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Standing Committee E
Tuesday 20 May 2003
[Mr Peter Atkinson in the Chair]
Independent Regulator of NHS Foundation Trusts
Amendment proposed [this day]: No. 215, in
schedule 2, page 98, line 36, at end insert—
'Right to Appeal to Regulator
6A Employers of health service staff in nonfoundation trusts affected by decisions made by foundation trusts in respect of their terms and conditions of employment, may ask the regulator to judge if these are a breach of section 26 of the Health Act 1999, as amended by this Act.'.—[Mrs. Calton.]
Question again proposed, That the amendment be made.
The Minister of State, Department of Health (Mr. John Hutton): I have absolutely no idea where we finished before lunch. I am sure that we were having a useful discussion; I was on my feet, so that is axiomatic.
The hon. Member for Cheadle (Mrs. Calton) raised the important issue of how to deal with poaching or unfair competition between NHS organisations for staff. The hon. Lady clearly wished to insert a provision in the Bill, although she did not make clear whether this was a probing amendment, that would involve the independent regulator in making decisions on whether there had been a breach of the statutory duty of co-operation. He must do that anyway, as it is his job to ensure that all NHS foundation trusts comply both with the terms of their authorisation and the terms of the statutory provisions that relate to their function. Therefore, the hon. Lady's point is already encompassed in the Bill.
The discussion ranged further, Mr. Atkinson, as to whether it would be appropriate for the independent regulator to vary employment terms and conditions, or for him to impose additional restrictions on NHS foundation trusts when it came to the employment of staff. We do not want to go down either of those two latter roads, as that would not be an appropriate role for the regulator. I hope that Committee members take that view. Such matters are best dealt with by unions, staff and employers. I hope that I have been able to assure the hon. Lady that the valid point she raises is covered by the Bill, and that she will not press her amendment to a Division.
Mrs. Patsy Calton (Cheadle): I thank the Minister for his thoughtful response; I am reeling from the tributes. I am pleased that he recognises that there is a recruitment problem in the NHS, which could worsen
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as we phase in foundation trust status for, as I understand it, all hospitals.
I have listened to the Minister's reassurances that ''Agenda for Change'' deals with the problem, and I would ask the Secretary of State to keep a watchful eye on that aspect of the two-tier system. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That this schedule, as amended, be the Second schedule to the Bill.
Mr. Simon Burns (West Chelmsford): I do not intend to detain the Committee for long. First, as will have become apparent during our debate on the amendments proposed to schedule 2, my hon. Friends and I are still concerned—notwithstanding what the Minister has said to seek to reassure us—that the independence of the independent regulator is compromised by the arrangements, even if they are administrative arrangements over his appointment. I will check that in Hansard on Thursday morning, and study it further, with a view to possibly returning to the subject. My hon. Friend the Member for South Cambridgeshire (Mr. Lansley) may wish to do that at a later stage in the proceedings.
Secondly, paragraphs 10 and 11 in the schedule are perfectly straightforward. They amend the House of Commons Disqualification Act 1975 and the Northern Ireland Assembly Disqualification Act 1975, and those will now state that the regulator for foundation trusts is disqualified from being a Member of this House or of the Northern Ireland Assembly.
The Under-Secretary said—I think it was during the debate on clause 1—that, at some point, the Government would table an amendment to make it a disqualify from this House someone on the board of governors of a foundation trust. Presumably that would be a straightforward amendment; however, looking through this morning's list of amendments, I see that it has not been forthcoming. Would it have been possible for the Government to have produced the amendment to include in the schedule because it deals with disqualification, or would that be inappropriate? Will the Government have to attach that amendment to another schedule or clause? When does the Minister expect that amendment to be tabled for our consideration?
Mr. Hutton: The current intention is to table that amendment as a consequential amendment to schedule 4. It would not be appropriate to insert such an amendment in schedule 2, which relates to the office of the independent regulator. The hon. Gentleman's point relates to non-executive directors.
Schedule 2, as amended, agreed to.
GENERAL DUTY OF REGULATOR
Mr. Andrew Lansley (South Cambridgeshire): I beg to move amendment No. 232, in
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The Chairman: With this it will be convenient to discuss the following amendments:
No. 107, in
No. 244, in
clause 3, page 2, line 2, leave out 'consistent with' and insert 'in pursuance of'.
No. 200, in
No. 245, in
No. 123, in
clause 3, page 2, line 5, at end add—
'(2) In performing his duties under this Act, the regulator must have regard to such of the following as appear to him to be relevant in the circumstances—
(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases where action is needed,
(b) the different needs and interests of persons using NHS services and, in particular, of the different interests of children, and of those living in rural and urban areas; and
(c) the principles set out in the Compact between Government and the voluntary sector and the codes of practice set out under it.'.
Mr. Lansley: I shall forbear to say that schedule 4 is not the right place to insert House of Commons disqualification. That relates to the previous debate. Schedule 4 is the schedule of amendments to the law in relation to the introduction of the term ''NHS foundation trust''. There we go; we have moved on.
Clause 3 is simple in its way, but therein lies a wealth of meaning. The purpose is to introduce the duties of the regulator. The manner in which the duties are defined says that they are, in effect, consistent with the duties of the Secretary of State as consolidated under the National Health Service Act 1977.
Before discussing those duties and where there might be enhancement and improvement of their definition, it might be helpful to recognise that in a whole series of Acts in recent years—and, perhaps more to the point, in the practice that has flowed from that legislation—it has become apparent that there is a significant difference in practice between the exercise of duties by a Secretary of State and by a regulator.
There was an exchange this morning about the nature of regulation as opposed to other ways of exercising functions. A Secretary of State is not a creature of statute, with limitations bounded by statute, as are regulators and local government. He is not precluded from having regard to issues beyond those set out in the statutes that he uses. A Secretary of State has to have regard to certain duties that are set out in statute, but is not circumscribed by those duties
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as not to have any regard to other issues. In practice, we see Secretaries of State as policy-makers who expand the boundaries of their vision as they apply their duties according to changing circumstances.
Regulators are somewhat different beasts; they are creatures of statute. All recent experience tells us that if one does not tell regulators—as distinct from Secretaries of State—what their duties are, or what they should have regard to in the exercise of their duties, it is highly likely that they simply will not expand the boundaries of their thinking to embrace any additional duties or consider matters that are outside the boundaries that have been set in statute.
It is necessary when establishing the post to set out precisely the duties of the regulator and what he or she ought to have regard to. I hope that the Minister agrees. The difficulty is that the manner in which clause 3 is drafted suggests that the regulator is nothing other than a statutory counterpart to the Secretary of State and has no distinct function. The duties of the Secretary of State in relation to the NHS seem, in effect, to be carried through into the duties of the regulator, even though the regulator has specific functions to perform.
Mr. Hutton: I am not sure that I follow the hon. Gentleman's point. If he is saying that the regulator is simply a replication of the Secretary of State, he has fundamentally misunderstood the nature of the Bill. The Secretary of State has a range of additional functions relating to, for example, resources and national standards that are not the responsibility of the regulator, whose statutory functions are set out clearly in part I of the Bill. There is no ambiguity about the respective roles of the regulator and the Secretary of State.