Select Committee on Delegated Powers and Regulatory Reform Ninth Report



1.  Part 1 of this bill makes provision about National Health Service patients whose discharge from hospital is delayed because the local authority has not put in place the necessary community care services or services for carers. In particular, it provides for a system of payments for the local authority to the provider of the NHS healthcare. Part 2 of the bill enables the removal of local authorities' powers to charge for certain community care services or services for carers. The bill extends to England and Wales only.


2.  The bill contains a number of delegated powers. These are (with one exception) identified in the memorandum from the Department of Health to the Committee. (The exception is the power in clause 17(2) to make commencement orders.) The memorandum is printed as an Annex to this Report. Instruments to be made by the Secretary of State, or by the National Assembly for Wales ("the Assembly") and the Secretary of State acting jointly, are subject to negative procedure. Instruments to be made by the Assembly will be subject to the subordinate legislation procedure under the Government of Wales Act 1998.

3.  We note that in the course of the Second Reading debate on 27 January, comments were made about the extent of the delegation of powers in the bill. We acknowledge the general thrust of this point although, on this occasion, save for the issues raised in respect of clause 1 and clause 4(4) below, the Committee finds nothing unusual in the powers to make regulations.

Clause 1

4.  Clause 1 defines a "qualifying hospital patient" as a person who (amongst other things) is receiving (or has received or is expected to receive) "care of a description prescribed in regulations". Clauses 2 to 4 (which are the main provisions of Part 1 of the bill about determination of need for services and delayed discharge payments) apply only where the patient is a "qualifying hospital patient"; and clause 11, which enables Part 1 to be extended to qualifying care home patients, links (through clause 11(4)) to the description of care under clause 1. So the description of care under clause 1 largely determines the practical scope of Part 1.

5.  In these circumstances, we considered whether regulations under clause 1 should, except where made by the Assembly alone, be subject to affirmative procedure. In doing so, we considered the Assembly's mechanism for scrutiny of subordinate legislation which, we recognise, is not strictly analogous to either the negative or affirmative procedures in the Westminster Parliament. We approach each delegation on a case by case basis and concluded that, on this occasion, the negative procedure is satisfactory. We anticipate, however, that the impact of devolution on delegated legislation is an issue to which we shall, more generally, turn our attention in the coming months. Meanwhile, we would find it helpful if Government departments, when drawing up memoranda on delegated powers in bills involving England and Wales, would say whether, and if so how, the devolution arrangements influenced their decision as to which Parliamentary procedure should be applied in relation to instruments applying to England.

Clause 4(4)

6.  Clause 4(4) enables regulations to prescribe the daily amount which a local authority must pay for the delayed discharge period. Although the bill contains no express limit to the power to prescribe an amount, the Explanatory Notes which accompany the bill[2] (paragraph 32) suggest that the amount prescribed will represent the average daily cost (adjusted) of treating patients in a nursing-led facility, which will currently work out at about £100 to £120 (paragraph 26 of the memorandum to the Committee).

7.  We accept that it is common for bills to leave amounts of payments to be prescribed by regulations. However, neither the amount which may be fixed under clause 4, nor the method by which it may be calculated, are limited on the face of the bill. We do not consider that the position is appropriate in a provision which is central to Part I of the bill. The Committee considers that the delegation in clause 4 would be appropriate if the bill described at least the main factors by reference to which the amount must be assessed. Alternatively, (though this would not apply to regulations made by the National Assembly for Wales), the first regulations made under clause 4(4) should be subject to the affirmative procedure.


8.  Save for the recommendations in paragraph 5 and 7 above, there is nothing in the delegated powers in this bill to which the Committee wished to draw the attention of the House.

2   The Explanatory Notes are published by TSO as HL Bill 20-EN and are available at  Back

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