Clause 63 - Failure to perform functions
Health and Social Care (Re-Committed) Bill
Simon Burns (The Minister of State, Department of Health; Chelmsford, Conservative)
I will be brief, because I think that the Committee wants to make progress.
I will start with the immortal words, which struck a chord when the hon. Member for Halton (Derek Twigg) was taking part in our proceedings: these amendments are minor and technical. If the hon. Member for Pontypridd would like me to sit down now, I will. But if he does not I will tell him exactly what they are. If he wants the speech, he can have the speech.
Amendment 157 concerns the wording of the Secretary of State’s powers to direct Monitor as to the exercise of its functions. Clause 63 currently provides that he can use these powers if Monitor fails to perform a function. The Bill includes similar powers for the Secretary of State to intervene in relation to the commissioning board. Under clause 19 the Secretary of State may give a direction if the board is failing or has failed to discharge any of its functions. The wording in relation to the NHS commissioning board makes it clearer that it is a function of the board that is relevant. It also makes it clear that the Secretary of State’s power covers a failing or failure to deliver any of the board’s functions. For the avoidance of doubt, the amendment therefore proposes changing the wording in relation to the Secretary of State’s power to direct Monitor so that it specifically refers to “Monitor’s” functions, and covers “any” of those functions.
Amendment 225 relates to the provision in subsection (3) that the Secretary of State cannot direct Monitor as to the exercise of its functions in particular cases. The provision in subsection (3) means, for example, that the Secretary of State could not intervene to require that a particular licence condition be placed on a particular provider. Another example would be that the Secretary of State could not intervene to require Monitor to act or act in a particular way in relation to a commissioner who had failed to comply with regulations about procurement. There is also general provision in clause 295 about the exercise of the Secretary of State’s powers to give directions. The amendment makes it clear that the provision in clause 63(3) applies and, if there were doubt in any particular circumstance, would over-ride the general provision in clause 295 about the circumstances in which the Secretary of State could use the powers of direction he would have from the Bill.