CARE STANDARDS BILL [HL]|
58. The bill implements the main proposals in
two White Papers - "Modernising Social Services" (November
1998) and "Building for the Future" (March 1999). Detailed
proposals were set out in consultation documents issued earlier
this year - "Regulating Private and Voluntary Healthcare",
and "The Regulation of Early Years Education and Day Care"
and the equivalent documents for Wales.
59. The bill confers a large number of delegated
powers and the Committee considered carefully whether it should
be described as a skeleton bill. We concluded that it did not.
Large numbers of powers are common in legislation of this kind
and the Committee considered that the bill does contain a clear
policy framework leaving only the detail (which will need to be
changed from time to time) to regulations. The department's memorandum
seeks to justify the creation of delegated powers and to explain
how they will be used. This report provides a list of the powers,
and a commentary on the few provisions which the Committee thought
worthy of particular attention.
60. References in the bill to "prescribed"
mean prescribed by regulations made by the Secretary of State
or the Welsh Assembly. References to "prescribed" in
amendments made by the bill to other enactments have to be construed
according to the amended legislation but the result is the same
- regulations made by the Secretary of State or the Assembly.
Any regulation-making power created by the bill whether directly
or by amendment is subject to negative procedure if exercised
by the Secretary of State.
List of Delegated Powers
61. There are delegated powers in clauses 1(4),
2(7), 3(3), 4(5), 9(4), 10(2), 12(1), 13(3), 14, 20, 23, 28(6),
31, 32, 33, 34(3) and (4), 39, 44, 46, 47, 48, 51(3), 52(3) (order),
53 to 67 (rules made by the General Social Care Council or the
Care Council for Wales), 69(1) (new sections 79C, 79E(2), 79F(1)
and (2), 79H, 79M(5), 79P, 79Q and 79T(4) to (8)), 69(7), 76,
77(2), 83, 87, 91(3) 96(3) and 97 (Commencement), Schedule 1,
paragraphs 6, 9, 10 and 13, Schedule 2 (new Schedule 9A, paragraphs
1(1), 4, 6(2) and (4) and 7), Schedule 3, paragraph 2(6) and Schedule
4, paragraphs 1 and 2(1) and (3).
62. Part I of the bill contains wide powers to
make regulations covering the management, staff, premises and
conduct of establishments and agencies to which the Part applies.
Clause 23(1) supplements those powers by allowing the regulations
to create offences. Clause 23(2) provides that such an offence
is punishable on summary conviction by a fine not exceeding level
63. Clause 26 provides that an offence may be
prosecuted by the Commission (or by the Secretary of State or
the Welsh Assembly exercising default powers) or by some other
person acting with the written consent of the Attorney General.
64. Part II applies to "any person who carries
on or manages an establishment or agency of any description"
(clause 9(1)) and these terms are explained in clause 4(9) and
(10). In short, the Part applies to children's homes, independent
hospitals, independent clinics, care homes, residential family
centres, domiciliary care agencies, fostering agencies and voluntary
adoption agencies. Clause 39 allows regulations to apply (with
modifications) Part II to other persons providing services similar
to those provided by local authorities in the exercise of social
65. This clause allows regulations under Part
III to create offences punishable on summary conviction by a fine
not exceeding level 4. The limitation on who may prosecute imposed
by clause 26 is applied here also by clause 49.
Rules Made by the Council
66. Clause 50 establishes two new corporate bodies
- the General Social Care Council (for England) and the Care Council
for Wales. Collectively these are referred to in the bill as "the
Council". Clauses 53 to 67 contain numerous powers for the
Council to make rules. These regulate the procedure for registering
with the Council, removing entries from the register, approving
courses in social work, approving qualifications, requiring post
registration training, appointing "visitors" to inspect
places where courses or examinations are held and specifying fees
to be paid to the Council. Clause 67(2) requires the Council to
seek the consent of the Secretary of State (or the Assembly) before
making any rules. Schedule 1 makes further provision about the
Council but does not extend the rule-making powers.
67. Rules are not statutory instruments and there
is no provision for Parliamentary control (but the Secretary of
State will be answerable to Parliament for his actions in approving
rules and the Assembly will have to approve rules made for Wales
by the Care Council for Wales). The bill does not provide for
the publication of rules but paragraph 16 of Schedule 1 requires
the Council to publish an annual report on the exercise of its
functions and this would be one way of publishing rules.
68. This clause abolishes the Central Council
for Education and Training in Social Work (CCETSW). Subsection
(2) allows an Order in Council to make a scheme for the disposal
of the CCETSW's assets and liabilities. There is no Parliamentary
control but the Committee considers this appropriate for such
a limited transitional power.
69. This clause inserts a new Part XA into the
Children Act 1989 and a new Schedule 9A which is concerned with
child minding and day care for young children. Part XA and Schedule
9A replace for England and Wales the existing Part X of and Schedule
9 to the 1989 Act (clause 68(3)). Both Part XA and Schedule 9A
contain delegated powers and the existing provisions of the 1989
Act have the effect that these powers are exercisable by the Secretary
of State or the Welsh Assembly and are subject to negative procedure
when exercised by the Secretary of State.
70. This clause makes supplementary provision
about orders and regulations made under the bill (where the bill
inserts powers into existing Acts, those Acts determine the Parliamentary
control applicable and provide any supplementary powers). Subsection
(2) applies negative procedure (except to a simple commencement
order). Subsections (4) to (6) extend regulation-making powers
in a way which is becoming increasingly common.
71. Subsection (1) allows the Secretary of State
and the Assembly to make orders containing "any supplementary,
incidental or consequential provision" and "any transitory,
transitional or saving provision" considered "necessary
or expedient for the purposes of, in consequence of or for giving
full effect to any provision" of the bill. An order will
be subject to negative procedure if made by the Secretary of State.
72. Subsection (2) converts the order-making
power into a Henry VIII power by extending it to allow the amendment
or repeal of "any enactment, instrument or document".
The memorandum does not explain
why the reference to "document" has been added to a
formula which is becoming more common.
73. The House may wish to consider whether
an order under clause 95(2) should attract the affirmative procedure.
Powers to give Directions, Issue Codes etc
74. The Secretary of State can give directions
or guidance to the National Care Standards Commission (clause
6(2)) and may give the Commission directions under paragraphs
3(1), 7(1) and 11(3) of Schedule 1. He may also "determine"
various matters in connection with the Commission (paragraphs
7(1), (2) and (3) and 15(1), (2) and (3) of Schedule 1).
75. The Secretary of State (and the Assembly)
may give the Council directions or guidance under clause 50(4)
76. The Council is required by clause 58 to prepare
and publish "orders of practice laying down standards of
conduct and practice expected of social care workers". The
Secretary of State (or the Assembly) may direct any local authority
to ensure compliance with the code (subsection (5)).
77. The Committee sees nothing in these
provisions which it needs to draw to the attention of the House.
78. The Committee has suggested that the House
may wish to consider amending the bill to make an order under
clause 95(2) attract the affirmative procedure.
79. There is nothing else in the bill which the
Committee wishes to draw to the attention of the House.
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