additional spending on Trust cleanliness - £4 million per annum.
  
• Regulatory burden on the NHS - £34 million per annum.

287.     There will also be estimated additional costs to the Healthcare Commission of £3.3 million per annum. All these costs will be met from existing budgets.

Controlled Drugs

288.     It is estimated that the proposed new arrangements for monitoring and inspecting the use of controlled drugs as detailed in the Bill will have set-up costs to the NHS of £1 million, and running costs of £4 million per annum. These costs will be met from existing budgets.

Appointments Commission

289.     These provisions set up the Appointments Commission as a new non-departmental public body. This will be funded from existing budgets currently used to fund the NHS Appointment Commission, which will be abolished by these provisions.

PUBLIC SERVICE MANPOWER

290.     It is proposed that local enforcement officers dealing with smoke-free enclosed public places and workplaces. Based on consultation response we estimate this might be between 220 and 318 enforcement staff initially, tailing off as legislation becomes embedded.

291.     These provisions set up the Appointments Commission as a new non-departmental public body. This will be staffed by staff currently employed by the NHS Appointment Commission, which will be abolished by these provisions.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

292.     The Partial Regulatory Impact Assessment can be found at www.dh.gov.uk/actsandbills. Two elements of the Bill are considered to have the greatest potential impact on charities, business, the voluntary sector or the public sector. These are the proposals on smoke-free public places and workplaces and on the prevention and control of healthcare associated infections. Other elements will have less significant impacts.

COMMENCEMENT DATE

293.     The commencement clause (clause 79) provides that the Bill, with certain exceptions, will come into force on a day appointed by order by the Secretary of State. The exceptions to that provision are as follows.

294.     The following provisions will come into force on the day on which the Bill is passed:

• clause 71,
  
• clauses 75, 76(3) and (4), 77, 78, 79 and 80, and
  
• Paragraphs 36, 51 and 52 of Schedule 8 and clause 76(1) so far as relating to those paragraphs.

295.     Part 5 comes into force on such day as the Secretary of State, after consultation with the National Assembly for Wales, may by order appoint.

296.     Part 1 comes into force on such day as the appropriate national authority may by order appoint.

297.     The following provisions come into force on such day as the Scottish Ministers may by order appoint:

• clause 33(2);
  
• so far as extending to Scotland, clause 70 and paragraph 53 of Schedule 8, and
  
• clause 76(1) so far as it relates to paragraph 53 of Schedule 8 (so far as it so extends).

298.     The following provisions come into force in relation to Wales on such day as the National Assembly for Wales may by order appoint:

• Part 1 and clauses 72 and 73, so far as relating to offences under that Part, and
  
• Paragraphs 24(a) and 43 of Schedule 8 and clause 76(1), so far as relating to those paragraphs.

299.     The following provisions come into force on such day as the National Assembly for Wales may by order appoint:

• Chapter 1 of Part 3 and clauses 72 to 74 so far as relating to the Assembly's functions under that Chapter or to offences committed in relation to those functions;
  
• Chapter 1 of Part 4 so far as relating to the Assembly's functions under clauses 42 and 42B of the National Health Act 1977;
  
• Chapter 3 of Part 4 and clauses 72 to 74 so far as relating to the Assembly's counter fraud functions in relation to the health service in Wales or to offences committed in relation to those functions;
  
• clause 53 and Schedule 3 so far as relating to Welsh NHS bodies;
  
• paragraphs 42 and 60 of Schedule 8;
  
• Schedule 9 so far as it repeals provisions of the Public Audit (Wales) Act 2004, and
  
• clause 76(1) and (2) so far as relating to these provisions in Schedule 8 and 9.

300.     The following provisions come into force on such day as the Department of Health, Social Services and Public Safety may by order appoint:

• Chapter1 of Part 3 so far as relating to the functions of the Department of Health, Social Services and Public Safety under that Chapter, and
  
• Clauses 72 and 73 so far as relating to offences committed in relation to those functions.