As part of a series of articles on the recently published Law Commission's report on the Regulation of Health and Social Care Professionals, in this piece we look briefly at the role of the Privy
As part of a series of articles on the recently published Law Commission's report on the Regulation of Health and Social Care Professionals, in this piece we look briefly at the role of the Privy Council.
NB – the Law Commission bill was not included in the Queen's speech and is therefore unlikely to become law before the next election. The GMC has pledged to work with the government to make urgent amendments to the Medical Act to protect patients but the extent to which the reforms suggested by the Law Commission will be implemented is very much in question. We will keep this under review and provide updates in due course.
Whether the Privy Council should still have a role in the regulation of Health and Social Care Professionals is one of the main areas of reform where the Law Commission and the Department of Health (DoH) disagree. Recommendation 8 sets out the Law Commission's firmly held view that the formal role of the Privy Council in this regard should be removed entirely. The DoH opposes this view.
The Privy Council currently has a statutory regulatory role in relation to eight of the nine regulatory bodies the subject of the review (the exception being the Pharmaceutical Society of Northern Ireland). At present, in formal legislative terms, the Privy Council is required to approve new rules and regulations made by the regulators and has default powers to intervene in cases of regulatory failure. The Government, in its role as advisor to the Privy Council, already plays an active part in the process.
The Law Commission argues that in practice, the Privy Council performs no real independent function and lacks the resources to do so, instead deferring its role to the DoH. As a result of this, the Law Commission consider that the DoH and not the Privy Council is already the main driver in developing, scrutinising and securing the approval of rules and regulations, and it would be the DoH which would in effect be required to implement the Privy Council's default powers in the event they were deployed.
In a time of increased demand for openness and transparency, the Law Commission believes that the true relationship between Government and the regulators should be open to scrutiny, and the way to achieve this within the new legal framework is to remove the role of the Privy Council in its entirety. According to the final report, the majority of the consultation responses on this issue agreed with this recommendation.
Of those who disagreed with this proposal, it was felt that the role of the Privy Council guarded against political interference in the regulators' operational matters and that the Privy Council's independent status also ensures any regulatory reforms will reflect the devolution settlements.
In its opposition to the proposal, the DoH also voiced concern that removal of the Privy Council's role would "call into question the independence of the regulatory bodies from Government and the Secretary of State for Health". The DoH further raised concerns as to the impact the removal of the role of the Privy Council would have upon the classification of the regulators; that the Office for National Statistics would reclassify them as being public rather than private sector bodies thereby bringing the regulators within the Government's accounting framework and impose other requirements which might reduce their operational flexibility.
It will be interesting to see what happens when this aspect of the proposed reforms comes up for further debate and whether a call for greater transparency of the decision making process will outweigh the desire to maintain the apparent independence of the decision makers
NB – the Law Commission bill was not included in the Queen's speech and is therefore unlikely to become law before the next election. The GMC has pledged to work with the government to make urgent amendments to the Medical Act to protect patients but the extent to which the reforms suggested by the Law Commission will be implemented is very much in question. We will keep this under review and provide updates in due course.
Whether the Privy Council should still have a role in the regulation of Health and Social Care Professionals is one of the main areas of reform where the Law Commission and the Department of Health (DoH) disagree. Recommendation 8 sets out the Law Commission's firmly held view that the formal role of the Privy Council in this regard should be removed entirely. The DoH opposes this view.
The Privy Council currently has a statutory regulatory role in relation to eight of the nine regulatory bodies the subject of the review (the exception being the Pharmaceutical Society of Northern Ireland). At present, in formal legislative terms, the Privy Council is required to approve new rules and regulations made by the regulators and has default powers to intervene in cases of regulatory failure. The Government, in its role as advisor to the Privy Council, already plays an active part in the process.
The Law Commission argues that in practice, the Privy Council performs no real independent function and lacks the resources to do so, instead deferring its role to the DoH. As a result of this, the Law Commission consider that the DoH and not the Privy Council is already the main driver in developing, scrutinising and securing the approval of rules and regulations, and it would be the DoH which would in effect be required to implement the Privy Council's default powers in the event they were deployed.
In a time of increased demand for openness and transparency, the Law Commission believes that the true relationship between Government and the regulators should be open to scrutiny, and the way to achieve this within the new legal framework is to remove the role of the Privy Council in its entirety. According to the final report, the majority of the consultation responses on this issue agreed with this recommendation.
Of those who disagreed with this proposal, it was felt that the role of the Privy Council guarded against political interference in the regulators' operational matters and that the Privy Council's independent status also ensures any regulatory reforms will reflect the devolution settlements.
In its opposition to the proposal, the DoH also voiced concern that removal of the Privy Council's role would "call into question the independence of the regulatory bodies from Government and the Secretary of State for Health". The DoH further raised concerns as to the impact the removal of the role of the Privy Council would have upon the classification of the regulators; that the Office for National Statistics would reclassify them as being public rather than private sector bodies thereby bringing the regulators within the Government's accounting framework and impose other requirements which might reduce their operational flexibility.
It will be interesting to see what happens when this aspect of the proposed reforms comes up for further debate and whether a call for greater transparency of the decision making process will outweigh the desire to maintain the apparent independence of the decision makers