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I turn first to Amendments Nos. 136 and 147. It is important to reiterate that the independent regulator, who will be fully independent of the Secretary of State and the Department of Health, will be responsible for granting authorisation to applicants for NHS foundation trust status and for setting the terms of authorisation under which they will operate. He will also monitor trusts' compliance with those operating conditions, with powers to intervene where necessary to bring a trust failing to meet its obligations back into line.
Under Clause 8 the independent regulator will be able to vary the terms of authorisation of an NHS foundation trust. In deciding whether and how to vary such an authorisation, the regulator will be required to take account of the results of any recommendations arising from the statutory consultation process, no matter in what form. He will also have to take into account other relevant evidence, including the views of those affected by the variation. I suggest that that covers the points of concern for the noble Baroness and that her amendments are not strictly necessary.
I wish to add a further assurance and repeat once more the point about the common law, because it is a powerful argument. The common law imposes a number of duties on statutory offices such as that of the independent regulator. One very important duty is that a statutory office holder is required to give a fair hearing to both sides when making a decision. Discussions with an NHS foundation trust would therefore always form a natural and fundamental part of the process for setting and reviewing the terms of authorisation, and the regulator would be required to seek the views of a trust and take them into account. So I do think that the concerns are met by those points.
Amendment No. 189 seeks to allow a foundation trust to make a "written appeal" to the regulator where a warning notice is issued under Clause 23. The intention seems to be to ensure that the regulator does take into account the views of a trust when issuing a warning notice. However, as I have said, the requirement is already imposed on the regulator by common law.
A warning notice, along with the more serious powers available to the regulator under Clause 23, can be exercised by the regulator only once he has given a foundation trust a fair opportunity to put its case. This is a well-established legal principle and I do not think it appropriate for the legislation to interfere with it in the way suggested by the amendment. It may well be a harmful intervention.
Let me cite an example. If a CHAI report indicated a potential breach of terms of authorisation, the NHS foundation trust would have an opportunity to prepare a response to the report which the independent regulator would consider alongside the CHAI report in deciding whether any action is appropriate. For all those reasons, I would argue again that Amendment No. 189 is unnecessary.
Finally, I want to reiterate that, just as with the Secretary of State, while there is no formal mechanism for appeal against the independent regulator's decisions, if the regulator failed to act reasonably and proportionately in response to any representations made by the foundation trust, he would be subject to judicial review. That is not a light sanction and, on those grounds, I hope that the noble Baroness will reconsider her amendments.