3 Assessment of the draft Order
9. Our role is to assess whether the proposals meet
the statutory conditions required of an order under the Legislative
and Regulatory Reform Act 2006 (the "LRRA 2006"), and
to examine the proposals against a number of tests. Standing Order
No.141 sets out the criteria under which the Committee makes that
assessment. In this section we assess the draft Order against
those criteria.
A: APPEARS TO MAKE AN INAPPROPRIATE
USE OF DELEGATED LEGISLATION
10. The draft Order does not make an inappropriate
use of delegated legislation and therefore does not raise any
issues in respect of this test.
B: SERVES THE PURPOSE OF REMOVING
OR REDUCING A BURDEN, OR THE OVERALL BURDENS, RESULTING DIRECTLY
OR INDIRECTLY FOR ANY PERSON FROM ANY LEGISLATION (IN RESPECT
OF A DRAFT ORDER UNDER SECTION 1 OF THE ACT)
11. A burden is defined in section 1(3) of the LRRA
2006 as any of the following: a financial cost; an administrative
inconvenience; an obstacle to efficiency, productivity or profitability;
or a sanction, criminal or otherwise, which affects the carrying
on of any lawful activity.
12. For Proposal A, the Government's view is that
the current approach of establishing committees in common represents
an administrative inconvenience and an obstacle to efficiency,
productivity and value for money, and that enabling two or more
CCGs to exercise their functions jointly by way of a joint committee
would remove this burden.[8]
13. For Proposal B, the Government's view is that
it would enable CCGs and NHS England to respond more effectively
to future changes in the way that health services are configured,
and would remove an administrative inconvenience that is a barrier
to efficiency, productivity and value for money.[9]
14. We agree that the draft Order would reduce a
burden.
C: SERVES THE PURPOSE OF SECURING
THAT REGULATORY FUNCTIONS ARE EXERCISED SO AS TO COMPLY WITH THE
REGULATORY PRINCIPLES, AS SET OUT IN SECTION 2(3) OF THE ACT (IN
RESPECT OF A DRAFT ORDER UNDER SECTION 2 OF THE ACT)
15. The draft Order does not raise any issues in
respect of this test.
D: SECURES A POLICY OBJECTIVE WHICH
COULD NOT BE SATISFACTORILY SECURED BY NON-LEGISLATIVE MEANS
16. The Department confirms that CCGs are created
by statute and may only exercise the powers they are given. No
power has been given to CCGs to form joint committees when exercising
functions jointly with other CCGs.[10]
With respect to Proposal A, the Department states that some CCGs
have established committees in common in order to exercise joint
commissioning functions. Two CCGs which responded to the consultation
stated that this was an adequate arrangement and that legislative
changes were unnecessary. However, the Department explained that
the arrangements for committees in common required the creation
of delegation structures and separate ratification of decisions,
and so were cumbersome and a hindrance to effective joint commissioning
by CCGs.[11] Consultation
responses from CCGs which had used committees in common provided
examples of these difficulties.
17. With respect to Proposal B, there is currently
no legal provision for CCGs and NHS England to jointly exercise
a CCG function, or to create a joint committee when doing so.[12]
18. We agree that the proposed reforms are only possible
through legislation.
E: HAS AN EFFECT WHICH IS PROPORTIONATE
TO THE POLICY OBJECTIVE
19. In light of the further information supplied
by the Department at the request of the Committee, which is annexed
to this Report, we agree that the effect is proportionate to the
policy objective.
F: STRIKES A FAIR BALANCE BETWEEN
THE PUBLIC INTEREST AND THE INTERESTS OF ANY PERSON ADVERSELY
AFFECTED BY IT
20. In light of the information at paragraphs 4.19
and 4.20 of the Explanatory Document, we agree that this requirement
has been met.
G: DOES NOT REMOVE ANY NECESSARY
PROTECTION
21. For Proposal A, one CCG in its consultation response
raised concerns about possible loss of protection as a result
of the proposed changes, on the basis that:
- Joint committees would be able to take majority
decisions on behalf of their constituent CCGs and NHS England,
and so individual CCGs might find themselves accountable for implementing
policies that their members did not consider to be in the best
interests of the local population. Another CCG, which supported
the changes, also raised this concern; and
- The decisions of joint committees would be made
in private and so reduce the transparency of decision making.[13]
22. The Department explained that the amendments
proposed would enable a CCG to put in place appropriate governance
arrangements for any joint committee it created. The Department
states that pursuant to paragraph 1 of Schedule 1A to the 2006
Act as amended, a CCG must have a constitution which specifies,
amongst other matters, the arrangements it has made for the discharge
of its functions.[14]
These might include arrangements that would allow majority decision
making, but only if the CCGs involved agreed this was appropriate.[15]
With regard to the issue of transparency, the Department explained
that CCGs were subject to a number of provisions relating to transparency
of its proceedings, and that it would expect CCGs to make suitable
arrangements to ensure these duties were complied with when exercising
their functions jointly with other CCGs through a joint committee.[16]
23. In light of the further information provided
by the Department at the request of the Committee, we are satisfied
that the draft Order would not remove any necessary protection.
H: DOES NOT PREVENT ANY PERSON FROM
CONTINUING TO EXERCISE ANY RIGHT OR FREEDOM WHICH THAT PERSON
MIGHT REASONABLY EXPECT TO CONTINUE TO EXERCISE
24. The Explanatory Document includes information
relevant to this test at paragraphs 4.23-4. On the basis of that
information, we are satisfied that the draft Order does not raise
any issues in respect of this test.
I: IS NOT OF CONSTITUTIONAL SIGNIFICANCE
25. The Explanatory Document includes information
relevant to this test at paragraphs 4.25-4.26. The Department
confirms that the proposals are not of constitutional significance.
J: MAKES THE LAW MORE ACCESSIBLE
OR MORE EASILY UNDERSTOOD (IN THE CASE OF PROVISIONS RESTATING
ENACTMENTS)
26. The draft Order does not raise any issues in
respect of this test.
K: HAS BEEN THE SUBJECT OF, AND
TAKES APPROPRIATE ACCOUNT OF, ADEQUATE CONSULTATION
27. The Government conducted a consultation between
14 November 2013 and 7 January 2014, seeking views on the proposals
to enable (a) two or more CCGs to form a joint committee whilst
jointly exercising functions and (b) CCGs and NHS England to jointly
exercise CCG functions and to form a joint committee when doing
so.
28. The Department states that it was advised by
the Better Regulation Unit at the Department for Business and
Innovation and Skills that since the draft Order was seeking to
remove an administrative burden, it would be appropriate to conduct
a targeted consultation rather than a full public consultation.[17]
On that basis, the consultation documents were sent by email to
all 211 CCGs in England and to NHS England, the Local Government
Association, NHS Clinical Commissioners (the representative membership
body for CCGs) and the Welsh Assembly Government. 33 responses
were received.
29. A joint response from the Association of Directors
of Adult Social Services and the Local Government Association
fully supported the move towards greater service cohesion and
integration to meet local needs but recommended that any joint
arrangements be fully aligned with local Health and Wellbeing
Board geographical boundaries and strategies. We asked the Department
how it planned to respond to this point and it explained that:
We would […] expect CCGs when deciding to form
joint committees to ensure they participate fully in each Health
and Wellbeing Board where they fall wholly or partly within that
local authority area: and ensure their commissioning is informed
by the Joint health and Wellbeing Strategies of those local authorities.[18]
30. NHS Clinical Commissioners (the membership body
of CCGs) supported the proposed changes in the draft Order, but
asked the Department to provide reassurance that any joint working
arrangements would be subject to the agreement of the CCGs concerned;
that CCGs would not be forced to reconfigure as a result of the
new measures; and that CCGs would not be pushed into shared arrangements
with NHS England if it were not in their local interests to do
so. The Department stated that any arrangements for CCGs to exercise
functions jointly would be voluntary.[19]
It explained that NHS England had a duty under section 13F of
the 2006 Act to promote the autonomy of persons exercising functions
in relation to the health service and that "the wording of
the proposed amendment to section 14Z9 is designed to ensure that
a CCG function can only be jointly exercised with NHS England
where both parties are in agreement, thus preserving a CCG's autonomy".[20]
31. We are satisfied that the consultation requirement
has been met.
L: GIVES RISE TO AN ISSUE UNDER
SUCH CRITERIA FOR CONSIDERATION OF STATUTORY INSTRUMENTS LAID
DOWN IN PARAGRAPH (1) OF STANDING ORDER NO. 151 (STATUTORY INSTRUMENTS
(JOINT COMMITTEE)) AS ARE RELEVANT
32. The draft Order does not raise any issues in
respect of this test.
M: APPEARS TO BE INCOMPATIBLE WITH
ANY OBLIGATION RESULTING FROM MEMBERSHIP OF THE EUROPEAN UNION.
33. The draft Order does not raise any issues in
respect of this test.
34. We conclude that the draft Order meets
the required preconditions and tests.
8 Explanatory Document, paragraph 2.7 Back
9
Explanatory Document, paragraph 2.11 Back
10
Annex, Letter from the Department of Health to the Committee,
8 April 2014 (Q6) Back
11
Explanatory Document, paragraph 2.5 Back
12
Explanatory Document, paragraph 2.8 Back
13
Explanatory Document, paragraph 4.21 Back
14
Explanatory Document, paragraph 4.12 Back
15
See Annex, Letter from the Department of Health to the Committee,
8 April 2014 (Qq2,4,5) Back
16
See Annex, Letter from the Department of Health to the Committee,
8 April 2014 (Q4) Back
17
Explanatory Document, paragraph 4.1 Back
18
Annex, Letter from the Department of Health to the Committee,
8 April 2014 (Q3) Back
19
Explanatory Document, paragraph 4.6 Back
20
Explanatory Document, paragraph 3.6 Back
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