Select Committee on Delegated Powers and Regulatory Reform Twenty-Seventh Report

Annex 2


Supplementary Memorandum by the Department of Health


The Government have tabled a number of amendments on Report intended to respond to points raised in Committee. This memorandum explains those of the amendments which entail changes to delegated powers. The draft text of the relevant amendments is attached.


Elections to Boards of Governors

In Committee, their Lordships passed an Opposition amendment to paragraph 6(5) of Schedule 1 requiring the Secretary of State to make regulations specifying the electoral system to be used in elections to NHS Foundation Trusts' Boards of Governors. Government amendments propose to delete paragraph 6(5) and replace it with a new clause introducing a broader regulation making power, and specifying in detail what the regulations would cover - in addition to electoral systems, matters such as nominations procedures and supervision of elections.

Requirement to consult prior to authorisation

A number of concerns were raised by Lord Clement-Jones and Baroness Barker at Lords' committee about the provisions in the Bill requiring an NHS trust to consult before it makes an application to the regulator to be an NHS foundation trust. An amendment was tabled setting out consultation requirements for "proposed applications": see column 662 of the Hansard record.

As it currently stands, clause 6(4) of the Bill allows the Secretary of State to make regulations requiring applicants to consult prescribed persons about an application to be a NHS foundation trust. The regulator may not give an authorisation unless it is satisfied that an applicant has complied with the regulations. The provision does not allow regulations to be made requiring consultation before an application is made to the regulator, but the Secretary of State can require a NHS trust or a person proposing to make an application under clause 5 to consult before he gives his support to an application.

While retaining the discretionary power to make regulations in clause 6(4), we propose to amend the clause so that the regulator must be satisfied that applicants have consulted with specified persons before it grants an application.


Allowing bodies to comment on draft reports

In response to points raised in Committee, we want to provide for bodies to comment on the factual accuracy of reports of CHAI and/or CSCI before they are published. We are conscious that the amendments provide for nine new regulation making powers, but we hope the Committee will understand the reason for this. We want to be able to specify different consultation periods for different functions and in different circumstances, depending on the urgency of the situation for example. Because of the way the Bill is drafted, this translates into amendments to nine separate clauses, each containing a new regulation making power. In effect, however, this is a single new power. In creating a statutory basis to the requirement to allow bodies to comment, the amendments go further than the equivalent procedures for other bodies such as OFSTED.


As well as tidying up the Bill for consistency purposes, these amendments respond to a point raised in Committee to make it clear that the complaints regulations under the Bill may make provision requiring persons or bodies handling complaints, to make information available to the public.


Dental charges

Regulations under the section 79 of the NHS Act 1977 inserted by clause 179 may prescribe the way in which patient charges can be made and recovered for dental services. For example, the regulations may set a maximum charge and exempt certain treatments from a charge. The regulations may also provide for the amount that Primary Care Trusts, Local Health Boards or Special Health Authorities pay back to dental clinics or practices to be reduced by the amount that has been collected in patient charges by each clinic or practice. In response to points raised in Committee, these amendments would make the first set of regulations under the new section 79 of the NHS Act 1977 subject to the affirmative procedure but subsequent sets subject to the negative procedure.

4 November 2003

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