Joint Committee on Statutory Instruments Tenth Report


APPENDIX 3

Memorandum by the Department of Health

PRIMARY CARE TRUSTS (MEMBERSHIP, PROCEDURE AND ADMINISTRATION ARRANGEMENTS) REGULATIONS 2000 (S.I. 2000/89)

  1. The Committee has requested a memorandum on the following points concerning the above Regulations:

    (1)  Explain why regulation 1 contains no provision making the Regulations applicable to Primary Care Trusts established for areas in England only.

    (2)  Regulation 12 allows an (English) Primary Care Trust to exercise its functions through the agency of other health authorities or jointly with other health authorities, NHS Trusts or Primary Care Trusts. Is it intended that these other health bodies are to include ones established for areas in Wales?

  2. In relation to the first point, these Regulations are made under sections 16B and 126(4) of, and paragraph 5 of Schedule 5A to, the National Health Service Act 1977. As set out in footnote (a) to the Regulations, the functions of the Secretary of State under these provisions were, in so far as exercisable in relation to Wales, transferred to the National Assembly for Wales by the National Assembly for Wales (Transfer of Functions) Order S.I. 1999/672. It is the Department's view that a provision stating that the Regulations apply to Primary Care Trusts established for areas in England only is not technically required. The Secretary of State has no power to make the Regulations applicable to Primary Care Trusts established for areas in Wales; that power is exercisable only by the Assembly. It is further the Department's view that the heading of the instrument (which refers only to the National Health Service, England), together with the footnote mentioned and the explanatory note, should make the position clear to readers. The Department has noted that Counsel to the Speaker has suggested that it would be good practice to make it clear that on the face of an instrument that is of limited extent or application; in the present case the Department considers that the application of this instrument is clear from its face. In particular, the Department notes that this is not a case where the instrument in question is amending a principal instrument whose extent is not so limited.

  3. In relation to the second point, the Department's view is that the references to other health service bodies in regulation 12 do not include ones established for areas in Wales. As explained in the Department's answer to the Committee's first point, the Secretary of State has the power to make regulations in relation to England only. Regulation 12(1) provides that functions exercisable by an (English) Primary Care Trust may, under arrangements made with that trust, be exercised by the health service bodies listed in paragraphs (a) to (d). The effect of the regulation is two-fold. First, it confers on Primary Care Trusts the power to enter into such arrangements; the Secretary of State may only confer this power on "English" trusts. Secondly, it confers on those bodies listed in paragraphs (a) to (d) the power to enter into such arrangements; again the Secretary of State may only confer this power on English health service bodies.

  4. If Welsh health service bodies are to exercise the functions of English Primary Care Trusts, provision additional to that in regulation 12 would be required. The Secretary of State would have to make further regulations, bestowing on English Primary Trusts the power to enter into arrangements with Welsh health service bodies and the Assembly would have to make corresponding provision, bestowing on Welsh health services bodies the power to enter into arrangements and exercise English Primary Care Trust functions. Until such provisions are made, the regulations as drafted allow English bodies only to exercise the functions of English Primary Care Trusts.

  5. The Committee's point has drawn to the Department's attention the limited effect of regulation 12. Any further provision which is considered to be desirable will however be dependent on corresponding regulations being made in relation to Wales.

7th February 2000


 
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