1.The Committee has asked the Department for Health and Social Care for a memorandum on the following point:
Given that the preamble cites section 7(1C) of the National Health Service Act 2006 as an enabling power, explain why the affirmative procedure was not used (section 272(6) of the Act)?
2.The Department considers that section 7(1C) of the National Health Service Act 2006, which relates to conferring additional functions on Special Health Authorities, has been cited in error—and apologises for doing so.
3.The relevant provision of the Regulations—regulation 15, which inserts regulation 18A of the National Health Service (Charges for Drugs and Appliances) Regulations 2015 (S.I. 2015/570, as amended)—is in fact made under section 272(8)(a) of the 2006 Act.
4.Section 272(8)(a), in so far as it is relevant, relates to the making of incidental, supplementary or consequential provision. The Department’s view is that the new regulation 18A makes incidental provision, facilitating the discharge of existing functions, rather than adding new functions.
5.The main importance of the new regulation 18A, for present purposes, is how it affects the data handling activities of the National Health Service Business Services Authority (NHS BSA), which is a Special Health Authority. The rationale for the new regulation 18A is described in the following terms in paragraph 7.10 of the Explanatory Memorandum:
Providing statutory authority for this processing places existing arrangements on a secure statutory footing, within the terms of the Data Protection Act 2018, and the new statutory gateway will also ensure that staff processing prescription data have an appropriate confidentiality obligation. (emphasis added).
6.The essential intention of the new regulation 18A is therefore, as the Department made clear, to deal with existing functions of NHS BSA and others. The existing functions in question are those set out in the new regulation 18A(4), but summarised in paragraph 7.9 of the Explanatory Memorandum as:
7.The Department’s view, accordingly, is that the new regulation 18A is properly characterised as an incidental measure having been made under section 272(8)(a)—and it contains no “additional functions” for the NHS BSA, within the meaning of section 7(1C), as that provision should be fairly and reasonably understood.
Department of Health and Social Care
27 November 2018
Published: 7 December 2018