Select Committee on Delegated Powers and Deregulation Second Report



Memorandum by the Department of Health


1.  The Care Standards Bill received its first reading in the House of Lords on 2 December. This memorandum summarises the main provisions of the Bill and gives an overview of the delegated powers. It then identifies each power; describes its purpose; explains why the matter has been left to delegated legislation; and explains the degree of Parliamentary control provided.

Main Provisions

2.  The Care Standards Bill contains 98 clauses and 5 Schedules. Its main purpose is to reform the regulatory systems for the social care and private and voluntary healthcare sectors, and for early years day care. The main provisions in the Bill will:

(i)  establish a new independent body - the National Care Standards Commission ("the Commission") - responsible for the regulation of care homes, children's homes, residential family centres, domiciliary care agencies, fostering agencies, voluntary adoption agencies; independent hospitals and clinics. Local authority fostering and adoption services, boarding schools and colleges accommodating children will also be inspected by the Commission. In Wales these functions will be carried out by part of the National Assembly for Wales ("the Assembly");

(ii)  provide a regulatory framework for, and establish a system of national minimum standards, in each of the service areas to be regulated by the Commission and the Assembly;

(iii)  establish a General Social Care Council for England (the English Council) and a Care Council for Wales (the Welsh Council), to regulate standards of conduct and practice for all social care staff by drawing up enforceable codes of conduct and practice; to register social care staff over time on the basis of groups or classes of staff having successfully completed a period of approved training; and to regulate professional social work training at both entry and post qualifying levels;

(iv)  provide for the Secretary of State to maintain a list of persons who are considered unsuitable to work with vulnerable adults;

(v)  repeal the Nurses Agencies Act 1957 and bring nurses agencies under the provisions of the Employment Agencies Act 1973;

(vi)  provide for an arm of Ofsted to take responsibility for regulating early years day care in England, alongside its existing education inspection functions. In Wales, a partnership between Estyn and the Welsh Assembly's care regulation arm will achieve the same objective.

Overview of the delegated powers

3.  The intention of this Bill is to establish a regulatory system which is robust but also flexible enough to take account of developments in how the services are provided. To provide this flexibility much of the detailed requirements will be implemented through regulations and orders. The Bill provides for national minimum standards to be prepared and published which the Commission and Assembly must take into account when registering a person in respect of an establishment or agency. There is also provision for the English and Welsh Councils to have the power to make rules in respect of their functions. This memorandum sets out in paragraphs 4 to 6 the general rationale for the conferral of these delegated powers in the Bill. The type of Parliamentary scrutiny is then considered in paragraphs 7 to 12.

The rationale for delegated powers in the Care Standards Bill

4.  In considering whether matters should be specified on the face of the Bill or left to delegated legislation, the Department has weighed the importance of the matter against the need to:

(i)  avoid too much technical and administrative detail, and keep the Bill as short as possible;

(ii)  ensure sufficient flexibility in responding to changing circumstances, and a measure of ability to make changes quickly in the light of experience without the need for primary legislation;

(iii)  allow detailed administrative arrangements to be set up and kept up to date within the basic structures and principles set out in the primary legislation, subject to Parliament's right to challenge the inappropriate use of powers;

(iv)  allow flexible timing to get the legislation right, to consult, and make changes when circumstances change.

5.  The experience of the current regulatory system has shown the importance of having a legislative structure that is flexible to cope with the developments in the provision of social and health care. The current legislative framework is set out in the Registered Homes Act 1984 ("1984 Act"), the Children Act 1989 ("Children Act"), the Adoption Act 1976 ("Adoption Act"), the Health and Social Services and Social Security Adjudication Act 1983 ("1983 Act"), and the Nurses Agencies Act 1957. The 1984 Act will be repealed in its entirety, as will the provisions in the Children Act which provide for the regulation of children's homes, and of the Adoption Act as to the approval of voluntary adoption agencies. The Nurses Agencies Act 1957 will also be repealed, as will the provisions in the 1983 Act that relate to the Central Council for Education and Training in Social Work.

6.  Placing the detail of the regulatory requirements in the primary legislation would result in legislation of great length and complexity. These detailed provisions are likely to require frequent changes as the delivery of services change and develop over time, and it is for this reason that the Department does not want to restrict this flexibility unnecessarily. It is with these considerations that the Department has approached the issue of delegated legislation in the Bill.

Type of Parliamentary scrutiny

7.  In considering what type of Parliamentary procedure would be appropriate for each power, the Department has sought to follow established practice. Under the current legislative framework the delegated powers are subject to the negative resolution procedure. The Department has therefore decided that all of the delegated powers made under the Care Standards Bill should be subject to the negative resolution procedure in respect of England. In Wales powers to make regulations will be the responsibility of the National Assembly for Wales.


8.  The Bill provides for any regulations made by the Secretary of State or the appropriate Minister under the provisions of the Bill to be exercisable by statutory instrument subject to the negative resolution procedure.

9.  The "appropriate Minister" means in relation to England, the Secretary of State and in relation to Wales the Assembly. Some powers are given to the Secretary of State alone, for example, in relation to the Commission, where there is no corresponding need for regulations to be made by the Assembly. Except where regulations are to be made by the Secretary of State, references in the Bill to "regulations" means regulations made by the appropriate Minister (see clause 96(1) for the definition of "regulations").


10.  The Bill provides for an order made by the Secretary of State or the appropriate Minister to be subject to the negative resolution. As is usual, the power to make a commencement order is not subject to Parliamentary scrutiny, except in respect of certain consequential provisions under clause 95(2).


11.  The Secretary of State has powers to give directions to the Commission as respects the carrying out of its functions. The directions must be in writing but it is not generally thought appropriate to subject such directions to Parliamentary scrutiny.

National Minimum Standards

12.  The Bill provides for the appropriate Minister to prepare and publish national minimum standards for each of the services to be regulated by the Commission and Assembly. Providers will be expected to comply with these standards. The Commission and Assembly must take account of these standards during the registration process. There will be standards to match most of the regulation making powers set out in clause 20. There will also be national minimum standards in relation to local authority adoption and fostering services (clause 45), and in relation to schools and colleges that accommodate children (clause 86). The standards are part of the overall regulatory process that is to ensure that the services provided are of an appropriate quality. They will not be subject to Parliamentary scrutiny, but Ministers have said that they will consult on each of the standards as they are developed.


13.  The Bill provides for the English and Welsh Councils to have rule making powers to draw up administrative and procedural matters in relation to the exercise of the functions granted to them in this Bill. These will not be subject to Parliamentary scrutiny but clause 65(2) provides that all the rules made under Part IV will require the consent of the Secretary of State.

14.  The following is a clause by clause look at those which contain delegated powers.

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