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Baroness Noakes: I thank the other noble Lords who have taken part in this debate and I am particularly grateful for the support of the noble Baroness, Lady Warnock. I should have stressed at the outset that this was a probing amendment and we have no intention of dividing the Committee. I accept that the amendment makes it more difficult to deal with the issue.
The Minister spoke about getting rid of individuals as if that were an easy thing to do. However, I think that the Government should look again at the kinds of processes that should be in place if individuals who may have already been elected to the governing body are to be excluded. Simply to allow the NHS foundation trust to devise its own arrangements to get rid of individuals that it deems inappropriate is not good enough. The Government should also deal with the issue of members of particular interest groups. The noble Baroness, Lady Warnock, reminded us of the trouble that can be caused by such groups.
I am grateful to the Minister for saying that he will go away and look at the guidance, but I suspect that the schedule itself needs some amendment in order to make any additional guidance valid. In the mean time, I beg leave to withdraw the amendment.
The noble Lord said: The provenance of this amendment is from one section of staff interestthe Royal College of Midwives. It is a probing amendment. The Minister has made it clear that he sees the nature of the board of governors as more like a council of members than anything else. As he pointed out, the schedule itself refers to the board of directors having the essential power to run a foundation trust. On that basis, it is extremely important that the board of governors is representative of a broad range of interests.
The Royal College of Midwives believes that one way of tackling shortages is to build a greater sense of professional standing among staff. That must be right. One way of achieving that would be to give them an adequate voice on the board of governors. As it standsof course we do not know what the normal size of a board of governors will bethe only provision is that one member of the board must be elected by the staff constituency. Many staff and those who represent them believe that that number should be higher. We have suggested one fifth, although I am interested to hear whether the Minister has any other figure in mind or whether there is a usual limit on that number. If there are large numbers of people on a board of governors and it is like a council of members, there should be more than one person from the staff side. I beg to move.
Lord Warner: We do not disagree with the sentiments behind the amendment, but we disagree with the precision with which it is executed. The legislation deliberately sets out only minimum eligibility requirements for membership of foundation trusts to allow those trusts flexibility to tailor their own arrangements to reflect local circumstances. I have tried to explain the safeguards that are in place to ensure that that flexibility is not used inappropriately.
Amendment No. 37A would restrict an NHS foundation trust's flexibility to set up arrangements that best suit its local circumstances. Specifying that a fifth of the governors must be elected by staff members would require trusts to have multiples of five governors on the board, which could be a considerable restriction. Perhaps the noble Lord intended to specify that at least a fifth of governors should be staff governors, but even that could cause troubles. For some trusts that may be the right approach, but to mandate a fixed proportion in legislation would seriously restrict the flexibility on board configurations, particularly for those trusts that are not intending to have very large boards.
Concern has been expressed in the House about the size of boards. I cite the example of a teaching hospital. Under this provision it would have to have a minimum of 13 governors to satisfy all of the number requirements in the Billand that is without provision for a partnership governor. It would have to have seven members elected by the public to outnumber the rest, at least one local authority member, at least one PCT member, a university member and then, by the noble Lord's formula, three elected by staff, not including a partnership governor. As drafted, the amendment could be an escalator to much larger boards, so I ask the noble Lord to consider that carefully.
When we are talking about representative capacity we should have the ability to cover a wide range of communities. I can think of many teaching hospitals, especially in London, that have a very diverse set of communities in their area. If we are to go down this trackand I should say that every time I move an amendmentseven public constituency members seems to be entirely sensible, and three elected by staff is not disproportionate in those circumstances.
I hear what the Minister says, but Ministers tend to adopt mantras as they go through Bills. The mantra of this Bill is flexibility. The noble Lord, Lord Hunt, will recall other mantras, I have no doubt. However, flexibility is clearly the watchword in this Bill. Sometimes, it is rather useful to deliver clear signposts and not give too much flexibility. The circumstances for staff representation in most foundation hospitals seem to be fairly common. Therefore, the wish to represent staff seems to be an entirely laudable one and one fifth seems to be modest. I will ponder what the Minister has said, but the Government should reconsider the guidance, even if the information does not appear in primary legislation. I beg leave to withdraw the amendment.
The noble Earl said: The board of governors of a foundation trust is a bit of an Irish stew. It has members elected by the public, at least one member elected by staff and members appointed from various quarters of what one might term its professional and governmental constituency. Paragraph 8(3), which provides for at least one member of the board to be appointed by a PCT begs several questions.
The first and most obvious question is: what is implied by the provision, where more than one PCT has a contract with the foundation trust? It would be unwieldy and unworkable, if every PCT that had a contract with the foundation trust were automatically able to nominate a governor to the board. Many teaching hospitals have a couple of dozen or more PCTs from which they accept patients. Moorfields Eye Hospital represents, I believe, 50 PCTs. Other hospitals have many more even than that.
We can see that the situation must be kept flexible, which is what the schedule, in effect, does. It leaves it up to the constitution of each trust to determine what arrangements to put in place. However, there is a difference between keeping the situation flexible and casting foundation trusts adrift without a rudder. If
How do the Government see that part of their blueprint for boards of governors being implemented in practice? The Minister will probably tell me that "blueprint" is entirely the wrong word, but what I am trying to get at is: what are the Government trying to achieve through the provision? For many foundation trusts that go through the rigmarole of deciding how many PCT representatives to include on the board and where those representatives should come from, there may still be considerable dissatisfaction among the commissioning PCTs that they serve. Where there are a lot of them, there is bound to be a majority that feels that its interests are not being represented. That is inevitable.
One then has to ask what meaning the PCT board appointment has. How meaningful is it for a PCT governor to be appointed on the basis that he or she represents 2 per cent of a hospital's activity? No one will want to be a token presence around a board table, but that is what is bound to happen unless there is something truly representational about that person's appointment. If we imagine such representation, we presuppose that three dozen PCTs are prepared to get together to find a way through their competing interests. It is by no means obvious to me how or why they would be prepared to do that. Each will feel that it has if not the legal right then certainly the moral right to have its views represented at foundation trust level.