Regulation of Health and Social Care Professionals Consultation

addition, an order made under section 60 of the Health Act 1999 enables the
governing legislation to be amended by Order in Council to make provision for
default powers exercisable by a person other than the regulatory body. 57 To this
date, no such directions or section 60 orders have been made.
2.102 At the Health Professions Council and the Nursing and Midwifery Council, the
Privy Council is given powers to initiate a public inquiry on any matter connected
with the exercise by the Councils of their functions. 58
Provisional view
2.103 It is important for the new legal framework to retain a power of last resort to
intervene if a regulator is failing to meet its statutory duties. This helps to ensure
for example the protection of the public in the case of an emergency and in other
situations. Furthermore, the need for such powers may be particularly important
in our proposed legal framework which will give the regulators more powers.
2.104 Powers exercised in the name of the Privy Council are in fact exercised by the
Government. We think that the new statute should be transparent and make that
the default powers directly exercisable by the Government.
2.105 We provisionally propose that the Government should be given powers to issue a
direction in circumstances where a regulator has failed to perform any of its
functions, and if the regulator fails to comply with the direction, to allow the
Government to give effect to the direction. Although directions do not need to be
laid in Parliament, the Health Committee would still be able to investigate the use
of directions as part of its oversight role in relation to health and social care
professional regulation.
2.106 We also think that the statute should provide that in the most serious of cases the
Secretary of State should be given powers to exercise certain functions of a
regulator or appoint a nominee to do so. This would be similar to the Secretary of
State’s powers under section 15(6) of the Local Government Act 1999 and would
be a power of last resort for the Government to intervene directly and take over a
regulator which is failing to carry out its statutory functions.
2.107 We do not propose that the Government should have express powers in the
statute to initiate a public inquiry. In our view, this is not necessary since the
Government can initiate a public inquiry anyway on any matter connected with
the exercise by the regulators of their functions. 59
Provisional Proposal 2-17: The Government should be given powers to issue a
direction in circumstances where a regulator has failed to perform any of its
functions, and if the regulator fails to comply with the direction, the
Government may itself give effect to the direction (see also provisional
proposal 13-2).
57 Health Act 1999, sch 3, para 1(j).
58
Health Professions Order 2001, SI 2002 No 254, art 47 and Nursing and Midwifery Order
2001, SI 2002 No 253, art 53.
59 See, for example, Inquiries Act 2005.
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