Select Committee on Delegated Powers and Deregulation Seventh Report



160.  Clause 47 provides for Her Majesty by Order in Council to make provision modifying the regulation of the health care professions to which subclause (2) applies or regulating the health care professions to which subclause (3) applies. This includes repealing, amending or replacing any enactment or prerogative instrument, or other instrument or document.

161.  Paragraph 1 of Schedule 3 provides an illustration of the matters about which an Order may make provision. These include the establishment of regulatory bodies, the keeping of a register, education and training of members of the profession, procedures relating to discipline and fitness to practice.

162.  The enactments that currently regulate the health professions make detailed provisions which, with very few exceptions, may only be changed by means of primary legislation. It has hitherto not proved possible to make amendments as promptly as would be desirable. In the Government's view therefore there is a need for a mechanism to enable the legislation governing the professions to be kept up to date. The Order-making power would enable the Government to be more responsive to changing public expectations of the professions and the professions' own views about the development of their regulation. It will enable new responsibilities to be given to existing bodies or new professional regulatory bodies to be established to carry out new or existing regulatory responsibilities.

163.  Many of the Acts strike a different balance between primary and secondary legislation from that which might be thought more appropriate today, having very detailed procedural and administrative provisions on the face of the Act. There is no common approach across all the professions on many matters. For instance, Schedule 1 to the Dentist Act 1984 stipulates that there shall be six members of the General Dental Council (GDC) who are not registered dentists. The GDC wishes to increase lay involvement, which will therefore require amendment to the primary legislation. This is in contrast to the position under the Medical Act 1983 which gives the General Medical Council powers to make regulations about the constitution of its membership. In the Government's view it is desirable to have the ability to make changes to such provisions without the need for an Act of Parliament whilst strengthening the arrangements for consultation of interested parties and maintaining an appropriate level of Parliamentary scrutiny.

164.  The independent review of the Professions Supplementary to Medicine Act 1960, which reported in July 1996, concluded that completely new legislation is needed to streamline existing arrangements. The Government broadly accepted the key recommendations of the review. It is intended that the Order making power be used to replace the regulatory framework of the 1960 Act at the same time as it is repealed under clause 47(4).

165.  The Government will soon be publishing the results of the independent review into the Nurses Midwives and Health Visitors Act 1997. It is intended that the Order making power would be used to implement many of the report's recommendations. However, if it is concluded that the Act should be repealed, this would be put on the face of the Bill.

166.  Ministers have been asked to make changes that require amendments to the law. In addition to the implementation of the review of the 1960 Act, the professional regulatory bodies have proposed changes to allow greater lay representation, mandatory continued postgraduate education, professional performance procedures, amongst other matters. It is anticipated that the majority of the changes made by these Orders will be at the request of the professions.

167.  Clause 47 also enables the Secretary of State to make statutory provisions covering health professions not currently regulated by statute. It will enable provision to be made, for example, for the registration of individual practitioners, disciplinary and health procedures, protection of common title and the making of a link between remaining on the register and demonstration of continued competence. A number of health professions have expressed a wish for such statutory provisions.

168.  Some of those professions will be content to be included under a new health professions' council, which would replace the Council for Professions Supplementary to Medicine. Others may wish to have a separate regulatory framework, for instance by the establishment of a free-standing regulatory scheme or the conferral of statutory powers on an existing body which governs the profession.

169.  In order to make the kind of changes proposed, the Order-making power needs to be of sufficient scope. However, Schedule 3 sets some important limits on the power:

    paragraph 2(2)(a) provides that an Order setting up a replacement for the 1960 Act should not make provision for the professions covered by existing single professions' Councils

    paragraph 6 places limits on the ability of the power to create criminal offences to those where the maximum punishment on summary conviction is a fine at level 5 on the standard scale. This is commensurate with penalties in the existing professional legislation

    paragraph 7 provides that an Order cannot abolish the regulatory body of the professions listed in clause 47(2). (The Council of Professions Supplementary to Medicine is excepted as it will be replaced by a new council when the 1960 Act is repealed under the Bill.)

    paragraph 8 provides that where the four core functions associated with professional regulation, listed in paragraph 8(2), are exercised in accordance with legislation by a professional body, the Order may not provide for them to be exercised by anyone other than a professional body.

170.  Paragraph 3 of the Schedule enables an Order to make provision for the delegation of functions, including the power to make, confirm or approve subordinate legislation. All the Acts regulating the health professions confer powers on the regulatory bodies to make subordinate legislation. For example, section 2 of the Nurses, Midwives and Health Visitors Act 1997 ("NM&HV Act") enables the UKCC to make rules concerning the content and standard of training. This paragraph enables an Order to confer such powers on new or existing regulatory bodies. It also enables an Order to make provision for confirming or approving such subordinate legislation. Where subordinate legislation made by the relevant professions is required to be approved, it is the Privy Council that does so for all the relevant professions (except regarding nurses, midwives and health visitors whose rules are approved by the Secretary of State). Section 35(1) of the Chiropractors Act 1994, for example, provides for this. In addition, the power could provide for a regulatory body to be able to delegate such functions as monitoring standards of education and training. The regulatory body could then enter into a contract with another body to exercise that function.

171.  Paragraph 5 enables functions to be conferred on Ministers of the Crown, Scottish Ministers or the National Assembly for Wales. This will enable an Order to make provision for a Minister to pay grants to a body. An example of such a power is section 17(3) of the NM&HV Act. It would also enable an Order to set up bodies for different parts of the UK to deal with matters in connection with professional regulation.

172.  Prior to the making of an Order under clause 47, it is intended that there will be full consultation with the profession concerned and other interested bodies. It is anticipated that in most cases the professions will wish to consult their members and other interested parties before any decision is taken to draft an Order.

173.  Once an Order has been drafted, paragraph 9 of Schedule 3 provides that the draft must be published at least three months in advance of the draft Order being laid before Parliament. Following publication the Secretary of State must consult representatives of the profession on the draft Order. It is also intended that other interested parties (e.g. patients' groups) would be consulted. After the consultation period, the draft Order, with any modifications the Secretary of State considers appropriate in the light of the consultation, may be laid before Parliament. Clause 48(6) provides that the draft Order must be subject to affirmative procedures. Only then may the Secretary of State recommend to Her Majesty that the Order be made.

174.  In the case of an Order which includes matters within the legislative competence of the Scottish Parliament (for example, where the regulation of that profession is not a reserved matter under the Scotland Act 1998), paragraph 7 provides that the Order must be subject to affirmative procedures in the Scottish Parliament as well as the UK Parliament.

175.  Paragraph 2(2)(b) makes clear that Orders are not, in general, to be used to amend the Medicines Act 1968. However, paragraph 2(3) allows an Order to amend sections 80 to 83 of the Medicines Act, which deal with the disciplinary functions of the Statutory Committee in respect of retail pharmacy businesses. The Statutory Committee is established under the Pharmacy Act 1954 as a committee of the Royal Pharmaceutical Society of Great Britain (RPSGB), and is also responsible for disciplinary matters in respect of individual pharmacists. Its functions under the Medicines Act include the power to disqualify bodies corporate from running retail pharmacy businesses where (for example) a Director of the company has been guilty of the kind of misconduct which would result in a pharmacist's name being removed from the professional register. The RPSGB has recently consulted on a package of proposals for modernising its disciplinary procedures for both individual pharmacists and retail pharmacy businesses, and the Government wishes to be able to use the Order-making power to implement, as appropriate, the whole package.

176.  Paragraph 12(1) provides that an Order may amend the regulation of the profession of pharmacy in Northern Ireland only to the extent that it is currently governed by UK wide legislation (sections 80 to 83 of the Medicines Act). The functions of the Statutory Committee under these sections are exercised by a separate Committee in Northern Ireland. Paragraph 12(2) ensures that an Order cannot change this.


177.  Clause 48 concerns regulations and orders made under the provisions of the Bill. Such regulations or orders are to be statutory instruments and, subject to certain exceptions, will be subject to the negative resolution procedure. The exceptions are: orders under clause 49 (supplementary and consequential provision) which contain only provisions for or in connection with the transfer of any property, rights or liabilities; and commencement orders under clause 52.

178.  Clause 48(2) contains the usual provision that subordinate legislation under the Bill may make supplementary, incidental, consequential, transitory, transitional or saving provision as is necessary or expedient. Subject to subsection (3), this power does not include a power to amend or repeal any enactment instrument or document.

179.  Clause 48(3) provides that regulations under clause 15 (functions of the Commission for Health Improvement) and clause 24 (arrangements between NHS bodies and local authorities) may include supplementary, incidental or consequential provision amending or appealing any enactment, instrument or document. The justifications for such power are set out in the paragraphs of this Memorandum dealing with those clauses (86 and 102 respectively).

180.  Clause 48(6) and (7) deal with the procedure for Orders in Council under clause 47 (regulation of the health care and associated professions).


181.  Clause 49 confers on the Secretary of State a power to make orders containing supplementary, incidental, consequential, transitory, transitional or saving provision, as he considers necessary or expedient for the purposes, in consequence of or for giving full effect to any provision of the Bill. Subsection (2) then provides that such an order may make provision amending or repealing any enactment, instrument or document. With a Bill of this length, dealing with a wide range of different subjects, a substantial number of consequential amendments to existing legislation and other supplementary, incidental or transitional provisions will be required. To include all the necessary consequential and supplementary provisions in the Bill would lengthen the Bill, and take up Parliamentary time on consequential and supplementary matters. In addition, the nature and extent of some consequential or supplementary requirements, including the necessary legislative amendments, may not become apparent until after the Bill is in force. The Department therefore considers it appropriate that the power in clause 49 should extend to amending or repealing other enactments, instruments or documents.

182.  Orders under clause 49 will be subject to the negative resolution procedure. The Department considers that this procedure is justified in the present case, even where such an order will amend or repeal an enactment. The powers are merely to enable modification of statutory provisions by way of consequential, supplementary or transitional adaptation. To apply the affirmative procedure would involve the needless consumption of Parliamentary time on consequential or supplementary matters.


183.  Clause 50 gives effect to Schedule 4. Unless stated otherwise below, the provisions of this Schedule do not create new powers to make delegated legislation or alter the procedure for existing powers. Generally speaking, they extend existing powers consequentially, for example to make provision for the new Primary Care Trusts. For the purposes of this Memorandum, the Department has identified below those provisions of the Schedule which extend existing powers.

184.  Paragraph 4(c) confers on the Secretary of State the power to change the name of a Health Authority. This power is an extension of the existing power of the Secretary of State by order to make provision in relation to Health Authorities - see section 8 of the 1977 Act (as substituted by section 1 of the Health Authorities Act 1995). At present the Secretary of State has no such power; he may only vary a Health Authority's area, abolish a Health Authority or establish a new one and make incidental and supplemental provision (see section 8(4)). The purpose of the power is to allow the Secretary of State to change the name of a Health Authority without having to change the boundaries of the Health Authority or establish a new one. This will be appropriate where, for example, an existing name no long reflects the name of a new unitary local authority, which has replaced the old county or district councils as part of recent local government re-organisations.

185.  Paragraph 5 extends the existing power to make regulations under section 16 of the 1977 Act providing for the exercise of functions on behalf of a Health Authority, or by a Health Authority jointly with another. This will enable the regulations to provide that Health Authorities may arrange for the exercise of their functions jointly with a Primary Care Trust, or on behalf of the Health Authority by a joint committee of the authority and one or more Primary Care Trusts.

186.  Paragraph 7 extends the existing power of the Secretary of State to give directions to Health Authorities to make their staff available to local authorities or other public bodies (section 27 of the 1977 Act), so as to cover Primary Care Trusts and their staff. Such directions will continue to be given in writing (see section 126(3A) of the 1977 Act).

187.  Paragraph 11 extends the existing power of the Secretary of State to provide in regulations that any functions exercisable by a Health Authority or Special Health Authority in relation to the provisions of facilities for university clinical teaching and research may be exercised jointly with other health service bodies (section 51(2) of the 1977 Act), so as to cover the exercise of such functions by Primary Care Trusts.

188.  Paragraph 16 extends the existing power to make orders transferring property held on trust between health service bodies to Primary Care Trusts (see section 92 of the 1977 Act).

189.  Paragraph 23 extends the existing power to make an order conferring the function of paying sums to Health Authorities in respect of Part II remuneration under section 103 of the 1977 Act to Primary Care Trusts.

190.  Paragraph 24 amends section 126 of the 1977 Act, which makes provision for the orders, regulations and directions made under the 1977 and 1990 Acts. To increase the consistency and simplicity of the provisions of the Acts relating to directions, paragraph 24(5) inserts a new section 126(3C), providing that any person or body to whom directions are given under the 1977 Act or Part I of the 1990 Act must comply with the directions. The various references throughout the legislation to the effect that directions must be complied with may therefore now be removed - the necessary amendments are made by paragraphs 12, 14, 20, 22, 26(3), 54(b). Similarly, the words do not now appear in the new sections 16C to 17B of the 1977 Act, inserted by clause 7 (directions as to functions of Health Authorities and Primary Care Trusts).

191.  The two consequential amendments in paragraph 29 allow the Secretary of State to direct that Primary Care NHS Trusts which have had Part II functions delegated to them from Health Boards must consult local consultative committees in the same way and in the same circumstances as Health Boards do at present. This is a safeguard to ensure that when Part II functions are delegated, the consultation arrangements are not disrupted. A direction making power is desirable to allow for flexibility in the range of matters relating to consultation which may require to be addressed from time to time.

192.  The minor provision paragraph 42(3) relates to the powers of NHS Trust to invest money. Sub-paragraph (3) allows a NHS Trust to invest only in an investment specified in directions by the Secretary of State. This is to ensure that NHS Trusts hold only limited amounts in financial institutions other than paymaster accounts to ensure best value for money. The circumstances will change from time to time and may vary from Trust to Trust; and so a direction making power is appropriate.

193.  Paragraph 49 makes changes to the provisions concerning hospital complaints procedures (section 1 of the Hospital Complaints Procedure Act 1985). Section 1(1) and (1A) impose a duty on the Secretary of State to give directions to Health Authorities and NHS trusts to make arrangements for dealing with hospital complaints. Paragraph 49(c) of the Schedule inserts a new section 1(1C) that imposes a new duty on the Secretary of State to give similar directions to Primary Care Trusts which manage hospitals.

194.  Paragraph 55 amends the existing power to make orders transferring staff from a Health Authority to an NHS trust (section 6 of the 1990 Act), so as to enable the Secretary of State to transfer staff from a Primary Care Trust to an NHS trust, where a hospital or other establishment or facility managed by a Primary Care Trust is to transfer to the NHS trust.

195.  Paragraph 57 extends the existing power to transfer property, rights and liabilities to an NHS trust (section 8 of the 1990 Act) so as to enable the Secretary of State to make such transfers from a Primary Care Trust.

196.  Paragraphs 61(3) and (4) make provisions regarding NHS trusts' powers to invest money. Paragraph 61(3) provides that NHS trusts may invest money in any investments specified in directions under section 17 of the 1977 Act (as inserted by clause 7). The aim is to ensure that NHS trusts hold only limited sums in investments other than paymaster accounts, to reduce costs to the Exchequer. The aim is to avoid placing a great deal of administrative detail on the face of the Bill and enable the provisions to be changed as necessary from time to time to reflect changing financial circumstances. Paragraph 61(4) provides that certain directions may only be given with the consent of the Treasury.


197.  Clause 51(1) has the effect that where the provisions of the Bill extend to Scotland (in particular clauses 36 to 46) the functions under those provisions, including powers to make delegated legislation, will automatically transfer to Scottish Ministers, when the Scottish Parliament inherits its functions.

198.  Clause 51(2) to (5) concern Wales and the National Assembly for Wales. On the coming into force of a Transfer of Functions Order under section 22 of the Government of Wales Act 1998 many of the Secretary of State's functions in relation to the health service will be transferred to the Assembly. Clause 51(2) provides that the functions of the Secretary of State under the Bill, so far as exercisable in relation to Wales, will be exercisable by the Assembly instead of the Secretary of State. The powers to make delegated legislation conferred by the provisions listed in subsection (2) will therefore be exercisable by the Assembly. Delegated legislation made by the Assembly will be subject to the procedures relating to subordinate legislation provided for by the standing orders made under section 64 of the Government of Wales Act 1998 (see also the provisions of 65 to 68 of the Act relating to such procedures). The appropriate procedure for each delegated instrument will therefore be a matter for the Assembly. In accordance with the principles of devolution to Wales and the provisions of the Government of Wales Act, such delegated legislation will not be subject to procedures at Westminster.

199.  The Committee will note that the order-making power in clause 47 in relation to the regulations of the health care and associated professions will not be exercisable by the Assembly, and will be subject only to procedures at Westminster and in the Scottish Parliament.


200.  Clause 52 provides for the Secretary of State to commence provisions of the Bill by order. It would not be practical for all the provisions to be introduced on Royal Assent. Time is required to prepare for implementation of the various provisions of the Bill, in particular the drafting of delegated legislation. To allow flexibility in the time available for preparation, commencement orders rather than fixed dates are proposed. As is usual, such orders will not be subject to Parliamentary scrutiny.

February 1999

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