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
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.
PARAGRAPH 8 (2)
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
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
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
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.