Health And Care Act 2022

Part 3: Secretary of State’s Powers to Transfer or Delegate Functions

Section 102: Relevant bodies

909. This section sets out the "relevant bodies" to which the section applies. These are all health Non-Departmental Public Bodies and are as follows:
     • Health Education England,
     • the Health and Social Care Information Centre 1 ,
     • the Health Research Authority,
     • the Human Fertilisation and Embryology Authority,
     • the Human Tissue Authority,
     • NHS England.

910. The section then defines "Special Health Authorities" as those established under section 28 of the NHS Act 2006.

Section 103: Power to transfer functions between bodies

911. Subsection (1) of this section confers a power on the Secretary of State, through regulations, to transfer functions between the relevant bodies as outlined above.
912. Subsection (2) sets out the conditions which need to be met in order for these regulations to be made. Such regulations can only be made when the Secretary of State considers it will improve the exercise of these functions having regard to:
     • efficiency;
     • effectiveness;
     • economy; and
     • securing appropriate accountability to Ministers.

913. Subsection (3) sets out a restriction on the ability to transfer of functions of NHS England, in any case where the Secretary of State considers that such a transfer of functions would make NHS England redundant. The effect of this is that there will never be circumstances where the consequential power to abolish a body that has been rendered redundant due to a transfer of its functions, will be able to be used in respect of NHS England.
914. Subsection (4) sets out that where regulations are made under section 103 which include provision by virtue of section 183(1)(a), such provision can modify the functions, constitution or funding of either body, and abolish the relevant body if it has become redundant as a consequence of the transfer of functions. Subsection (1)(a) of section 103 provides that a power to make regulations under any provision of the Act includes the power to make consequential, supplementary, incidental, transitional or saving provision.
915. Subsection (5) sets out that where: any regulations made under section 103 contain provision which relates to a function that is exercisable in relation to Scotland, Wales or Northern Ireland, where there is a pre-existing requirement in the constitution of the body from which the function is transferred for the representation of the interests of one of the devolved nations, and where the Secretary of State considers that the constitutional arrangements of the body to which the function is transferred do not contain corresponding provision as to membership, the Secretary of State must make provision for maintaining such representation by way of modifying, if necessary, the constitutional arrangements of the body receiving the function.
916. Subsection (6) sets out that "Minister" means a Minister of the Crown as defined by the Ministers of the Crown Act. This defines "Ministers of the Crown" as follows: ""Minister of the Crown" means the holder of an office in Her Majesty’s Government in the United Kingdom, and includes the Treasury, the Board of Trade and the Defence Council".

Section 104: Power to provide for exercise of functions of Secretary of State

917. Subsection (1) confers a power on the Secretary of State to provide, through regulations, for a relevant body to exercise specified functions of the Secretary of State on their behalf.
918. Subsection (2) provides that the functions that may be specified are any of the Secretary of State’s functions which relate to the health service in England or which they may provide for a Special Health Authority to exercise.
919. Subsection (3) sets out that the regulations made under this section may make provision by virtue of section 183(1)(a) modifying the functions, constitutional or funding arrangements of the relevant bodies.
920. Subsection (4) sets out that the Secretary of State must make provision by way of modifying the relevant bodies constitutional arrangements for maintaining any existing provision for the body to include a member whose experience, functions or appointment are connected with that part of the UK, analogous to the provision in subsection (5) of section 103.
921. Subsection (5) sets out that regulations under this section may make provision for determining whether and in what circumstances the Secretary of State or a relevant body is liable for the exercise of the specified functions by the relevant body.
922. Subsection (6) sets out that the use of this power does not preclude the Secretary of State from exercising the function.
923. Subsection (7) states that "the health service" has the same meaning as in the NHS Act 2006. This defines "the health service" as follows:
     "the health service continued under section 1(1) of the National Health Service Act 2006 and under section 1(1) of the National Health Service (Wales) Act 2006".

Section 105: Scope of powers

924. Subsection (1) sets out what references in sections 103 and 104 to modifying the functions of a body include.
925. Subsection (2) sets out what references in sections 103 and 104 to the constitutional arrangements of a body include.
926. Subsection (3) sets out what references in sections 103 and 104 to modifying the funding arrangements of a body include.
927. Subsection (4) sets out certain types of powers that regulations under sections 103 and 104 may repeal and re-enact (but may not create), which are a power to make subordinate legislation, a power of forcible entry, search or seizure, and a power to compel the giving of evidence. Subsection (4) also provides that regulations under sections 103 and 104 may repeal and re-enact (but not create) a criminal offence.
928. Subsection (5) sets out that the provision made by regulations under sections 103 and 104 may repeal, revoke or amend provision made by or under an Act of Parliament.
929. Subsection (6) sets out that provision that may be made under sections 103 and 104 by virtue of section 183(1)(a) includes provision repealing, revoking or amending provision made by or under an Act, and legislation made by the Devolved Administration legislatures.
930. Subsection (7) sets out that "Minister" means a Minister of the Crown as defined by the Ministers of the Crown Act.

Section 106: Transfer schemes in connection with regulations

931. Subsection (1) sets out that the Secretary of State may make one or more schemes for the transfer of property, rights or liabilities in connection with regulations under section 103 or 104.
932. Subsection (2) sets out that, where regulations provide for the transfer of functions between relevant bodies, the transfer scheme may make provision for the transfer of property, rights or liabilities to any appropriate person from the relevant body from which functions are being transferred.
933. Subsection (3) sets out that, where regulations provide for the delegation of a function of the Secretary of State to a relevant body, the transfer scheme may make provision for the transfer of property, rights or liabilities from any of the list of persons or bodies set out at subsections (a) to (c) to an appropriate person.
934. Subsection (4) sets out a non-exhaustive list of certain types of assets, rights and liabilities that may be included in a transfer.
935. Subsection (5) sets out a non-exhaustive list of types of provision that the transfer scheme may make.
936. Subsection (6) sets out that a transfer scheme may provide for modifications by agreement and that they are to have effect from the date of the original scheme coming into effect.
937. Subsection (7) clarifies what "TUPE regulations" means: the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246).
938. Subsection (8) states that references to rights and liabilities include those relating to contracts of employment and that references to the transfer of property include the grant of a lease.
939. Subsection (9) states the inclusion of civil servants of the State in the contract of employment referred to in subsection (8).
940. Subsection (10) lists those included in the term "appropriate person" as "any relevant body, the Secretary of State, an integrated care board, a Special Health Authority, or an NHS Trust".

Section 107: Transfer schemes: taxation

941. Subsections (1), (2) and (3) set out that the Treasury may make provision to vary of the way in which a relevant tax has effect in relation to assets and liabilities that are transferred under a scheme made under section 106, and anything done for the purpose of, or in relation to a transfers. This includes tax exemption, or a modification of a tax provision, and will be specified in the scheme with Treasury consent.
942. Subsection (4) sets out that regulations under this section are subject to annulment in pursuance of a resolution of the House of Commons.
943. Subsections (5) states that references to the transfer of property in this section includes the grant of a lease.
944. Subsection (6) sets out what the relevant taxes are and the meaning of tax provision for the purpose of this section.

Section 108: Consent and Consultation

945. Subsection (1) sets out the circumstances whereby the Secretary of State must obtain the consent of the Devolved Governments before making regulations under sections 103 and 104. This would be to:
     1. obtain the consent of the Scottish Ministers in relation to any provision which would be within the legislative competence of the Scottish Parliament, if contained in an Act of that Parliament, and is not merely incidental to, or consequential on, provision which would be outside that legislative competence, or to any provision which modifies the functions of the Scottish Ministers;
     2. obtain the consent of the Welsh Ministers in relation to any provision which would be within the legislative competence of Senedd Cymru, if contained in an Act of the Senedd, and is not merely incidental to, or consequential on, provision which would be outside that legislative competence, or to any provision which modifies the functions of the Welsh Ministers;
     3. obtain the consent of a Northern Ireland department in relation to any provision which would be within the legislative competence of the Northern Ireland Assembly, if contained in an Act of that Assembly, and is not merely incidental to, or consequential on, provision which would be outside that legislative competence, or to any provision which modifies the functions of a Northern Ireland department.
     4. Subsection (2) makes further provision clarifying the circumstances in which the consent of the relevant Northern Ireland department must be obtained under subsection (1). Consent will not be required in relation to a matter which would only be within the legislative competence of the Northern Ireland Assembly if the Assembly obtained the consent of the Secretary of State under section 8 of the Northern Ireland Act 1998 to legislate in respect of it, and which does not affect, other than incidentally, a transferred matter (within the meaning of the Northern Ireland Act 1998).
946. Subsection (3) sets out that, before making regulations under section 103 or 104, the Secretary of State must consult:
     1. any body to which draft regulations relate, and
     2. any other persons that the Secretary of State considers appropriate.
947. Subsection (4) sets out the requirement for the Secretary of State to carry out a further consultation should it appear appropriate to the Secretary of State, following a change to the draft regulations as a result of the initial consultation.
948. Subsection (5) states that for the purposes of this section it is immaterial whether the consultation is carried out before or after the commencement of the section.