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Baroness Byford: My Lords, I thank the Minister for his response, but is he not as concerned as many of us that the Environment Agency originally gave approval for the work to be done by Able UK and saw no need for it not to be given? It was not until Friends of the Earth raised the matter in the High Court that the action was changed and withdrawal was enforced. Does the Minister accept that that reflects badly on the Environment Agency? Why did it happen in the first place?

Lord Whitty: My Lords, as I explained the last time we discussed the matter, the Environment Agency is one of many agencies with a role in the matter. It stated right at the beginning to the American authorities that some permissions that would be required for Able UK to carry out the work were either not in place or were disputed. It wrote to the American authorities in that regard. It is now clear that without those authorisations the work could not be completed at Hartlepool consistent with national and international law.

Lord Dixon-Smith: My Lords, does the Minister agree that it is remarkable—if reports are to be believed—that the Environment Agency could issue a licence to Able UK to undertake work that required either a dry dock or dry-dock equivalent facilities? Having issued that licence, a few weeks later it was required to rescind the licence—in part because those facilities apparently did not exist. Has the Environment Agency forgotten to use its eyes?

Lord Whitty: The trouble is that different permissions are involved here. We all accept that this is a complex and difficult case. The Environment Agency recognised that the facilities and skills available at Able UK were of the highest quality for carrying out the work. The issue of a waste management licence was, however, reviewed, and the licence now appears to be invalid. That is why the Environment Agency states that the task cannot be completed in line with legal obligations. There is also the issue, which has been the matter of court proceedings, of planning permission from Hartlepool Borough Council.

Baroness Miller of Chilthorne Domer: My Lords, were the discussions simply between the Environment

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Agency and the US agency, or did the Government as a whole take a line on the matter? If so, was that because they believed that the technical capacity did not exist in the United States to undertake that work, despite its having an Act that forbids the export of such hazardous material? Further, where did the Government imagine that the hazardous waste would go, given that the UK is currently reducing its number of hazardous waste sites from 80 to only 15 to serve the whole of the country?

Lord Whitty: My Lords, several different points were somewhat mixed up in the noble Baroness's questions. The Environment Agency is the competent authority. It took the view—and warned the American authorities—that some permissions were not in place. The Environment Agency was convinced that Able UK had the basic facilities to carry out the work, but there was waste management action that had yet to be completed.

As for whether the Government were engaged, no, we were not then, at Ministerial or official level, because the Environment Agency is the competent authority. Because of the difficulties that we are now in, my right honourable friend the Secretary of State has in the past few days been in contact with the Americans and the various authorities dealing with the issue. We have told the Americans that it will not be possible to complete that voyage and task, and are now considering the consequences.

The Lord Bishop of Hereford: My Lords, does the Minister agree that the work should have been undertaken in the United States? Nevertheless, does he agree that we in the United Kingdom have the capability to undertake that difficult and dangerous disposal and decontamination work, and that it is therefore feasible for such work to be undertaken here? Does he further agree that as the alternative is probably the diversion of work to India or China, for example, where environmental and health and safety precautions are probably inadequate, it may sometimes be morally right for this country to take on such work?

Lord Whitty: Yes, my Lords. We have a very good facility at which there will be demand for scrapping and recycling ships, particularly tankers, over the next few years, and where the United Kingdom could provide the expertise and, therefore, work and income to the UK. The American Government recognised that there was a capacity constraint in the US. On this occasion—further to the question put by the noble Baroness, Lady Miller—they sought tenders from overseas as well as the United States. They gave the first contract to Able UK, but they have since given contracts to American contractors to carry out work on other ships.

Lord Clinton-Davis: My Lords, what communication are my noble friend's department and the Environment Agency having with the environment

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unit in the Commission? I declare an interest, as I once worked for the environment commission. What particular communication was there in this case?

Lord Whitty: My Lords, the Commission authorities have been kept informed on the issue. Some of the legal issues relate to EU law applicable in this country, so the European authorities have been kept informed. But the contract is between an American authority and a UK company; therefore, the main questions have been dealt with by the UK authorities, mainly the Environment Agency.

Health and Social Care (Community Health and Standards) Bill

3.32 p.m.

Consideration of amendments on Report resumed on Schedule 1.

The Lord Chancellor (Lord Falconer of Thoroton): My Lords, Amendments Nos. 5 and 6 have been pre-empted by the House's agreement to Amendment No. 4. I will therefore call Amendment No. 7.

Lord Warner moved Amendments Nos. 7 to 9:

    Page 109, line 17, leave out "area specified under sub-paragraph (1)(a)" and insert "constitution may specify one or more areas as areas for public constituencies, each of which"

    Page 109, line 19, at end insert—

"( ) An individual providing care in pursuance of a contract (including a contract of employment), or as a volunteer for a voluntary organisation, does not come within sub-paragraph (1)(c).
A voluntary organisation is a body, other than a public or local authority, the activities of which are not carried on for profit." Page 109, line 20, leave out sub-paragraphs (3) and (4).

On Question, amendments agreed to.

[Amendments Nos. 10 and 11 not moved.]

Lord Warner moved Amendments Nos. 12 to 15:

    Page 109, line 26, leave out "staff constituency" and insert "corporation by virtue of sub-paragraph (1)(b)"

    Page 109, line 31, leave out from "where" to second "for" in line 32 and insert "he exercises functions for the purposes of the corporation as mentioned in that sub-paragraph, he has done so continuously"

    Page 109, line 34, leave out sub-paragraph (6).

    Page 110, line 2, at end insert—


(1) Members of a public benefit corporation are referred to as follows—
(a) those who live in an area specified in the constitution as an area for any public constituency are referred to collectively as a public constituency,
(b) those who come within paragraph 3(1)(b) are referred to collectively as the staff constituency,
(c) those who come within paragraph 3(1)(c) are referred to collectively as the patients' constituency.
(2) A person who is a member of one constituency may not while that membership continues be a member of any other constituency.

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(3) A person who comes within paragraph 3(1)(b) may not become or continue as a member of any constituency other than the staff constituency."

On Question, amendments agreed to.

Lord Hunt of Kings Heath moved Amendment No. 16:

    Page 110, line 2, at end insert—

"The constitution may make provision that any member of staff who is employed by the public benefit corporation at the date of election of the board of governors shall be deemed to be a member of the public benefit corporation unless he opts not to be a member."

The noble Lord said: My Lords, I shall put my noble and learned friend out of his misery by speaking to Amendment No. 16, which relates to the membership of foundation trusts. I declare an interest as an honorary adviser to the University Hospital Birmingham NHS Trust because the question has arisen from the discussions of several NHS trusts in Birmingham that wish to seek foundation trust status in the first or second wave.

A difference of view has been expressed in your Lordships' House about the desirability of the number of members in each foundation trust. Some noble Lords, such as the noble Lord, Lord Peyton, believe that the numbers should be kept as low as possible; others have expressed doubt that each foundation trust will reach a membership of 10,000. But in Birmingham we have much greater ambitions than that. The hope of the University Hospital Birmingham NHS Trust is that all its staff, and all patients who have been treated by the trust over the past two or three years, will become members of the foundation trust.

My amendment is designed to probe the Government on whether it would be possible in the constitution to have a scheme that pre-supposed that all staff and patients were members of the foundation trust unless they opted out. I stress that I wish only for foundation trusts to have that discretion. Many of the other trusts applying for foundation trust status to which I have spoken would not use that option. Trusts in Birmingham have thought carefully about the issue and wish to have a strong membership base.

Concerns were raised earlier about entryism. The biggest protection against entryism by the undesirable people that my noble friend Lord Lipsey mentioned as potentially becoming members and being elected to the governing body is to have a large membership base. The proposal by Birmingham trusts is imaginative. I hope that, in the fullness of time, they can be given the option of an opt-out system. I am not sure at what stage we can reach that in legislation, given the vote this morning. I beg to move.

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