Correspondence: Quality of the Department of Health and Social Care’s Explanatory Memoranda
69.In recent weeks we have drawn the House’s attention to omissions and errors in the explanation of several instruments from the Department of Health and Social Care (DHSC).13
70.The Explanatory Memorandum (EM) to one particular instrument, the Health and Social Care Act 2008 (Regulated Care Functions) Regulations 2023, had almost no useful information in it at all. The information we published on those Regulations in our 33rd Report14 was almost wholly composed of information to help the House understand what the content and effects of that instrument were intended to be. That is the fundamental purpose of an EM, and we should not have to ask a series of supplementary questions to obtain basic information on the instrument’s policy content and the Department’s rationale for laying it.
71.We therefore wrote to the Department’s Minister with responsibility for statutory instruments, Lord Markham CBE, to ask what DHSC is doing to ensure that the material in support of its secondary legislation consistently meets an acceptable standard. The correspondence is published in Appendix 4 of this Report. We are reassured by the Minister’s plans to make improvements but will be monitoring the Department’s instruments closely to see whether they are delivered.
13 See for example correspondence in our 30th Report (Session 2022–23, HL Paper 152) on the Health and Social Care Information Centre (Transfer of Functions, Abolition and Transitional Provisions) Regulations 2023, and the draft Health Education England (Transfer of Functions, Abolition and Transitional Provisions) Regulations 2023 in our 32nd Report (Session 2022–23, HL Paper 163) .
14 33rd Report (Session 2022–23, HL Paper 167).