8.Subsection (1) of section 1 establishes the Health Protection Agency or in Welsh Yr Asiantaeth Diogelu Iechyd as a body corporate. (These names were chosen for the Health Protection Agency Special Health Authority, which will be wound up on the establishment of the non-departmental public body).
9.Subsection (2) introduces Schedule 1, which makes detailed provisions on the constitution of the Agency. The Schedule includes provisions about the membership of the Agency, its status, the chief executive, general provisions about terms of appointment and disqualification for appointment, proceedings, staff, finance, annual report, the authentication of the Agency's seal and regulations.
10.Subsection (1) of section 2 gives the Agency certain functions in the area of health protection. These are similar to those exercised by the Health Protection Agency Special Health Authority.
11.Subsections (2) to (4) provide that the Secretary of State or the National Assembly for Wales, after consulting the other, may direct the Agency to take on other functions in relation to health. A similar flexibility exists in relation to the Health Protection Agency Special Health Authority, although the only functions it can take on are functions under the National Health Service Act 1977 (c. 49). These provisions are included to provide future flexibility.
12.Subsection (5) makes it clear that the giving of a direction under subsection (3) or (4) does not alienate the function from the appropriate authority.
13.Subsection (6) exempts from the application of section 2(1) functions of the Scottish Ministers and the Department of Health, Social Services and Public Safety in Northern Ireland. However the Scottish Ministers will be able to confer their functions falling within subsection (1) on the Agency, and to remove them from it, subject to the requirements and procedures described at subsections (7), (8) and (9). The Department in Northern Ireland will have similar powers, as provided at subsections (10), (11) and (12).
14.Subsection (1) of section 3 gives the Agency certain functions in the area of radiation protection. These are similar to those given to the National Radiological Protection Board by the Radiological Protection Act 1970 (c.46), although they go wider than those functions in that the Health Protection Agency will also be able to undertake activities in relation to ultrasound.
15.Subsection (2) allows the appropriate authority (as defined in section 6) to direct the Agency to take responsibility for functions which are carried out at the date of commencement by the National Radiological Protection Board. The National Radiological Protection Board provides a secretariat for one advisory non-departmental public body (the Committee on Medical Aspects of Radiation in the Environment) and a support unit for another (the Administration of Radioactive Substances Advisory Committee). The power makes it possible to direct the Agency to take over those functions. The power is subject to prior consultation as provided for by subsection (6).
16.Subsection (3) provides a power for the appropriate authority (as defined in section 6) to direct the Agency to exercise additional radiation protection functions. The power is similar to that provided by section 1(6)(a) and (c) of the Radiological Protection Act 1970, under which the Secretary of State for Health is able to confer additional radiation protection functions on the National Radiological Protection Board. (Again, ultrasound is not excluded from the matters in which the Agency may undertake a role). Subsection (6) qualifies the power in subsection (3) by making it subject to prior consultation.
17.Subsection (4) provides a power similar to that provided by section 1(7A) of the Radiological Protection Act 1970. Under the old power Health Ministers (as defined in the 1970 Act) may direct the National Radiological Protection Board to enter into an agreement with the Health and Safety Commission for the Board to carry out on behalf of the Commission certain of the Commission's functions. The new power applies also in respect of an agreement with the Health and Safety Executive for Northern Ireland. The power is subject to prior consultation as provided for by subsection (6).
18.Subsection (5) together with subsection (7) provide that the Agency must consult the Health and Safety Commission in relation to Great Britain or the Health and Safety Executive for Northern Ireland and have regard to those bodies' policies in exercising any function in which the Commission or the Executive has an interest. This is similar to the obligation placed on the National Radiological Protection Board by section 1(6A) of the Radiological Protection Act 1970.
19.Subsection (8) makes it clear that the giving of a direction under subsection (2) or (3) does not alienate the function from the appropriate authority.
20.Subsections (1)-(5) of section 4 set out various powers, including the power to make charges, which the Agency may use in the exercise of its functions.
21.Subsection (6) provides that the Agency must exercise its functions efficiently and cost-effectively.
22.Subsection (7) gives the appropriate authority (defined in section 6) the power to direct the Agency to have regard to aspects of the policy of the authority. Subsection (8) requires the Agency to comply with any such direction.
23.Subsection (9) gives the appropriate authority (as defined in section 6) the power, if it thinks that the Agency is to a significant extent failing to discharge any of its functions or failing to discharge any of its functions properly, to give the Agency such a direction as it thinks appropriate for remedying that failure. The power is subject to relevant consultation, described at subsection (13).
24.Subsection (10) allows the appropriate authority (as defined in section 6), instead of the Agency, to take such action as the authority thinks appropriate for remedying the failure, if the Agency fails to comply or unreasonably delays in complying with a direction under subsection (9).
25.Subsection (11) ensures that a disclosure of information to or by the Agency is lawful where the Agency is carrying out a function pursuant to an arrangement under section 31 of the Health Act 1999 (c.8) (arrangements between NHS bodies and local authorities) or under section 15 of the Community Care and Health (Scotland) Act 2002 (asp 5), or where the Agency acts in accordance with its duty of co-operation in section 5. However subsection (12) makes it clear that any such disclosure must not contravene the Data Protection Act 1998 (c. 29).
26.Section 5 puts the Agency and other bodies which exercise functions relating to the Agency's functions under a mutual duty of co-operation.
27.Section 6 identifies the authorities which have the power to direct the Agency, under sections 2, 3 and 4, and the functions in relation to which they have that power. It also identifies who may make a transfer scheme under section 8 (transfer of property and staff, etc.), and who may make a commencement order under section 12(5) (commencement).
28.Section 7 gives the Agency a power to publish its advice and information.
29.Subsections (1) to (4) of section 8 enable the Secretary of State to make one or more schemes for transferring property, rights and liabilities from the Agency's predecessor bodies to the Agency, subject to prior consultation of the relevant devolved administrations in each case. Subsection (5) enables the appropriate authority (defined in section 6) to make schemes in respect of a relevant body which is defined in subsection (6). This power might be used if additional functions were conferred on the Agency by means of a direction or order made under the powers in sections 2 and 3. Subsections (7) to (11) enable the appropriate authority to make a scheme to transfer rights and liabilities relating to relevant staff from the Agency, thereby ensuring that their continuity of employment is not broken, if a direction or order under section 2 or 3 is varied or revoked. Subsection (12) introduces Schedule 2, which makes provision in relation to a scheme.
30.Section 10 makes provision for the Agency to be treated in England and Wales as a body subject to standards set by the Secretary of State in relation to the provision of health care and to inspection by the Commission for Healthcare Audit and Inspection, under Chapters 2, 3 and 10 of Part 2 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43).
31.Subsection (3) of section 12 provides for the amendment under paragraph 3 of Schedule 3 to come into effect two months after Royal Assent. This amendment to the Immigration Act 1971 (c.77) will enable the Secretary of State for Health to delegate the appointment of medical inspectors under that Act to the National Assembly for Wales, in Wales, and to the Health Protection Agency Special Health Authority, in England. Subsections (1) and (2) provide for the remaining provisions of the Act to be brought into effect by order made by statutory instrument on such day or days as the Secretary of State may appoint, subject to prior consultation with those specified in subsection (4). Subsections (5) to (9) provide order-making powers subject to the procedures described for an appropriate authority to make provision in consequence of the coming into effect of the Act.
| Stage | Date | Hansard Reference |
|---|---|---|
| House of Lords | ||
| Introduction | 27 November 2003 | Vol.655, c23-24 |
| Second Reading | 5 January 2004 | Vol.656, c13-23, 33-54 |
| Committee | 3 March 2004 | Vol.658, c249-316GC |
| Report | 6 April 2004 | Vol.659, c1727-66 |
| Third Reading | 29 April 2004 | Vol.660, c936-42 |
| House of Commons | ||
| Introduction | 29 April 2004 | Bill 999 2003-04 |
| Second Reading | 21 June 2004 | Vol.422, c1097-152 |
| Committee | 29 June & 1 July 2004 | Standing Committee F, pp.1-88 |
| Report & Third Reading | 19 July 2004 | Vol.424, c41-71 |
| Royal Assent – 22 July 2004 | House of Lords Hansard Vol.664, c333 |
| House of Commons Hansard Vol.424, 514 |