Mr Simon Burns (West Chelmsford, Conservative)

I beg to move amendment No. 267, in

clause 8, page 4, line 15, at end insert

'subject to the endorsement of those changes by a vote of the trust's members at which at least 50 per cent. of eligible members cast their ballots.'.

The clause deals with amendments to constitutional foundation trusts once they are up and running, and, as the Bill is currently drafted:

''An NHS foundation trust may make amendments of its constitution with the approval of the regulator.''

The purpose of this amendment, which is in many ways a probing amendment, is to find out the exact purpose of this clause. We want more information, and possibly, in some instances, some comforting words from the Minister. We want to ensure that changes to a constitution can be made only with the approval of the regulator, and subject to the endorsement of those changes by a vote of the trust's members at which at least 50 per cent. of eligible members cast their ballots. That is being suggested to ensure that the members will approve any changes.

The Bill is currently unclear as to how many people would be needed to propose changes to a constitution. Can anyone seek to make changes, and can non-constituents also make changes? I ask those questions—here I refer back to earlier debates on the Bill—because of the possibility, in certain circumstances, of a particular organisation, pressure group or group of constituents having very fixed views on aspects of health care. Might they have the potential to hijack the direction of a foundation trust by changing the constitution to have it dovetail with particular and possibly narrow views?

We are seeking to include in the Bill as broadly based a formula as possible to ensure that changes to a constitution must involve a significant number of board members. That would prevent the hijack of trusts by special interest groups, which everyone on the Committee will agree would be a very unsatisfactory and dangerous situation.

Mr Jon Owen Jones (Cardiff Central, Labour/Co-operative)

I take the hon. Gentleman's point that this is a probing amendment, but surely the regulator is the safeguard necessary to ensure that a trust could not be hijacked. As the Bill proposes, amendments must, through the constitution, have the approval of the regulator. That is the safeguard. The Tory amendment seeks the safeguard of a 50 per cent. ballot. Unfortunately, in today's world, a 50 per cent. threshold can be a severe obstacle to change. The Tory party cannot seriously wish to constrain the ability and the flexibility of foundation trusts to make changes by imposing such a difficult hurdle.

Ms Hazel Blears (Parliamentary Under-Secretary (public health), Department of Health; Salford, Labour)

We covered a great deal of this ground in previous debates about the relationships between the minimum frameworks set out in schedule 1 and the rights of local organisations to come up with a constitution that is robust, vigorous and fully representative of the community. I should like to reinforce our commitment to ensuring that such constitutions are properly set out.

Clause 8 rightly provides for NHS foundation trusts to change their constitutions. My hon. Friend the Member for Cardiff, Central (Mr. Jones) has talked about the need for flexibility; the geographical areas to which foundation trusts provide their services may well change, so trusts would need to be able to vary the boundaries of their public constituencies. Also, new services may be taken on, in which case the partner organisations that are to be appointed under paragraph 12(2) of schedule 1 may need to vary or take on more PCT representatives, if they provide services in a different geographical area. In other words, we can certainly contemplate circumstances in which the constitutions might need to change.

Before any application is approved by the Secretary of State and by the independent regulator, we expect provision to be made for possible changes in the constitution, and related powers of the various constituent parts of the NHS foundation trust to be defined.

The hon. Member for West Chelmsford (Mr. Burns) raised an important point about the need to get the checks and balances right in this new form of democratic public benefit corporation, so that we know who has the power to introduce changes and how those changes can be endorsed. At this stage, we do not want to prescribe numbers in the Bill, or to be inflexible about how that change might come about. However, I am happy to record that we want the constitutions to contain robust provision for flexibility when circumstances change and to ensure, as the hon. Member for West Chelmsford said, that no special interest group can move changes to the constitution for its own sake.

Mr Simon Burns (West Chelmsford, Conservative)

I am grateful to the Under-Secretary for her comments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr Simon Burns (West Chelmsford, Conservative)

I beg to move amendment No. 269, in

clause 8, page 4, line 16, leave out subsection (2).

Mr Peter Atkinson (Hexham, Conservative)

With this it will be convenient to discuss the following:

Amendment No. 270, in

clause 10, page 4, line 32, leave out 'registrar of companies' and insert 'regulator'.

Amendment No. 271, in

clause 10, page 5, line 6, leave out subsection (4).

Amendment No. 272, in

clause 10, page 5, line 9, leave out 'registrar of companies' and insert 'regulator'.

Mr Simon Burns (West Chelmsford, Conservative)

The amendment would remove clause 8(2) from the Bill, and specifies that all foundation trusts must send a copy of their constitution, with any amendments, to the registrar of companies. Why do the Government constantly refer to the registrar of companies for organisations that they seek to create in this Bill? They are not commercial companies but a public service with a changed format for the provision of that service. Why is it necessary to send the constitution to the registrar of companies, especially as foundation trusts are to be known as ''public benefit corporations'', rather than as ''companies''? Ministers have been emphatic in drawing the distinction and in making it plain that they do not see the trusts, in any shape or form, as companies.

Amendment No. 270 specifies that the constitution of foundation trusts should be sent, and consequently held, by the independent regulator rather than by the registrar of companies. Logically, in the context of what the Government seek to do and the definition and purpose of foundation trusts, that is a superior and more relevant way to proceed than to deal with the registrar of companies.

Members will appreciate that the other amendments are consequential; however, the explanatory notes—particularly with regard to amendment No. 271—would provide a worthwhile subsection were the previous amendments not to be passed. The explanatory notes specify that the register must be available for public access and require the registrar of companies to keep originals of documents on that register for 10 years, or for two years from the dissolution of an NHS foundation trust, so that they are available for inspection by people or bodies for whatever reason. I hope that Ministers find that both relevant and appealing.

Mr John Hutton (Minister of State, Department of Health; Barrow & Furness, Labour)

Again, the hon. Gentleman has made a meal of that. Requiring the registrar of companies to keep details of NHS foundation trusts does not transform them to the status of companies in a way that would be understood under English company law.

The hon. Gentleman asked a fair and reasonable question; should information about foundation trusts be available through the registrar of companies or the independent regulator? There is common ground between us, and access to such information must be available at some point in the system.

Let me correct him on one of his opening remarks.

Perhaps it was shorthand for another point, but he said that the registrar of companies kept details about commercial organisations, and asked—as foundation trusts are not commercial organisations in that sense—why the registrar of companies should hold their particulars. That is not true, as I am sure he will concede after giving it a moment's thought. The registrar of companies also keeps details of not-for-profit organisations; there is no inconsistency on that point.

Mr Simon Burns (West Chelmsford, Conservative)

The Minister is correct. I was using shorthand, which, on reflection, was probably a mistake. I used it because—as I hinted later on—there is great sensitivity about the idea of ''companies''; particularly on his side of the Committee and the House. The Secretary of State's speech early last year gave rise to confusion about companies. I used shorthand so as not to reopen that aspect of the debate with the amendment.

Mr John Hutton (Minister of State, Department of Health; Barrow & Furness, Labour)

I am very grateful to the hon. Gentleman for not wanting to reopen that issue. However, this is a question that does not come down to principle but to common sense. What is the easiest way to facilitate the widest possible access to the relevant information? The choice is between the regulator and the registrar of companies. We opted for the registrar of companies for a variety of reasons. Most importantly, the registrar of companies is where most people look for information about organisations.

Some NHS foundations trusts, just like NHS trusts, will be free to enter into joint ventures with other providers and to set up companies themselves. If one wanted information about those organisations, one would not go to the regulator but to the registrar of companies. Rather than have people pursue information around the system, which is essentially what the amendment would require, we chose the option of having them go to just one point. The registrar of companies will hold the relevant details regardless of whether companies are set up by NHS trusts or NHS foundation trusts. It was simply a pragmatic decision, Mr. Atkinson, to keep all the information in one place. It is certainly not a back-door route into the argument to which the hon. Member alluded about whether foundation trusts are companies or not.

Mr Gary Streeter (South West Devon, Conservative)

I accept that this is not some sort of back-door admission that the NHS foundation trusts will be companies. We have dealt with that issue. However, does the Minister agree that the registrar of companies keeps a record of companies that are limited by shares or by guarantee as well as of not-for-profit organisations but does not keep records of charitable trusts' trustees or partnership agreements? Has the Minister made the right pragmatic choice? Most people who want to find out more about these public benefit corporations, knowing that there is a regulator, might think that the regulator would be the first port of call to find out how to obtain copies of their constitutions. Perhaps the Minister would think about this matter again.

Mr John Hutton (Minister of State, Department of Health; Barrow & Furness, Labour)

I am always happy to think again when serious points have been made, and I am happy to

think about that one. The hon. Member's point about charitable trusts and partnership arrangements is accurate; the registrar of companies does not retain such information. However, I do not understand the point of that observation; that does not impact upon the basic issue that we must resolve, which is where to seek information about an NHS foundation trust. Finding information about a charitable trust is a separate issue. As my hon. Friend the Under-Secretary has just reminded me, the NHS foundation trust will keep all the information as well, so there will be local access to it too.

This is not a huge issue; it is largely a debating point. The simple question that we had to resolve in the Bill was whether or not there should be one main portal of access to the information.

Mr Andrew Lansley (South Cambridgeshire, Conservative)

The Minister did not use the argument that I expected, which was that it is possible for an organisation to be a public benefit corporation and not an NHS foundation trust, if only in so far as that corporation has been established to pursue an application to become an NHS foundation trust. In that case, it would be inappropriate for the regulator to keep the details of a public benefit corporation to which he has not given authorisation. I wonder, therefore, whether I am wrong.

Mr John Hutton (Minister of State, Department of Health; Barrow & Furness, Labour)

I am grateful to the hon. Gentleman for making that helpful contribution. I will ask my officials why that was not in my notes, because it is a very effective point.

The hon. Gentleman and Committee members will know that that is an interim stage. I do not want a lengthy period between the establishment of the public benefit corporation and the authorisation for that corporation to act as an NHS foundation trust. There will be some time between the two, but that should not necessarily be lengthy. However, the hon. Gentleman is right; it would be inappropriate in those circumstances for the regulator to keep such details.

As usual, I have spoken for longer than I intended. The hon. Gentleman made a fair point and his hon. Friend the Member for South-West Devon asked me to have another look at it, and I will. However, on balance, I think that the right decision has been made.

Mr Simon Burns (West Chelmsford, Conservative)

In the light of the Minister's assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 ordered to stand part of the Bill.