HEALTH AND SOCIAL CARE (COMMUNITY HEALTH
AND STANDARDS) BILL - GOVERNMENT AMENDMENT FOR COMMITTEE STAGE
Supplementary Memorandum by the Department
1. This memorandum supplements the one printed
in the 24th Report of the Delegated Powers and Regulatory Reform
Committee on 10 September.
2. Amendments to clause 191 will shortly be tabled
in the name of Lord Warner in relation to the procedure to be
applied to orders made under clauses 22, 25 and 28 on the subject
of NHS foundation trusts.
3. In our original memorandum we said we were
considering technical amendments to clause 191 to bring the delegated
procedures into line with those for NHS trusts under the 1990
Act which - because they relate to operational matters - are statutory
instruments which are not subject to a negative resolution procedure
in Parliament. This discrepancy had not been picked up in the
4. In practice, only one amendment is required.
5. For clause 22, which relates to the appointment
of trustees for NHS foundation trusts and the transfer of trust
property, the amendment provides that orders made under the clause
should be statutory instruments that do not need to be laid before
Parliament. This will bring the procedure into line with the analogous
provisions in section 11 of the National Health Service and Community
Care Act 1990 ("the 1990 Act"), that applies to orders
for the trustees of NHS trusts.
6. For clause 25, which deals with the event
of failure of an NHS foundation trust, it is in fact proposed
that orders dissolving an NHS foundation trust should remain subject
to Parliamentary scrutiny, because of the significance attached
to the failure of such a body. This provides for a greater level
of scrutiny than the analogous procedure for NHS trusts in that
paragraph 29 of Schedule 2 to the 1990 Act does not require dissolution
orders for NHS trusts to be laid before Parliament.
7. Clause 25 also provides for the possible application
of Part 4 of the Insolvency Act when an NHS foundation trust fails.
Again, we would want the use of this power to remain subject to
Parliamentary scrutiny, because such an order would include fine
detail about the application of primary legislation. There is
no analogous provision that applies to NHS trusts.
8. However, clause 25 also allows property, rights,
liabilities and staff of an NHS foundation trust to be transferred
by order to other health service bodies, or to the Secretary of
State when an NHS foundation trust fails. The amendment provides
that such orders should be statutory instruments but not subject
to a Parliamentary procedure. We would not propose to involve
Parliament with matters that are ancillary to a dissolution that
had itself already been subject to Parliamentary scrutiny (see
para 6 above). It may be noted that transfer orders relating to
NHS trusts are not statutory instruments.
9. Clause 28 relates to the possible merger of
two NHS foundation trusts, or an NHS trust and an NHS foundation
trust. If the Independent Regulator of NHS foundation trusts authorised
such a merger, the clause would require the Secretary of State
to give effect to the merger, by dissolving the existing bodies
and transferring their property, rights, and liabilities to a
new body. The Secretary of State would have to make the order
on the terms required by the Independent Regulator, and would
not have any discretion to refuse.
10. The amendment provides that such an order
be a statutory instrument that is not subject to any Parliamentary
procedure. We would not propose to involve Parliament with matters
which in practice relate to the internal restructurings of the
health service. The Bill incorporates provisions that enable the
Independent Regulator of NHS foundation trusts to ensure that
such mergers are carried out properly, which we believe is the
appropriate way to safeguard the process. It may be noted that
the analogous procedure for mergers of NHS trusts is effected
partly by statutory instrument but partly by non-statutory order.
6 October 2003