National Health Service (Procurement, Patient Choice and Competition) Regulations 2013 - Secondary Legislation Scrutiny Committee Contents



25.  On 29th October 2012, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2012 was laid in Parliament. A motion approving the Order was passed by the House of Commons but the Order was voted down by the House of Lords.[7] The debate revolved around a particular provision that restricted civil legal aid for a welfare benefit appeal to only being available when the First-tier Tribunal had identified an error of law in its own decision. The House felt that this was narrower than an undertaking given in the Commons during the passage of the Bill had indicated. The Ministry of Justice states that it has no plans for this aspect of the previous Order to be brought forward in secondary legislation.

26.  However, the previous Order also contained several other provisions, which are being put before the House again (Articles 5, 6 and 7 of this instrument on international maintenance agreements and judicial review) which were not included in the prayer motion. The revised instrument also includes two new provisions: Article 3 deals with appeals on council tax reductions setting out that legal aid will only be available for advice and assistance (known as Legal Help) for appeals on a point of law in the High Court, payment for Legal Representation (advocacy) will be limited to appeals to the Court of Appeal and Supreme Court. Article 4 would apply the revised, cross-Government definition of domestic violence.


27.  These six instruments all contribute to the implementation of the next stage in the transformation of the National Health Service as set out in the Health and Social Care Act 2012:

28.  The NATIONAL TREATMENT AGENCY (ABOLITION) AND THE HEALTH AND SOCIAL CARE ACT 2012 (CONSEQUENTIAL, TRANSITIONAL AND SAVINGS PROVISIONS) ORDER 2013 (SI 2013/235) abolishes the National Treatment Agency, a Special Health Authority established under the NHS Act 2006, on 1 April 2013 and transfers its functions to the Secretary of State as part of the creation of Public Health England, a new executive agency of the Department of Health. It also revokes a number of instruments and amends nearly 200 others from across Whitehall and the devolved administrations. The provisions which are most extensively amended by the instrument are the National Health Service (Direct Payments) Regulations 2010 (SI 2010/1000) which are due to be revoked and re-made when the pilot period comes to an end later this year.

29.  The NATIONAL INSTITUTE FOR HEALTH AND CARE EXCELLENCE (CONSTITUTION AND FUNCTIONS) AND THE HEALTH AND SOCIAL CARE INFORMATION CENTRE (FUNCTIONS) REGULATIONS 2013 (SI 2013/259) similarly implement provisions of the 2012 Act to put well-established bodies on a firmer statutory footing and make them more transparent. They also extend the scope of their functions to include social care for NICE and adult social care and supporting the delivery of health and care IT systems for the Information Centre.

30.  Several of these instruments also serve to make the institutions more autonomous. For example, the NATIONAL HEALTH SERVICE AND PUBLIC HEALTH (FUNCTIONS AND MISCELLANEOUS PROVISIONS) REGULATIONS 2013 (SI 2013/261), amongst other things, make the Clinical Commissioning Groups responsible for commissioning most NHS services, supported by, and accountable to, a new non-departmental public body, the NHS Commissioning Board, which in turn will be accountable to the Secretary of State who will set strategic direction and objectives for the Board but will no longer have extensive general powers to intervene in the NHS.

31.  Similarly the NATIONAL HEALTH SERVICE TRUST DEVELOPMENT AUTHORITY (ESTABLISHMENT AND CONSTITUTION) AMENDMENT ORDER 2013 (SI 2013 /260) provides for the transfer of staff from the Department of Health, Strategic Health Authorities, Primary Care Trusts and the NHS Institute for Improvement and Innovation to the National Health Service Trust Development Authority with effect from 1 April 2013. The Authority will exercise certain functions of the Secretary of State, primarily in managing the performance, assuring and improving clinical performance, governance and risk in NHS trusts and assisting NHS trusts to become foundation trusts. It will carry out the Secretary of State's role in making certain appointments to NHS trusts and appointments of trustees to various bodies established under the Act.

32.  The TRANSFER OF UNDERTAKINGS (PROTECTION OF EMPLOYMENT) (TRANSFERS OF PUBLIC HEALTH STAFF) REGULATIONS 2013 (SI 2013/278) effect the transfer, from 1 April 2013, of public health staff from NHS Trusts, Foundation Trusts and universities into Public Health England. The purpose of the Regulations is to transfer the relevant staff contracts to the Secretary of State, and to provide protection of existing terms and conditions of employment for the staff affected, in line with the treatment of staff who will be transferring into Public Health England from other employers.

33.  NATIONAL HEALTH SERVICE (REVISION OF NHS CONSTITUTION-PRINCIPLES) REGULATIONS 2013 (SI 2013/317) The NHS Constitution was first published in 2009 to bring together the principles, values, rights and responsibilities that underpin the NHS. The Constitution is a 'declaratory document', codifying rights contained in existing legislation and drawing them together in one place. It does not, itself, create new rights. Following a review in 2012[8] and consultation on how it should be strengthened, these Regulations revise and republish the NHS Constitution ready for the new structure of the NHS that commences on 1 April 2013.


34.  The Department for Environment, Food and Rural Affairs (Defra) has laid these Regulations. They enforce the EU Timber Regulations[9] which prohibit the placing of illegally harvested timber and timber products on the EU market and require those first placing timber and timber products on the EU market to exercise due diligence. We sought further information from Defra about certain definitions used in the Regulations, and about the provisions on powers of entry. We publish that information in Appendix 3; we note that the explanation of the definition of "director" seems lacking in clarity to us.


35.  When the original Order was introduced in 2001[10] it was not envisaged that wind farms would be built beyond 12 miles from the UK coastline or that other offshore energy work activities would be undertaken. As new industries evolved, temporary Orders were introduced in 2009 and 2011 to cover work activities in a Renewable Energy Zone. The 2013 Order will consolidate the previous legislation and provide legal clarity for duty holders that health and safety legislation applies to offshore activities associated with emerging energy and climate change technologies (for example, combustible gas storage, carbon dioxide storage and underground coal gasification) including those situated beyond the territorial sea).


36.  These Regulations continue the Government's policy of limiting the scope of Legal Aid. They prescribe that, on a welfare benefits matter, an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal is not to be regarded as preliminary to the proceedings described in paragraph 8 of Part 1 of Schedule 1 to the Act. The effect is that Legal Aid will not be available for such applications. However, Legal Aid is available under paragraph 8 of Part 1 of Schedule 1 to the Act for applications for permission to appeal to the Upper Tribunal on a welfare benefits matter when the application is made to the Upper Tribunal.


37.  These Regulations are necessary to give effect to the powers inserted into the Police Reform Act 2002 by the Police (Complaints and Conduct) Act 2012 which allow the Independent Police Complaints Commission (the IPCC) to require witnesses to attend an interview without needing to seek the approval of a chief officer. By placing a statutory duty directly on the serving officer to comply with these Regulations, they enable the IPCC to call witnesses from several categories of individuals, including members of police forces, special constables and police staff (including Police Community Support Officers) and the Serious Organised Crime Agency. Before the introduction of this power by the 2012 Act, those serving with the police who had witnessed incidents which were referred to the Commission as a result of a complaint or conduct matter but were not themselves under investigation could not be compelled to attend an interview where they refused to do so. These Regulations represent a significant extension to the IPCC evidence-gathering ability, as it will enable the Commission to exercise this power as part of any investigation managed or carried out independently by it. It is envisaged that this will form a key element of the IPCC's current investigations into the Hillsborough disaster.


The Committee has considered the instruments set out below and has determined that the special attention of the House need not be drawn to them.


  Electoral Registration (Disclosure of Electoral Registers) Regulations 2013

  Electoral Registration (Postponement of 2013 Annual Canvass) Order 2013

Immigration and Nationality (Fees) Regulations 2013

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) Order 2013

  Non-Domestic Rating (Levy and Safety Net) Regulations 2013

  Official Statistics Order 2013


SI 2013/233  Timber and Timber Products (Placing on the Market) Regulations 2013

SI 2013/235  National Treatment Agency (Abolition) and the Health and Social Care Act 2012 (Consequential, Transitional and Saving Provisions) Order 2013

SI 2013/236  Foreign Compensation Commission (Winding Up) Order 2013

SI 2013/238  Parliamentary Commissioner Order 2013

SI 2013/240  Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order 2013

SI 2013/258  Motor Vehicles (Driving Licences) (Amendment) Regulations 2013

SI 2013/259  National Institute for Health and Care Excellence (Constitution and Functions) and the Health and Social Care Information Centre (Functions) Regulations 2013

SI 2013/260  National Health Service Trust Development Authority (Establishment and Constitution) Amendment Order 2013

SI 2013/261  National Health Service and Public Health (Functions and Miscellaneous Provisions) Regulations 2013

SI 2013/264  Food Safety (Sampling and Qualifications) (England) Regulations 2013

SI 2013/265  Civil Legal Aid (Preliminary Proceedings) Regulations 2013

SI 2013/266  Income-related Benefits (Subsidy to Authorities) Amendment Order 2013

SI 2013/271  Road Vehicles (Testing) (Miscellaneous Amendments) Regulations 2013

SI 2013/278  Transfer of Undertakings (Protection of Employment) (Transfers of Public Health Staff) Regulations 2013

SI 2013/281  Police (Complaints and Misconduct) Regulations 2013

SI 2013/282  Personal Injuries (NHS Charges) (Amounts) Amendment Regulations 2013

SI 2013/300  Sexual Offences Act 2003 (Prescribed Police Stations) Regulations 2013

SI 2013/317  National Health Service (Revision of NHS Constitution - Principles) Regulations 2013

SI 2013/339  Greater Manchester (Light Rapid Transit System) (Exemptions) Order 2013

7   HL Debates, 3 December 2012, cols 464- 491 Back

8   Report on the Effect of the NHS Constitution (2012) Back

9   Regulation (EU) No 995/2010 of the European Parliament and of the Council laying down the obligations of operators who place timber and timber products on the market. Back

10  Health and Safety at Work etc. 1974 (Application outside Great Britain) Order 2001 (SI 2001/2127) Back

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