Part 1: Health Service in England: Integration, Collaboration and Other Changes Secretary of State’s functions Section 45: General power to direct NHS England
This section amends the NHS Act 2006 and inserts four new sections which provide the Secretary of State for Health and Social Care with powers to give directions to NHS England:
Section 13ZC Secretary of State directions as to the exercise of NHS England functions;
Section 13ZD Power to give directions: exceptions
Section 13ZE Compliance with directions: significant failure
Section 13ZF Secretary of State directions to provide information.
	New section 13ZC gives the Secretary of State the power to direct NHS England as to the exercise of any of their functions. Any direction given to NHS England under this section by the Secretary of State must be made in writing, must include a statement that it is in the public interest and must be published as soon as reasonably practicable after it is given.
	A direction under section 13ZC may include directing NHS England in relation to whether a power is to be exercised or not; when or how a function is, or is not, to be exercised; conditions that must be met before a function is exercised (for example, conditions relating to the provision of information, consultation or approval); and matters to be taken into account in exercising a function. The Secretary of State cannot use this power to direct NHS England not to perform a duty.
	The power of direction supplements other mechanisms for the Secretary of State to impose obligations on NHS England, such as the Mandate, which remains the primary mechanism through which the Secretary of State will set out the priorities that NHS England should be seeking to achieve.
	As clarified in subsections 13ZC(7) and (8) the power to direct in new section 13ZC(1) is not generally limited by the Secretary of State’s other statutory functions but is limited by other powers to make regulations and orders. The directions therefore cannot be used to impose requirements which should be set out in regulations, and circumvent any Parliamentary scrutiny or control provided for in the regulation-making power.
	Section 13ZD sets out the exceptions to the power in section 13ZC(1). The Secretary of State cannot use the power in 13ZC(1) to give directions to NHS England in relation to the appointment or employment of individuals by NHS England; in relation to individual clinical decisions; or in relation to drugs or treatments that the National Institute for Health and Care Excellence (NICE) has not recommended or issued guidance on as to its clinical and cost effectiveness.
	The section also repeals section 13Z2 (failure to discharge functions) of the NHS Act 2006 and introduces new section 13ZE. This section continues (as in previous section 13Z2 of NHS Act 2006) to confer a power on the Secretary of State to intervene in cases of significant failure of NHS England to carry out any of its functions. The new section 13ZE(1) allows for a specific type of direction to be given under section 13ZC which states that the Secretary of State considers NHS England to be failing or have failed to discharge any of its functions , and that the direction is aimed at addressing that failure. If NHS England fails to comply with this type of direction, the Secretary of State may intervene to discharge the relevant functions or arrange for their discharge by another person. Where the Secretary of State chooses to intervene in this way, they must publish their reasons for doing so. Sub-section (4) of the new section 13ZE clarifies that, for the purposes of the section, a failure to discharge a functions includes a failure to discharge it properly, and a failure to discharge it properly includes a failure to discharge it consistently with what the Secretary of State considers to be in the best interests of the health service.
	The section also introduces section 13ZF which gives the Secretary of State powers to direct NHS England to provide information and repeals paragraph 14 of Schedule A1 to the NHS Act 2006 (powers to require information). It gives the Secretary of State the power to direct NHS England to provide the Secretary of State with such information as they require, in such form and at such time or within such period. A direction under this section may also require NHS England to use any powers they hold to obtain this information from others (such as integrated care boards) if required.