The health secretary will have the power to bypass parliament in shaping the “direction” of the NHS Commissioning Board, analysis by HSJ and law firm Beachcroft has revealed.

Under the health bill, if the health secretary considers the NHS Commissioning Board “is failing or has failed” to discharge any of its functions he can direct the board to “discharge such of those functions, and in such manner and within such period or periods, as may be specified in the direction”.

If the board does not comply with the direction, the health secretary can take over the discharge of the functions or make arrangements for someone else to discharge them on his behalf.

The board’s success or failure will be judged by its performance against a mandate issued by the secretary of state which will set out the boards’ objectives, requirements and financial allocation.

Emma Teale, solicitor at the firm, described the “myriad” of regulations surrounding the NHS Commissioning Board “established in primary legislation under a banner of independence” as “surprising”.

She said: “If we take that to mean independence from the Department of Health, it may be surprising that the exercise of such bodies’ functions are subject to myriad regulations and directions, not only as to what functions they may carry out, but also how they must carry them out.

“Added to this is the fact that the Bill allows the Secretary of State to find that they are not performing adequately and either give a direction, assume the function himself or else re-allocate it to another body. 

“As a result, the Secretary of State shapes and directs the discretion of these bodies and, in certain circumstances, the Secretary of State could reallocate a function designated by Parliament, without the need to amend primary legislation.”