With this it will be convenient to discuss the following:
Amendment No. 171, in
clause 5, page 2, line 32, leave out from 'trust' to end of line 33 and insert
'provided those persons do not continue to undertake commissioning work on behalf of NHS patients'.
Amendment No. 137, in
clause 5, page 3, line 2, at end insert—
'(d) the applicant has demonstrated the ability to meet quality thresholds consistent with standards demanded by the official inspectorate,'.
Amendment No. 136, in
clause 5, page 3, line 3, leave out 'may' and insert 'shall'.
Amendment No. 137 is more substantial; it would add another criterion that the applicant must meet before the regulator can issue a certificate of registration to become a foundation trust. It ensures that each applicant meets the minimum standards demanded by any other inspectorates, such as the CHAI, before a certificate can be issued. The Minister might tell me that that amendment is redundant because what it addresses is already covered in the legislation. However, it is important to have that criterion in the Bill.
Amendment No. 136 tightens up the wording of the Bill to guarantee freedom and appropriate power to the independent regulator. At present, if the regulator finds the application to be in good order he ''may'' issue a certificate. However, ''may'' is ambiguous; he ''may'' just as easily not issue a certificate, if the Secretary of State intervenes, for example. ''Shall'' is a
far less ambiguous and more appropriate word; if the independent regulator finds that the application is in good order, he ''shall'' have to issue the certificate.
Which bodies does the Minister envisage would want to apply to him and the independent regulator to become public benefit corporations? The only organisations that will wish to put the necessary strictures on themselves are those that are already failing and require some sort of umbrella to survive.
It is difficult for any organisation to aspire to become a public benefit corporation. This is my question to the Minister: what sort of organisations does he think will be interested in applying for this status and under what circumstances?
Amendment No. 219 is essentially a probing amendment. A number of specific legal persons have been identified; the amendment is a device to have a discussion about whom we envisage might apply. To some extent, that is the same point that the hon. Member for Westbury raised.
We have tried to set out our thinking on that subject on page 11 of the explanatory notes and in the application process itself, which we published before Christmas in the previously referred to guide. We refer there to a number of entities—charities and voluntary organisations, and maybe hospices as well. In the Bill, we have tried to cast the net as widely as possible: as all of those organisations are legal persons, all of them are able to apply. If we had taken the preferred approach of the hon. Member for West Chelmsford (Mr. Burns), which is to identify who can apply, we would exclude some people, perhaps arbitrarily. We have chosen the route that offers organisations of different legal shapes and sizes the opportunity to consider becoming a part of the national health service. That is essentially what clause 5 allows those entities to do. I think that that is an exciting opportunity.
I genuinely do not share the pessimism of the hon. Member for Westbury about the organisations that might consider clause 5 as an option, and I particularly dispute the idea that the clause is only about failing organisations. On capital, to which I am sure that we will come on Thursday, of course it would not be in the best interests of the national health service to take on as NHS foundation trusts organisations with large debts, for example, because that might score against the Department's capital budgets. We would not want that. The clause is not a route by which failing organisations can get a bung from the taxpayer, as the hon. Gentleman was suggesting; far from it.
I hope that a variety of organisations will seriously consider becoming NHS foundation trusts. We would welcome them into the NHS family. Let me clear up a myth surrounding the clause; it formed an undercurrent to some of the hon. Gentleman's comments and he raised it earlier when BUPA was
mentioned. Under the clause, an organisation that is not part of the NHS can become part of it. That is not privatisation, or a route to privatisation, as some people have suggested. In fact, it is exactly the reverse. Organisations that are not part of the NHS will become NHS trusts.
Has the Minister considered the fact that there are some smart minds dealing with corporate structures and their interrelationships in this country? Has he considered that an outside organisation might seek to establish an NHS foundation trust as a parent company for a joint venture? That would allow the organisation to lock itself into the supply of services to the NHS. There have been many ingenious ways of structuring corporate relationships over the years, and it is certainly possible that that type of arrangement will be a result of the clause.
It would not be a desirable result. We have two safeguards in the process. The first is the requirement for the Secretary of State to give his approval. The hon. Gentleman spent the last half hour saying that it would not be appropriate for the Secretary of State to give his approval, and that that stage should be removed from the process. He has now provided a perfect example of why the Secretary of State's approval is a necessary precondition for the process. I am grateful to him for doing so. Secondly, there is the regulator's decision-making process. If the application is a sham and is clearly a device for something else, that will become transparent in the application process. I hope that the problem will not arise.
I am grateful to the hon. Member for Cheadle for truncating our discussion on amendment No. 171. We do not need to go there; we dealt with that earlier. On amendment No. 137, I genuinely think that the hon. Member for West Chelmsford made a fair point on the need to demonstrate achievement of quality standards. To a large extent, amendment No. 137 is based on a tautology, because the same quality standards will apply to all parts of the NHS regardless of the nature of the organisation involved. Therefore, as soon as an applicant for NHS foundation trust status starts providing health care, those standards will apply. As part of the process of becoming an NHS foundation trust, the Secretary of State, who gives his approval, and subsequently the regulator, will want to be satisfied about the quality of the health care being provided.
I accept the spirit in which the hon. Gentleman made his points. I share his concern that high quality standards should be maintained by NHS foundation trusts, both once they have been approved and authorised and before the application process. That is why we have taken the measures outwith the Bill to focus on raising quality standards in the national health service.
Sitting suspended for a Division in the House.
I should very much like to but I will not, for one simple reason. We have set out in clause 5(3)(a) to (c) various issues about which the regulator would have to be satisfied before he issues the certificate. He may want to take others into account, using information that comes to his attention other than that covered in clause 5(3)(a) to (c). He must, for that reason, have a residual discretion. That is not a device for denying the applicant a certificate it feels it deserves; it is simply to ensure that the regulator has fully taken into account all the necessary factors before the certificate of incorporation is granted. That is a defining moment—there is certainly no going back on it.