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Earl Howe: I support the amendment moved by the noble Lord, Lord Clement-Jones, and I shall speak to Amendment No. 138.

There is an irony at the heart of this part of the Bill, which is that a set of measures designed to put the patient at the centre of NHS planning and to devolve autonomy omits the one feature that should come before all else: the requirement to ensure that those who will be directly affected by such monumental changes are happy with them. The blueprint for foundation trusts, devised from behind desks in Whitehall and, no doubt, intended for the good of everybody, is being imposed on the NHS from the centre, whether people like it or not.

There is plenty in the Bill about a would-be foundation trust having to consult on how it will operate—its governance arrangements, for example—but there is nothing to say that it must consult on whether it moves to foundation status at all. It is revealing and disturbing that the consultation document issued by King's College Hospital says this:

In drawing that distinction, King's is not to be criticised; it has followed the guidance given to it by the Department of Health. The department has gone to great lengths to point out that the creation of a foundation trust is not something that legally requires consultation. The reason for that is that it is not a disestablishment or merger of the trust; nor is it a substantial variation in service. If it were either of

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those, consultation would be a legal requirement under existing legislation, but the department is keen to prove that consultation on the big issue—the setting up of the foundation trust in the first place—should not happen.

That attitude may be understandable from a government who believe in what they are doing and genuinely want to improve the NHS, but it is not understandable, or right, that the cardinal principle articulated after the Bristol scandal should be ignored; that is, the principle that, wherever decisions are made that affect services, patients and the public should be involved. That principle was also endorsed by Derek Wanless. If we are to create a truly patient-centred health service, we must involve patients from the outset in what we are doing. Anything else is just paternalism.

It could be, for example, that a community wants to see foundation status go ahead at some point, but not immediately. There might be concerns that a hospital needed another couple of years of tight performance management on its clinical outcomes or its A&E waits before taking the step of freeing itself from the oversight of the strategic health authority. Without consultation, nobody will know that. Without consultation, nobody will know whether there are enough people sufficiently interested to participate in a very bold democratic experiment.

Enforcing more democracy on people may sound like a benign and benevolent thing to do, but it is not. It is inconsistent with the democratic principle itself. Consultation should therefore be made a requirement, before any foundation trust is established. The power of the Secretary of State to make regulations should become a duty. That would mean that all trusts—indeed, all non-NHS bodies—would be made to consult their local communities before they could apply for foundation status. The local overview and scrutiny committee would be given a role in relation to NHS bodies, and patients forums would be given a role in relation to non-NHS bodies. The regulator would then need to take account of the result of the consultation.

I hope that the Minister will be receptive to the amendments and the arguments of principle underlying them.

Lord Blackwell: It is difficult to oppose the principle of consultation, but I would like the Minister to explain whether, if the amendments were made, the requirement to consult would have the implication that foundation trusts and the Secretary of State would be bound by the results of that consultation. It is one thing to consult; it is another thing to be clear about what one does with the results.

If they are to be bound by the results, I have some nervousness about subsection (1)(b)(iii) of the proposed new clause, which would require foundation trusts to consult,

    "local staff side trade unions".

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If, as a matter of national policy, one or more of those trade unions decided that they opposed the introduction of NHS trusts, that opposition would be represented locally, whatever the particular circumstances. We should be careful about giving a power of veto—if that is what it amounts to—to the trade unions in that respect. I would be grateful for clarification on that point.

Baroness Andrews: I know that the Committee feels strongly about consultation, as do the Government. That is why it occupies such a key position in everything that we have tried to do to take forward the process for achieving foundation trust status. Without local consent and involvement and the widest possible reach—I take the point made by the noble Baroness, Lady Finlay of Llandaff—we would be on shaky ground. Local trusts who seek foundation status know that well.

I shall deal with the amendments as a group. Amendments Nos. 129, 138 to 142 and 200 relate in different ways to the way in which we ensure that applications for NHS foundation trust status are properly consulted on. Amendments Nos. 141 and 142 are virtually identical. I see no difficulty in that. It is always good to know that the Liberals are clear about where they stand.

I can assure the noble Baroness, Lady Barker, who, unfortunately, is not in her place, that this is not another example of the consultation industry gearing itself up to no effect. The noble Baroness spoke powerfully last week about the cynicism that can be generated when consultation takes place and there is no effect. She has immense experience of and respect for the consultation process. So do we. We want it to work as well as it can.

With the Bill, we are intent on improving services for NHS patients. To achieve that, we want staff, patients and local communities, with all their expertise and their experience of local hospitals and the health service as a whole, to bring that experience and knowledge to bear not at the end of the process, but at the beginning. Such experience and knowledge can make a difference to the practical way in which the vision—I am not ashamed of using that word; it is the word that we want to use—for NHS foundation trusts is realised and how it is worked through in detail.

Perhaps I may return to the analogy deployed by the noble Baroness, Lady Cumberlege; namely, that this is where the canvas is being secured to the frame and where it is being stretched, and where the proportion, the content and the colour scheme are being determined. As the noble Earl, Lord Howe, said, this is a bold, democratic experiment. We have not been here before. We have never embarked on this kind of local consultation at such a formative stage when making public policy intent on enhancing institutions. It is ambitious because it needs to be. It is an essential part of our commitment to public ownership. Put simply, it comes down to practical involvement.

Examples have been given of the way in which the consultation process is becoming visible in our communities. Noble Lords will have seen the

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University College Hospital advertisements on buses about consultation. That is very dramatic. I cannot believe that public policy has ever been advertised on a bus before. It certainly works. My noble friend has been approached by his local trust. No doubt he was targeted, but, nevertheless, I am sure that he felt that it was part of the consultation process. It is a question of reaching out to local intelligence, whether it be to individual intelligence or to expert patients. We want everyone to have a chance to contribute, which sets the tone and terms of success for the future.

Our purpose is simple. It is to ensure that NHS foundation trusts are properly prepared; that the structure is fit for the purpose. Who better to contribute to that than the people who use the service? That is why Clause 6(4) specifically provides for the Secretary of State to make regulations setting out consultation requirements and why compliance with these regulations is a condition of authorisation. Put simply, we include that power because we intend to use it.

We expect to make regulations under Clause 6(4) in time for the second wave of applications for establishment as an NHS foundation trust from October 2004. I assure noble Lords that we shall consult on the regulations. They are likely to require consultation of the local public, patients—including patients forums, once established—staff, other NHS bodies and local authorities, including overview and scrutiny committees. That is an important measure designed to ensure that the views of local communities and stakeholders are sought, listened to and taken into account.

As the noble Lord, Lord Clement-Jones, pointed out, we have issued clear and detailed guidance to first-wave applicants setting out what the consultation should cover. The guidance is in the House of Lords Library; it is also available on the department's website. It is being used as a practical guide as to what should be done.

The three key areas which consultation must address are the case for NHS foundation trusts, the governance arrangements—that is, the size of proposed membership committees, the composition of the boards of governors, the directors and the election processes—and, above all, the service development vision of what a trust expects and wants to achieve in terms of patient benefit. We have also spelled out the people and organisations that should be invited to consult. It should include not just members of the public who are provided for. It should also include local MPs, community health councils, primary care trusts, strategic health authorities, other local NHS partners, other local health care providers, any local authority with a significant interest—including those which work in partnership—any relevant university, staff, unions, and so forth.

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