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Chris Grayling: I thank the Minister for those points of clarification. May I raise one further area of concern? The regulator sits fairly and squarely in the foundation hospitals camp, but he is being given the right to seek information from primary care trusts, who are the buyers of the service. The Minister will be aware that acute hospital trusts and primary care trusts sometimes end up in significant disputes over financial matters. It therefore seems curious that the regulator may be given powers of access to information from the primary care trust that go beyond those held by the Secretary of State today. Will the Minister assure me that such a situation could not arise, and that there is nothing that the Secretary of State would be precluded from seeing relating to the way in which the primary care trusts have been set up to which the regulator, as someone who works with the supplier of services to the primary care trusts, would have access?
Mr. Hutton: I would not rule out the possibility that that could be the case. However, the hon. Gentleman is wrong in his characterisation of the regulator as being in the NHS foundation trusts camp. I am sure that hon. Members on both sides of the Committee would accept that it is appropriate and necessary for the regulator, if he is to do his job properly, to have the right to seek information from primary care trusts, because they are significant partners in the whole exercise of improving NHS services through NHS foundation trusts. It would be bizarre if the regulator were not able to approach primary care trusts to request information, because that would impede his ability to monitor compliance with the terms of authorisation and the general progress made by the foundation trust.
We are not creating a Gestapo: the provision is not an inappropriate manifestation of unnecessary powers. We are trying to find the right balance between giving the regulator the tools that he needs to do the job properly and ensuring that my right hon. Friend
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the Secretary of State is still able to take an overview of performance right across the NHS, including the performance of NHS foundation trusts. I am sure that the Bill, as currently drafted, strikes that balance, and it is for that reason that I am not able to accept the amendments that the hon. Gentleman has tabled.
Chris Grayling: I am grateful to the Minister for that clarification. It is conceivable that a dispute could arise between a foundation trust and a primary care trust over a significant amount of money and, because of the consequential impact on the finances of the foundation trust, the regulator would feel the need to intervene and take a close interest? Under these powers the regulator would also have the right to examine the other side of the argument and inspect the books. I am slightly anxious about the implications of that when there are genuine disputes between two NHS bodies. That said, I am happy not to pursue the issue. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 ordered to stand part of the Bill.
Clause 20
Entry and inspection of premises
Mr. Lansley: I beg to move amendment No. 194, in
clause 20, page 8, line 31, at end add
'such an inspection to be coordinated with the CHAI'.
I move the amendment on behalf of my right hon. Friend the Member for North-West Hampshire. Once again it is a practical suggestion in the same spirit as amendment No. 193. The intention is to relieve the burdens of compliance on foundation trusts and permit them to do their tasks with the minimum amount of interference. Although it is understood that the authorisation might require the regulator to enter and inspect premises of an NHS foundation trust, the requirements of the Commission on Health Audit and Inspection and the regulator should be co-ordinated to ensure that what is happening in the foundation trust is examined once rather than twice in order to minimise interference with management. I hope that the Minister can accept that practical suggestion.
Mr. Hutton: I am delighted to accept—[Hon Members: Oh!]—the hon. Gentleman's argument, but not necessarily his amendment. I agree that there should be proper and effective co-ordination. However, the regulator needs these separate and independent powers of inspection. The argument for co-ordination is well made. I simply refer the hon. Gentleman to clause 47(8), which requires the regulator and CHAI to co-operate in the exercise of their respective functions under part 1 of the Bill. The point that the hon. Gentleman seeks to make has already been acknowledged in a later part of the Bill.
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Mr. Lansley: I am grateful for the Minister's response and for drawing my attention to that part of the Bill. On the understanding that it will be used in that respect, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 ordered to stand part of the Bill.
Clause 21
Fees
Mr. Burns: I beg to move amendment No. 22, in
clause 21, page 8, line 34, at end add
'subject to the regulator only having the power to set fees at a level that recovers his annual running costs apportioned across the total number of NHS foundation trusts.'.
I shall be brief as this is a very straightforward amendment. It would add a proviso that the fee should be set at a level that restricts it to the recovery of the annual running costs across the board. I hope that the Minister will agree with the philosophy behind the amendment, even if he feels that it is unnecessary to put it in the Bill. There have been complaints over a number of years that levels of fees imposed—usually inspection fees—have increased significantly above the rate of inflation. Although no one would disagree that the cost of the work done should be recoverable, to set a fee above that level, which might be construed as having an element of profit in it, would be unwelcome and unnecessary. I hope that the Minister can at least give the Committee a commitment that he will expect the fee levels to be restricted to the costs of the work carried out, and not an opportunity for a future Chancellor of the Exchequer to use this as a system of generating additional funding.
6.30 pm
Mr. Streeter: I hope that my hon. Friend the Member for West Chelmsford does not mind me asking a couple of questions in support of his argument. This is an interesting amendment to an interesting clause. I want to probe the Minister a little. Will the fees paid to the regulator replace any fees that hospitals currently pay to the centre? My concern throughout the Bill has been that rather than setting the hospital trusts free, we might be adding bureaucracy and costs to them.
Is it the case that the entire cost of running the regulator's office will come from the foundation trust? Perhaps it says so in the guide and I have missed it. Can the Minister confirm that that is the intention, or will there be additional money from the centre to run the office; top-up fees to pay for part of the services or something of that nature?
Will the Minister give a ballpark figure for the hospital trusts being set up next year? Some thought must have gone into the matter. What kind of annual fee are we talking about; £1,000 a year, £10,000 a year or £100,000 a year? I have no feel for the figures from the document in front of me. Has the Minister given
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thought to the matter, have there been discussions and do the applicant trusts know the fee they are likely to pay?
Mr. Hutton: I am grateful to the hon. Member for West Chelmsford for tabling amendment No. 22. I will try to give him the assurances he seeks. It is not the case that the power to set fees could be used as a hidden form of taxation in the NHS. As he will know, the independent regulator has no power under the Bill to generate or distribute surplus funds to anyone. That means that as a matter of law the independent regulator will not be able to charge fees that exceed the total expenses of his office.
The hon. Member for South-West Devon asked a number of intriguing questions. He will not be at all surprised, because he has done a job like this himself, that I am not in a position to give him any detailed estimates about the fees the regulator might charge. That will depend at least in part on the number of NHS foundation trusts. As he knows, the Bill says that the fee must be reasonable. By law, that prevents the independent regulator from charging fees that exceed his expenses.
The hon. Gentleman asked me indirectly when we intend to move to a situation where fees are levied by the independent regulator. I am not sure that I can be specific about that point today. He will know that separate commencement orders can apply to different sections of the Bill. We will not commence the provisions in clause 21 until it is appropriate to do so. We have made it clear that the running costs of the independent regulator will be met by my right hon. Friend the Secretary of State for the foreseeable future.
Mr. Burns: In the light of the Minister's assurance, which I warmly welcome, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 ordered to stand part of the Bill.
Clause 22
Trust funds and trustees
Mr. Burns: I beg to move amendment No. 459, in
clause 22, page 8, line 36, leave out from beginning to second 'for' and insert
'An NHS foundation trust may appoint trustees which the regulator can approve'.
Again, I can be brief. In many ways this is a probing amendment. As hon. Members will see, clause 22 deals with the appointment of trustees for an NHS foundation trust to hold property on trust. I do not think that anyone in the Committee would regard that as an unusual or unreasonable proposition. The amendment seeks to change significantly who appoints the trustees, from the Secretary of State to the NHS foundation trust. Given that it is the foundation trust's property, it would be a reasonable proposition for the foundation trust to make the appointment and to have some check on the power to allow the regulator to approve the trustees.
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The NHS foundation trusts would appoint the trustees and they would be subject to the approval of the regulator, which is more logical and fair than for the Secretary of State to do so. Unless there is some complicated legal reason under existing law, I am not sure why the Secretary of State has to have a role. The important thing is that there are trustees; given that one concedes that that is crucial, surely it would be better for the foundation trust to make the appointments, subject to the approval of the regulator, who will be independent of the foundation trust, rather than the Secretary of State.
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