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I beg to move amendment No. 134, in
clause 4, page 2, line 20, leave out paragraph (a) and insert—
'(a) the proposed constitution has effect, but the applicant may exercise the functions of the corporation on its behalf until a board of governors has been elected and a board of directors has been appointed,'.
The amendment would address what we believe is an anomaly in the Bill. I seek clarification from the Minister before deciding whether to press the matter. Clause 4(4)(a) would appear to establish the full constitutional mechanism of the foundation trust, but before the trust is fully established and while the regulator is still considering the application. The administrative implications are significant, and will affect the robustness of the process in relation to the local community.
The provisions of the proposed constitution would give effect to those elements of the constitution that involve the election of the shadow board of governors and the shadow board of directors. It seems that once the application has been put to the regulator, the would-be NHS foundation trust has to set up its membership registers, invite people to become members and go through a recruitment process in the local community. It would seem that they must go through the process of electing a governing body, establishing registers, including a register of interests, and all without knowing whether ultimately they will receive the consent of the regulator to establish trust status.
If the regulator decided that that was not appropriate, the sums did not add up or there was a flaw in the constitution—whatever rationale was given for sending the plan back to the drawing board—considerable expense would have been incurred in establishing the constitutional structures that would be needed without having achieved foundation trust status.
There could be a serious impact on the local community if we were to see mass advertising inviting people to become members of the local hospital, only to discover that an anonymous regulator in Whitehall had said that there could not be a foundation trust in the area. It certainly might preclude the subsequent democratic involvement that would have been the case had the initial proposal been more robust. The implication of the measure is to accelerate the process too fast. By contrast, clause 5(7)(a) says that
''Once the certificate has been issued the proposed constitution has effect, but the applicants may exercise the functions of the corporation on its behalf until a board of directors is appointed in accordance with the constitution.''
It seems eminently sensible that a similar provision should apply to an NHS trust going through the application process. The management board of that trust should have the powers to fulfil the functions of the corporation up to the point at which the application is granted by the regulator. Only then should they start to set in place the full democratic procedures to elect a governing body. That would be a much smoother way of doing things and would remove some of the risks that would be incurred if an application were rejected at the last point. I hope that the Minister, if he cannot accept the specific amendment, will agree to look again at what seems to be an anomaly.