Regulation of Health and Social Care Professionals Consultation

over-regulates the regulators themselves by constraining their
freedom to adapt and modernise. 14
2.25 Consequently, the Government has announced its intention that there will be “an
increase in autonomy of the regulatory bodies in the exercise of their statutory
responsibilities” which will allow the regulators freedom to develop their own rules
and procedures, balanced by a “commensurate strengthening of their public and
parliamentary accountability for their performance”. 15
Standing orders
2.26 The regulators have powers to make standing orders with respect to various
matters, including the composition and procedures of the non-statutory
committees, which do not require approval by any external body and are not
statutory instruments (and so do not have statutory force). 16 Standing orders
cannot conflict with any rule or provision in either primary or secondary
legislation, and exist to enable the regulator to function efficiently.
Provisional view
2.27 A number of difficulties can be identified with the current system for issuing rules
and regulations, not least of which are its complexity, the burdens it places on
Government resources and the limitations it places on the regulators’ ability to
modernise and innovate. It is not unusual for statute law to give independent
bodies formal subordinate law making powers, without the need for Parliamentary
approval. 17 Indeed, there are precedents for giving professional regulators such
autonomy, for instance the General Social Care Council and Solicitors Regulation
Authority. 18
2.28 However, any increase in the regulators’ rule-making autonomy does give rise to
a number of important concerns. Some regulators report significant benefits
arising from the current procedure, mainly in the form of the expert advice and
assistance provided by the Department of Health in developing and drafting rules
and regulations. By removing this process, errors in rules may be more likely, and
there may be resource implications if the regulators need to increase their legal
costs which may need to be passed on to registrants in the form of increased
fees.
2.29 Increasing the regulators’ autonomy may lead to a democratic deficit in their
accountability. Most Orders of the Privy Council are laid before Parliament and
14 Enabling Excellence: Autonomy and Accountability for Healthcare Workers, Social
Workers and Social care Workers (2011) Cm 8008, para 3.5.
15 As above, para 3.8.
16 For example, Chiropractors Act 1994, s 1(4) and sch 1, Part 1, para 1B(3).
17 Examples include byelaws made by local authorities and railway operators, regulations
made by utilities regulators and rules governing the financial market made by the Financial
Services Authority.
18 However, the General Social Care Council’s rules must be approved by the Secretary of
State (Care Standards Act 2000, s 71(4)) and alterations to the Solicitor Regulation
Authority’s regulatory arrangements require the approval of the Legal Services Board
(Legal Services Act 2007, sch 4, para 19).
19