Select Committee on Delegated Powers and Deregulation Second Report

Part VIII: General and Supplemental


143.  Clause 91(1) provides for the Secretary of State to make an order declaring the Commission, or the English Council in default if without reasonable excuse has failed to discharge any of its functions, or in discharging its functions has failed to comply with any directions or guidance given to it. In such cases the Secretary of State may either carry out the functions himself or nominate a person or organisation to discharge these functions on his behalf.

144.  The Assembly for Wales has corresponding powers in respect of the Care Council for Wales.


145.  Clause 94 provides that all orders and regulations made under the Bill will be made by statutory instrument, and, apart from commencement orders, in England these will be subject to Parliamentary scrutiny under the negative procedure. Commencement orders will also be subject to the negative procedure if they relate to orders under clause 95(2) which amend or repeal any enactment, instrument or document. The Government of Wales Act 1998 places duties on the Assembly in respect of making regulations. These are set out in full in Standing Order 22 of the Assembly.


146.  Clause 95 gives the appropriate Minister power enabling him to make such additional provision as he considers necessary in order to give full effect to the provisions of the Bill. In particular, subsection (1) confers on the appropriate Minister power to make orders containing any supplementary, incidental, consequential, transitory, transitional or saving provision which he considers necessary or expedient for the purposes of, in consequence of or for giving full effect to any provision of the Bill. Subsection (2) then provides that such an order may make provision amending or repealing any enactment, instrument or document. With a Bill of this length, dealing with a wide range of different subjects, a number of supplementary, incidental, consequential or transitional provisions may be required. It is likely that some of these matters not currently included in the Bill will be put forward as amendments to the Bill. However the nature and extent of some consequential or supplementary requirements, including the necessary legislative amendments, may not become apparent until after the Bill is in force. The Department therefore considers it appropriate that the power in clause 95 should extend to amending or repealing other enactments, instruments or documents.

147.  Orders under clause 95 will be subject to the negative resolution procedure. The Department considers that this procedure is justified in the present case, even where such an order will amend or repeal an enactment. To include all the necessary consequential and supplementary provisions in the Bill would lengthen the Bill, and take up Parliamentary time on consequential and supplementary matters.


148.  In clause 96 (general interpretation etc) subsection (3) provides that the expression "personal care" or "nursing and personal care" does not include any activity that may be prescribed in regulations. It is considered that the level of detail that may be required and the need to allow future flexibility will mean that it is appropriate to exclude activities by means of regulations. The expressions "personal care" and "nursing and personal care" are relevant to a number of definitions in the Bill such as care homes, domiciliary care agencies and social care workers and (in respect of protection of vulnerable adults) care workers and supply workers.

149.  Clause 97. The Bill is to be brought into force on such as day as the appropriate Minister may by order appoint. Part VIII, Chapter II of the Bill (clauses 94 to 98), which provides for supplemental matters, is to come into force on Royal Assent.

Schedule 1: The Commission and the Councils

150.  It is intended that the Commission, the English and Welsh Councils, will be similar in the way they are constituted and will have the status of non-departmental public bodies. In view of this, the provisions for specifying their constitution and membership have been combined into Schedule 1, which uses the term "authority" to refer to each of the bodies. Details of the authorities' constitutions and membership are not given on the face of the Bill. Much of the delegated power in this Schedule is given to the Secretary of State. It involves detailed matters subject to change and amendment. As such they are thought inappropriate for primary legislation.

151.  In relation to the Care Council for Wales, references in Schedule 1 to the Secretary of State are to have effect as references to the National Assembly for Wales (clause 50(6)).


152.  Paragraph 3 gives the authorities general powers to do anything necessary or expedient in the exercise of their functions. This includes in particular acquiring and disposing of land and property and entering into contracts. The authorities powers are to be exercised subject to any directions given to the authorities relating to the way in which they exercise their functions. The Department sees such a power as a safeguard that needs to be flexible and capable of immediate use: the power to issue directions (under clauses 6(2) and 50(6)) is the most appropriate form of delegated power in this case.


153.  Paragraph 6 makes provision for the Secretary of State to make regulations with regard to the appointment of the chairman and other members of an authority (6 (a)). This may also include the number of members. Paragraph 6 (b) makes provision for a regulation making power with regard to the tenure of office for the chairman and other members of the authority. Paragraphs 6 (c) and (d) make provision for the appointment, constitution, exercise of functions and procedures of committees and sub-committees of the authority, whether or not they are made up of persons who are not members of the authority. To fix these matters on the face of the Bill would, in the Department's opinion, impose an unnecessary constraint on the authorities. Any changes would require primary legislation and could result in unnecessary delay and consumption of Parliamentary time. In addition, regulations are necessary to avoid placing significant amounts of detail on the face of the Bill, which might then require frequent amendment to meet changing circumstances. Experience has shown that rules about membership, for example, need to reflect changing circumstances.


154.  Paragraph 7 makes provision for the Secretary of State to determine: the remuneration and allowances that an authority may pay to its chairmen, members or committee or sub-committee members (paragraph 7(1)); pensions, allowances and gratuities for present and former chairmen and members of the authorities (paragraph 7(2)); and compensation for loss of office. These are all matters of detail that are inappropriate for primary legislation. Regulations would also be inappropriate as these provisions might require frequent amendment. Determination by the Secretary of State is the most appropriate and flexible method.


155.  Under paragraph 8 there is to be a chief officer of each authority who is to be a member of the staff of the authority and responsible to it for the exercise of its functions. The chief officer of the authority is to be appointed on terms and conditions determined by the Secretary of State (paragraph 8(2)). Subsequent chief officers will be appointed on terms and conditions decided by the authority (paragraph 8(3)). The first chief officers require special provision as they will be appointed ahead of the full organisations being in place in order to assist with planning and implementation. Thereafter the authorities will be in a position to appoint their own chief officers.


156.  Paragraph 9 (1) makes provision for the Secretary of State to direct the National Care Standards Commission to appoint regional directors for specified regions. In line with the White Paper, Modernising Social Services, it is intended that these regions will be based upon the eight regions of the NHS Executive. As the number and boundaries of these regions may need to change at certain points in the future, it would be inappropriate to set them out in primary legislation.

157.  The regional directors are to have such functions as may be prescribed in regulations (paragraph 9(2)). These functions may include a high degree of operational detail that would be inappropriate to put in primary legislation.


158.  Paragraph 10(2) enables the Secretary of State to prescribe by regulations the functions of a children's rights director who, under paragraph 10 (1), the National Care Standards Commission is required to appoint. The intention is that the children's rights director should ensure that the work of the Commission in regulating children's services takes full account of children's rights and welfare. The exact functions of the children's rights director will need to be set out in some detail, and flexibility will be necessary to take account of changing circumstances in the regulation of children's services. It is most appropriate to set these functions out in regulations.


159.  Paragraph 11(2) gives the authorities, as employers, power to determine terms and conditions for its staff, subject to paragraphs 11(3) and (4). Paragraphs 11(3) and (4) give the Secretary of State power to issue directions to the authority with regard to the appointment, terms and conditions of staff, including the chief officer and, in the case of the Commission, the regional directors and the children's rights director (see paragraphs 8, 9 and 10). This would enable the Secretary of State to determine the number of employees and to set the parameters within which the authorities will determine the pay and conditions of their staff. Similar powers have been given in respect of other public bodies. The amount of detail that is required for such provisions, makes it unsuitable to set these out in primary legislation.


160.  Paragraph 13 makes provision for regulations enabling staff from other statutory bodies, such as Health Authorities and the Commission for Health Improvement, to be placed at the disposal of the Commission or Councils and vice versa. These regulations will enable secondment of staff between the named authorities and will also allow for eg. staff from the Commission for Health Improvement to carry out inspections of private hospitals on behalf of the National Care Standards Commission. The regulations will need to be amended and updated to reflect changes in designated bodies and the changing needs of an authority.


161.  Paragraphs 15 (1), (2) and (3) provide for the Secretary of State to determine matters relating to the authorities' accounts: how they must be kept, prepared and when copies must be submitted to the Government. These are detailed matters and may be subject to change at short notice. This makes the exercise of the power unsuitable for legislation, but wholly appropriate for the Secretary of State to determine.

Schedule 2: Child Minding and Day Care for Young Children

162.  Clause 68(2) brings Schedule 2 into effect; Schedule 2 inserts new Schedule 9A into the Children Act.


163.  Paragraph 1 provides for the exemption of certain schools from Part XA. Subparagraph (1) gives a power to make regulations to remove the exemption in certain circumstances. The Department for Education & Employment has indicated that it intends to consult on the exemption for independent schools. If, as is anticipated, the consultation reveals that changes are required to the current exemption for independent schools, regulation making powers will provide for greater flexibility in approach and an ability to make prompt amendments in response to changing circumstances.


164.  Paragraph 4(1) enables regulations to be made which provide for a person to be disqualified from registering as a child care provider. Paragraph 4(2) lists the circumstance which may, in particular, provide for a person to be disqualified. These subparagraphs replicate subparagraphs 2(1) and (2) of Schedule 9 to the Children Act with the exception that the regulations may also provide for a person to be disqualified where he is included on the list kept under section 1 of the Protection of Children Act 1999 or, under particular circumstances, the list kept under section 218 of the Education Reform Act 1988.

165.  Paragraph 4(3) gives a power to make regulations to disqualify from registering as a child care provider anyone who lives in a household in which someone who is disqualified from registering either lives or works. It is more appropriate for this provision to be in delegated legislation in order to allow for greater flexibility in approach and an ability to make prompt amendments in response to changing circumstances, particularly in relation to allowing for exemptions to the disqualification.


166.  Paragraph 6(2) enables regulations to prescribe the information to be included on a certificate of registration issued by the registration authority. This provision is similar to that at subparagraph 6(2) of Schedule 9, although the there the information to be included is set out in primary legislation. It is envisaged that the level of detail to be set out on the certificate under the new system will be greater that required at present, thus, making delegated legislation a more appropriate route.

167.  Paragraph 6(4) enables a fee to be set in regulations which must be paid in order for a copy of the registration certificate to be issued (for example, where the original has been lost or destroyed). This provision replicates that in paragraph 6(4) of Schedule 9. Prescribing the fee in regulations enables it to be varied from time to time.


168.  Paragraph 7 gives a regulation making power to prescribe the times at which registered providers must pay a prescribed annual fee to the registration authority. The power to prescribe the fee is similar to that in paragraph 7(1) of Schedule 9. The time that the fee becomes due is no longer in primary legislation so as to enable variations to the trigger for payment. For example, it may be more appropriate, in some cases, to link the payment to the anniversary of registration or some other event.

December 1999

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