Sixth Report
Health and Social Care Bill
1. This bill is in six parts, the contents of
each of which are summarised in paragraphs 3 to 85 of the Explanatory
Notes. The Department of Health has submitted a memorandum for
the Committee, printed at Appendix 1, which identifies provisions
in the bill which delegate legislative power and explains the
reason for the delegation and the level of any parliamentary control
which is to apply to it. The department also supplied us with
the evidence it submitted to the Public Bill Committee which considered
the bill in the House of Commons, including drafts of certain
instruments proposed to be made under the bill. We have not printed
this evidence but copies are available in the Library.
Care Quality Commission: Part 1
2. Part 1 of the bill establishes a Care Quality
Commission ("the new Commission") to supersede the Commission
for Healthcare Audit and Inspection (CHAI), the Commission for
Social Care and Inspection (CSCI) and the Mental Health Act Commission
(MHAC) which presently exercise functions under a number of Acts
relating to the health care and social care of adults, principally
the Mental Health Act 1983, the Care Standards Act 2000 and the
Health and Social Care (Community Health and Standards) Act 2003.
(Arrangements under the Care Standards Act 2000 relating to the
care of children are excluded from powers conferred by this bill
by clause 4(2)(b), and will continue to have effect.) As a result,
much of the provision (including many of the delegated powers)
in Part 1 replicates provision in the 2000 Act under which the
level of Parliamentary control is almost invariably the negative
resolution procedure. We wish however to mention four of the delegations
in this Part.
MEMBERSHIP OF THE COMMISSION — SCHEDULE 1,
PARAGRAPH 3(3)
3. Schedule 1, introduced by clause 1 of the
bill, makes provision about the new Commission. Paragraph 3 provides
that the Commission is to consist of a chair and other members
appointed by the Secretary of State, leaving all other detail
as to membership to be set out in negative regulations by the
Secretary of State. While we would usually expect to see more
provision on the face of the bill about the constitution of a
new statutory body (for instance, as to the maximum and minimum
numbers of its members), we do not consider this particular delegation
to be inappropriate, because it replicates the present provision
governing membership of each of the existing Commissions
"REGULATED ACTIVITY" — CLAUSE 4
4. Clause 4(1) enables "regulated activity"
to be defined in regulations, thereby specifying in subordinate
legislation the activities which are to fall within the registration
and supervision arrangements of the new Commission. The nature
of the activities regulated by CHAI and CSCI are at present described
by reference to sections 2 and 3 of the 2000 Act (which do however
contain wide powers of definition and exception by negative regulations);
and functions of the MHAC (which is a special health authority)
are set out partly in a negative order and partly in directions
given in writing by the Secretary of State under section 121 of
the Mental Health Act 1983. In paragraph 26 of its memorandum,
the department identifies the need for flexibility as the principal
reason for this delegation. The exercise of the power is constrained
by clause 4(2), although the breadth of its scope is apparent
from clauses 4(3) and 5. As the intention here is to merge three
bodies whose functions are presently allocated between primary
and subordinate legislation and directions, and in view of the
choice of the affirmative procedure for all exercises of the power
in clause 4(1), we do not consider this broad delegation to be
inappropriate.
CONTRAVENTION OF REGULATIONS — CLAUSE 31(A)
5. Clause 31 provides that the Secretary of State
may make negative regulations providing that a contravention or
failure to comply with a specified provision of regulations under
Chapter 2 of Part 1 of the bill is to be an offence, triable summarily.
The powers are explained at paragraphs 64 to 66 of the memorandum.
In general, the penalty may not be higher than level 4 on the
standard scale (currently £2,500), which reflects the existing
provision in section 25 of the Care Standards Act 2000. Paragraph
(a) however provides that the maximum penalty for a contravention
or failure to comply with regulations under clause 16 (regulation
of regulated activities) must not exceed £50,000: a significant
increase on the current provision. We consider that, where
regulations create a new offence with a maximum fine of more than
level 4, those regulations should be subject to affirmative resolution.
FEES — CLAUSE 81
6. Clause 81(1)(b) enables the new Commission
to require certain specified categories of body 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. As the department
explains in paragraphs 152 - 158 of its memorandum, clause 81
replicates much of the provision presently in sections 62 (CHAI)
and 86 (CSCI) of the Health and Social Care (Community Health
and Standards) Act 2003, and in section 113A of the 2000 Act.
The power to require "such other persons as may be prescribed"
to pay a fee does not however appear in any of the existing provisions,
and the memorandum contains no explanation why the power is now
thought to be necessary or about the kinds of person in respect
of whom it might be used. We draw this to the attention of
the House, so that the Minister might be invited to explain the
inclusion of this provision within clause 81.
Regulation of health professions and health and
social care workforce: Part 2
7. This Part makes significant new provision
in five areas: arrangements for adjudication in fitness to practise
proceedings for medical practitioners and opticians; the extension
of powers to regulate health professions by Order in Council;
provision for monitoring the standards of medical practitioners;
new arrangements for the regulation of social care workers; and
provision about the training of mental health professionals. Much
of this provision involves significant delegations, subject only
to the negative procedure: we do not find this inappropriate because
the powers are largely precedented in the existing legislation.
MONITORING OF MEDICAL PRACTITIONERS — CLAUSES
114 TO 117
8. Clauses 114 to 117 insert new sections 45A
to 45F into the Medical Act 1983 to confer powers to provide by
negative regulations for the monitoring of medical practitioners'
standards, in particular by providing for the appointment of "responsible
officers" (by bodies responsible for the provision of health
care which are designated by the regulations) to exercise responsibilities
conferred on them under new section 45B. In paragraphs 308 to
321 of its memorandum, the department refers to existing provision
in sections 17 to 24 of the Health Act 2006 as the model on which
clauses 114 to 117 are based, and explains that the negative procedure
applies to the exercise of powers conferred under sections 17
and 18 of the 2006 Act.
9. While the two sets of provisions are similar
in some respects, sections 17 and 18 of the 2006 Act are concerned
specifically with monitoring of the management and use of controlled
dugs and associated matters, whereas the responsibilities which
may be conferred by regulations under new section 45B(1) may relate
to any aspect of a medical practitioner's fitness to practise.
Moreover, the additional functions which may be conferred on a
"responsible officer" by negative regulations under
clause 115 do not seem to us to be analogous to anything in Part
3 of the 2006 Act. We consider 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.
Public health protection: Part 3
10. Part 3 of the bill inserts a new Part 2A
(containing new sections 45A to 45T) into the Public Health (Control
of Disease) Act 1984 to replace the existing provision in Part
2 concerned with the control of disease (see clause 124). The
memorandum from the department helpfully explains the delegations
in this Part of the bill: setting out in considerable detail the
reasons for taking each power and the purposes for which it is
envisaged most of the powers will be used. The provision in Part
2 of the 1984 Act is at present divided between substantive (and
often detailed) provision in the Act itself, and powers to make
regulations (all of which attract the negative procedure). As
the department explains at paragraphs 365 to 368 of its memorandum,
a good deal of the more detailed provision which is presently
included in Part 2 of the 1984 Act would, under the bill, be replaced
by powers to make provision by regulations.
HEALTH PROTECTION REGULATIONS — NEW SECTIONS
45B AND 45C
11. The most significant powers are conferred
in new sections 45B and 45C, each of which is supplemented by
section 45F. Many of the powers conferred by new section 45B (international
travel) are however already conferred by section 13 of the 1984
Act; and they are (as in the 1984 Act) to be exercisable subject
to the negative procedure unless they rely on the power in new
section 45F(3) to amend an Act (in which case the affirmative
procedure applies). New section 45B is broader in scope than section
13 of the 1984 Act (for instance, the power at subsection (1)(c)
to give effect to an international agreement) but we do not consider
either the delegation or procedure to be inappropriate.
12. New section 45C enables regulations to provide
for much more of the substance which presently appears in the
1984 Act itself, and they may contain provision which is general
or specific (subsection (2)). Subsection (3) enables the regulations
to provide for "restrictions or requirements on or in relation
to persons, things or premises in the event of or in response
to a threat to public health". The four particular categories
of restrictions envisaged are set out in subsection (4) (although
this is not exhaustive): the first three are of a specific kind,
but paragraph (d) enables a "special restriction or requirement"
to be imposed (for instance, that a person's health must be monitored
and the results reported - see section 45G(2)(h)). However, new
section 45D(3) and (4) enact constraints on the imposition of
special restrictions or requirements, and subsection (2) imposes
a proportionality test which must be satisfied before any
restriction or requirement may be provided for under section 45(3)(c).
In the light of these provisions, we do not consider the delegation
in new section 45C to be inappropriate.
13. As respects the parliamentary procedure which
is to apply, regulations under new section 45C are to be affirmative
unless: i) they do not include provision which amends any Act
(section 45F(3)) and ii) they contain a statement by the
Minister making them that they do not provide for the imposition
of any special restriction or requirement which would have a significant
effect on a person's rights (section 45Q(3)). Such a statement
could be challenged by judicial review. In our opinion, this strikes
the right balance between affirmative and negative procedures
for provision of this kind.
SUPPLEMENTARY PROVISION — NEW SECTION 45F
14. We wish however to draw new section 45F(5)
to the attention of the House, which enables negative regulations
under new sections 45B and 45C to create offences for which the
penalty is not to exceed level 5 on the standard scale (£5,000).
In that respect, it reflects an existing power in the 1984 Act.
But there are many instances where an offence created by Part
2 of the 1984 Act itself, but which may here be recreated by regulations,
attracts a maximum penalty of only level 1 or level 2 (£200
or £500). This is not inappropriate as a matter of delegation
but we draw to the attention of the House that the provision
in new section 45F(5) would allow regulations to prescribe higher
penalties for some offences than the 1984 Act itself provides
for the same offences.
ORDERS BY A JUSTICE OF THE PEACE: FURTHER PROVISION
— NEW SECTION 45N
15. As paragraphs 413 and 414 of the memorandum
explain, the powers conferred in new section 45N section to make
negative regulations are intended to supplement the orders which
may be made by a justice of the peace under new sections 45G to
45M, but the powers appear not to have any comparator in Part
2 of the 1984 Act. Some of the new powers, particularly those
in subsection (2)(a) to (c), enable provision to be made which
could impose obligations to be included in an order to be made
by the court, breach of which could render the person concerned
liable to a criminal sanction. Provision may also be made about
the payment of compensation (subsection (2)(e)). We consider
that the first exercise of powers under new section 45N should
be subject to the affirmative procedure.
HYBRIDITY — NEW SECTIONS 45Q AND 45R
16. The bill contains a "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
provision for different cases will not be subject to the Hybrid
Instruments procedure in this House (if that procedure would otherwise
apply to them). We draw this to the attention of the House
so that it may satisfy itself that private interests likely to
be affected by the regulations will be adequately protected without
the safeguards afforded by that procedure. We note that section
45R, which provides, in cases of urgency, for an affirmative procedure
not requiring the instrument first to be laid in draft, does not
also contain a de-hybridising provision.
Health in pregnancy grant: Part 4
17. Clauses 125 to 127 amend the Social Security
Contributions and Benefits Act 1992 and the Social Security Administration
Act 1992 to provide for a new social security benefit in Great
Britain, a health in pregnancy grant, to be administered by the
Commissioners of Her Majesty's Revenue and Customs. Clauses 128
to 130 make corresponding provision for Northern Ireland. In paragraph
419 of its memorandum, the department observes that "we propose
to cover the bulk of the detail in regulations"[1].
That is certainly the case: apart from subsection (3), which sets
out two circumstances in which a woman is not to be entitled to
the grant, new sections 140A and 140B inserted by clause 125 leave
every aspect about entitlement to, and the amount of, the new
grant to negative regulations. While the provision about this
new benefit on the face of the bill is in the nature of a skeleton,
much of the detail about entitlement to social security benefits
has traditionally been set out in negative regulations, and the
Government have here made available a draft of the proposed regulations
under the new provisions. We do not therefore consider this provision
to be inappropriate.
Sunday Trading (Horticulture) Bill [HL]
18. This bill does not delegate legislative power.
Children and Young Persons Bill [HL] —
Government Amendment
19. We reported on this bill in our 2nd Report
(HL Paper 21) and published the Government's response in our 4th
Report (HL Paper 49). The Government have now invited us to consider
an amendment to be moved on Report, the new clause "Breaks
from caring for disabled children" printed as the second
amendment on sheet HL Bill 32(i). The Department for Children,
Schools and Families have provided a supplementary memorandum
on the amendment, printed at Appendix 2. There is nothing in the
delegation in the amendment which we wish to draw to the attention
of the House.
Climate Change Bill [HL] — Government
amendments
20. We reported on this bill in our 2nd Report
(HL Paper 21) and the Government's response is printed at Appendix
5 to this Report. The Government have now invited us to consider
amendments to Schedule 5 of the bill, to be moved on Report, printed
on sheet HL Bill 29—I and now agreed to. The Department
for Environment, Food and Rural Affairs has provided a supplementary
memorandum on the amendments, printed at Appendix 3. There is
nothing in the delegations in the amendments which we wish to
draw to the attention of the House.
Criminal Justice and Immigration Bill
— Government amendment
21. We reported on this bill in our 4th Report
(HL Paper 49). The Government have now invited us to consider
an amendment to be moved in Committee, printed as amendment 166M
on sheet HL Bill 16—V and now agreed to. The Ministry of
Justice has provided a supplementary memorandum on the amendment,
printed at Appendix 4. There is nothing in the delegation in the
amendment which we wish to draw to the attention of the House.
Regulatory Enforcement and Sanctions Bill
[HL] — Government amendments
22. We reported on this bill in our 2nd Report
(HL Paper 21) and published the Government's response in our 4th
Report (HL Paper 49). The Government have now tabled a number
of amendments to be moved on Report, printed on sheet HL Bill
31(e), many of which amend existing delegations in the
bill largely to narrow their scope. There is nothing in the amendments
which we wish to draw to the attention of the House. While welcoming
the narrowing of several of the delegations, we regret that the
department did not provide us with a supplementary memorandum
to explain their amendments.
Climate Change Bill [HL] — Government
response
23. We reported on this bill in our 2nd Report
(HL Paper 21) and the Government have now responded by way of
a letter to the Chairman from Lord Rooker, Minister of State at
the Department for Environment, Food and Rural Affairs, printed
at Appendix 5.
Criminal Justice and Immigration Bill
— Government Response
24. We reported on this bill in our 4th Report
(HL Paper 49) and the Government have now responded by way of
a letter to the Chairman from Lord Hunt of Kings Heath, Minister
of State at the Ministry of Justice, printed at Appendix 6.
Draft Legislative Reform (Health and Safety
Executive) Order 2008
25. This draft legislative reform order proposes
to amend the Health and Safety at Work etc. Act 1974 to merge
the Health and Safety Commission and the Health and Safety Executive.
It has been laid by the Department for Work and Pensions together
with an explanatory document[2].
It is the first draft order to be laid under section 2 of the
Legislative and Regulatory Reform Act 2006: that section enables
Ministers by order to secure that regulatory functions are exercised
to comply with two principles:
"(a) regulatory activities should be carried
out in a way which is transparent, accountable, proportionate
and consistent;
(b) regulatory activities should be targeted
only at cases in which action is needed."
26. We consider that the draft order meets the
tests in the 2006 Act; that it is not otherwise inappropriate
to be made by delegated legislation; and that it meets the tests
applied to other instruments by the Joint Committee on Statutory
Instruments.
27. Unlike the Regulatory Reform Act 2001, which
provided a single super-affirmative procedure for regulatory reform
orders, the 2006 Act allows the Government to propose the negative,
affirmative or super-affirmative procedure for each LRO, with
Parliament allowed to upgrade the procedure if it so wishes within
30 days from the date on which the instrument was laid. The Government
have proposed the affirmative procedure for this draft order:
we do not consider that procedure inappropriate.
1 The department supplied a draft of the proposed
regulations, amongst other items, in evidence to the Public Bill
Committee in the House of Commons. Copies are available in the
Library. Back
2
The draft order is published at www.opsi.gov.uk/si/si2008/draft/ukdsi_9780110809526_en_1
and the explanatory document is published at www.opsi.gov.uk/si/si2008/draft/em/ukdsiem_9780110809526_en.pdf Back
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