NHS Delivery - a new national delivery organisation: consultation

The Legal Framework

To capitalise on the benefits we believe will be achieved through the establishment of NHS Delivery, it is necessary to provide the new organisation with the necessary legal mandate to deliver its future functions.

This will be achieved through the transfer of statutory functions, currently held by NES, to the CSA (the statutory body which currently operates as NSS). This represents the most pragmatic approach to delivering the changes required, providing us with the necessary legal framework to drive the immediate improvements we want to see.

The approach brings with it an opportunity for the CSA to take on further health functions on behalf of Scottish Ministers in due course, providing a degree of future proofing. In addition, section 62 of the Public Bodies (Joint Working) (Scotland) Act 2014 enables the CSA, with the agreement of Ministers, to enter into arrangements with non-health related public bodies to deliver services on behalf of wider public sector partners.

The bringing together of statutory functions currently held by NES and NSS could be achieved by amending Scottish Statutory Instrument 2008/312 to transfer NES’s statutory functions to the CSA, and by revoking Scottish Statutory Instrument 2002/103 to abolish NES.

The legislation to deliver these changes would be subject to the Scottish Parliament’s affirmative procedure, with parliamentary scrutiny planned to commence in early 2026.

Whilst not the subject of this consultation, changes will also be made to the Common Service Agency (Membership and Procedure) Regulations 1991 to provide Ministers with equivalent powers to those they hold in respect of appointments to Health Boards. Specifically, the changes will allow Ministers to remove members from the CSA’s management committee where they consider that it is not in the interests of the health service that they continue to hold office. This change will bring the 1991 Regulations into line with the expectations of the Commissioner for Ethical Standards as set out through their Code of Practice for Ministerial Appointments to Public Bodies which makes clear that appointments should be based on merit and the focus on outcomes set by Ministers. Further work will be undertaken in the coming months to establish how these powers might be exercised to ensure the CSA management committee has the necessary breadth of skills, knowledge and experience to lead the new organisation.

As already outlined, it is the expectation that NHS Delivery will evolve significantly following the initial bringing together of NES and NSS. The full extent of functions to be delivered by the organisation will be the subject of further stakeholder engagement and formal consultation over the course of 2026 and beyond. Thereafter, we will consider what, if any, further legislative changes may be required to enable the organisation to fully fulfil our ambitions for it.