Select Committee on Delegated Powers and Regulatory Reform Twenty-Fourth Report



Memorandum by the Department of Health


1.  The Health and Social Care (Community Health and Standards) Bill received its first reading in the House of Lords on 9 July 2003. 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 for.

Main Provisions of the Bill

2.  The Bill contains 198 clauses and 14 schedules and is in 6 parts.

·  Part 1 establishes NHS foundation trusts - a new form of NHS organisation.

·  Part 2 sets up a new health care inspectorate and a new social care inspectorate.

·  Part 3 provides for the NHS to recover hospital treatment and/or ambulance costs where people receive compensation for injuries.

·  Part 4 makes various changes relating to NHS primary medical and dental services.

·  Part 5 provides for the replacement of the Welfare Food Schemes and makes a number of small amendments to other legislation.

·  Part 6 deals with various financial, supplementary and consequential provisions.

Part 1: NHS Foundation Trusts

3.  Clauses 1 to 39 establish NHS foundation trusts - a new form of NHS organisation which will have greater financial and management freedoms. NHS foundation trusts will have the freedom to retain surpluses and to invest in delivery of new services, to flexibly manage and reward their staff and to access a wider range of options for capital funding. The Bill provides that each NHS foundation trust will have a Board of Governors responsible for representing the interests of the local community, staff and local partner organisations. The Bill also provides for the appointment of an Independent Regulator of NHS foundation trusts to oversee the conduct of all NHS foundation trusts, with statutory powers to intervene to ensure compliance with the licence conditions.

Part 2: Quality and Standards

4.  Clauses 40 to 145 make provision about quality and standards in health care and establish two new regulatory bodies - the Commission for Healthcare Audit and Inspection ('the CHAI') and the Commission for Social Care Inspection ('the CSCI') - to regulate health care services and social services respectively. Clauses 40 to 43 establish the new bodies and abolish the Commission for Health Improvement ('CHI') and the National Care Standards Commission ('NCSC') whose functions will transfer to them.

5.  Clauses 47 to 58 set out the functions of CHAI. The CHAI will have the functions of inspecting and reviewing NHS health care, publishing inspection reports and will have powers to charge fees. The CHAI will also have functions in relation to NHS foundation trusts. The Bill provides for the Assembly to have the same health care regulation functions in respect of health care provided for in Wales.

6.  Clauses 74 to 82 set out the functions of the CSCI including its powers to charge fees and its duties to publish inspection reports. Clauses 90 to 99 broadly confer the same general functions relating to the provision and review of social services functions on the Assembly in relation to Wales as are conferred on the CSCI in relation to England.

7.  Clauses 111 to 117 make provision for the handling of health care and social care complaints.

Part 3: Recovery of NHS Charges

8.  Clauses 146 to 165 extend the current arrangements for recovery of NHS costs following road traffic accidents to all cases where compensation is paid in consequence of injuries. The effect of these provisions is that where a person is injured and is paid compensation in respect of the injury, the costs to the NHS of providing treatment or ambulance services as a result of the injury can be recovered from the person paying compensation.

Part 4: Dental and Medical Services

9.  Clauses 166 to 180 provide for various changes to NHS primary medical and dental services. Primary Care Trusts and Local Health Boards will have a duty to provide, or secure the provision of, primary medical services and primary dental services and dental public health functions to be conferred by regulations. Clause 168 provides for the new general dental services contracts and clause 171 provides for the new general medical services contract by inserting new sections into the 1977 Act. Clauses 173 and 174 deal with making permanent the personal medical services and personal dental services pilots. Clauses 177 and 178 concern the abolition of the Dental Practice Board and the transfer of rights and liabilities to a Special Health Authority. Clause 179 makes provision for the making and recovery of charges for dental services provided to patients.

Part 5: Miscellaneous

10.  Clause 181 provides for the replacement of the Welfare Food Schemes and clause 182 allows for the same provision to be made, by way of an Order in Council, for the Welfare Food Scheme in Northern Ireland. Clause 183 and 184 provide for the Secretary of State to delegate his function of making appointments to certain health and care bodies to a Special Health Authority. Clause 185 amends the list of provisions in both the Protection of Children Act 1999 and the Care Standards Act 2000 (for the Protection of Vulnerable Adults list) so that the requirement to obtain a yearly list check is removed for certain groups. Clause 186 abolishes the Public Health Laboratory Service Board and clauses 187 and 188 amend previous legislation.

Part 6: Final Provisions

11.  Clauses 189 to 198 contain a number of financial, supplementary and consequential provisions.

12.  The Bill's Explanatory Notes provide detailed information about the background to each of these provisions, their purpose and effect.

Overview of the Delegated Powers

13.  By the Department's reckoning, the Health and Social Care (Community Health and Standards) Bill provides for 92 Secretary of State powers to make orders, regulations and directions. The National Assembly for Wales is given 45 such powers. Scottish Ministers are given, in Part 3, equivalent powers in respect of Scotland as are given to the Secretary of State in respect of England and Wales. In Part 5 of the Bill, Northern Ireland Assembly is given the power to make an Order in Council to replicate the Welfare Food Scheme provisions in this Bill for Northern Ireland. Paragraphs 14 to 21 of this memorandum set out the broad rationale for the conferral of delegated powers. The type of Parliamentary scrutiny provided for is considered in paragraphs 22 to 25. Each of the delegated powers (a summary list of which is set out in the Annex to this memorandum) is given in detail in paragraphs 30 to 330.

The Rationale for Delegated Powers

14.  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 detail;

  (ii) ensure flexibility in responding to changing circumstances, and a measure of ability to make changes 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 primary legislation, subject to Parliament's right to challenge the inappropriate use of powers;

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

15.  A further important consideration specific to this Bill has been the existing legislative structure for the National Health Service. Parts 1 and 4 consist of modifications or additions to that structure. The delegated powers conferred by the Bill should be seen in this light. The Committee may find the following outline of the structure helpful (a more detailed outline may be found at Annex A to the Bill's Explanatory Notes).

16.  The legislative framework is set out in the National Health Service Act 1977 ('the 1977 Act') as respects England and Wales. This has been supplemented, in particular, by the National Health Service and Community Care Act 1990 ('the 1990 Act'), the National Health Service (Primary Care) Act ('the Primary Care Act'), the Health Act 1999 ('the Health Act') and the Health and Social Care Act ('the HSC Act'). Since 1st July 1999, many of the functions of the Secretary of State in relation to the NHS in Wales have been exercised by the National Assembly for Wales (see the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/6720)).

17.  Under the 1977 Act, the NHS is essentially split into two systems. The first is set out in Part I, and concerns the provision of health care in hospitals. It also covers services which are described as 'community health services', for example the services provided by district nurses, midwives or health visitors in clinics or in individuals' homes. Part I of the Act confers on the Secretary of State the responsibility for providing or securing the provision of these services. It then provides a structure whereby he delegates these responsibilities to Primary Care Trusts. The actual provision of services is carried out by NHS trusts, under arrangements made by Primary Care Trusts, although some services are provided directly by Primary Care Trusts. In Wales, Local Health Boards ('LHBs') make arrangements with NHS trusts for the provision of services.

18.  It is a feature of Part I that while the overall framework is set out in the provisions of the Act, there is very little prescription in primary legislation as to what the Secretary of State or NHS bodies must do or indeed how they must do it. The matter is left largely to the Secretary of State direction, which may either be given by regulations or by an instrument in writing (the latter not being subject to Parliamentary scrutiny). This system was designed to enable maximum flexibility in the way Part I services are organised, to avoid unnecessary constraints on the NHS, and to limit the technical and administrative detail which appears on the face of the 1977 Act.

19.  The second system, in Part II of the 1977 Act, concerns the provision of 'family health services'. These services are provided 'in the high street' by general medical practitioners (the family GP), ophthalmic opticians (also known as optometrists) and ophthalmic medical practitioners and pharmacists, under arrangements made by Health Authorities. The arrangements are administered by Primary Care Trusts in England and Local Health Boards in Wales in accordance with regulations made under Part II of the 1977 Act. Again, the Act sets the broad framework while the detail is left to secondary legislation. The difference from Part I is that the legislation takes the form of regulations, subject to Parliamentary scrutiny. The Part II system is therefore more regulated and less flexible than the Part I system.

20.  The National Health Service is a large and complex organisation, which provides services and performs other functions in a variety of different ways. The existing legislation governing the health service is sufficiently flexible to cope with a variety of different circumstances and the Government does not wish to restrict this flexibility unnecessarily. It would not be possible to deal with every aspect of how the NHS operates, and provide for every eventuality in primary legislation, without producing legislation of great length, complexity and detail. In addition, such detailed provisions may require frequent changes to deal with changing circumstances.

21.  It is with these considerations in mind that the Department has approached the issue of delegated legislation in the Bill.

Type of Parliamentary Scrutiny

22.  In considering what type of Parliamentary procedure would be appropriate for each power, the Department has sought to follow established practice. In the context of the NHS, affirmative resolution procedures are thought to be appropriate only in exceptional circumstances. The orders and regulations made under the powers in the Bill are therefore subject to the negative procedure as regulations relate to matters of details for which the negative resolution is considered more appropriate. Some of the provisions in the Bill insert new powers to make orders or regulations into the 1977 Act. Under section 126 of the 1977 Act, these powers are, unless provided otherwise, exercisable by statutory instrument subject to the negative procedure.

23.  Powers to be exercisable by the National Assembly for Wales will, in accordance with usual practice, not be subject to any Parliamentary procedure. Instead, the powers will be subject to the Assembly's own scrutiny procedures.

24.  Powers to be exercisable by Scottish Ministers under Part 3 will be subject to the negative resolution procedure in the Scottish Parliament.

25.  The power to make an Order in Council given to Northern Ireland in Part 5 will be subject to the negative resolution procedure and the reasons for this are discussed in paragraphs 310 to 313.


26.  Clause 191 of the Bill provides for regulations made by the Secretary of State or Scottish Ministers under the provisions of the Bill to be exercisable by statutory instrument subject to the negative resolution procedure.


27.  Clause 191 also provides for Orders made by the Secretary of State or Scottish Ministers under the Bill to be exercisable by statutory instrument subject to the negative procedure.

28.  As is usual, the power to make a Commencement Order (clause 194) is not subject to Parliamentary scrutiny.


29.  Directions frequently contain matters of operational detail which relate specifically to the bodies directed and they may sometimes be used to give immediate instructions about various matters that may arise from time to time. Much of the detailed provision in relation to the NHS, under Part I of the 1977 Act in particular, is set out in directions made under that Act. It is generally not thought appropriate to submit directions to Parliamentary scrutiny. Accordingly, directions given in pursuance of any provision of this Bill are to be given by an instrument in writing.

Clause by Clause Summary

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