(1) The National Health Service Act 2006 is amended as follows.
(2) After section 7A (inserted by section 42 of this Act) insert—
Directions requiring NHS bodies to exercise public health functions
7B (1) The Secretary of State may by direction provide for any of the public health functions of the Secretary of State to be exercised by one or more relevant bodies.
(2) In this section “relevant body” means—
(a) NHS England, or
(b) an integrated care board.
(3) A direction under subsection (1) may include provision prohibiting or restricting the relevant body from making delegation arrangements in relation to a function that is exercisable by it by virtue of the direction.
(4) In subsection (3) “delegation arrangements” means arrangements made by a person for the exercise of a function by someone else.
(5) The Secretary of State may make payments to a relevant body in respect of the exercise by it of a function by virtue of a direction under subsection (1).
(6) The Secretary of State may give directions to an integrated care board as to the exercise by it of any functions by virtue of this section.
(7) For power to give directions to NHS England as to the exercise of functions, see section 13ZC.
(8) As soon as reasonably practicable after giving a direction under subsection (1) or (6), the Secretary of State must publish it.
(9) Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a relevant body of any function by virtue of this section are enforceable by or against it (and no other person).
(10) The reference in subsection (1) to the public health functions of the Secretary of State includes any functions of the Secretary of State exercisable in connection with those functions (including the powers conferred by section 12).
(3) In section 73 (directions and regulations under Parts 1 and 2), in subsection (1), after paragraph (a) insert—
(aa) section 7B,
.
(1) The National Health Service Act 2006 is amended as follows.
(2) After section 7B (inserted by section 43 of this Act) insert—
Power of direction: investigation functions
7C (1) The Secretary of State may direct—
(a) NHS England, or
(b) any other public body,
to exercise any of the investigation functions which are specified in the direction.
(2) A direction under subsection (1) may include provision prohibiting or restricting the body directed from making delegation arrangements in relation to a function that is exercisable by it by virtue of the direction.
(3) In subsection (2) “delegation arrangements” means arrangements made by a person for the exercise of a function by someone else.
(4) The Secretary of State may make payments to NHS England or any other body in respect of the exercise by it of a function by virtue of a direction under subsection (1).
(5) The Secretary of State may give directions to any body on whom functions are conferred by virtue of subsection (1)(b) as to the exercise of those functions.
(6) For power to give directions to NHS England as to the exercise of functions, see section 13ZC.
(7) As soon as reasonably practicable after giving a direction under subsection (1) or (5), the Secretary of State must publish it.
(8) Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by NHS England or any other body of any function by virtue of this section are enforceable by or against it (and no other person).
(9) In this section “the investigation functions” are functions which, immediately before the coming into force of section 36 of the Health and Care Act 2022, were exercised by the Special Health Authority called the National Health Service Trust Development Authority pursuant to—
(a) the National Health Service Trust Development Authority (Healthcare Safety Investigation Branch) Directions 2016 made under sections 7 and 8 of the National Health Service Act 2006, or
(b) the National Health Service Trust Development Authority (Healthcare Safety Investigation Branch) (Additional Investigatory Functions in respect of Maternity Cases) Directions 2018 made under sections 7 and 8 of the National Health Service Act 2006.
Transfer schemes in connection with a direction under section 7C
7D (1) The Secretary of State may, in connection with a direction under section 7C, make one or more transfer schemes.
(2) A “transfer scheme” is a scheme for the transfer to NHS England or any other public body of any property, rights or liabilities relating to the discharge of functions pursuant to any directions made by the Secretary of State under the power conferred by section 7C.
(3) The things that may be transferred under a transfer scheme include—
(a) property, rights and liabilities that could not otherwise be transferred;
(b) property acquired, and rights and liabilities arising, after the making of the scheme;
(c) criminal liabilities.
(4) A transfer scheme may—
(a) create rights, or impose liabilities, in relation to property or rights transferred;
(b) make provision about the continuing effect of things done by, or on behalf of or in relation to the transferor in respect of anything transferred;
(c) make provision about the continuation of things (including legal proceedings) in the process of being done by, on behalf of or in relation to the transferor in respect of anything transferred;
(d) make provision for references to the transferor in an instrument or other document in respect of anything transferred to be treated as references to the transferee;
(e) make provision for the shared ownership or use of property;
(f) make provision which is the same as or similar to the TUPE regulations;
(g) make other consequential, supplementary, incidental or transitional provision.
(5) A transfer scheme may provide—
(a) for modifications by agreement;
(b) for modifications to have effect from the date when the original scheme came into effect.
(6) In subsection (4)(f), “the TUPE regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246).
(7) For the purposes of this section—
(a) references to rights and liabilities include rights and liabilities relating to a contract of employment;
(b) references to the transfer of property include the grant of a lease.
(8) For the purposes of subsection (7)(a)—
(a) an individual who holds employment in the civil service of the State is to be treated as employed by virtue of a contract of employment, and
(b) the terms of the individual’s employment in the civil service are to be regarded as constituting the terms of the contract of employment.
Transfer schemes under section 7D: taxation
7E (1) The Treasury may by regulations make provision varying the way in which a relevant tax has effect in relation to—
(a) anything transferred under a scheme under section 7D, or
(b) anything done for the purposes of, or in relation to, a transfer under such a scheme.
(2) The provision which may be made under subsection (1)(a) includes in particular provision for—
(a) a tax provision not to apply, or to apply with modifications, in relation to anything transferred;
(b) anything transferred to be treated in a specified way for the purposes of a tax provision;
(c) the Secretary of State to be required or permitted to determine, or specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to anything transferred.
(3) The provision which may be made under subsection (1)(b) includes in particular provision for—
(a) a tax provision not to apply, or to apply with modifications, in relation to anything done for the purposes of or in relation to the transfer;
(b) anything done for the purposes of, or in relation to, the transfer to have or not have a specified consequence or be treated in a specified way;
(c) the Secretary of State to be required or permitted to determine, or specify the method for determining, anything which needs to be determined for the purposes of any tax provision so far as relating to anything done for the purposes of, or in relation to, the transfer.
(4) In this section references to the transfer of property include the grant of a lease.
(5) In this section—
“relevant tax” means income tax, corporation tax, capital gains tax, value added tax, stamp duty or stamp duty reserve tax;
“tax provision” means a provision of an enactment about a relevant tax.
(3) In section 73 (directions and regulations under Parts 1 and 2), in subsection (1), after paragraph (aa) (inserted by section 43 of this Act) insert—
(ab) section 7C,
.
(4) In section 272 (orders, regulations, rules and directions)—
(a) in subsection (4), after “subsections” insert “(4A),”, and
(b) after that subsection insert—
(4A) A statutory instrument containing regulations under section 7E(1) is subject to annulment in pursuance of a resolution of the House of Commons.
(1) The National Health Service Act 2006 is amended as follows.
(2) Before section 13Z1 (and the italic heading before it) insert—
Powers of direction
Secretary of State directions as to exercise of NHS England functions
13ZC (1) The Secretary of State may give NHS England directions as to the exercise of any of its functions.
(2) The directions that may be given include a direction as to whether a power is to be exercised or not.
(3) The directions that may be given include a direction as to—
(a) when or how a function is, or is not, to be exercised;
(b) conditions that must be met before a function is exercised (for example, conditions relating to the provision of information, consultation or approval);
(c) matters to be taken into account in exercising a function.
(4) For exceptions to the power to give directions under subsection (1), see section 13ZD.
(5) A direction under subsection (1) must include a statement that the Secretary of State considers the direction to be in the public interest.
(6) As soon as reasonably practicable after giving a direction under subsection (1), the Secretary of State must publish it.
(7) The fact that the Secretary of State has a function under any other enactment in relation to NHS England’s exercise of functions is not to be read as limiting the power conferred by subsection (1).
(8) The reference in subsection (7) to a function of the Secretary of State does not include a function of making subordinate legislation.
Power to give directions: exceptions
13ZD (1) A direction under section 13ZC may not be given in relation to a function relating to the appointment or employment of a person.
(2) A direction under section 13ZC may not be given in relation to a decision about the services to be provided to a particular individual for or in connection with the prevention, diagnosis or treatment of illness.
(3) A direction under section 13ZC may not be given in relation to the provision of any drug, medicine or other treatment, or the use of any diagnostic technique, unless NICE has made a recommendation or issued guidance as to its clinical and cost effectiveness and the direction is not inconsistent with that recommendation or guidance.
Compliance with directions: significant failure
13ZE (1) This section applies where—
(a) NHS England is given a direction under section 13ZC,
(b) the direction —
(i) states that the Secretary of State considers that NHS England is failing or has failed to discharge any of its functions, and
(ii) states that the Secretary of State considers that the failure is significant and explains why,
(c) the direction states that it is given for the purposes of addressing that failure, and
(d) NHS England fails to comply with the direction.
(2) The Secretary of State may—
(a) discharge the functions to which the direction relates, or
(b) make arrangements for any other person to discharge them on the Secretary of State’s behalf.
(3) Where the Secretary of State exercises the power under subsection (2), the Secretary of State must publish the reasons for doing so.
(4) For the purpose of this section—
(a) a failure to discharge a function includes a failure to discharge it properly, and
(b) a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service.
Secretary of State directions to provide information
13ZF (1) The Secretary of State may direct NHS England to provide the Secretary of State with any documents or other information that may be specified in the direction.
(2) The directions that may be given include a direction to provide documents or other information that NHS England would need to obtain from others in the exercise of some other power.
(3) The directions may include provision as to—
(a) the form or manner in which the documents or information must be provided;
(b) the time at which or period within which the documents or information must be provided.
(3) Omit section 13Z2 (failure to discharge functions) and the italic heading before it.
(4) In Schedule A1 (constitution of NHS England), omit paragraph 14 and the italic heading before it.
46 Reconfiguration of services: intervention powers
(1) After section 68 of the National Health Service Act 2006 insert—
Reconfiguration of NHS services
Reconfiguration of NHS services
68A Schedule 10A confers intervention powers on the Secretary of State in relation to the reconfiguration of NHS services.
(2) Schedule 6 inserts into the National Health Service Act 2006 a new Schedule 10A to that Act (intervention powers in relation to the reconfiguration of NHS services).
(1) The Secretary of State must carry out a review into the risk of slavery and human trafficking taking place in relation to people involved in NHS supply chains.
(2) The Secretary of State may determine which NHS supply chains to consider as part of the review or otherwise limit the scope of the review.
(3) But the review must at least consider a significant proportion of NHS supply chains for cotton-based products in relation to which companies formed under section 223 of the National Health Service Act 2006 (taken as a whole) exercise functions.
(4) The Secretary of State must publish and lay before Parliament a report on the outcome of the review before the end of the period of 18 months beginning with the day on which this section comes into force.
(5) The report must describe—
(a) the scope of the review, and
(b) the methodology used in carrying out the review.
(6) The report must include any views of the Secretary of State as to steps that should be taken to mitigate the risk mentioned in subsection (1).
(7) NHS England must assist in the carrying out of the review or the preparation of the report under this section, if requested to do so by the Secretary of State.
(8) In this section—
“health service in England” means the health service continued under section 1(1) of the National Health Service Act 2006;
“NHS supply chain” means the supply chain for providing goods or services for the purposes of the health service in England;
“slavery and human trafficking” has the meaning given by section 54(12) of the Modern Slavery Act 2015.
49 Removal of power to appoint trust funds and trustees
In Schedule 4 to the National Health Service Act 2006, omit paragraph 10 (power to appoint trustees for an NHS trust) and the italic heading before it.
(1) In the National Health Service (Licence Exemptions, etc) Regulations 2013 (S.I. 2013/2677), omit regulation 4 (which exempts NHS trusts in England from the requirement to hold a licence).
(2) After section 87 of the Health and Social Care Act 2012 insert—
Application and grant: NHS trusts
87A (1) An NHS trust established under section 25 of the National Health Service Act 2006 is to be treated, on its establishment, as—
(a) having made an application for a licence under section 85, and
(b) having met the criteria for holding a licence for the time being published under section 86.
(2) An NHS trust established under section 25 of the National Health Service Act 2006 before the day on which section 51(1) of the Health and Care Act 2022 comes into force is to be treated, for the purposes of subsection (1), as having been established on that day.
After section 26 of the National Health Service Act 2006 insert—
Duty to have regard to wider effect of decisions
26A (1) In making a decision about the exercise of its functions, an NHS trust established under section 25 must have regard to all likely effects of the decision in relation to—
(a) the health and well-being of the people of England;
(b) the quality of services provided to individuals—
(i) by relevant bodies, or
(ii) in pursuance of arrangements made by relevant bodies,
for or in connection with the prevention, diagnosis or treatment of illness, as part of the health service in England;
(c) efficiency and sustainability in relation to the use of resources by relevant bodies for the purposes of the health service in England.
(2) In subsection (1)—
(a) the reference to a decision does not include a reference to a decision about the services to be provided to a particular individual for or in connection with the prevention, diagnosis or treatment of illness;
(b) the reference to effects of a decision in relation to the health and well-being of the people of England includes a reference to its effects in relation to inequalities between the people of England with respect to their health and well-being;
(c) the reference to effects of a decision in relation to the quality of services provided to individuals includes a reference to its effects in relation to inequalities between individuals with respect to the benefits that they can obtain from those services.
(3) In discharging the duty under this section, NHS trusts must have regard to guidance published by NHS England under section 13NB.
(4) In this section “relevant bodies” means—
(a) NHS England,
(b) integrated care boards,
(c) NHS trusts established under section 25, and
(d) NHS foundation trusts.
53 NHS trusts: duties in relation to climate change
After section 26A of the National Health Service Act 2006 (inserted by section 52 of this Act) insert—
Duties in relation to climate change etc
26B (1) An NHS trust established under section 25 must, in the exercise of its functions, have regard to the need to—
(a) contribute towards compliance with—
(i) section 1 of the Climate Change Act 2008 (UK net zero emissions target), and
(ii) section 5 of the Environment Act 2021 (environmental targets), and
(b) adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008.
(2) In discharging the duty under this section, NHS trusts must have regard to guidance published by NHS England under section 13ND.
(1) The National Health Service Act 2006 is amended as follows.
(2) After section 27 insert—
Oversight and support of NHS trusts
27A NHS England must—
(a) monitor NHS trusts established under section 25 in the carrying out of their functions, and
(b) provide such advice, guidance or other support as it considers appropriate to help NHS trusts established under section 25 in the carrying out of their functions.
(3) In Schedule 4—
(a) in paragraph 12 (reports etc), in sub-paragraph (1), for “the Secretary of State”, in both places it occurs, substitute “NHS England”;
(b) in paragraph 13 (provision of information by NHS trusts), in sub-paragraph (1) (as created by section 25(4) of this Act)—
(i) after “the Secretary of State” insert “or NHS England”;
(ii) for “he” substitute “the Secretary of State or NHS England”.
(1) The National Health Service Act 2006 is amended as follows.
(2) After section 27A (inserted by section 54 of this Act) insert—
NHS England’s directions to NHS trusts
27B (1) NHS England may give directions to an NHS trust established under section 25 about its exercise of any functions.
(2) In so far as a direction under this section conflicts with a direction under section 8 or paragraph 25(3) of Schedule 4, it is of no effect.
(3) In section 73 (directions and regulations under Parts 1 and 2), in subsection (1), after paragraph (ba) (inserted by section 13 of this Act) insert—
(bb) section 27B,
.
(4) In Schedule 4—
(a) in paragraph 20 (additional income), in sub-paragraph (2)—
(i) omit the “and” at the end of paragraph (a);
(ii) at the end of paragraph (b) insert
, and
(c) in circumstances specified in directions under section 27B, with the consent of NHS England.
;
(b) in paragraph 25 (staff), in sub-paragraph (3), at the end insert “and any directions given by NHS England under section 27B”.
56 Recommendations about restructuring of NHS trusts
After section 27B of the National Health Service Act 2006 (inserted by section 55 of this Act) insert—
Recommendations about restructuring
27C (1) NHS England may—
(a) make recommendations to NHS trusts for or in connection with the making of restructuring applications;
(b) take such other steps as it considers appropriate to facilitate restructuring applications involving NHS trusts.
(2) In this section “restructuring application”, in relation to an NHS trust, means an application by the NHS trust under—
(a) section 56 (mergers involving NHS foundation trusts);
(b) section 56A (acquisitions by NHS foundation trusts);
(c) section 69A (transfer of property etc between NHS bodies);
(d) paragraph 28 of Schedule 4 (dissolution of NHS trusts).
After section 27C of the National Health Service Act 2006 (inserted by section 56 of this Act) insert—
Intervention in NHS trusts: recommendations etc by NHS England
27D (1) If NHS England considers that Secretary of State ought to make an order under section 66(2) or 68(2) in relation to an NHS trust established under section 25, NHS England must—
(a) make a recommendation to that effect,
(b) set out its reasons for the recommendation, and
(c) make any recommendations it considers appropriate as to the contents of the order.
(2) NHS England must make any inquiries, and provide any other assistance, that the Secretary of State may require in connection with deciding whether to make an order under section 66(2) or 68(2) in relation to an NHS trust established under section 25 and, if so, on what terms.
58 NHS trusts: conversion to NHS foundation trusts and dissolution
(1) The National Health Service Act 2006 is amended as follows.
(2) In section 33 (application by NHS trusts to become NHS foundation trusts), in subsection (1), omit “, if the application is supported by the Secretary of State”.
(3) In section 35 (authorisation of NHS foundation trusts), in subsection (1), after “if” insert “the Secretary of State approves the authorisation and”.
(4) In section 57 (supplementary provision in connection with mergers and acquisitions with NHS foundation trusts), in subsection (5), after “Secretary of State” insert “or NHS England”.
(5) In Schedule 4—
(a) in paragraph 28 (power to dissolve NHS trusts)—
(i) in sub-paragraph (1), after “Secretary of State” insert “or NHS England”;
(ii) after sub-paragraph (1) insert—
(1A) An order under this paragraph may be made by NHS England only with the approval of the Secretary of State.
;
(iii) in sub-paragraphs (2)(b) and (3), after “the Secretary of State” insert “or NHS England”;
(b) in paragraph 29 (transfers), for sub-paragraph (1) substitute—
(1) If an NHS trust is dissolved under paragraph 28, the Secretary of State or NHS England may by order transfer, or provide for the transfer of, the property and liabilities of the NHS trust to the Secretary of State or an NHS body; and such an order may include provisions corresponding to those of paragraph 9.
;
(c) in paragraph 30 (transfers: pensions etc), in sub-paragraph (1), after “he” insert “or NHS England”.
In paragraph 3(1)(a) of Schedule 4 to the National Health Service Act 2006 (appointment of chair of board of directors of NHS trust), for “the Secretary of State” substitute “NHS England”.
In paragraph 2 of Schedule 5 of the National Health Service Act 2006 (financial obligations of NHS trusts), for sub-paragraphs (2) and (3) substitute—
(2) NHS England may set financial objectives for NHS trusts.
(3) An NHS trust must achieve any financial objectives set under sub-paragraph (2).
(4) Financial objectives under sub-paragraph (2) may apply to NHS trusts generally, or to a particular NHS trust or NHS trusts of a particular description.
In section 88 of the Health and Social Care Act 2012 (application and grant of licenses: NHS foundation trusts), for subsection (1) substitute—
(1) This section applies where—
(a) an NHS trust becomes an NHS foundation trust in pursuance of section 36 of the National Health Service Act 2006 (effect of authorisation of NHS foundation trust), or
(b) an NHS foundation trust is established under sections 56 or 56B of that Act (mergers and separations).
62 Capital spending limits for NHS foundation trusts
(1) The National Health Service Act 2006 is amended as follows.
(2) After section 42A insert—
Limits on capital expenditure
42B (1) NHS England may make an order imposing a limit on the capital expenditure of an NHS foundation trust in respect of a single financial year.
(2) The order must specify—
(a) the trust,
(b) the capital expenditure limit, and
(c) the financial year to which the limit relates.
(3) NHS England must consult the trust before making the order.
(4) NHS England must publish each order under this section.
(5) An order under this section may be made at any time during or before the financial year to which it relates.
(6) A trust that is the subject of an order under this section must not exceed the capital expenditure limit imposed by the order during the financial year to which it relates.
(7) In this section “capital expenditure”, in relation to an NHS foundation trust, means expenditure of the trust which falls to be capitalised in its annual accounts.
Guidance in relation to orders under section 42B
42C (1) NHS England must publish guidance about the exercise of its power to make orders under section 42B, including guidance about—
(a) the circumstances in which it is likely to make an order, and
(b) the method it will use to determine the capital expenditure limit.
(2) NHS England must consult the Secretary of State before it publishes guidance, or revised guidance, under this section.
(3) NHS England must have regard to the guidance in exercising its power to make orders under section 42B.
(3) In section 64 (orders and regulations under Chapter 5), in subsection (1), after “regulations” insert “, other than the power to make an order under section 42B,”.
(1) In the National Health Service Act 2006—
(a) in section 43, omit subsections (3B) and (3C) (requirements relating to content etc of forward plan for NHS foundation trusts);
(b) in paragraph 27 of Schedule 7, omit sub-paragraphs (2) and (3) (which require the forward plan to be prepared by the directors etc).
(2) In the Health and Social Care Act 2012—
(a) omit section 155 (accounts: transfer of functions relating to accounts from the regulator to the Secretary of State);
(b) in section 156 omit—
(i) subsection (3) (power to provide for content of annual reports to be prescribed by regulations rather than determined by the regulator);
(ii) subsection (4) (duty to give forward plan to Secretary of State, rather than to the regulator).
64 NHS foundation trusts: joint exercise of functions
After section 47 of the National Health Service Act 2006 insert—
Joint exercise of functions
47A An NHS foundation trust may enter into arrangements for the carrying out, on such terms as the NHS foundation trust considers appropriate, of any of its functions jointly with any other person.
65 NHS foundation trusts: mergers, acquisitions and separations
(1) The National Health Service Act 2006 is amended as follows.
(2) In section 56 (mergers)—
(a) in subsection (2), omit paragraph (a);
(b) for subsection (4) substitute—
(4) NHS England must grant the application if—
(a) it is satisfied that such steps as are necessary to prepare for the dissolution of the trusts and the establishment of the new trust have been taken, and
(b) the Secretary of State approves the grant of the application,
and must otherwise refuse the application.
(3) In section 56A (acquisitions)—
(a) in subsection (3), omit paragraph (a) and the “and” at the end;
(b) for subsection (4) substitute—
(4) NHS England must grant the application if—
(a) it is satisfied that such steps as are necessary to prepare for the acquisition have been taken, and
(b) the Secretary of State approves the grant of the application,
and must otherwise refuse the application.
(4) In section 56B (separations), for subsection (4) substitute—
(4) NHS England must grant the application if—
(a) it is satisfied that such steps as are necessary to prepare for the dissolution of the trust and the establishment of each of the proposed new trusts have been taken, and
(b) the Secretary of State approves the grant of the application,
and must otherwise refuse the application.
66 Transfers on dissolution of NHS foundation trusts
In section 57A of the National Health Service Act 2006 (dissolution)—
(a) in subsection (3), omit paragraph (a) and the “and” at the end;
(b) in subsection (4), for paragraph (b) substitute—
(b) transferring, or providing for the transfer of, the property and liabilities (including criminal liabilities) to another NHS foundation trust, an NHS trust established under section 25 or the Secretary of State.
;
(c) after subsection (4) insert—
(5) The order must include provision for the transfer of any employees of the NHS foundation trust that is dissolved.
67 NHS foundation trusts: wider effect of decisions
In the National Health Service Act 2006, after section 63 insert—
Duty to have regard to wider effect of decisions
63A (1) In making a decision about the exercise of its functions, an NHS foundation trust must have regard to all likely effects of the decision in relation to—
(a) the health and well-being of the people of England;
(b) the quality of services provided to individuals—
(i) by relevant bodies, or
(ii) in pursuance of arrangements made by relevant bodies,
for or in connection with the prevention, diagnosis or treatment of illness, as part of the health service in England;
(c) efficiency and sustainability in relation to the use of resources by relevant bodies for the purposes of the health service in England.
(2) In subsection (1)—
(a) the reference to a decision does not include a reference to a decision about the services to be provided to a particular individual for or in connection with the prevention, diagnosis or treatment of illness;
(b) the reference to effects of a decision in relation to the health and well-being of the people of England includes a reference to its effects in relation to inequalities between the people of England with respect to their health and well-being;
(c) the reference to effects of a decision in relation to the quality of services provided to individuals includes a reference to its effects in relation to inequalities between individuals with respect to the benefits that they can obtain from those services.
(3) In discharging the duty under this section, NHS foundation trusts must have regard to guidance published by NHS England under section 13NB.
(4) In this section “relevant bodies” means—
(a) NHS England,
(b) integrated care boards,
(c) NHS trusts established under section 25, and
(d) NHS foundation trusts.
68 NHS foundation trusts: duties in relation to climate change
After section 63A of the National Health Service Act 2006 (inserted by section 67 of this Act) insert—
Duties in relation to climate change etc
63B (1) An NHS foundation trust must, in the exercise of its functions, have regard to the need to—
(a) contribute towards compliance with—
(i) section 1 of the Climate Change Act 2008 (UK net zero emissions target), and
(ii) section 5 of the Environment Act 2021 (environmental targets), and
(b) adapt to any current or predicted impacts of climate change identified in the most recent report under section 56 of the Climate Change Act 2008.
(2) In discharging the duty under this section, NHS foundation trusts must have regard to guidance published by NHS England under section 13ND.
After section 69 of the National Health Service Act 2006 insert—
Transfer schemes
Transfer schemes: NHS trusts and NHS foundation trusts
69A (1) NHS England may make one or more schemes for the transfer of property, rights and liabilities from a relevant NHS body to another relevant NHS body on an application made to it under this section.
(2) The application must—
(a) be made jointly by the relevant NHS bodies, and
(b) state the property, rights or liabilities to be transferred.
(3) NHS England may grant an application under this section only if it is satisfied that such steps as are necessary to prepare for the transfer have been taken.
(4) The things that may be transferred under a transfer scheme include—
(a) property, rights and liabilities that could not otherwise be transferred;
(b) property acquired, and rights and liabilities arising, after the making of the scheme;
(c) criminal liabilities.
(5) A transfer scheme may—
(a) create rights, or impose liabilities, in relation to property or rights transferred;
(b) make provision about the continuing effect of things done by the transferor in respect of anything transferred;
(c) make provision about the continuation of things (including legal proceedings) in the process of being done by, on behalf of or in relation to the transferor in respect of anything transferred;
(d) make provision for references to the transferor in an instrument or other document in respect of anything transferred to be treated as references to the transferee;
(e) make provision for the shared ownership or use of property;
(f) make provision which is the same as or similar to the TUPE regulations;
(g) make other consequential, supplementary, incidental or transitional provision.
(6) A transfer scheme may provide—
(a) for modifications by agreement;
(b) for modifications to have effect from the date when the original scheme came into effect.
(7) In this section—
(a) references to rights and liabilities include rights and liabilities relating to a contract of employment;
(b) references to the transfer of property include the grant of a lease.
(8) In this section—
“relevant NHS body” means—
an NHS trust established under section 25;
an NHS foundation trust;
“the TUPE regulations” means the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246).
Schedule 8 contains amendments to Chapter 5A of the National Health Service Act 2006 (which transfer functions to NHS England in relation to trust special administrators).
(1) The National Health Service Act 2006 is amended as follows.
(2) After section 65Z4 (inserted by section 14 of this Act) insert—
Joint working arrangements and delegation
Joint working and delegation arrangements
65Z5 (1) A relevant body may arrange for any functions exercisable by it to be exercised by or jointly with any one or more of the following—
(a) a relevant body;
(b) a local authority (within the meaning of section 2B);
(c) a combined authority.
(2) In this section “relevant body” means—
(a) NHS England,
(b) an integrated care board,
(c) an NHS trust established under section 25,
(d) an NHS foundation trust, or
(e) such other body as may be prescribed.
(3) Regulations may—
(a) provide that the power in subsection (1) does not apply, or applies only to a prescribed extent, in relation to prescribed functions;
(b) impose conditions on the exercise of the power.
(4) Arrangements under this section may be made on such terms as may be agreed between the parties, including—
(a) terms as to payment;
(b) terms prohibiting or restricting a body from making delegation arrangements in relation to a function that is exercisable by it by virtue of arrangements under this section.
(5) In subsection (4)(b) “delegation arrangements” means arrangements made by a body for the exercise of a function by someone else.
(6) Any rights acquired, or liabilities (including liabilities in tort) incurred, in respect of the exercise by a body of any function by virtue of this section are enforceable by or against that body (and no other person).
Joint committees and pooled funds
65Z6 (1) This section applies where a function is exercisable jointly (by virtue of section 65Z5 or otherwise) by a relevant body and any one or more of the following—
(a) a relevant body;
(b) a local authority (within the meaning of section 2B);
(c) a combined authority.
(2) The bodies by whom the function is exercisable jointly may—
(a) arrange for the function to be exercised by a joint committee of theirs;
(b) arrange for one or more of the bodies, or a joint committee of the bodies, to establish and maintain a pooled fund.
(3) A pooled fund is a fund—
(a) which is made up of payments received in accordance with the arrangements from relevant bodies that are party to the arrangements, and
(b) out of which payments may be made in accordance with the arrangements towards expenditure incurred in the exercise of functions in relation to which the arrangements are made.
(4) Arrangements under this section may be made on such terms as may be agreed between the parties, including terms as to payment.
(5) In this section “relevant body” has the meaning given by section 65Z5(2).
Joint working and delegation: guidance by NHS England
65Z7 (1) NHS England may publish guidance for relevant bodies about the exercise of their powers under sections 65Z5 and 65Z6.
(2) A relevant body must have regard to any guidance published under this section.
(3) In this section “relevant body” has the meaning given by section 65Z5(2).
(3) In section 75(7B)—
(a) at the end of paragraph (a) insert “or”;
(b) for paragraphs (b) and (c) substitute—
(b) section 65Z5 (joint working and delegation arrangements).
(4) In consequence of subsection (2), omit sections 13Z to 13ZB and the italic heading before those sections.
72 References to functions: treatment of delegation arrangements etc
(1) After section 275 of the National Health Service Act 2006 insert—
References to functions: delegation etc
275A (1) A reference in this Act to the functions of a person includes functions of others that are exercisable by the person by virtue of any provision of any enactment (unless the context otherwise requires).
(2) Regulations may create exceptions to subsection (1).
(2) Schedule 9 contains—
(a) amendments that are consequential on this section and other provisions of this Part, and
(b) other related amendments.
(1) In the National Health Service Act 2006 omit—
(a) section 1D (Secretary of State’s duty to promote autonomy);
(b) section 13F (NHS Commissioning Board’s duty to promote autonomy).
(2) In consequence of subsection (1), in the Health and Social Care Act 2012, omit section 5.
After section 13U of the National Health Service Act 2006 insert—
Joint appointments
Guidance about joint appointments
13UA (1) NHS England may publish guidance for a relevant NHS body about the making of a joint appointment to which this section applies.
(2) A joint appointment to which this section applies is an appointment of a person to a position in—
(a) one or more relevant NHS commissioner and one or more relevant NHS provider,
(b) one or more relevant NHS body and one or more local authority, or
(c) one or more relevant NHS body and one or more combined authority.
(3) A relevant NHS body must have regard to guidance published under this section.
(4) NHS England must consult such persons as NHS England considers appropriate—
(a) before it first publishes guidance under this section, and
(b) before it publishes any revised guidance containing changes that are, in the opinion of NHS England, significant.
(5) In this section—
“local authority” has the same meaning as in section 2B;
“relevant NHS body” means—
a relevant NHS commissioner;
a relevant NHS provider;
“relevant NHS commissioner” means—
NHS England;
an integrated care board;
“relevant NHS provider” means—
an NHS trust established under section 25;
an NHS foundation trust.
(1) The National Health Service Act 2006 is amended in accordance with subsections (2) and (3).
(2) In section 72 (co-operation between NHS bodies)—
(a) after subsection (1) insert—
(1A) The Secretary of State may publish guidance on the discharge of the duty under subsection (1) in relation to England.
(1B) An NHS body other than a Welsh NHS body must have regard to any guidance published under subsection (1A).
;
(b) after subsection (4) insert—
(5) In this section “Welsh NHS body” means—
(a) an NHS trust established under the National Health Service (Wales) Act 2006,
(b) a Special Health Authority established under that Act, or
(c) a Local Health Board.
(3) In section 82 (co-operation between NHS bodies and local authorities)—
(a) the existing words become subsection (1);
(b) after that subsection insert—
(2) The Secretary of State may publish guidance on the discharge of the duty under this section in relation to England.
(3) The following must have regard to any guidance published under subsection (2)—
(a) an NHS body other than a Welsh NHS body;
(b) a local authority in England.
(4) In this section “Welsh NHS body” means—
(a) an NHS trust established under the National Health Service (Wales) Act 2006,
(b) a Special Health Authority established under that Act, or
(c) a Local Health Board.
(4) In the Health and Social Care Act 2012, in section 96 (limits on functions to set or modify licence conditions)—
(a) in subsection (2), for paragraph (g) substitute—
(g) for the purpose of enabling, promoting or securing co-operation between providers of health care services for the purposes of the NHS, or between such providers and—
(i) NHS bodies, within the meaning of section 72 of the National Health Service Act 2006, or
(ii) local authorities in England (and for this purpose “local authority” has the meaning given by section 275(1) of the National Health Service Act 2006);
;
(b) in subsection (3), in the words before paragraph (a), for “(f) and (g)” substitute “and (f)”.
76 Wider effect of decisions: licensing of health care providers
In section 96 of the Health and Social Care Act 2012 (limits on functions to set or modify licence conditions)—
(a) in subsection (2), after paragraph (d) insert—
(da) for the purpose of ensuring that decisions relating to the provision of health care services for the purposes of the NHS are made with regard to all their likely effects in relation to the matters referred to in subsection (2A);
;
(b) after subsection (2) insert—
(2A) The matters referred to in subsection (2)(da) are—
(a) the health and well-being of the people of England;
(b) the quality of services provided to individuals—
(i) by relevant bodies, or
(ii) in pursuance of arrangements made by relevant bodies,
for or in connection with the prevention, diagnosis or treatment of illness, as part of the health service in England;
(c) efficiency and sustainability in relation to the use of resources by relevant bodies for the purposes of the health service in England.
(2B) For the purposes of subsection (2)(da) (as read with subsection (2A))—
(a) a reference to the effects of decisions in relation to the health and well-being of the people of England includes a reference to the effects of the decisions in relation to inequalities between the people of England with respect to their health and well-being;
(b) a reference to effects of decisions in relation to the quality of services provided to individuals includes a reference to the effects of the decisions in relation to inequalities between individuals with respect to the benefits that they can obtain from those services.
(2C) In subsection (2A) “relevant bodies” means—
(a) NHS England,
(b) integrated care boards,
(c) NHS trusts established under section 25, and
(d) NHS foundation trusts.
(1) The National Health Service Act 2006 is amended as follows.
(2) In section 6E (standing rules)—
(a) in subsection (1)—
(i) for “may” substitute “must”;
(ii) for “or” substitute “and”;
(b) after subsection (1) insert—
(1A) The regulations must make provision as to the arrangements that NHS England and integrated care boards must make, in exercising their commissioning functions, for enabling persons to whom specified treatments or other specified services are to be provided to make choices with respect to specified aspects of them.
(1B) The regulations may make other provision for the purpose of securing that, in exercising their commissioning functions, NHS England and integrated care boards protect and promote the rights of persons to make choices in relation to treatments or other services, where those rights—
(a) arise by virtue of regulations under subsection (1A), or
(b) are described in the NHS Constitution.
;
(c) omit subsection (2)(c).
(3) After section 6E insert—
Enforcement of section 6E regulations relating to patient choice
6F (1) NHS England may investigate whether an integrated care board has failed or is likely to fail to comply with a requirement imposed by regulations under section 6E(1A) or (1B) (a “patient choice requirement”).
(2) NHS England may direct an integrated care board—
(a) to put in place measures for the purpose of preventing failures to comply with patient choice requirements or mitigating the effect of such failures, or
(b) where an investigation under subsection (1) has been carried out, to remedy a failure to comply with patient choice requirements.
(3) Where an investigation under subsection (1) is being or has been carried out, NHS England may accept from the integrated care board an undertaking that it will take any action falling within subsection (2)(a) or (b) that is specified in the undertaking, within a period that is so specified.
(4) Where NHS England accepts an undertaking under subsection (3), NHS England may not—
(a) continue to carry out any ongoing investigation under subsection (1) so far as relating to matters to which the undertaking relates, or
(b) give a direction under subsection (2) in relation to those matters,
unless the integrated care board fails to comply with the undertaking.
(5) If an integrated care board from which NHS England has accepted an undertaking under subsection (3) complies partially with the undertaking, NHS England must take the partial compliance into account in deciding whether to do something mentioned in subsection (4)(a) or (b).
(6) Schedule 1ZA makes further provision about undertakings.
Guidance relating to patient choice
6G (1) NHS England must publish guidance about how it intends to exercise powers conferred on it by section 6F and Schedule 1ZA.
(2) Before publishing guidance under this section, NHS England must obtain the approval of the Secretary of State.
(4) In section 13U (annual report), in subsection (2)(c), for the words from “sections” to the end substitute
or by virtue of—
section 6E(1A) and (1B);
section 13E;
section 13G;
section 13I;
section 13Q.
(5) Schedule 11 inserts into the National Health Service Act 2006 a new Schedule 1ZA (undertakings by integrated care boards).
After section 12ZA of the National Health Service Act 2006 insert—
Procurement
Procurement regulations
12ZB (1) Regulations may make provision in relation to the processes to be followed and objectives to be pursued by relevant authorities in the procurement of—
(a) health care services for the purposes of the health service in England, and
(b) other goods or services that are procured together with those health care services.
(2) Regulations under subsection (1) must include provision specifying steps to be taken when following a competitive tendering process.
(3) Regulations under subsection (1) must, in relation to the procurement of all health care services to which they apply, make provision for the purposes of—
(a) ensuring transparency;
(b) ensuring fairness;
(c) ensuring that compliance can be verified;
(d) managing conflicts of interest.
(4) NHS England must publish such guidance as it considers appropriate about compliance with the regulations.
(5) A relevant authority must have regard to guidance published under this section.
(6) Before publishing guidance under this section, NHS England must obtain the approval of the Secretary of State.
(7) In this section—
“health care service” has the same meaning as in Part 3 of the Health and Social Care Act 2012 (see section 150 of that Act);
“relevant authority” means—
a combined authority;
an integrated care board;
a local authority in England;
NHS England;
an NHS foundation trust;
an NHS trust established under section 25.
80 Procurement and patient choice: consequential amendments etc
(1) In the National Health Service Act 2006—
(a) in section 12E (Secretary of State’s duty as respects variation in provision of health services), for subsection (2) substitute—
(2) The functions mentioned in this subsection are the functions of the Secretary of State under—
(a) section 6E;
(b) section 12ZB;
(c) section 13A.
;
(b) in section 272 (orders, regulations, rules and directions), in subsection (6), after paragraph (zzd), insert—
(zze) regulations under section 12ZB,
.
(2) Omit sections 75 to 78 of, and Schedule 9 to, the Health and Social Care Act 2012 (regulations etc relating to procurement, patient choice and competition).
(3) In section 40 of the Small Business, Enterprise and Employment Act 2015 (investigation of procurement functions), in subsection (7), omit paragraph (b) and the “or” before it.
(4) The National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 (S.I. 2013/500) are revoked.
81 Eradicating slavery and human trafficking in supply chains
(1) The National Health Service Act 2006 is amended as follows.
(2) After section 12ZB (inserted by section 79) insert—
Eradicating slavery and human trafficking in supply chains
12ZC (1) The Secretary of State must by regulations make such provision as the Secretary of State thinks appropriate with a view to eradicating the use in the health service in England of goods or services that are tainted by slavery and human trafficking.
(2) The regulations may, in particular, include—
(a) provision in connection with the processes to be followed by public bodies in the procurement of goods or services for the purposes of the health service in England (including provision as to circumstances in which a supplier is excluded from consideration for the award of a contract);
(b) provision as to steps that must be taken by public bodies for assessing and addressing the risk of slavery and human trafficking taking place in relation to people involved in health service supply chains;
(c) provision as to matters for which provision must be made in contracts for goods or services entered into by public bodies for the purposes of the health service in England.
(3) In this section—
“health service supply chains” means supply chains for providing goods or services for the purposes of the health service in England;
“public body” means a body exercising functions of a public nature;
“slavery and human trafficking” has the meaning given by section 54(12) of the Modern Slavery Act 2015;
“tainted”: goods or services are “tainted” by slavery and human trafficking if slavery and human trafficking takes place in relation to anyone involved in the supply chain for providing those goods or services.
(3) In section 272 (orders, regulations, rules and directions), in subsection (6), after paragraph (zze) (inserted by section 80), insert—
(zzf) regulations under section 12ZC,
.
(1) After section 13SB of the National Health Service Act 2006 (inserted by section 34(2) of this Act) insert—
Provision of regulatory information or assistance to the CMA
13SC (1) NHS England must give the Competition and Markets Authority (“the CMA”)—
(a) any regulatory information that the CMA may require to enable the CMA to exercise its relevant functions,
(b) any other regulatory information it considers would assist the CMA in exercising its relevant functions, and
(c) any other assistance the CMA may require to assist the CMA in exercising its relevant functions.
(2) In this section—
“regulatory information” means information held by NHS England in connection with—
its regulatory functions falling within section 13SB(2)(a) or (b), or
its functions under—
sections 6F and Schedule 1ZA (patient choice: enforcement);
sections 27A and 27C (NHS trusts: oversight and support and recommendations about restructuring);
“relevant functions”, in relation to the CMA, means its functions under the Competition Act 1998 and the Enterprise Act 2002 so far as those functions are exercisable on behalf of the CMA by the CMA Board or a CMA group (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013).
(2) In the Health and Social Care Act 2012, omit section 80 (co-operation between monitor and CMA).