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The Government are grateful to Members for raising these important issues, but, regretfully, we cannot accept the amendment. The amendment makes two key changes. First, it gives commissioners of other trusts affected by the recommendations of an administrator at a foundation trust, the power to define essential services at those trusts. That would be cumbersome and impractical and draw the focus away from the trust in administration and undermine the need for recommendations affecting other providers to be “necessary and consequential”, which is something that my right hon. Friend the Member for Sutton and Cheam believes in and raised in Committee.
Secondly, protecting essential services gives the administrator their focus for the trust in administration; it is a critical part of the process. Asking commissioners at other trusts to define their essential services would incorrectly indicate an equivalence in the administrator’s role between the failed trust and other successful providers.
Clause 119 recognises the need to give other commissioners a clear role and a proper say. It already extends the existing requirement on an administrator at a foundation trust to obtain the consent for their recommendations from each commissioner of the failing trust, and also from each commissioner of any affected trust. NHS England support must be sought in cases where not all commissioners agree.
Let me be absolutely clear. Under subsections (3), (4) and (6), the commissioners who are asked to agree and draft the final TSA report already include commissioners from affected trusts. It may be hard to spot that in the clause, as it amends existing legislation.
Clause 119 also requires the administrator to consult other affected commissioners. He or she must publish a summary of the consultation responses and take them properly into account when making final recommendations. The Secretary of State or Monitor will need to be satisfied that the administrator has carried out their administration duties properly, including showing proper regard for the statutory guidance.
Commissioners of other affected trusts will therefore have every opportunity to make their views known. However, I would like to thank my right hon. Friend the Member for Sutton and Cheam for bringing the matter to our attention. The Government agree that it is important for other local commissioners to be able to protect their essential services. We will update the guidance to make it clear that the agreement of commissioners to the TSA report should include their agreement that essential services have been protected at other trusts, as well as at the failing trust, so that all local commissioners have an equal say, with NHS England arbitrating in the event of disagreement. Furthermore, I would like to invite my right hon. Friend to chair a committee of MPs and peers to consider the draft guidance and ensure that his concerns are properly addressed before the regime is used.