Appendix 3: Health and Social Care Bill
— Government Amendments
LETTER
TO
THE
CHAIRMAN
FROM
BEN
BRADSHAW
MP, MINISTER
OF
STATE,
DEPARTMENT
OF
HEALTH
1. I am writing to inform the Committee about
a small number of amendments I have tabled to the Health and Social
Care Bill, in order to meet a Government commitment to abolish
the Hearing Aid Council and transfer its responsibilities to the
Health Professions Council.
2. On the basis of recommendations by the Hampton
Review on regulatory inspections and enforcement in 2005, the
Government committed to abolishing the Hearing Aid Council by
April 2009 and to transfer responsibility for the regulation of
private hearing aid dispensers to the Health Professions Council.
This will reduce the number of regulators but more importantly
provide improved protection for the hearing impaired. The Hearing
Aid Council is a very small organisation regulating around 1700
registrants. Transferring responsibility for regulation to the
Health Professions Council which has better resources and greater
powers, will mean that patient safety is enhanced and hearing
aid dispensers will pay significantly smaller fees.
3. In order to achieve this, primary legislation
is needed to repeal the 1968 Hearing Aid Council Act and the Hearing
Aid Council Act (Extension) 1975 and to make clear that an Order
under section 60 of the Health Act 1999 may be used to bring the
regulation of private hearing aid dispensers within the remit
of the Health Professions Council.
4. The changes in the amendments will amend section
60 of, and the associated Schedule 3 to, the Health Act 1999 to
include the profession of hearing aid dispensers, currently regulated
by the Hearing Aid Council Act 1968, within the scope of section
60. This will enable an Order in Council to be made to change
the way in which dispensers of hearing aids (as defined in the
1968 Act) are regulated.
5. As these proposals extend the scope of an
existing delegated power, I am providing alongside this letter
an additional Delegated Powers Memorandum for the Committee to
consider. I look forward to hearing the Committee's views on these
amendments in due course.
SUPPLEMENTARY
MEMORANDUM
BY
THE
DEPARTMENT
OF
HEALTH
1. We have tabled a number of Government amendments
to the Health and Social Care Bill to repeal the Hearing Aid Council
Acts and extend the scope of section 60 of the Health Act 1999
to enable the regulation of dispensers of hearing aids. As two
of these amendments extend the scope of existing delegated powers,
we are providing this additional memorandum to the Committee to
set out why the power has been taken and the nature of, and reason
for, the procedure selected.
BACKGROUND
AND
PURPOSE
OF
THE
AMENDMENTS
2. The Hampton Report on regulatory inspections
and enforcement recommended in 2005 that the overall number of
regulating authorities be rationalised. As part of its recommendations,
it called for the merger of the Hearing Aid Council into a new
body, the Consumer and Trading Standards Agency (CTSA), by April
2009. The plan to set up the CTSA was later amended in order to
create the Local Better Regulation Office and further consideration
was given to what should happen to the Hearing Aid Council. Ministers
accepted the recommendation that the Hearing Aid Council be abolished
and the register of hearing aid dispensers transferred to the
Health Professions Council.
3. The Hearing Aid Council was set up by the
Hearing Aid Council Act 1968 and extended to Northern Ireland
by the Hearing Aid Council (Extension) Act 1975. In order to abolish
the Hearing Aid Council and enable the Health Professions Council
to take over the regulation of hearing aid dispensers, primary
legislation is needed to repeal the 1968 and 1975 Acts and to
amend the Health Act 1999.
4. The Health Professions Council was set up
by the Health Professions Order 2001 which was made under the
Health Act 1999. Adding new professions to the Health Professions
Council is usually achieved through amending the Health Professions
Order. In the case of the Hearing Aid Council, however, this is
not possible unless an amendment is made to the 1999 Act removing
certain restrictions which would prevent the Health Professions
Council taking over this new regulatory role.
NEW
CLAUSE
AFTER
CLAUSE
117: DISSOLUTION
OF
HEARING
AID
COUNCIL
Powers conferred on: Secretary of State
Power exercised by: Statutory Instrument
Parliamentary procedure: in the case of subsection
(4) negative procedure
5. This new clause allows for the dissolution
of the Hearing Aid Council and for the repeal of the Hearing Aid
Council Act 1968 and the Hearing Aid Council (Extension) Act 1975.
Further necessary amendments are made to the Repeal Schedule 15
in later amendments. This clause also allows provision to be made
by Order for the transfer of property, rights and liabilities
of the Hearing Aid Council to the Secretary of State or to another
relevant regulatory body
6. Subsections (3) and (4) ensures that the dissolution
and repeals cannot take place until an order under section 60
order of the Health Act 1999 has made provision for the regulation
of dispensers of hearing aids, and come into force.
7. Subsection (5) allows the Secretary of State
to make an order for the transfer of any property, rights and
liabilities of the Hearing Aid Council to another 'relevant regulatory
body' or the Secretary of State. Subsection (6) defines that body
as that which is designated under the section 60 order for the
regulation of hearing aid dispensers. This will be the Health
Professions Council.
8. This follows the usual practise of using secondary
legislation subject to the negative resolution procedure to set
out detailed transitional provisions.
SCHEDULE
8: EXTENSION
OF
POWERS
UNDER
SECTION
60 OF
HEALTH
ACT
1999
Power conferred on: Her Majesty in Council
Power exercisable by: Order in Council
Parliamentary procedure: affirmative resolution
9. These amendments provide for the amendment
of section 60 and Schedule 3 of the Health Act 1999, allowing
for an Order in Council to be made to transfer regulation of hearing
aid dispensers to the Health Professions Council and to modernise
and update the system of statutory regulation to which they are
subject.
10. They also provide that a section 60 Order
may confer functions on and modify functions of a Northern Ireland
department. This will enable section 60 Orders to ensure that
appropriate provision is made in respect of the relationship between
a Northern Ireland department and a regulatory body. In particular,
this power may be used if Northern Ireland Ministers decide to
transfer the functions of the Pharmaceutical Society of Northern
Ireland to the General Pharmaceutical Council.
11. Section 60 was introduced in the Health Act
1999 to enable changes to be made to the regulation of health
professions in an efficient and timely manner. Before the introduction
of the section 60 procedure, the enactments that regulated the
health professions made detailed provisions which, with very few
exceptions, could only be changed by means of primary legislation.
12. Section 60 allows 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.
13. The changes in the amendments will amend
section 60 of, and the associated Schedule 3 to, the Health Act
1999 to include the profession of hearing aid dispensers, currently
regulated by the Hearing Aid Council Act 1968, within the scope
of section 60. This will enable a Section 60 Order to be made
to change the way in which dispensers of hearing aids (as defined
in the 1968 Act) are regulated.
14. All Section 60 orders must have a three month
consultation period and are subject to the affirmative resolution
procedure.
Department of Health
April 2008
Appendix 4: Health and Social Care Bill
— Government Response
LETTER
TO
THE
CHAIRMAN
FROM
BEN
BRADSHAW
MP, MINISTER
OF
STATE,
DEPARTMENT
OF
HEALTH
1. I am writing in response to the Committee's
Report on the Health and Social Care Bill, which was published
on 12th March 2008. I am grateful for the work of the
Committee in reviewing the Bill, and I am content to accept all
three of the Committee's specific recommendations.
SPECIFIC
RECOMMENDATIONS
OF
THE
COMMITTEE
CONTRAVENTION
OF
REGULATIONS
- CLAUSE
31(A)
2. The Committee recommended that where regulations
under this clause create a new offence with a maximum fine of
more than level 4, those regulations should be subject to affirmative
resolution. I agree that this is a sensible protection on the
face of the Bill and I will be tabling an amendment on this basis.
3. I will also amend clause 83(1)(b) in a similar
way so that there is consistency across the provisions in the
Bill. Clause 82 provides for a regulation making power to identify
which offences may be subject to a penalty notice. Regulations
under Clause 83(1)(b) may provide for the amount of any penalty
notice. Where the proposed amount of the penalty notice exceeds
level 4 of the standard scale, those regulations should, to achieve
consistency, again be affirmative.
MONITORING
OF
MEDICAL
PRACTITIONERS
- CLAUSES
114-117
4. The Committee recommended that regulations
conferring responsibilities under new section 45B and by clause
115 should be subject to affirmative resolution on their first
exercise by each of the appropriate authorities. I agree that
giving the right responsibilities to Responsible Officers will
be crucial in ensuring that they are an important tool in enhancing
patient safety. I am therefore content that the first exercise
should be subject to a higher form of Parliamentary scrutiny and
I will bring forward an amendment to this effect.
ORDERS
BY
A
JUSTICE
OF
THE
PEACE:
FURTHER
PROVISION
- NEW
SECTION
45N
5. The Committee recommended that the first exercise
of these powers under new section 45N should be subject to the
affirmative procedure. I recognise that the powers under section
45N are new, and that they will need to be exercised carefully
and responsibly. I understand why the Committee feels the first
use of these powers should be subject to the higher affirmative
procedure, and I will therefore table an amendment to do this.
FURTHER
ISSUES
RAISED
BY
THE
COMMITTEE
6. The Committee also drew a small number of
further issues to the attention of the House, without making a
specific recommendation. I would like to take this opportunity
to respond on these points.
FEES
- CLAUSE
81
7. Clause 81 enables the new Commission to require
certain specified categories of bodies and "such other persons
as may be prescribed" in negative regulations to pay a fee
in connection with the exercise by the Commission of functions
to be specified in regulations. The Committee agreed that this
fee charging power replicates much of the provision in existing
legislation governing the Healthcare Commission and the Commission
for Social Care Inspection. However, they raised concerns that
the "such other persons as may be prescribed" was an
addition which needed to be explained.
8. I am happy to take this opportunity to do
so. This provision will allow us to add to the list of people
or bodies the Commission can charge fees to, in certain circumstances.
There are three reasons why we think this is necessary.
9. Firstly, Clause 81 allows the Commission to
charge fees for other functions in addition to the Commission's
registration functions such as special reviews and investigations
under clause 44 of the Bill. Special reviews and investigations
may cover bodies other than English NHS bodies, English local
authorities and persons registered under Chapter 2, particularly
in the future if the scope of regulation (i.e. those bodies that
must register with the Commission) change. This means the Commission
might then need to have the ability to charge fees to these additional
people or bodies - this provision would allow us to do that.
10. Secondly, Clause 55 of the Bill also makes
provision for the Secretary of State to give additional functions
to the Commission. This might then mean that the Commission needs
to have the ability to charge a fee to additional people or bodies.
Again, this provision would allow us to do that.
11. Thirdly, this provision recognises the fact
that services change over time, and therefore the types of people
and bodies delivering these services may also change over time.
It builds in the necessary flexibility to future proof the primary
legislation.
12. Any regulations made under this clause will
be the subject to consultation, and will also be subject to Parliamentary
scrutiny via the negative resolution procedure.
SUPPLEMENTARY
PROVISION
- NEW
SECTION
45F
13. With regard to new section 45F, the Committee
recognised that the delegation was appropriate. However, the Report
drew the attention of the House to the fact that this section
allows new offences to be created for which the penalty cannot
exceed level 5 on the standard scale (£5,000), whereas under
Part 2 of the 1984 Act, some offences only have a maximum penalty
of level 1 or level 2 (£200 or £500).
14. It is important that I emphasise this was
very much our intention. These measures are about bringing public
health protection legislation up to date, and making it meaningful,
useful and relevant in the 21st century. The regulations
making power at section 45C does not only enable the replication
of provisions currently in the 1984 Act, it allows other provisions,
including requirements that could be placed on businesses. Realistically,
a fine of £200 or £500 will not act as a deterrent or
a punishment for most businesses. We want to ensure that any penalty
is proportionate to the offence, and that it is able to act as
a deterrent to non compliance with the law.
15. The maximum penalty under the regulations
is standard level 5 (£5000), with an exceptional summary
maximum of £20 000, which, as we have explained in the Bill's
impact assessment could be used where requirements were placed
on businesses.
16. Under normal circumstances (i.e. when we
are not using the emergency provisions) we will consult before
laying regulations before Parliament. This will enable us to collect
views on the appropriate level of any fine.
17. The House may wish to note that unlike the
1984 Act, the new legislation will remove offences punishable
by imprisonment.
HYBRIDITY
- NEW
SECTIONS
45Q AND
45R
18. The Report drew the attention of the House
to the "de-hybridising" provision for instruments under
Part 2A which require the affirmative procedure under new section
45Q (subsection 5), so that regulations made in reliance on the
power in section 45P(2) to make different provisions for different
cases will not be subject to the Hybrid Instruments procedure
in the House of Lords. The Committee suggested that the House
may want to satisfy itself that private interests likely to be
affected by the regulations will be adequately protected without
the safeguards afforded by that procedure. The Report also noted
that section 45R does not contain a similar de-hybridising provision.
19. The fact that section 45R (emergency regulation
making powers) does not contain a de-hybridising provision was
an oversight which we thank the Committee for bringing to our
attention. We intend to table an amendment to rectify this at
the earliest opportunity.
20. We do not believe the hybrid procedures are
appropriate for either the emergency or non-emergency regulation-making
provisions in Part 3 of the Bill because where there is a public
health threat, the need to protect the public should outweigh
the interests of specific private groups.
21. I will be placing a copy of this letter in
the House Library.
April 2008
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