Commentary on Sections Introductory Section 2: Independent Regulator of NHS foundation trusts
43.This section establishes the Independent Regulator of NHS foundation trusts. The Independent Regulator is responsible for setting the terms of, and granting authorisation to, NHS foundation trusts, and monitoring their compliance with the terms of authorisation and the requirements set out in Part 1.
44.Subsection (2) introduces Schedule 2, which makes detailed provisions regarding the Independent Regulator. The Schedule includes provisions about the appointment of members and staff to the Independent Regulator and their remuneration, and also sets out the Independent Regulator’s powers, funding arrangements, reporting and accounts procedures.
45.Paragraph 1 sets out that the Independent Regulator is to consist of up to 5 members appointed by the Secretary of State, including a chairman and deputy. Paragraphs 2 and 3 give the Secretary of State general powers to set the terms and conditions of office of members of the Independent Regulator.
46.Paragraph 4 provides for the Independent Regulator to appoint staff on terms and conditions it determines, subject to consultation with the Minister for the Civil Service.
47.Paragraph 6 provides that the Independent Regulator is responsible for regulating its own procedure.
48.Paragraphs 8 and 9 set out the general and specific powers of the Independent Regulator. Paragraph 8(1) gives the Independent Regulator general powers to do anything that is necessary or desirable in relation to its functions. In particular, paragraph 8(2) provides that this includes acquiring and disposing of property, entering into contracts, accepting gifts, and co-operating with other public authorities. Paragraph 9 gives the regulator the power to borrow money temporarily with the consent of the Secretary of State, and to conduct research.
49.Under paragraph 10, the Secretary of State may make contributions to the Independent Regulator’s expenses. This provision is to be read in conjunction with section 21 which allows the Independent Regulator to impose fees on NHS foundation trusts.
50.Paragraph 11 sets out provisions that ensure the accountability of the Independent Regulator to the Secretary of State and to Parliament. The Independent Regulator must make an annual report on the way it has exercised its functions and prepare a summary of NHS foundation trusts’ accounts for each financial year, both of which must be laid before Parliament, and copied to the Secretary of State. In addition, paragraph 11(6) gives the Secretary of State the power to require any other reports and information relating to the exercise of the Independent Regulator’s functions.
51.Paragraph 12 sets out the accounting requirements that that will apply to the Independent Regulator.
52.Paragraph 13 places a requirement on the Independent Regulator to respond in writing to any recommendation relating to the exercise of its functions made by a Committee of either or both Houses of Parliament.
53.Paragraphs 17 and 18 disqualify the members of the Independent Regulator from membership of the House of Commons and the Northern Ireland Assembly.