Regulation of Health and Social Care Professionals Consultation

employed professionals not affiliated to the NHS system, by representative
national patient organisations. 6
13.10 Part of the scheme of the Qualifications Directive is a five yearly periodic review.
The first such review was initiated in March 2010 and the European Commission
adopted a proposal to amend the Directive in December 2011. 7
Provisional view
13.11 The Qualifications Directive is an essential part of the legal framework for health
and social care regulation. As a Directive, it has a legal status which overrides
domestic law. Accordingly, it is beyond our remit to make proposals to amend the
substance of the Directive.
13.12 However, we are in a position to consider the implementation of the Directive into
domestic law. We note that there is no legal requirement that a Directive must be
implemented into domestic law by way of primary legislation. The only
requirement is that the effect of a Directive must be implemented by provisions
that have binding force, and with enough precision and clarity to satisfy legal
certainty. 8
13.13 As set out in Part 2, the structure we are provisionally proposing will involve
giving the regulators greater autonomy to make rules setting out how they will
carry out their statutory functions. At present, the provisions, which implement the
Qualifications Directive, are in primary legislation, are highly detailed and vary
considerably between the regulators. We therefore believe that these provisions
should be provided at a level where such detail is more appropriate, such as in
rules made by the regulators. Indeed, it is highly unlikely that the new statute
could consolidate all these provisions effectively, whilst at the same time
recognising the different aspects that apply to the various regulated professions.
13.14 We therefore provisionally propose that the statute should require the regulators
to specify in rules which qualifications would entitle an applicant to be registered
including overseas qualifications. This would be part of the general function of the
regulators to establish and maintain a register, the proposed framework for which
is set out in Part 5.
13.15 We recognise that in this area there is a strong argument for maintaining a role
for Government. This is because it is the Government who will ultimately be held
liable for failures to implement a Directive properly. 9 However, in our view the risk
of the Government being held liable for failures to implement the Directive is very
low because the threshold for state liability to individuals in EU law is that a
breach must be sufficiently serious. 10 This is a high threshold and will usually only
6 European Commission, Proposal for a Directive of the European Parliament and of the
Council amending Directive 2005/36/EC (2011).
7 See, European Commission, Proposal for a Directive of the European Parliament and of
the Council amending Directive 2005/36/EC (2011).
8 See Case C-159/99 Commission v Italy [2001] ECR I-400 7 at para 32.
9 Case 77/69 Commission v Belgium [1970] ECR 237 at para 15.
10 Case C-393/93 British Telecommunications [1996] ECR I-1631 at para 39.
225