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Earl Howe: I am grateful to all Members of the Committee who have taken part in the debate. I was particularly drawn to what the noble Lord, Lord Lipsey, said about holding some sort of consultation process on electoral systems. That is a huge question for each trust to decide and I cannot be quite as flippant as was the noble Lord, Lord Hunt of Kings Heath, in dismissing it as a minor element of their constitution. I must say that the noble Lord, Lord Clement-Jones, made some powerful points and I am prepared to be persuaded by him of the merits of PR if we have a conversation a little later, but the point is that hospitals should not be left to take what are immense decisions on the future shape of their democratic underpinning.

The noble Lord, Lord Hunt, said that there was a choice if we went down the regulatory route: we would end up either with something wishy-washy and vague; or with a straitjacket. I entirely take the point that different trusts have different circumstances, but it is not impossible for those differences to be catered for in regulations. For the Government to say, "Foundation trusts will have access to all sorts of advice if they want it", is to place too big a responsibility on those hospitals—whose business, after all, is not constructing a democratic system in Periclean fashion; it is looking after patients. That is an unfair burden to place on them; the work should be done by Parliament. I should like to test the opinion of the Committee.

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12.41 p.m.

On Question, Whether the said amendment (No. 35) shall be agreed to?

Their Lordships divided: Contents, 92; Not-Contents, 76.

Division No. 1


Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Baker of Dorking, L.
Biffen, L.
Blatch, B.
Bowness, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Caithness, E.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Chan, L.
Clement-Jones, L.
Cobbold, L.
Colville of Culross, V.
Cope of Berkeley, L. [Teller]
Cox, B.
Craig of Radley, L.
Cuckney, L.
Cumberlege, B.
Dahrendorf, L.
Dholakia, L.
Elis-Thomas, L.
Elliott of Morpeth, L.
Emerton, B.
Finlay of Llandaff, B.
Fookes, B.
Freeman, L.
Glentoran, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hylton, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
King of Bridgwater, L.
Knight of Collingtree, B.
Luke, L.
Lyell, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
Maddock, B.
Miller of Hendon, B.
Molyneaux of Killead, L.
Mowbray and Stourton, L.
Moynihan, L.
Newby, L.
Noakes, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Pearson of Rannoch, L.
Pilkington of Oxenford, L.
Platt of Writtle, B.
Rawlings, B.
Redesdale, L.
Rees, L.
Roper, L.
Rotherwick, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Sandwich, E.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Shaw of Northstead, L.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Stewartby, L.
Swinfen, L.
Tenby, V.
Tordoff, L.
Vivian, L.
Waddington, L.
Wade of Chorlton, L.
Walton of Detchant, L.
Warnock, B.
Weatherill, L.
Wilcox, B.
Williams of Crosby, B.
Worcester, Bp.


Acton, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Billingham, B.
Blackstone, B.
Borrie, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Carter, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Crawley, B.
David, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Filkin, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grocott, L. [Teller]
Harrison, L.
Haskel, L.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howells of St. Davids, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Lockwood, B.
McIntosh of Haringey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Mitchell, L.
Morris of Manchester, L.
Patel of Blackburn, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Radice, L.
Ramsay of Cartvale, B.
Rooker, L.
Sewel, L.
Sheldon, L.
Simon, V.
Simon of Highbury, L.
Stone of Blackheath, L.
Temple-Morris, L.
Thornton, B.
Turner of Camden, B.
Warner, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williamson of Horton, L.

Resolved in the affirmative, and amendment agreed to accordingly.

9 Oct 2003 : Column 439

12.52 p.m.

Baroness Noakes moved Amendment No. 36:

    Page 109, line 29, leave out sub-paragraph (2).

The noble Baroness said: Amendment No. 36 would delete paragraph 7(2) of Schedule 1, which allows the constitution to make provision for the circumstances in which a person may not become, or continue to be, a member of the board of governors. It is very similar to paragraph 5(2), which my noble friend Lord Howe queried moments ago. I shall not go through all the argumentation again.

When we talked about the issue in relation to paragraph 5(2), the Minister mentioned getting rid of vexatious individuals. The noble Lord, Lord Hunt, then raised the important issue of special interest groups. That is at the heart of what we are trying to find out. There is a real fear that various special interest groups will develop, whether comprising people who wish to stop a particular development, as suggested by the noble Lord, Lord Hunt, such as a mental health development, people who wish to keep open a particular building against the strategic needs of the local health economy or individuals with political—with a small "p"—views on issues such as stem cell research.

Those are quite big issues. The Government are saying that there are loose provisions in the schedule that allow persons not to become members, or members not to become governors. The Government should deal with the issues in the schedule; it should not be left to local flexibility. Overall guidance, as a minimum, must be set out by the Government.

On Monday, my noble friend Lady Hanham asked the Minister direct questions about what happens if a staff constituency member leaves, or if a person moves away from a local area. The Minister said that her questions were rather detailed. The Committee stage is

9 Oct 2003 : Column 440

when we should thrash out detailed questions. The fact that someone has ceased to be a member of staff may well affect whether he can remain a member of the board of governors. It is important that we understand the parameters for membership. I beg to move.

Baroness Warnock: I support the amendment very strongly. Members of the Committee do not need to be told what passions are aroused by local hospital arrangements in certain areas. Issues such as lobbying by the friends of hospitals that are to be demolished, or that should be demolished on economic grounds, need to be settled in advance by guidelines. I can imagine enormous local hostility being caused by comparisons with neighbouring foundation hospitals, and great agitation in the local, if not national, press. That difficult area needs to be mapped out carefully in advance.

Lord Chan: In considering the amendment, will the Minister provide help as regards certain groups that should be included on grounds of equality of access, particularly minority and disadvantaged groups?

Lord Warner: A fundamental point is that we need to ensure probity and suitability of governors because of the responsibilities that they hold in a crucial public service. Paragraph 7(1) of Schedule 1 provides the standard exclusion criteria used in several different Acts, including Section 80 of the Local Government Act 1972, to disqualify involvement in public bodies. It deals with what one might call "the usual suspects" in this area.

It is important that NHS foundation trusts have flexibility to decide on other circumstances where membership of the board of governors would be inappropriate. Again I give the example of a children's hospital, which should be able to exclude people, subject to notification, under the Sex Offenders Act. A trust might want to exclude persistent vexatious complainants or those who have committed acts of violence against NHS trusts. A foundation trust might wish to exclude a person who is a governor or non-executive director of another foundation trust. The legislation cannot deal with every specific example and allow sufficient flexibility to take account of different circumstances.

It is one thing to suggest, as the noble Baroness started to, that there should be guidance. But the amendment would actually reduce flexibility. It is quite inappropriate, because it makes it more difficult, even if we had guidance, to deal with some of the circumstances that I have just described.

The noble Lord, Lord Chan, talked about the issues of minority groups, with which I have every sympathy. Sadly, the amendment could restrict our ability to have flexible voting systems, more like the single transferable vote, that could ensure the inclusion of more minority groups on foundation trusts. There is still a requirement on foundation trust applicants to ensure that their boards of governors are representative of the constituencies served. It would be a very strange application that did not ensure that membership of

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boards of governors was fairly representative of the community served. If there was a very large ethnic minority community in the area, it would be expected that the membership would be reflected in the applications.

I do not disagree with the idea of guidance on the matter. If that is the noble Baroness's concern, I am happy to consider it further. However, we strongly disagree with limiting the ability of foundation trusts in the future to take sensible decisions to exclude a particular person or group. I do not mean someone who has deeply held philosophical beliefs or a group protesting about a proposed development, because those are the things that we hold dear in a democratic society. The examples I gave do not fit into those categories. However, I am happy to look again at the issue of guidance.

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