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Earl Howe: My Lords, the noble Baroness is always most persuasive, and she gets more so as her time in this House proceeds. I was swept along by her answer. I dare not say that I was persuaded by her words, but I am almost at that point. I shall go away and carefully read what she has said. I am grateful to her for taking the trouble to respond so fully.

I am also grateful to her for picking up the point which was not resolved in Committee. I did not mention it, but it still troubles me that there may be an inconsistency that needs examining. However, for now I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 148 and 149 not moved.]

Baroness Andrews moved Amendment No. 150:


On Question, amendment agreed to.

[Amendment No. 151 not moved.]

Lord Clement-Jones moved Amendment No. 152:


    After Clause 5, insert the following new clause—


"PUBLIC CONSULTATION
(1) The Secretary of State shall—
(a) by regulations require that an NHS trust proposing to make an application under section 4(1) or any person proposing to apply under section 5(1), shall first consult prescribed persons;
(b) by regulations prescribe persons to be consulted which shall include—
(i) the NHS trusts and Primary Care Trusts in the area in which are resident all or any of the persons to whom the applicant NHS trust has provided goods and services for the purposes of healthcare, or to whom the applicant person (as the case may be) intends to provide such services if its application is successful,
(ii) the Patients' Forums for those NHS trusts and Primary Care Trusts, and
(iii) local staff side trade unions and such other persons as the Secretary of State considers may be affected by the application.

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(2) Section 7 of the Health and Social Care Act 2001 (c. 15) (functions of overview and scrutiny committee) is amended as follows.
(3) In subsection (3) for "may" insert "shall".
(4) In subsection (3)(b) at end insert "which shall include all matters prescribed under subsection (3)(c) below,".
(5) In subsection (3)(c) at end insert "which shall include any application or proposed application under section 4 of the Health and Social Care (Community Health and Standards) Act 2003"."

The noble Lord said: My Lords, I shall be brief. Your Lordships, and in particular the Minister, will remember that we and many organisations outside the House were most concerned by the lack of specifics about the consultation needed by a body when applying for foundation trust status. A number of statements were made by Ministers about the fact that regulations would be made.

In the mean time, the Government have tabled an amendment. I have always believed that government amendments are like rare stamps: you need a set of tweezers to hold them up to a lamp in order to ensure that they are the genuine article. I have held the amendment up to the lamp and it looks like the genuine article. It provides a minimum basis for consultation, which is right and proper. Indeed, it seems to cover most of the categories listed in our original amendment.

I shall give the benefit of the doubt to the Minister until I have heard her response. I beg to move.

Earl Howe: My Lords, I intended to make comments similar to those of the noble Lord, Lord Clement-Jones. I express appreciation to the Government for listening to the arguments presented in Committee. I hope and believe that their preferred solution will meet the concerns that were expressed.

Baroness Andrews: My Lords, I am delighted to have that welcome. Cynicism sits most uncomfortably with liberalism, I feel. I apologise for the fact that the amendment was late in being tabled. Given the Bill process in general, arriving at the necessary amendments took slightly longer than we had anticipated, and I am grateful that noble Lords feel that they meet the issues raised. We intended that they should.

We propose to place minimum consultation requirements in the Bill and the details will be left to regulations. Under the minimum requirement, applicants will be required to consult local people, patients and staff. If the applicant is an NHS trust, it should consult its patients' forum—and I know that noble Lords were most concerned about that—key local authorities and any other persons specified by regulations.

Those requirements will apply to the first wave of applicants for NHS foundation trust status and to subsequent waves. The first wave of applicants has already fulfilled the requirement to seek the views of parties, but they have not and cannot seek the views of patients' forums because they will not be in place until 1st December. Once they are in place, the applicants will need to seek the views of patients' forums. Even if

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the consultation is completed, we envisage that there will be a separate consultation with the patients' forums.

I am pleased that noble Lords have responded so positively, and I am grateful to them.

Lord Clement-Jones: My Lords, I thank the Minister for that reply. It was simply the fact that we have not had a great deal of time to analyse the amendment that gave rise to what she says is not compatible with liberalism. I do not know—I find many cynical liberals knocking around the place.

We on these Benches welcome the amendment tabled by the Government. It is right that it should be in primary legislation and not in regulations. In particular, we welcome the reference to patients' forums, which we shall discuss in more detail later on Report. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.30 p.m.

Clause 6 [Authorisation of NHS foundation trusts]:

Lord Warner moved Amendment No. 153:


    Page 3, line 27, leave out "he" and insert "the regulator".

On Question, amendment agreed to.

[Amendment No. 154 not moved.]

Earl Howe moved Amendment No. 155:


    Page 3, line 31, leave out paragraph (b).

The noble Earl said: My Lords, I welcome the fact that the Minister has responded to a particular concern that I raised in Committee about the requirement for foundation trust applicants to demonstrate to the regulator's satisfaction that the membership of their public constituency will be representative of those eligible for membership. It has always seemed to be an impossible requirement to ask of a trust at that stage of the proceedings. I thank the Minister for taking on board that point in the amendments to which he will speak.

However, I remain unhappy about the notion of representative membership. While as an ideal it is incontestably a good thing, it does not seem to me to be something that should appear on the face of the Bill. Bearing in mind that the Government have recognised reality as regards the impossibility of demonstrating that the membership is or will be representative, and that it is now necessary only for a trust to demonstrate that it is taking steps in that direction, I wonder whether we need such an explicit requirement in the clause at all.

I do not suppose that the Government will be inclined to think again about this matter, so perhaps I could follow through the practical implications of what is proposed here. How is a hospital supposed to ensure that its membership is not only representative at the beginning, but continues to be representative year in, year out? What is it supposed to do? What action can it possibly take if it is simply unable to attract sufficient interest within a segment of the population, such as an ethnic minority? At what point

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will the regulator say that the list of members is unacceptable? The problem with lifting the concept of membership from mutuals is not only who the list contains, but also who the list does not contain. Members have no responsibility to represent anyone but themselves, so the vulnerable people who do not have a voice will remain without a voice.

The other side of that coin relates to single-issue pressure groups. I do not know whether a trust would be within its rights to try to keep out such people, but how is it supposed to know whether such a group exists until its effects begin to be felt at board of governors level? How does one detect secret activists? What does one do when one has detected them? I genuinely do not see how the problem of entryism is to be overcome and I do not believe that the Government really have an answer to that. As I said in Committee, it is likely that trusts and the regulator will need to fudge the whole issue. I am inherently uncomfortable with that notion because it means that a legal requirement on the face of an Act of Parliament is being consciously side-stepped. I return to what I said earlier which is that it would be better not to have it in the Act at all. I beg to move.

Lord Hunt of Kings Heath: My Lords, the amendment made in another place that produced this clause that the noble Earl does not like was well intended. Clearly, to make such matters work, it is important that the board membership represents the people who are being served by the trust. I have a question for my noble friend. The wording is quite precise as it appears in the Bill at the moment. It states:


    "The regulator may give an authorisation . . . if he is satisfied as to the following matters . . . that . . . taken as a whole the actual membership . . . will be representative of those eligible for such membership".

If the regulator were satisfied that the trust had done all that it could to ensure that there was a representative membership, that would be much easier to work with. My problem is that this matter will be open to many judicial review issues because any pressure group that was dissatisfied could simply look at the membership and say, "We do not understand how the regulator could possibly have been satisfied", and the whole matter would be put in jeopardy. Will my noble friend have a look at this as I suspect that the wording is too tight?


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