Number of Corrections to Statutory Instruments in 2014 - Secondary Legislation Scrutiny Committee Contents


Letter from Lord Goodlad, Chairman of the Secondary Legislation Scrutiny Committee, to Jeremy Hunt MP, Secretary of State for Health

At its meeting today, the Secondary Legislation Scrutiny Committee considered the National Health Service (Direct Payments) (Amendment) Regulations 2013 (SI 2013/2354) which corrects an instrument laid on 4 July 2013 (SI 2013/1617).

The corrections have two aspects: first, they reinstate two paragraphs accidentally omitted from SI 1616; and, secondly, the instrument facilitates the review of any decision made in connection with Direct Payments. The first error indicates poor checking of the instrument before it was laid. The second is rather more worrying as the scheme has existed since 2010 without a full range of internal appeal mechanisms, and this fundamental policy oversight is only now being corrected. We have drawn the attention of the House to both aspects in our latest report.

I am writing to you, at the request of the Committee, because we are concerned about the general quality of the secondary legislation that your Department has put before the House in the first half of the year.

We have several times had to request substantial amounts of additional information to clarify the policy intention or context (for example, an explanation of the quality criteria to be used in assessing payments to the Clinical Commissioning Groups under SI 2013/474) or have had to ask for Explanatory Memoranda to be replaced due to the inadequacy of the material provided (for example the Draft NHS (Direct Payments) Repeal of Pilot Schemes Limitation Order 2013).

We have also had to ask for clarification of the practical implications of policies (for example in relation to NICE International's liability for damages under SI 2013/259 and 497) and have pointed out flaws in regulations that might have encouraged abuse of the dental charging structure (SI 2013/364 later rectified by 2013/711). In March, our 33rd report of Session 2012-13 drew the attention of the House to this last item and said that although the immediate problem had been resolved the question remained how the Department of Health's internal checking systems had failed to prevent sub-standard regulations being laid before the House.

8 October 2013

Letter from Jeremy Hunt MP to Lord Goodlad

I attach great importance to ensuring that our secondary legislation is of good quality, and I very much regret that the Committee has had occasion to criticise some of the SIs.

I have therefore asked the Permanent Secretary to take steps to deal with the issues you raise. In particular, we plan to re-emphasise to senior civil servants in the department that they are personally accountable for the SIs and the Explanatory Memoranda falling within their area of responsibility and for ensuring that points likely to be of concern to the Committee have been addressed. We will also place a fresh emphasis on the need for senior civil servants to attend training on secondary legislation - and I very much welcome the input the Committee's staff make to the training that the department arranges.

Because of the long lead times for preparing SIs (including the time needed to develop policy), it may take time for the full impact of these steps to be felt. I therefore propose to review the department's performance next summer and I have made clear that I expect to see an improvement by then.

Meanwhile, I apologise to the Committee for the errors in SI 2013/1617 which were corrected by the National Health Service (Direct Payments) (Amendment) Regulations SI 2013/2354, on which you commented in your twelfth report. A provision replicating one in the 2010 regulations had been deleted at a late stage in the drafting of SI 2013/1617, and two paragraphs that cross-referred to it were inadvertently deleted at the same time. Unfortunately, SI 2013/1617 made sense without the two paragraphs, and automatic paragraph numbering meant the omission was not picked up when our normal checks were done. My legal adviser has alerted all our lawyers to this incident and to the need to be careful to check at each stage that all the relevant provisions remain in the instrument. As far as the additional appeal mechanism (now included in the amending 2013 instrument) is concerned, it was originally thought that NHS review processes and the ombudsman were sufficient to deal with any appeals, but over time the department came to a different view.

30 October 2013

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