Amendment No. 146 is a straightforward amendment relating to the use of the words "is to" in Clause 9(2). My amendment replaces these words with "must". At one level, this straightforward amendment is designed to improve the language that the Government have used in the Bill. It is a variation on our old favourite, "may"/"shall". Clause 9(1) provides that the regulator "may" do something; subsection (3) provides that he "must" do something; but subsection 2 provides that he "is to" do something. I believe that the "is to" formulation is unusual, but even more so where the contrast is with the surrounding subsection. We believe that the regulator must have regard to the matters in subsection (2) and that any other formula can only import ambiguity into an area which should be absolutely clear.
There is another level to the amendment. Subsection (2) provides that when the regulator varies an authorisation for a foundation trust, he is to have regard to what the local authority overview and scrutiny committees and the Commission for Patient and Public Involvement in Health think. However, when a foundation trust is initially authorised, there is no formal role for those bodies. That was the focus of an amendment to which the noble Baroness, Lady Barker, spoke a little earlier.
Under Clause 6, those bodies might be involved in consultation prior to authorisation but there is no requirement for the regulator to have regard to their views. However, for some reason, by the time we reach variations, it is regarded as important that regard should be had to their views. Will the Minister explain the rationale for that? It seems to us that, like so much of the Bill, that is utterly lacking in logic. I beg to move.