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Lord Alton of Liverpool: My Lords, I am grateful to the Minister for returning to this question and answering the points that have been made. I particularly respect the positions that she has taken personally in the course of the Bill. Many of us were struck by the passion that she showed on Report, where she said that she would rather resign her ministerial office than introduce a Bill that allowed patient-assisted dying or euthanasia. I respect her enormously for that. I agree with the right reverend Prelate about the importance of honour in these proceedings. I know that she knows that I would not have persisted with this unless I truly believed that there is a defect in the Bill that needs to be remedied.

We disagree about the substance of the issue, and I do not think that we will resolve that question here today. I remind the noble Baroness that when in 1990 I relied on the advice of Professor Finnis against the advice of government lawyers, he proved to be right in the case of the abortion of babies with disabilities up to, and even during, birth on grounds such as cleft palate. I referred to that in a letter that I sent to the Daily Telegraph and which was published on Friday last. Therefore, just to dismiss the views of Professor Finnis and the advice that he has given on issues such as whether the Bland judgment is affected by the amendment would be foolhardy. Professor Finnis is clear that it does fall outside the scope of the amendment, as am I. Indeed, in PVS cases of this kind it would still be the right of hospital trusts to go to the courts in order to determine those matters.

I made it clear to the noble Baroness right at the outset—and to her predecessor, the noble Lord, Lord Filkin, who is on the Government Front Bench today and who also showed great courtesy in the way in which such sensitive questions were dealt with—that, although I personally disagreed with the Bland decision, we would do nothing in the context of the Bill to try to overturn it, as that was not appropriate. We have honoured that agreement, and I do not believe that the amendment falls foul of that.
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5.30 p.m.

The noble Earl, Lord Howe, asked me specifically about purpose and foresight. I mentioned R v Woollin, to which I draw his attention. In that case, a baby was dropped on its head by the defendant, and then it died. The court held that a near-certain foresight that death might result was sufficient to allow a jury to convict of murder. But a doctor might have near-certain foresight that death might be hastened by a pain-relieving drug. That also touches on the point of double effect to which the noble Baroness referred. It has always been legal and is an application of the principle of double effect. Plainly, Woollin undermines that. The amendment prevents the purpose to bring about death, but allows double effect to operate where death is foreseen but not intended or purposed.

I think, as the noble Earl said, the amendment is an ingenious attempt to try to address the issue. Fortunately, as we are in the long grass of Maundy Thursday and as so many noble Lords have had to leave our proceedings, it would not be prudent to try to divide the House on the matter today. However, as the noble Baroness knows—it was referred to earlier—we have now incorporated 94 or so amendments in the course of our deliberations. When they go to another place, I hope that even at this late stage it might be possible to attach to one of those amendments something to remedy the issue of suicidally motivated advance directives.

Why? Because, as the right reverend Prelate the Bishop of St Albans said, there is an enormous amount that is humane, compassionate and good in the Bill. I for one would be sorry were it jeopardised by our continuing inability to get the loophole put right. The right reverend Prelate is correct to talk about the importance of good intentions, but good law is probably more important. With those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland: My Lords, I beg to move that this Bill do now pass.

Moved, That the Bill do now pass.—(Baroness Ashton of Upholland.)

On Question, Bill passed, and returned to the Commons with amendments.

Regulatory Reform (National Health Service Charitable and Non-Charitable Trust Accounts and Audit) Order 2005

5.32 p.m.

Baroness Andrews rose to move, That the draft regulatory reform order laid before the House on 9 February be approved [14th Report from the Regulatory Reform Committee].

The noble Baroness said: My Lords, we are coming to the really important business of the day. The order proposes the removal of an excessive and unnecessary tier of bureaucracy imposed on NHS charities in
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England and Wales. NHS trustees are currently required to prepare two sets of accounts—one for the Charity Commissioner and one for the Secretary of State—and return them on different submission dates. That dual reporting does not occur in the commercial sector or any other UK government department, and can be costly and wasteful of resources.

The order was laid before the House on 9 February, with an Explanatory Memorandum setting out the effects of the proposals. It relates to accounts of funds held on trust by NHS bodies in England and Wales. Those funds, which are separate from the main Exchequer funding held by NHS bodies, are almost invariably held for charitable purposes. It is the first order from the Department of Health to be brought under the Regulatory Reform Act 2001, although the department is considering two other areas—proposals relating to medicine licensing, and the control of certain advertising relating to cures for cancer. It demonstrates the department's commitment to regulatory reform and reducing bureaucracy.

When the NHS was established, it took on the responsibility for the administration of the charitable funds held by hospitals operated by local authorities or voluntary concerns. It has a long history in that respect. Since then, the NHS has continued to receive and use donated funds. The funds are administered by NHS bodies as corporate trustees, or by separate bodies of trustees appointed for the purpose. They may be restricted for specific purposes requested by the donors, or be held for any general health service purpose.

At the end of financial year 2003–04, these funds were valued at over £1.6 billion. The trustees spent almost £350 million from the funds to provide benefits to patients and staff that supplement those from public funding. The order affects only accounts prepared by NHS bodies about these donated funds. It does not extend to other charities associated with the NHS, for example those administered by hospital leagues of friends.

The main effect of the order is set out in paragraph 2. This removes the requirement in existing legislation for NHS bodies in England and Wales to prepare two sets of accounts for their charitable funds, one for submission to the Department of Health or the National Assembly for Wales and the other to the Charity Commission. This requirement has been in place since the Charities (Accounts and Reports) Regulations 1995 came into force. Related costs have to be met by the charitable funds themselves, which inevitably reduces the benefits that they may provide.

The order removes this dual accounting burden by requiring NHS bodies to submit the accounts of their charitable funds only to the Charity Commission. It will thus bring NHS charitable bodies broadly in line with other charities. However, there will continue to be restrictions on appointments of auditors for these funds. For England, the auditors will continue to be appointed by the Audit Commission. In Wales, the Auditor General for Wales will audit the accounts.
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Article 2 of the order also refers to non-charitable funds held on trust by NHS bodies. As I indicated earlier, virtually all funds are held for charitable purposes. The exception will be where funds are donated for the support of an individual patient, or for such a small and specific group of patients that it does not qualify as a charitable purpose. That is extremely rare.

However, the Select Committee on Delegated Powers and Regulatory Reform, in paragraph 17 of its report on an earlier draft of the order, raised a concern about these non-charitable funds held on trust. The Government amended the draft order to take account of these comments and the trustees of non-charitable funds will be required to continue to prepare separate accounts for these funds, which will be audited. So we responded to the Select Committee in that respect. The accounts will be available on request, but the trustees in England will not be required to submit the accounts to the Department of Health for summarisation and presentation to Parliament. In Wales, trustees will submit the accounts to the National Assembly for Wales but they will not be summarised. Yet again, the requirement is less onerous than the current requirements and is proportionate to the benefit expected of it.

Article 3 of the order introduces provisions to allow further reductions in the burdens on smaller funds which have annual income and expenditure of £250,000 or less. The decision on whether to require a full audit, or a less detailed examination, is for the Audit Commission in England, or the Auditor General for Wales for funds in Wales. This provision provides further opportunities for reducing costs, leaving more of the funds to meet donors' wishes. Again, that is something that we all wish to see.

As a consequence of these changes, the Department of Health and similarly the National Assembly for Wales will no longer be required to prepare summarised accounts of these funds for examination by the Comptroller and Auditor General or the Auditor General for Wales and presentation to Parliament. We were pleased that the Select Committee and consultees accepted that there was adequate protection without the summarised account, as the charity accounts and reports are available on request from the NHS bodies and the Charity Commission. In particular, the rights of the Comptroller and Auditor General and the Auditor General for Wales to access and inspect both the charitable and non-charitable funds have been maintained.

This order does not impact on foundation trusts which are already required to submit similar accounts, but only to the Charity Commission.

The Delegated Powers and Regulatory Reform Committee considered the revised order and recommended that the draft order,

So, I am grateful to the members of the Select Committee for the time spent scrutinising the proposal and coming to that decision.
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The order has been approved by the National Assembly for Wales. It will bring savings to the charitable funds that, based on the responses to the consultation, were estimated to be between £420,000 and £480,000 annually. So we have a genuine reduction and simplification of the process of accounts without any loss of transparency or accountability, and a saving to charities themselves. In that spirit, I hope the order will find favour with noble Lords.

Moved, That the draft regulatory reform order laid before the House on 9 February be approved [14th Report from the Regulatory Reform Committee].—(Baroness Andrews.)

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