Policy paper

Health and Care Bill: arm's length body transfer of functions power

Updated 10 March 2022

This was published under the 2019 to 2022 Johnson Conservative government

The Health Select Committee said:

Joint working is limited by current legislative constraints.

This fact sheet explains how the government plans enable the Secretary of State to transfer functions to and from arm’s length bodies (ALBs) through secondary legislation.

Background

Arm’s length bodies (ALBs) are public bodies established with a degree of autonomy from the Secretary of State and play an important role in supporting the health and care system. The role and function of ALBs in health and care system are set out in law. This means that each organisation has its role clearly defined but the current system is quite inflexible and slow moving.

The current legislative framework may get in the way of responding to new challenges or reacting to an emergency.

What the Bill will do

The Bill will enable more rapid responses to an evolving system by giving the Secretary of State a power to transfer functions to and from specific ALBs. It will also allow the Secretary of State to arrange for an ALB to exercise functions belonging to the Secretary of State. Any changes will require secondary legislation, rather than having to pass new primary legislation. However, regulations will still allow for transparency and parliamentary oversight.

Any changes that are considered in future will require a full and extensive engagement process. This will ensure that any movement of functions is right for the health and care system and the public.

Not all health ALBs are in scope of the power. A number of health and care-related bodies are not included in this power due to the nature of their advisory, regulatory and/or public health functions. Executive Agencies are out of scope because they are part of the department, and the Secretary of State already has the power to transfer their functions. The power includes, by necessity, the ability to abolish an ALB (excluding NHS England) if there are no functions remaining.

The non-departmental public bodies (NDPBs) whose functions will be subject to the transfer power are:

• NHS England
• Health Education England
• NHS Digital
• Health Research Authority
• Human Tissue Authority
• Human Fertilisation and Embryology Authority

The provision for the Secretary of State to delegate functions will mean that the Secretary of State will be able to delegate to an NDPB any of the functions of the Secretary of State currently delegated to the following special health authorities (SpHAs):

• NHS Business Services Authority
• NHS Counter Fraud Authority
• NHS Blood and Transplant
• NHS Resolution

The list above is exhaustive so the following ALBs will automatically be out of scope:

• executive agencies:
  • Medicines and Healthcare products Regulatory Agency (MHRA)
  • UK Health Security Agency (UKHSA)
• NDPBs:
  • Care Quality Commission (CQC)
  • National Institute for Health and Care Excellence (NICE)
  • Health Services Safety Investigations Body (to be established under the Bill)

How these provisions will help to enhance public confidence

The flexible and collaborative response of ALBs to the pandemic demonstrates the importance of being able to move with pace and agility, and these provisions complement this collaborative approach by allowing formal transfers of functions if needed.

Further information

NHS Long Term Plan, January 2019

NHS’s recommendations to government and Parliament for an NHS Bill, September 2019

Department of Health and Social Care, Integration and innovation: working together to improve health and social care for all, February 2021