Explanatory note

This Order amends a number of instruments upon the establishment of the special health authority, the NHS Counter Fraud Authority, pursuant to section 28 of the National Health Service Act 2006 (“the 2006 Act”). The Order comes into force on 1st November 2017. Article 3 extends to Great Britain and Northern Ireland, articles 4 and 6 extend to England and Wales, and article 6 extends to England and Wales. Other amendments extend to Great Britain. With effect from 1st November 2017, the NHS Counter Fraud Authority (Establishment, Constitution, and Staff and Other Transfer Provisions) Order 2017 provides for the establishment of the new special health authority to exercise the statutory functions of the Secretary of State in relation to the prevention, detection and investigation of fraud against or affecting the health service in England. Before 1st November 2017, these functions, together with the security management functions of the Secretary of State in relation to the health service, were exercisable by a division (“the counter fraud division”) of the NHS Business Services Authority (“the NHS BSA”), also a special health authority, established pursuant to powers in the National Health Service 1977 which are consolidated in section 28 of the 2006 Act. The NHS Business Services Authority (Awdurdod Gwasanaethau Busnes y GIG) (Establishment and Constitution) (Amendment) Order 2017 removes both counter fraud and security management functions from the NHS BSA.

Article 2 amends entries in Schedules 3 and 8 to the Pensions Act 2004 which list persons to whom disclosure may be made, subject to certain criteria, by (respectively) the Pensions Regulator and the Pensions Board (the Board of the Pension Protection Fund), of restricted information within the meaning of that Act, so that such disclosures may be made to the new special health authority.

Article 3 amends provision in the Regulation of Investigatory Powers (Directed Surveillance and Covert Human Intelligence Sources) Order 2010 (“the 2010 Order”) made under the Regulation of Investigatory Powers Act 2000 (“the 2000 Act”) in relation to the prescribed offices, positions and ranks in column 2 of Part 2 of Schedule 1 to the 2000 Act. Part 2 of Schedule 1 to the 2000 Act concerns the authorisation by certain designated officers of the carrying out of directed surveillance, subject to certain tests being met, pursuant to section 28 of the 2000 Act. This Order amends the 2010 Order so as to omit reference to the counter fraud division of the NHS BSA in the entry relating to special health authorities at column 2 of Part 2 of Schedule 1 to the 2000 Act, instead prescribing office holders by reference to the specific functions they exercise.

Article 4 amends the National Health Service (Performers Lists) (England) Regulations 2013 (SI 2013/335) to substitute for reference to the NHS BSA reference to the new special health authority. (Two references to the NHS BSA in respect of historical matters remain.)

Article 5 amends the Schedule to the Public Interest Disclosure (Prescribed Persons) Order 2014 (SI 2014/2418) which lists bodies to whom disclosures qualifying for protection under Part 4A of the Employment Rights Act 1996 may be made. The entry relating to the NHS BSA is replaced by a new entry for the new special authority and its functions.

Article 6 amendments relate to persons who are to be regarded as accredited financial investigators for the purposes of exercising certain powers under the Proceeds of Crime Act 2002 (“the 2002 Act”). Descriptions of such persons are specified in the Proceeds of Crime Act 2002 (References to Financial Investigators) (England and Wales) Order 2015 (SI 2015/1853) by reference to the provisions of the 2002 Act. Article 6 amends six entries in that Order with the effect that certain officers of the NHS Counter Fraud Authority may be regarded as accredited financial investigators.

An impact assessment has not been prepared for this instrument as no impact on the costs of business or the voluntary sector is foreseen.