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House of Lords

Thursday, 9th October 2003.

The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.

Prayers—Read by the Lord Bishop of Worcester.

Health and Social Care (Community Health and Standards) Bill

The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Warner.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Schedule 1 [Constitution of public benefit corporations]:

[Amendment No. 21 not moved.]

Earl Howe moved Amendment No. 22:


    Page 108, line 23, leave out sub-paragraph (4).

The noble Earl said: The membership of a foundation trust consists of those employees and members of the public who, in their separate constituencies, are eligible to elect representatives to sit as governors. Of these two constituencies, the staff constituency is the one that is more easily comprehensible. That is not to say that all is crystal clear. Paragraph 3(4) states that you will not actually have to be employed by the trust to count as a member of staff; and the notes tell us that agency nurses and people employed by sub-contractors are examples of those who might fall into the category of non-employees.

I am not clear how far this is supposed to go. Perhaps the Minister can explain. Could it, for example, include people who work for companies which act as suppliers to the trust? No doubt the Minister will say that these are detailed matters for the trust itself to determine, but it is rather difficult to see where the line can reasonably be drawn and why, therefore, the paragraph was inserted at the last minute in another place.

Should a trust include all agency nurses who had worked for it in the past year or only, let us say, those who had worked for a certain number days? One can envisage all kinds of arguments and bureaucratic complications arising from this debate.

I imagine that one category of person the Government have in mind is someone who works for a PFI contractor servicing the trust. It would be helpful to hear from the Minister what is the up-to-date position on the issue of retained employment in

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PFI hospitals because it is very clear that this is the single biggest stumbling block preventing financial close on a number of PFI projects currently pending. What guidance, if any, will be given to trusts on this aspect of the staff constituency?

If we look further down at paragraph 8, we see that the staff constituency appears to be very much the poor relation of the public constituency. Whereas the public constituency members must comprise at least 50 per cent of the board, the staff constituency membership of the board need consist of only one person. I am not quite sure why this is and it would be helpful to hear the Minister's thinking on how important the staff constituency and the staff governors are regarded as being. I beg to move.

Lord Walton of Detchant: Can the Minister explain whether the paragraph relates also to clinical, medical and dental staff employed by a university who have honorary clinical contracts with the trust?

Lord Warner: We have tried very hard to explain our general approach in relation to Schedule 1. The legislation deliberately sets out only minimum eligibility requirements for memberships of NHS foundation trusts in order to allow individual NHS foundation trusts the flexibility to tailor their own arrangements to meet local circumstances and on the basis of local conditions. I do not want to keep repeating that during the course of the debate, but I want to make it absolutely clear to the Committee that that is why we are not putting a great deal of prescriptive requirements into the legislation.

I find it slightly ironical that, after the debate on Tuesday in which there was a great deal of protestation from around the Committee about the problems of micro-management of the NHS, centralisation and laying down the law from Westminster and Whitehall, we now have a string of amendments which seek to do just that to this legislation.

Having got that off my chest, I feel a lot better. I shall turn now to the points raised by the noble Earl and explain our concerns about Amendment No. 22.

The amendment, if implemented, would prevent individuals not directly employed by foundation trusts from being eligible for the staff constituency. We believe that that would run quite counter to the flexibility arguments I have used. I do not know whether it is motivated by concerns that the constituency may allow inappropriate groups of people to have access to membership, but paragraph 3(4) simply gives NHS foundation trusts discretion to include those people who carry out functions of the trust, although not directly employed by the trust, to become members of the staff constituency. It certainly does not require them to do so, but it would enable, for example, the kinds of staff to which the noble Lord, Lord Walton, referred to fall into that group.

I shall have to write to the noble Earl about PFI contracts, as it is quite a technical issue. I will do that as soon as possible. Some staff groups are commonly not directly employed by trusts—for example, people

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working in contracted-out services, such as catering. However, these people have a keen interest in the organisation because they work there. Many of them were, in many cases, previously employed by the NHS and are now contractor staff, contributing to the services it provides. It is right, therefore, that they can also be members of the staff constituency. We believe that the amendment would prevent that and that it would be wrong to prevent people who often work in the hospital under a different contract of employment from direct employment with the NHS participating in these changes in the way provided for in the legislation.

Of course the staff are not a poor relation—the Bill provides for staff provision. But, as we have said consistently, this set of changes in relation to NHS foundation trusts is all about giving patients and local communities a much greater say in the development of their health services. The provision of at least one does not in any way prevent—we would not expect it to prevent—a much larger representation where it is appropriate in relation to particular foundation trust applications.

That is as clear as I can make the Government's position. I encourage the noble Earl to withdraw, or the Chamber to reject, the amendment.

Earl Howe: I had intended this to be a standard probing amendment. I think we all understand what the effect would be of removing this sub-paragraph—indeed, that was not my intention, as the noble Lord will appreciate. I understand that the Government are not being prescriptive as a whole in the schedule, but that surely does not mean that the Committee is not entitled to discuss the provisions it contains. I think that probing amendments are entirely in order, particularly in Committee.

The Minister has been helpful in drawing our attention to a number of aspects of this sub-paragraph. My main purpose for wanting to discuss it was that there had to be a reason why it was inserted into the Bill in another place at a late stage. I think we are closer to discerning what those reasons are. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 23 not moved.]

11.15 a.m.

Lord Peyton of Yeovil moved Amendment No. 24:


    Page 109, line 3, after "minimum" insert "and a maximum"

The noble Lord said: Quite unusually, this amendment means exactly what it says, and I hope the noble Lord might consider accepting it. The thought behind it is that it is as well to limit rather than increase the number of people around a table. This may be a novel thought to Members of Her Majesty's Government, but numbers tend to add confusion rather than simplify anything. I beg to move.

Earl Howe: I support what my noble friend has said. The whole concept of a hospital's public constituency seems to me inherently flawed. The system is, by its

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very nature, socially excluding. Hospitals will land up with members who, being self-selected, will almost certainly be unrepresentative of the population at large. As such, these members will have absolutely no responsibility to have regard to the interests of people who may not have registered as members but who may nevertheless have an equal or better claim to have their interests represented on the board. Homeless people, those whose first language is not English, people with mental health problems and those seriously ill with long-term conditions will not be in a position to be active as members of a foundation trust. We are looking at a government model for the articulate middle classes.

In the worst-case scenario, hospitals will find that the governors who are elected by the public are people with narrow axes to grind on behalf of special interest groups. I am not clear from the Bill how this situation can be avoided. It is a phenomenon, as we know, known as entryism. The membership list could conceivably consist of only a very few individuals.

I do not think that the idea of a public constituency has any real validity unless there is a sensible minimum number of members. Below that sensible minimum entryism really will occur, almost regardless of anything else that is done.

Paragraph 4 simply says that there needs to be a minimum number of both public and staff; it does not say what that minimum should be. Of course the Minister will say that the Government do not want to be prescriptive, and I understand that. But do they really envisage that there should be a different minimum number for each foundation trust? Or are they prepared to say roughly what sort of minimum they envisage as sensible?


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