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Lord Clement-Jones: I am sorry to interrupt the noble Baroness, but there are two words missing; "patients forums". Do they appear on her list?

Baroness Andrews: I am just coming to that in the next sentence. The guidance document states that it is

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likely that the regulations will closely reflect the requirements set out here. In answer to the noble Lord's specific point, it is our intention to specify patients forums in the list of consultees.

Lord Clement-Jones: I apologise for interrupting again. The Minister will have noticed that in the guidance those two words do not appear.

6.45 p.m.

Baroness Andrews: I shall explain why in the context of another amendment. The noble Baroness, Lady Barker, was sceptical that anyone listens to the consultative process. In response to the point raised by the noble Earl, under Clause 6(4) before supporting the submission of an application to the independent regulator, the Secretary of State must be satisfied that appropriate and meaningful consultation has taken place. There is no question of a Secretary of State supporting an applicant who has not done that. If the regulator was not satisfied that proper consultation had taken place, he could send the application back for improvement and review.

I hope that I have covered many of the intentions set out in the amendments. The Secretary of State and the independent regulator are bound to take account of consultation. However, they are not bound by the result of consultation because there is no right of veto. If there was a situation in which it was clear that the community was divided and that there was not a wholly consistent or a coherent view of what should be done, clearly, the Secretary of State and the independent regulator would be affected by that and would want to investigate further.

Turning to Amendments Nos. 129 and 200, it would not be appropriate to remove the Secretary of State's discretion as to whether to make regulations or to determine what those regulations should contain specifically—a point raised by noble Lords. Realistically, requirements may need to change over time. An obvious example is that the first wave of applicants must consult their local community health councils. After December 2003, when the CHCs are replaced by the patients forums, that will be updated by a requirement to consult new bodies. That is a good example of why flexibility must be retained in the regulations. As regards the timetable, we intend to make regulations in time to apply to consultations on the second wave of applications.

Amendments Nos. 129 and 200 seek to amend the Health and Social Care Act 2001 to provide that local authority overview and scrutiny committees may make reports and recommendations on applications for NHSFT status. That is unnecessary. It is clear in the guidance on consultation sent to applicants that we expect them to consult their local overview and scrutiny committees. Regulations already provide for that if it were appropriate.

Again, I reiterate that the Secretary of State and the independent regulator are clear in their intent and their purpose of taking into account the outcome of consultation when determining whether to support

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applications. We do not need to specify in the legislation how that might happen or how outcomes might be taken into account. Their duty is expressed clearly. I do not need to reassure noble Lords that both would behave reasonably and proportionately in line with their common law duty.

Finally, I turn to the question asked by the noble Lord, Lord Blackwell. As I understood him, he asked whether, if amendments were passed, they would hold. I believe that he raised the point about consultation with the unions. If the amendments were agreed, the Government would have to consider what they should do about them. We would have to have further discussions. I hope that will satisfy the noble Lord for the moment.

Lord Clement-Jones: Perhaps I may answer the question asked by the noble Lord, Lord Blackwell. It is not intended that consultation should be binding, but it should be that regulators shall have regard to the outcome of public consultation. It is not absolutely binding. It is right that it should not be so. Nevertheless, if we are engaged on a bold, democratic experiment—the words which have been bandied about—we should have genuine democracy. I am not so sure that this is a bold, democratic experiment in its current form. It is a statement of aspiration that we should have a newly devolved system of providers thoroughly keyed into the local community.

The noble Baroness has given us a vigorous response with a great deal of assurance. In the Bill, the substance behind that assurance is very limited. The wording of Clause 6(4) is wishy-washy. It states:

    "If regulations require the applicant to consult prescribed persons about the application, the regulator may not give an authorisation".

The use of the word "if" seems incredibly tentative. The noble Baroness said that it is the Government's intention to publish regulations, but that is hardly a ringing declaration that the local community will have an absolute buy-in to foundation trusts.

If one is considering foundation trusts of this kind, then surely the keystone should be the local community. The foundation trust will be built on that, not on the construct of the Secretary of State speaking on high and determining which hospitals will be eligible for foundation trust status. Members of the local community must ask: is the status right for local patients? It is that which forms one of our fundamental objections to the top-down structure erected in the Bill.

Is the noble Baroness really suggesting, if the consultation process determines that no foundation trust is required—"We are fine, thank you very much, and happy with our current acute trust and we do not want foundation trust status,"—that under the terms of the Bill it will be open for the local community to have such a strong say in the process that the local hospital would decide not to pursue foundation status on its merits? I wonder about that. The pressure currently is such that I do not believe that that would be a reality.

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The noble Earl, Lord Howe, has shrewdly collected material from King's College Hospital which makes it pretty clear that, come hell or high water, it is going to go ahead. No doubt a few points at the edges will be dealt with, but that will be about it. I find that very depressing if this proposal is really meant to be about local communities being tied in to their local providers.

I come back to the scepticism expressed by my noble friend and to which the Minister referred. I am not sure that in the Bill we have anything like the vehicle we need for genuine devolution; this debate about consultation exemplifies that. We have further debate on the matter to come and we shall very much take this into account in our approach to the whole of Part 1. For the moment, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Authorisation of NHS foundation trusts]:

[Amendment No. 130 not moved.]

Earl Howe moved Amendment No. 131:

    Page 3, line 28, leave out paragraph (b).

The noble Earl said: I am puzzled and rather worried about the provision in Clause 6(2)(b) which requires an applicant to demonstrate that the actual membership of its public constituency is representative of those eligible for such membership. Perhaps I may couple my remarks on this provision with what I was going to say on Clause 36. As we are likely to reach that clause rather late at night, I thought it best to condense my remarks into one contribution at this point.

Clause 36, covering much the same ground, was inserted into the Bill only at a late stage in the proceedings in another place with little, if any, real debate. The intention behind Clause 6(2)(b) and Clause 36 is clear: on 8th July the latter clause was spoken to in another place by the honourable Member for West Bromwich West. The concern it is designed to address is that the membership of a foundation trust could be unrepresentative of the local population or, worse, that it might contain factions or single-issue fanatics who succeed in hijacking a board of governors and imposing on it their agenda, irrespective of the wider interests of the community. Fears were also expressed that only the more articulate and educated members of the community would put themselves forward for foundation trust membership and that these people would tend to crowd out the views of those less able to speak up for themselves.

Those concerns fall under the general umbrella of what is known rather vulgarly as "entryism", and we are being asked to accept that Clauses 6(2)(b) and 36 will act as means of preventing that undesirable phenomenon. If that is the claim being made, I should like to hear from the Minister quite why he believes that that is so, and what implications it carries for foundation trusts.

What means will a foundation trust have at its disposal to demonstrate that the list of its members is a representative cross-section of the local population? It is a requirement which seems to imply that hospitals

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will have to become socio-economic research bodies. Not only will they have to establish the educational characteristics and health needs of those within their public constituency, they will also need to inquire into the religious and moral convictions of those individuals in order to demonstrate that a particular lobby group forming part of the membership either is or is not representative of patients at large. That, I suggest, is a Herculean as well as a pointless task.

It will never be possible to demonstrate beyond peradventure that a list of members contains a fully representative cross-section of the public constituency. Further, it will be almost impossible to engineer a situation whereby the different elements in the population are represented in the right proportions. If it is feared that the disabled and the inarticulate may not have their needs and wishes represented on the board of governors—in my view, a perfectly legitimate fear—it would be interesting to learn how a foundation is supposed to rectify such an omission. You cannot force anyone to become a member of a body if he does not wish to do so; here I echo a point made last week by the noble Lord, Lord Lipsey. Equally, it is not easy to eject someone from membership of a body without a very good reason.

If it so happened that expectant mothers were represented in the membership list in a disproportionately large percentage, would a trust be within its rights to ask some of those ladies to resign? I doubt that. In practice, a trust's ability to be selective with its members will be extremely limited.

The other practical dimension to this provision is the question of what a hospital is supposed to do, year by year, to prove that its board membership is representative. Like the local population, the membership will change over time. Is a foundation trust expected to continue running a population survey, and exactly how is it meant to do that? What would be the consequences for a foundation trust if at any point the regulator was not satisfied that its board of governors had been elected on a representative mandate? Would the board have to resign?

Clause 6(2)(b) speaks of the membership being,

    "representative of those eligible for membership".

I take it that the word "representative" is used here in the narrow sense of being a reasonably typical cross-section of those eligible for membership. What it cannot mean, surely, is that those accepted as members of a foundation trust are somehow expected to represent the views and interests of those who are not members. Nowhere in the Bill is that stated or implied other than here. It would be an impossible condition to attach to membership. Indeed, one of the main faults in the Government's model for foundation trusts is that members have no responsibility beyond the length of their own noses, and no accountability or liability to anyone whatever. They will not even have to pay one pound as a token of their good faith.

I fail to see how the problem of entryism and the risks associated with it have been addressed. I also fail to see a practical answer to these issues without there being a vast bureaucratic effort by trusts. If the

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Minister is inclined to say that no one is talking about such a vast bureaucratic effort, I would have to ask him how the exercise predicated by these two provisions could be anything other than a fudge. If there is a concern that a board membership is unreasonably skewed one way or another, or is seriously atypical of the local patient population, that concern has to be addressed in a thorough and professional manner.

I want to hear whether, unlike myself, the Minister is fully confident that this paragraph and Clause 36 will deliver the benefits that have been claimed for them and, if so, why? I beg to move.

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