Select Committee on Delegated Powers and Deregulation Sixth Report



1.  The bill provides for payments to be made to the NHS by those who have paid compensation in respect of injuries or deaths caused by road traffic accidents where the victims received NHS treatment. While the bill contains many delegated powers, it is not a skeleton bill and the powers are all subordinate to the substantive provisions of the bill. Apart from the commencement power, all powers are subject to negative procedure (clause 16(2)(c)), which the Committee considers appropriate in each case.


2.  While a number of clauses create specific powers to make regulations (eg. clause 13(4)), it is simpler to regard all the powers to make regulations as one power - they are all made by the Secretary of State and subject to the same procedure (negative). There are a number of references to "prescribed" matters and that term is defined in clause 17 as prescribed by regulations. This formula increases the scope of the general regulation making power.

    3.  The provisions which determine the extent of the regulation making power are:-

    clause 1(5) (power to provide that a prescribed description of payment made in connection with a traffic accident is not to attract a requirement to make a payment to the NHS);

    clause 2(10) (prescribed procedure for obtaining certificates of NHS charges);

    clause 3(2), (4), (5) and (6) (determination of amount to be specified in certificate and particulars to be included in certificate);

    clause 6(1)(a) (prescribing the time limits within which or the circumstance in which the Secretary of State may review a certificate);

    clause 7(4) (regulations as to time limits etc. for appeals against a certificate);

    clause 8(5) (regulations may provide for the non-disclosure of medical evidence provided for an appeal):

    clause 8(6)(b) and (7) (establishing an appeal tribunal for Scotland and providing the procedure it is to adopt);

    clause 9(1) (conferring a right of appeal to the High Court on a point of law arising from a decision on an appeal under clause 8);

    clause 10 (procedure where appeal establishes that there has been an under-payment or an over-payment);

    clause 11(2) and (5) (prescribing the information which must be provided under the clause);

    clause 11(3) (prescribing the meaning of the terms "claim" and "person against whom the claim is made" used in the clause);

    clause 11(4) (procedure for giving information under the clause);

    clause 13(4) (procedure for payments to hospitals of monies receive by the Secretary of State under the bill);

    clause 14(1) and (2) (regulations governing payments into court, etc.);

    clause 15 (application of bill to military hospitals); and

    clause 16(2) (general extension of powers to cover incidental matters, etc.).

4.  Clause 8(7) allows regulations to provide the constitution of an appeal tribunal for Scotland and to establish its procedure. This is clearly of greater importance than the other powers but the Committee considers that it is not necessary for the tribunal's constitution to be set out in the bill, and that the negative procedure provided for is appropriate.

5.  Clause 9(1) raises the question why it is necessary to leave it to regulations to establish an appeal to the High Court when clause 9(2) creates a right of appeal to the Court of Session. The Department's memorandum[1] throws no light on this but states that the regulations will be used to make clear who has the right of appeal. There is no similar provision for Scotland, and the Committee is not persuaded that the right of appeal in England and Wales should be conferred by regulations. The House may wish to seek an explanation of this point from the Minister during the Committee stage of the Bill.


6.  There is power in clause 20 to make transitional provision by order. The need for this power is justified in the memorandum on the grounds that "in cases where appeals against NHS charges are made before the changes to the tribunals are completed there will be access to the tribunals as they are currently constituted."[2] The power is subject to negative procedure, which the Committee considers appropriate.


7.  Apart from the Committee's comments on clause 9(1), there is nothing in this bill to which the Committee wishes to draw the attention of the House.

1   Paragraph 24. Back

2   Explanatory memorandum, paragraph 33. Back

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