The noble Earl said: The membership of a foundation trust consists of those employees and members of the public who, in their separate constituencies, are eligible to elect representatives to sit as governors. Of these two constituencies, the staff constituency is the one that is more easily comprehensible. That is not to say that all is crystal clear. Paragraph 3(4) states that you will not actually have to be employed by the trust to count as a member of staff; and the notes tell us that agency nurses and people employed by sub-contractors are examples of those who might fall into the category of non-employees.
I am not clear how far this is supposed to go. Perhaps the Minister can explain. Could it, for example, include people who work for companies which act as suppliers to the trust? No doubt the Minister will say that these are detailed matters for the trust itself to determine, but it is rather difficult to see where the line can reasonably be drawn and why, therefore, the paragraph was inserted at the last minute in another place.
Should a trust include all agency nurses who had worked for it in the past year or only, let us say, those who had worked for a certain number days? One can envisage all kinds of arguments and bureaucratic complications arising from this debate.
I imagine that one category of person the Government have in mind is someone who works for a PFI contractor servicing the trust. It would be helpful to hear from the Minister what is the up-to-date position on the issue of retained employment in
If we look further down at paragraph 8, we see that the staff constituency appears to be very much the poor relation of the public constituency. Whereas the public constituency members must comprise at least 50 per cent of the board, the staff constituency membership of the board need consist of only one person. I am not quite sure why this is and it would be helpful to hear the Minister's thinking on how important the staff constituency and the staff governors are regarded as being. I beg to move.
Lord Walton of Detchant: Can the Minister explain whether the paragraph relates also to clinical, medical and dental staff employed by a university who have honorary clinical contracts with the trust?
Lord Warner: We have tried very hard to explain our general approach in relation to Schedule 1. The legislation deliberately sets out only minimum eligibility requirements for memberships of NHS foundation trusts in order to allow individual NHS foundation trusts the flexibility to tailor their own arrangements to meet local circumstances and on the basis of local conditions. I do not want to keep repeating that during the course of the debate, but I want to make it absolutely clear to the Committee that that is why we are not putting a great deal of prescriptive requirements into the legislation.
I find it slightly ironical that, after the debate on Tuesday in which there was a great deal of protestation from around the Committee about the problems of micro-management of the NHS, centralisation and laying down the law from Westminster and Whitehall, we now have a string of amendments which seek to do just that to this legislation.
The amendment, if implemented, would prevent individuals not directly employed by foundation trusts from being eligible for the staff constituency. We believe that that would run quite counter to the flexibility arguments I have used. I do not know whether it is motivated by concerns that the constituency may allow inappropriate groups of people to have access to membership, but paragraph 3(4) simply gives NHS foundation trusts discretion to include those people who carry out functions of the trust, although not directly employed by the trust, to become members of the staff constituency. It certainly does not require them to do so, but it would enable, for example, the kinds of staff to which the noble Lord, Lord Walton, referred to fall into that group.
I shall have to write to the noble Earl about PFI contracts, as it is quite a technical issue. I will do that as soon as possible. Some staff groups are commonly not directly employed by trustsfor example, people
Of course the staff are not a poor relationthe Bill provides for staff provision. But, as we have said consistently, this set of changes in relation to NHS foundation trusts is all about giving patients and local communities a much greater say in the development of their health services. The provision of at least one does not in any way preventwe would not expect it to preventa much larger representation where it is appropriate in relation to particular foundation trust applications.
Earl Howe: I had intended this to be a standard probing amendment. I think we all understand what the effect would be of removing this sub-paragraphindeed, that was not my intention, as the noble Lord will appreciate. I understand that the Government are not being prescriptive as a whole in the schedule, but that surely does not mean that the Committee is not entitled to discuss the provisions it contains. I think that probing amendments are entirely in order, particularly in Committee.
The Minister has been helpful in drawing our attention to a number of aspects of this sub-paragraph. My main purpose for wanting to discuss it was that there had to be a reason why it was inserted into the Bill in another place at a late stage. I think we are closer to discerning what those reasons are. I beg leave to withdraw the amendment.
The noble Lord said: Quite unusually, this amendment means exactly what it says, and I hope the noble Lord might consider accepting it. The thought behind it is that it is as well to limit rather than increase the number of people around a table. This may be a novel thought to Members of Her Majesty's Government, but numbers tend to add confusion rather than simplify anything. I beg to move.
In the worst-case scenario, hospitals will find that the governors who are elected by the public are people with narrow axes to grind on behalf of special interest groups. I am not clear from the Bill how this situation can be avoided. It is a phenomenon, as we know, known as entryism. The membership list could conceivably consist of only a very few individuals.
I do not think that the idea of a public constituency has any real validity unless there is a sensible minimum number of members. Below that sensible minimum entryism really will occur, almost regardless of anything else that is done.
Paragraph 4 simply says that there needs to be a minimum number of both public and staff; it does not say what that minimum should be. Of course the Minister will say that the Government do not want to be prescriptive, and I understand that. But do they really envisage that there should be a different minimum number for each foundation trust? Or are they prepared to say roughly what sort of minimum they envisage as sensible?
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