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Lord Clement-Jones moved Amendment No. 43:

The noble Lord said: This debate will in a sense be a continuation of the debate that we started this morning. It relates to the potential discontinuance of membership, and the circumstances in which that may take place, of a public benefit corporation, under paragraphs 5(2) and 7(2). There are and will be circumstances in which mental health trusts will no doubt qualify to apply for foundation trust status, if these provisions are passed.

There is some concern among mental health service providers that the board of governors is vulnerable to entry by hostile forces. I know that the Minister does not like to think of these matters as being in any sense confrontational, but Nimbyism is particularly rife in planning for mental health services. Mental health service providers, such as the Sainsbury Centre for Mental Health, are concerned that campaigns could be mounted to prevent mental health services from being

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extended or provided, or whatever may be the local case. They could take a hold over local boards in significant numbers.

As we discussed this morning, there is no failsafe to prevent that from happening. Provisions can be made, under the constitution, but there is no failsafe. The amendment is a proposed safeguard that may assist foundation trusts to remove from the board of governors individuals or groups of people whose activities frustrate the development of improved services of the kind that I mentioned. There may be other services that arouse Nimby-type reactions, for all the wrong reasons, which may be covered in that way.

There is a difficulty, in that boards of governors are meant to be representative of the community. If the majority will of the community wants to frustrate developments in a foundation trust, the foundation trust will need to reflect that. On the other hand, if a vocal minority, which does not really represent the community, is frustrating a perfectly sensible strategy of the foundation trust, the formulation referring to "core values" hits the right balance. This is about values and wanting to do the best for patients and, in this context, mental health service users. I beg to move.

Lord Warner: I do not think that we can do other than to have sympathy with some of the arguments that the noble Lord, Lord Clement-Jones, put forward. However, I remind the Chamber that we have had a debate about the flexibility provided by paragraph 7(2), which allows foundation trusts to make conditions for removal of governors. That might include the removal of governors who fail to turn up to meetings or to engage with their membership, or otherwise act in a way that is totally inconsistent with the aims and values of the organisation.

We have not tried to specify all those circumstances, other than the normal provisions that are made for public bodies, because we do not believe that any of us is clever enough to specify a form of words that will cover the whole range of circumstances that could occur locally. None of us is trying to thwart genuine protest about a particular form of development where there are strong local or individual feelings about a particular direction. Those issues have to be thrashed out locally; there has to be debate and discussion; there has to be full dialogue, and the decision has to take into account what is appropriate in the local circumstances.

The difficulty with the amendment is that, in legal terms, a power to remove a governor for failure to adhere to "core values" would be highly ambiguous. I suggest to the noble Lord that it might be open to considerable abuse. If I dare suggest so, his core values may not be exactly the same as my core values. Similarly, around the Chamber there may be a lot of different core values by which we all live happily and contentedly.

The proposal could be open to the kind of abuse that I am sure he would not want to see. Such a power could be used to remove a person for a very large number of pretty dubious reasons, although I am sure that that is

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not his intention. While we understand the spirit in which the amendment is moved, and are sympathetic, we do not believe that the amendment helps. Our view is that we should stick with the kind of flexibility that is in the Bill as currently drafted.

Lord Clement-Jones: I thank the Minister for his reply. As a lawyer, I am aware of the possibility of dubious interpretations of legislation, and perish the thought that that should ever occur.

The Minister fairly put the case. His arguments are reasonably plausible in respect of this particular amendment, but I am not wholly convinced that the complete absence from the Bill of the circumstances in which removal can take place is definitive. There is room for general wording and more guidance in the primary legislation for the constitution of foundation trusts. The point is a difficult one, I agree, but company law legislation provides for many circumstances in which removal can take place. Even though these are new organisations, I do not believe that it is beyond the wit to introduce a broad measure, which would be similar but would not be open to abuse. We shall keep trying. However, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Noakes moved Amendment No. 44:

    Page 110, line 19, leave out sub-paragraph (2).

The noble Baroness said: This is a probing amendment, which would delete paragraph 13(2), which says that the constitution of foundation trusts,

    "may make further provision about the board".

I have a simple question for the Minister. Will he explain what extra matters relating to the board might need to be dealt with in the constitution? Why cannot they be dealt with in Schedule 1? I am sure that he will tell us again about the need for flexibility, but will he please say what kind of flexibility might be needed? I beg to move.

Lord Warner: I can never resist the opportunity to tell the House that the Bill is about flexibility and freedoms, as the noble Baroness said. The amendment would prevent foundation trusts from including further provision in their constitution about boards of governors. We are aiming for flexibility to develop arrangements to suit local circumstances. NHS foundation trusts clearly need to be able to determine the details of their particular governance arrangements.

I shall try to help the noble Baroness by giving her some examples. Foundation trusts may wish to assign specific functions to the board, such as patient and public involvement activities. They may wish to allow for co-optees with expert knowledge to sit on the board or to provide for committees of governors to advise the management board on particular matters. A good example might be the kind of issue that we discussed under the previous amendment. There may be a very contentious issue whose resolution can be helped by a group of the boards of governors going out, talking to the public, talking to users and bringing together a

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formulation helpful to the board of directors. We do not want to be too prescriptive to prevent those matters from being arranged under local constitutions. I hope that helps the noble Baroness.

Baroness Noakes: I thank the Minister for that reply. It helps me greatly because it enables me to see that he does not really know what this is all about. What he just described was the use of the constitution to solve an ad hoc issue relating to the emergence of special interest groups and directors dealing with a particular matter. That is not what a constitutional issue is.

It is clear that we shall not make much progress on matters that are supposed to be left to flexibility, although doubtless we shall try to do so again this afternoon. We shall consider this matter further before we reach the Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4 p.m.

Lord Clement-Jones moved Amendment No. 45:

    Page 110, line 27, after "directors," insert "along with healthcare professionals which should include the director of nursing,"

The noble Lord said: We now come to the particulars of the composition of the board of directors, which is dealt with in paragraphs 14 to 16 of Schedule 1. As we heard today in some detail, the board of directors will be the governing body of the foundation trust and will also be responsible for its day-to-day management. Effectively, all the powers of the trust will be exercised through the board of directors.

From what we can see in the schedule, the board will comprise executive directors, including a chief executive and finance director, as well as non-executive directors appointed by the board of governors. However, the rubric in the schedule does not provide for the inclusion of clinical representatives. No reference is made to the medical director, the director of nursing or, indeed, other professionals involved. Particularly in view of the fact that clinical governance is such an important aspect of any foundation trust, it is absolutely vital that the clinical staff are very closely linked to the board and, indeed, in many cases, that they sit on it if they are of sufficient seniority.

I believe that both Amendment No. 45 and the amendment of the noble Baroness, Lady Finlay, are inspired by the Royal College of Nursing, which is concerned to ensure not only that its own people—the director of nursing and so on—are members of the board, but that other health professionals are included as well.

At present, wide discretionary powers exist to determine the remainder of the composition of the board. No doubt the Minister will repeat the word "flexibility" several times in his response. However, I believe it is very important—particularly since, in a sense, if this is the managing board then it is the board

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responsible for risk management, and that includes clinical governance—that clinicians should be on that board. I believe that a very good case can be made for that, and I look forward to hearing what the Minister has to say. I beg to move.

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