Clause 9 - Variation of authorisation

Health and Social Care (Community Health and Standards) Bill – in a Public Bill Committee at 9:15 am on 22nd May 2003.

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Photo of Simon Burns Simon Burns Shadow Spokesperson (Health) 9:15 am, 22nd May 2003

I beg to move amendment No. 139, in

clause 9, page 4, line 20, leave out 'is to' and insert 'must'.

Subsection (2) of clause 9 states:

''In deciding whether or not to vary an authorisation the regulator is to have regard (among other things) to—''

the overview and scrutiny committee of local authorities and the Commission for Patient and Public Involvement in Health. Both of those proposals are eminently reasonable.

However, I am concerned about the use of the words ''is to''. They are ambiguous, and I should like to toughen up the wording to ''must''. That would make clear that if there were variations of authorisation, the regulator ''must'' have regard to any recommendations that have been made to those two bodies, rather than ''is to'' have regard, which is a weaker and more lax instruction.

The use of the word ''must'' would impose an absolute duty, but if ''is to'' were used, some safeguards that one had assumed were implemented might not be—because of the variation of authorisation—particularly with regard to the provision of a trust's core services. One such example is the Royal College of Midwives. I am sure that Ministers are aware of a recent article in The Times concerning the provision of midwifery services throughout the country, and that maternity services are a core function of the NHS. The Under-Secretary of State for Health, the hon. Member for Tottenham (Mr. Lammy) is certainly aware of that, because he is quoted in Hansard of 7 May 2003 as making that point. The figures certainly back that up. Approximately 555,000 babies were delivered in England in the most recent year for which figures are available.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

Order. The hon. Gentleman is confusing me on this amendment. How exactly does he think that this is relevant to amendment No. 139?

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I am sorry, Mr. Atkinson. What I was trying to do—inadequately as you rightly pointed out—is to give an example of a service that could be removed by a foundation trust. In my understanding, that would require a variation of authorisation. I suspect that a local authority overview and scrutiny committee would think that the withdrawal of maternity services from a foundation trust would not be in the local community's interest. The scrutiny committee would make its views known to the regulator. As clause 9 is drafted, if the regulator ''is to'' have regard, he can take the committee's views on board but not necessarily agree with them, and thus allow the withdrawal of a maternity service.

Amendment No. 139 proposes that the regulator ''must'' have regard. The word ''must'' would strengthen the hand of a local authority overview and scrutiny committee to allow it to ensure that such a service would not be removed from local health care provisions in a foundation trust. The example I cited may be common in foundation trusts, and the hand of overview and scrutiny committees must be strengthened to ensure that the regulator would not have this apparent widespread freedom to have regard to the views of the scrutiny committee rather than abiding by them.

Photo of George Young George Young Chair, Standards and Privileges Committee 9:30 am, 22nd May 2003

I shall speak in favour of amendment No. 139 because it raises issues that may be more important than my hon. Friend the Member for West Chelmsford realised. This is the first point in part 1 of the Bill at which the involvement of local government and social services is mentioned, and it underlines the need for the regulator

to have regard to the views of local government. The Government are keen for good co-operation between health services and social services.

Concern has been expressed to the Select Committee on Health that when the concept of foundation care trusts is being developed, emphasis may be placed on acute services, and the needs of the wider health economy may be disregarded. The King's Fund posed the following question about foundation trusts:

''Has foundation trust status had any impact on relationships within the local health economy, particularly with respect to collaborative working, predominantly for the care of older or chronically ill patients?''

We have discovered that social services will not have a place, as of right, on primary care trusts; that is a matter for discretion. However, it is essential that foundation care trusts have regard to the needs of social services. If the route of foundation care trust were taken, there is a risk that loyalty to a popular local institution—namely the district general hospital—would be promoted, and other claims on the health economy disregarded. For example, there may be a focus on the reduction of waiting times for elective treatment—an issue that we all understand—but there may also be other priorities in the local health economy. Unless the regulator or someone else stands back and examines the broader picture, there is a risk that resources will not be applied as they are best needed.

If the focal point is the district general hospital, a community hospital that comes under the wing of a foundation trust may be sacrificed for the perceived interests of the DGH. I suspect that many constituencies have both DGHs and outpost hospitals. In my constituency, the DGHs are in Winchester and Basingstoke, but there is also a community hospital in Andover.

Photo of Andy Burnham Andy Burnham Labour, Leigh

That is precisely the point. The new structures proposed by the Bill would help to represent the interests of outlying hospitals more than they are in existing NHS structures. Larger institutions have sometimes disregarded the interests of smaller hospitals.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

Order. Before the right hon. Gentleman continues, I should say that we are probably moving away from the amendment to having a stand part debate. I am happy to have a ''stand part debate'' now, providing that other hon. Members do not seek a stand part debate at the end of this debate.

Photo of George Young George Young Chair, Standards and Privileges Committee

That is a most helpful suggestion, Mr. Atkinson. This is not the right point at which to debate the relationship between social services and foundation trusts. If your ruling is that we can have a stand part debate, I shall not say another word.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

Order. The right hon. Gentleman may continue. However, I hope that other Committee members will not rise to speak when I put the question that the clause stand part of the Bill. We would then

have a stand part debate all over again. If the Committee wants to consider this a stand part debate, we shall have one now.

Photo of George Young George Young Chair, Standards and Privileges Committee

The signal has turned from amber to green. I am much obliged.

If, for the sake of argument, a foundation trust generates a surplus, which is one of its objectives, the needs of community-based care should not be set to one side and certainly should not be focused on the narrow needs of the district general hospital.

As social services would not be part of foundation trusts as of right, the only way in which they could be made part of them would be through the intermediation of the regulator. I am not sure that that is the best way in which to proceed. Perhaps the Minister will explain how the new concept in the NHS will not undo the good work done in breaking down the Berlin wall between health services and social services. The NHS has promoted closer relationships between primary care trusts and social services and has introduced joint budgeting and bed-blocking initiatives. I hope that the initiative will not undo that good work.

I am the custodian of the Select Committee on Health, although I am not a member of it. I will therefore conclude by reading from its report:

''The policy of Foundation Trusts does not necessarily mean that partnership between acute and community settings will be damaged, but we believe it does introduce the need for stronger safeguards to ensure continued co-operation between PCTs, Local Authorities, and other NHS organisations across the board, and a continuing emphasis on whole systems working.''

That is the assurance that I seek from the Minister.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I support the points made by the right hon. Member for North-West Hampshire (Sir George Young) and thank him for his support for the theme that was raised earlier in the consideration of the Bill. This is indeed the first time that the words ''overview and scrutiny committees'' appear in the Bill. Of course, questions have been asked before about the danger of over-concentrating on the acute sector, on secondary care rather than on primary care and on the health side of health and social care rather than on social care itself.

We would support the amendment if it were to make the clause stronger, because the bodies listed—specifically the overview and scrutiny committees and the Commission for Patient and Public Involvement in Health, which are, presumably, informed by the views of patient forums, and particularly PCT patient forums, through their reports to the commission—must be taken into account. In that respect, the debate is similar to that on clause 6, during which I asked whether, in considering an authorisation rather than simply a variation of authorisation, the regulator must have regard to the views of local people.

The amendment lists a series of local bodies. The Minister said that the list was too long and would provide an individual veto to too many groups. It would be worrying if the Government could not reassure the Committee that authorisation could not be prevented in some circumstances, either by opposition to the proposed variation of authorisation

from an overview and scrutiny committee or through a properly formulated report to the regulator from the Commission for Patient and Public Involvement in Health.

If the Minister says that ''is to'' is sufficiently strong to ensure that there will not be a variation of authorisation if it is strongly opposed by those bodies, I ask again why that applies only to a variation of authorisation and not to the authorisation itself.

The Minister argued previously that paragraphs 7.10 and 7.11 of ''A Guide to NHS Foundation Trusts'' ensure that local bodies are consulted and that their opinions on authorisation must be taken into account. However, I should have thought that a variation to the authorisation is equivalent to the authorisation. As the Government have seen fit to ensure that there is a specific mention in primary legislation of the overview and scrutiny committee's opinion and the Commission for Patient and Public Involvement in Health in clause 9, I should be grateful if the Minister would explain why, at the very least, that was not required in clause 6.

I hope that the Minister will consider accepting the amendment. It will reassure those of us who understand the reasons given by the right hon. Member for North-West Hampshire why there is a danger of the entire health care system being led by the secondary care system. In planning a holistic health and social care system, hospitals' services especially should follow what is required by primary care and, indeed, the social care sector.

Photo of Andrew Murrison Andrew Murrison Conservative, Westbury

I support amendment No. 139. I am not sure that my hon. Friend the Member for West Chelmsford quite appreciated the hornets' nest that he would be stirring up in moving the amendment, but that has happened, and we are having a fruitful debate on it.

I, too, am concerned with the apparent preoccupation with acute care, which appears to be the main thrust of the Bill. I am also rather surprised by it, as I have said to Ministers before. Hitherto, they have shown a commendable interest in primary care. They were, in fact, steering our health service in the correct direction in so far as they were emphasising less the acute side of the service, which has certainly received most emphasis since 1948, and focusing more on social care and primary care.

I am somewhat surprised, frankly, that we have the Bill, and I am also surprised by its tone. The amendment proposed by my hon. Friend the Member for West Chelmsford would be a very small and incremental step in the right direction. There is little doubt that we focus heavily on the glamorous side of health care, especially hospitals. We tend to be less interested in community hospitals than the acute sector, despite the fact that the former probably add more to the sum total of human happiness, in many respects, than the latter.

I was very interested in the Community Care (Delayed Discharges etc.) Act 2003, which appeared to fracture the relationship between social services and the acute sector. I have a particular interest because,

some months before that, my ten-minute Bill appeared to suggest, in a probing manner, that fining might be a good idea in order to establish a more workable relationship between social services and the acute sector. The Government appeared to take that forward with a vengeance, and there is little doubt that there has been a strained relationship, or that a somewhat strained relationship is developing, between local government and the acute sector partly as a result of that. The amendment proposed by my hon. Friend the Member for West Chelmsford will go some small way to re-establishing the proper relationship that should exist between those two sectors. In truth, social services and the acute sector are one and the same thing as regards health care for our constituents. I commend my hon. Friend for suggesting this small, but significant, adjustment to the Bill. I am sure that it will be extremely fruitful, and I hope that the Committee will be minded to accept it.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

I also commend my hon. Friend the Member for West Chelmsford for having spotted that important point. I support the amendment because I am increasingly concerned about the lack of co-operation and integration in different parts of the country—including the west country—between social services and acute hospitals.

This is an opportunity for us to make it clear in the Bill that we want the new foundation trusts to work closely with social services committees and to listen carefully to reports made to them, the regulator or the general public by any overview and scrutiny committees pursuant to the Local Government Act 2000. That is particularly relevant and important to elderly people, where there is often a gap between the care offered and the kind of co-operation and integration that should take place, largely because funding comes from different budgets—from different jam jars.

That situation may even get worse if foundation trusts are set up that are answerable to a new electorate, rather than to the electorate that puts in place a social services committee or an overview and scrutiny committee on a local authority.

I support the hon. Member for Oxford, West and Abingdon. This amendment would strengthen the provisions set out in clause 9 and ensure that the regulator must have regard to any report made by an overview and scrutiny committee. The best place for that injunction is not in clause 9, which deals with the variation of authorisation—I imagine that that would be a relatively infrequent activity—but in clause 6, because the initial authorisation is surely the most important document that will be published, certainly in the first few years of any new foundation trust. The regulator should have regard, at that stage, to any reports by an overview and scrutiny committee. I hope that the Government will think again.

It surprised me that subsection (2)(a) should appear so expressly in clause 9 but is not referred to at all in the previous clauses on the granting of initial authorisation. That is probably an oversight; these things can happen when drafting detailed, long and

complicated measures, and I hope that the Government will reconsider it.

It is important that, where possible, the Bill should send a signal from the centre to acute hospitals, foundation trusts, social services committees and local government that they should work together in a more integrated and co-ordinated way. This is an opportunity to make that very clear, and I hope that the Government will listen.

Photo of Mr Jon Owen Jones Mr Jon Owen Jones Labour/Co-operative, Cardiff Central 9:45 am, 22nd May 2003

I challenge the emerging consensus that there is an over-emphasis on acute care in this country. Often those arguments are advanced more strongly by people who have direct practice in primary care or social work, and those people are well represented in Parliament and on this Committee. This is not an argument against integration, but if it is true that there is an over-emphasis on acute care and hospital provision, why is it also true that there is clearly an undercapacity for acute care, and that a huge number of our constituents are waiting for acute care? The overwhelming majority of people who come to my surgery—and, I believe, other MPs' surgeries—with complaints about health care cannot access care in hospitals.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

The hon. Gentleman makes an important point. However, constituents come to us and talk about the length of time that it can take to see a GP—it can take three or four days to secure a routine appointment—and to get sufficient help for elderly people in need of support from social services committees. There are issues about access to treatment across the board.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

Order. Under my liberal regime we are having a wide-ranging debate, but the hon. Gentleman is going extremely wide of the clause. I should be grateful if he would bear that in mind.

Photo of Mr Jon Owen Jones Mr Jon Owen Jones Labour/Co-operative, Cardiff Central

I accept your strictures, Mr. Atkinson, and I wish to see the Bill progress. However, hon. Members should understand that the view that acute care in this country receives too much attention is often propounded, but people should look at the evidence available before accepting it.

Photo of Andrew Lansley Andrew Lansley Conservative, South Cambridgeshire

I rise to speak to the clause, which I will not have a chance to do unless I speak to the amendment.

I join other hon. Members in believing that the hon. Member for Oxford, West and Abingdon makes a good point on the issues raised thus far. If there were to be a substantial change of services, consequent to an original authorisation, the Committee would need the assurance that the provisions in the Health and Social Care Act 2001 that relate to overview and scrutiny committees would be engaged in that process, even though they are not separately specified in the legislation.

I have concerns about the relationship with local government, and that is relevant to the point made by my right hon. Friend the Member for North-West Hampshire. When I tabled amendment No. 187, I did not recognise—because I had not then read that part

of the Bill—that paragraphs 106 and 107 to schedule 4 provide for the extension of the requirements for co-operation between NHS bodies and local authorities to include NHS foundation trusts. That statutory provision, contained in the Health Act 1999, will apply.

My right hon. Friend referred to the Select Committee's conclusions on local authorities and primary care trusts, and the arrangements between PCTs and foundation trusts. Those conclusions arose, in part, from evidence given to the Select Committee by Karen Bell, who is the chief executive of Huntingdonshire PCT. She is, quite reasonably, concerned that, although Huntingdonshire may not be the leading PCT for Addenbrooke's hospital—indeed, 97 per cent. of Hinchingbrooke hospital's purchasing is by Huntingdonshire PCT—there is still a substantial amount of purchasing at Addenbrooke's by Huntingdonshire PCT. The PCT is concerned that, as part of its responsibility for commissioning, it needs to have some representation.

I will not re-enter the debate that the Committee had on the representation of PCTs on foundation trust boards, but PCTs must have that link, otherwise they cannot properly fulfil their responsibilities.

We had a debate on Tuesday about the extent of consultation on the variation of authorisation. The Minister rightly said that the regulator must act reasonably and proportionately. That means that written representations can be made by the trust at any time. However, it is unclear whether the regulator may make a variation in an authorisation in circumstances in which the NHS foundation trust had not sought it. On the face of it, it seems that a variation in an authorisation should, in normal circumstances, be at the request of an NHS foundation trust, but that may not always be the case.

To the extent that the request is not always made by the trust, it may be made at the behest of the Secretary of State. That brings us back to the interpretation of the general duty of the regulator. If the regulator interprets his general duty differently on what the provision of a comprehensive health service requires, he might impose a variation in authorisations. Does the Minister therefore agree that there might be an imposed variation?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

That was an interesting and wide-ranging debate, and it raised some important issues. We have already debated some of those issues, and I shall return to the wider themes that have been raised.

I shall, however, first speak to the amendment, because we have rather lost sight of what the hon. Member for West Chelmsford proposed to the Committee. Clause 9 (2) states:

''In deciding whether or not to vary an authorisation the regulator is to have regard (among other things) to''

any report made to him by the overview and scrutiny committees and by the Commission for Patient and Public Involvement in Health.

The amendment would replace the words ''is to'' with the word ''must''. Instead of saying that the regulator ''is to have regard'', it will say he ''must have

regard''. I do not want to get into party politics, but I ask everyone here what the difference is between saying that he ''is to have regard'' and that he ''must have regard''. If anyone can find a difference, I would be very interested to hear what it is.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

There is no need to accept the amendment. The Bill as drafted requires the regulator to have regard to those two entities. With the greatest of respect to the hon. Member for West Chelmsford, there is nothing of substance in the amendment that he has raised. He did not refer to the difference between ''is to'' and ''must'' in his remarks at all—and rightly so, because there is no distinction.

The hon. Gentleman's desire for the regulator to ''have regard'' is already provided for in the Bill. He confused himself over a different point. He thought that his amendment would require the regulator to accept the views of the oversight and scrutiny committee. [Interruption.] He says no, but that is the case. In moving the amendment, he said that the regulator must abide by the oversight and scrutiny committee's reports. His amendment required the regulator to abide by that committee's decision. That is a complete misunderstanding of the role and responsibility of the oversight and scrutiny committee. The context is a situation in which a significant change in service is being proposed. The regulator would have to adjudicate and decide whether there should be a variation in the licence in that situation.

Photo of George Young George Young Chair, Standards and Privileges Committee

The Minister has avowed the argument that there is no difference between ''is to'' and ''must''. Why then, later in the same clause, does it say, ''The regulator must''? Is there any difference there?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

There is not. [Interruption]. This is a very fine debating point. With great respect to the right hon. Gentleman, does it alter anything of substance in the clause? The answer is no, it does not.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

Given that subsection (3) uses the word ''must'', and given that the whole purpose of the amendment—among other things—is to remove any ambiguity, why do the Government not accept the amendment so that there will be consistency and no ambiguity?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

Ambiguity could arise only if, for example, there were some judicial or legal challenge, and the advice that I have received from the Government's lawyers is that there is no difference between ''is to'' and ''must''. There is simply no ambiguity.

Photo of Mr Jon Owen Jones Mr Jon Owen Jones Labour/Co-operative, Cardiff Central

This is a very interesting debate on definitions. I recall the former President of the United States arguing that the definition of ''is'' could be construed in different ways. Perhaps the Minister may like to reflect and reread what President Clinton said. That may help with the case being put forward by Conservative Members.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I shall when I have dealt with my hon. Friend's point. I hold former President Clinton in the highest regard. He was a brilliant President. However, his competence and jurisdiction are limited. His pronouncements about the words ''is'' and ''must'' are unlikely to carry any weight in the courts of England, perhaps for perfectly understandable reasons.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon 10:00 am, 22nd May 2003

The Minister will, of course, be aware that famous court cases in this country have gone as far as the House of Lords on the interpretation of ''the'', ''a'' or ''an'' in a statute. Picking up on my right hon. Friend's point, I note that clause 9(1) uses the words, ''The regulator may'', subsection (3) says ''The regulator must'', and subsection (2) uses the words ''the regulator is to''. Can the Minister not understand that in years to come, lawyers may engage in protracted and expensive cases, trying to work out whether a difference was intended in the use of those words? For the purpose of clarity, it would be worth having the word ''must'' in subsection (2), as is in subsection (3).

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

No. I repeat that there is no difference, in the legal sense, between ''is to'' and ''must''. If the hon. Gentleman is suggesting that lawyers will engage in expensive litigation to try to establish such a difference, of course I cannot rule that out, but it would be a complete and scandalous waste of money.

The hon. Gentleman's other point—that the introduction of ''may'' in subsection (1) casts some shadow over the words used in subsections (2) and (3)—is complete cobblers. It casts no doubt at all. The hon. Gentleman said that the three different words ''may'', ''is'' and ''must'' would add to the confusion over the meaning of clause 9. That—and this is a purely legal term—is cobblers. I doubt that there is extensive jurisprudence about that particular phrase, but everyone knows where I am coming from.

I shall now deal with the point made by hon. Member for West Chelmsford. The word ''may'' was deliberately chosen in clause 9(1) because we want to allow the regulator to have discretion whether to authorise a change in the terms of the licence. It is right that he should have such discretion, which is why we chose the word ''may''. In subsection 9(2), however, the regulator ''is to'' have regard to those two reports and must send a copy of any variation of the authorisation to the registrar of companies. We can dig over the bones of the subtlety between ''is to'' and ''must'' if the Committee really wants. However, I do not want to because it is not a substantive point.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

The hon. Gentleman said, ''It is,'' and we all know that that means he will request a vote. We all looked forward to it—although that is perhaps a slight exaggeration. We all enjoyed the debate about the inevitable amendment about converting ''may'' to ''shall''. Now there is the inevitable amendment about converting ''is to'' to ''must''.

Photo of Jim Dowd Jim Dowd Labour, Lewisham West

Making so much of changing ''is to'' to ''must'' is utterly fatuous, given

that the Committee has nothing to say—there is certainly no amendment on the amendment paper to that effect—about something as vague as ''among other things'', which appears a little further on.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

Yes, indeed. My hon. Friend has helped me out of a hole that I was digging for myself, and I am grateful to him for that. As my hon. Friend said, the hon. Member for West Chelmsford has not achieved the clarity that he wanted.

Let us move on to what, by common consent, is a more substantive issue—although my reading of the amendment and clause leads me to believe that Opposition Members have confused two separate things. Clause 9 deals with varying the terms of the authorisation should a significant service change be proposed. With great respect to Opposition Members, it is not about the wider issue of the relationship between secondary care, social care and other local government services. I absolutely agree that that co-operation is fundamental. To be fair to Opposition Members, they have repeatedly made the case that the Government have tried, not just through legislation, but through policy, resources and other action, to bring down the Berlin wall to which the right hon. Member for North-West Hampshire referred.

Although progress is being made, there is also confusion. The Bill concerns secondary care, but is not about prioritising those needs. The Government want to reform the structure and operation of the secondary care sector. The Bill is designed to do that, but not at the expense of other areas of health and social care. I take on board the comments from Opposition Members and from my hon. Friend the Member for Cardiff, Central. We all share a common interest—irrespective of party—in ensuring closer co-operation, because our constituents ultimately benefit if there is a seamless service between health and housing. Our common interest is to pursue that agenda. In proposing this legislation on hospitals, the Government have not sacrificed that agenda.

The hon. Member for South Cambridgeshire, who increasingly seems to be doing a better job than I am in defending the Government's case—perhaps he would like to come over here and help me out more formally with that—was right to draw attention to other parts of the Bill where co-operation between NHS foundation trusts and social care providers is built into the fabric of the legislation. The hon. Gentleman was right to refer to paragraphs 107 and 106 of schedule 4; he could also have referred to paragraph 23. I acknowledge that we have not yet reached schedule 4, but I look forward to that.

In several parts of the Bill, the Government have carried over the duty of co-operation and powers of flexibility in section 31 of the Health Act 1999 into the ambit of NHS foundation trusts. Therefore, all those advantages have been carried over into the Bill, and it cannot be fairly argued that because we have introduced legislation that deals with secondary care, we have forgotten the other areas of health and social care. With great respect, that is complete nonsense.

The Bill makes provision to ensure that under the Health Act 1999, NHS foundation trusts have the same legal obligations and legal powers as other parts of the NHS. We have included in the Bill the tools that NHS foundation trusts will need, and the legal duties that will need to bear on those, to do what the hon. Gentleman, other Conservative and Liberal Democrat members, and my hon. Friends, have asked.

To be fair, there is no substance in the argument that the amendment is necessary to require NHS foundation trusts to co-operate with social care providers in providing seamless care. That is expressly dealt with in other parts of the Bill.

Clause 9 provides for the much narrower issue of varying the terms of NHS foundation trusts' authorisation. The Bill is clear in that regard. The regulator is to have regard to the views of the oversight and scrutiny committee, not abide by them, as the hon. Member for West Chelmsford said. For the sake of completing the historical tour, may I ask who gave local authorities that competence and role in health care planning and strategic development? Was it the Conservative Party? [Hon. Members: ''No.''] Was it the Government? [Hon. Members: ''Yes.''] Thank you very much. The loyalists respond, even the rabble. A little bit of pantomime never does anyone any harm.

The Committee has taken a long time on this matter. I agree with the points made by Opposition Members and by my hon. Friend: We must ensure that there is proper co-operation between NHS foundation trusts and health and social care providers, and the Bill provides that. Amendment No. 139 has absolutely nothing to do with the issue. We must see all the issues in context. There is substantive policy, and we have addressed it. Amendment No. 139 is a million miles from the issue.

The hon. Member for South-West Devon raised a good point when he voiced his concern that something similar should be in clause 6—but it is. There is a duty to consult, and clause 6 is clear about how to make regulations for primary consultation. There will be consultation with local authorities on the establishment of NHS foundation trusts. My right hon. Friend the Secretary of State will ensure that the regulations extend to that.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

The Minister ought to recognise that that point was well made by the hon. Members for South-West Devon and for South Cambridgeshire, as well as by me. The issue is not consultation because, as the Minister said, that is provided for in clause 6 and in the guide. However, why does clause 6 not include the need to have regard to the views of the overview and scrutiny committee on authorisation? It is good that clause 9 states that the regulator must have regard for primary legislation—I understand what the Minister said about not giving a veto and not being required to abide by any views—but the fact that the regulator should have regard to the views of the overview and scrutiny committee should be included in clause 6.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

The hon. Gentleman could have tabled an amendment to clause 6, but he did not. He cannot

do that now, because clause 6 has already been debated.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I refer the Minister to the Committee's debate on 20 May, when an amendment, tabled in my name, to clause 6 was discussed. Amendment No. 246 said that the application should be

''endorsed by the relevant local authorities, primary care trusts, patients' forums and representatives from local staff side organisations;''.

In introducing that amendment, I made the point that the overview and scrutiny committee was the appropriate place for that to happen. The Minister said that that would represent a veto. Is it possible to compromise and use the language of clause 9 in clause 6?

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

We can return to that issue on Report or later in the Committee. I have not yet read the hon. Gentleman's speeches in Hansard, but I will do that over the weekend. Clearly I need to get out more.

The hon. Member for South Cambridgeshire asked whether the independent regulator could vary the terms of authorisation if a foundation trust did not want that to happen. The answer is yes, if it is necessary to do so. The obvious circumstance in which it could happen is that of failure of the foundation trust as set out in clause 23—and rightly so. The regulator should have the ultimate jurisdiction, and the Bill provides for that. It should be a rare occurrence: we do not expect the regulator to have to vary the terms of authorisation regularly, as it would imply that something was fundamentally wrong with the operation of an NHS foundation trust. The whole point of starting the process with our best performing hospitals is to avoid such a situation.

Photo of Evan Harris Evan Harris Liberal Democrat, Oxford West and Abingdon

I am keen to spare the Minister the pleasure, or burden, of reading the Committee's debate on clause 6. Why does the Minister feel that it is appropriate to insert in clause 9(2) that to vary authorisation,

''the regulator is to have regard (among other things) to

(a) any report or recommendation made to him by virtue of section 21(2)(f) of the Local Government Act 2002 (c.22) (overview and scrutiny committees),''

when he does not feel it necessary for the regulator, under clause 6, to have regard to such reports when authorising the original provision of services for an NHS foundation trust? If the Minister can answer that question, we will not need to return to it at a later stage.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

It is clear from the way in which clause 6 has been constructed, given the regulator's wider public law duties, that he must have regard to the views expressed during the consultation process, and we intend that that will happen. The hon. Gentleman makes a fair point about the wording of clause 6(4). If it does not achieve our intended purpose, I am prepared to look at it again. I shall not exclude that possibility.

The independent regulator is not beyond the normal principles of administrative law. If, in the process of consultation, he disregards all the views expressed, the argument could be made that he has not considered those views properly, as he is required to do

as part of his statutory and wider public law duties. The hon. Gentleman's point is simply about the technical wording of the clause and not the substantive issue of principle. I agree with the hon. Gentleman that the Standing Committee is the stage at which we consider the technical wording of the Bill, and we are prepared to have another look at that. However, there is no substantial difference between his point of view, my point of view and the Bill. The wording is different; that is how it has been drafted by parliamentary counsel, but I am satisfied that the Bill delivers the policy that we have set out consistently in ''A Guide to NHS Foundation Trusts'' and in speeches that my right hon. Friend the Secretary of State for Health and other Ministers, including the Prime Minister, have made about foundation trusts.

The amendment adds nothing of substance to the Bill. The hon. Member for West Chelmsford disagrees, and I accept his right to do so, but there is no legal difference between ''is to'' and ''must''.

On the wider, more substantive, point, I have tried to explain to the Committee that I agree that we must ensure that NHS foundation trusts work in close collaboration with other social and health care providers. The Bill will do that, and nothing in clause 9, as it is currently worded, will affect that position.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health) 10:15 am, 22nd May 2003

I have listened carefully to the Minister on the narrow issue of the specifics of amendment No. 139. I still think that clause 9 is inconsistent and gives rise to ambiguity. Subsection (1) contains the word ''may''; subsection (3) contains the word ''must'', and if the Minister's view, that ''is to'' is exactly the same as ''must'', is to be accepted, why, in his response to an intervention from my right hon. Friend the Member for North-West Hampshire, did he say that ambiguity will arise only if there are judicial proceedings? If that is the case, surely it is better to make the change at this point, given that the Minister said that it is a terribly minor matter. It is a sign of strength, not weakness, to accept Opposition amendments.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I am happy to accept Opposition amendments when they add something to the Bill; I will not accept Opposition amendments when they do not add anything to the Bill, and this amendment does not add anything to the Bill.

I did not say that ambiguity would arise because of judicial challenge. I do not believe that there is any ambiguity. Neither I, nor any Standing Committee, can draft a Bill that will stop lawyers challenging the wording of legislation. However, the wording is crystal clear.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

I understand the Minister's point about possible judicial proceedings: no one knows what will happen. Nevertheless, my bottom line is that there is some ambiguity.

If inserting the word ''must'' makes no change to the legislation, but would make it consistent, particularly with subsection (3), I do not understand the Government's reluctance to accept the amendment. It is a minor point on a narrow issue,

but it could have far-reaching implications, as it would make the Bill consistent. The Minister obviously will not budge, and he correctly anticipated my sedentary intervention earlier. I shall invite my hon. Friends, and others, to join me in pressing the amendment to a Division.

Photo of Andrew Lansley Andrew Lansley Conservative, South Cambridgeshire

I hope that I shall not impose on the Chairman's generosity in allowing this to be the equivalent of a clause stand part debate, as I shall not talk about the precise wording of the amendment.

My hon. Friend the Member for West Chelmsford raised an important point in his opening speech. He said that the Royal College of Midwives has concerns about whether a foundation trust that provides maternity services would be free to opt out of that provision, and how that would work.

Although we had a wide-ranging debate, the Minister did not pick up on every point, and this useful point should be clarified. I shall set it out as I understand it, and the Minister can tell me whether I am right.

I am going to use Addenbrooke's as an example, and I declare an interest in that 11 weeks ago my wife was the beneficiary of the maternity services of that hospital. Therefore I had a vested interest in the provision of maternity services at Addenbrooke's, and I still have a constituency responsibility. If Addenbrooke's were to consider opting out of offering maternity services—no one thinks for a minute that that is possible—it would be a significant change of services, subject to precisely this kind of variation. That would be the subject of scrutiny as provided for by sections 7 to 10 of the Health and Social Care Act 2001.

We discussed the regulator's duty to ensure the provision of comprehensive health services, and that provision is in the Bill to assure parties such as the Royal College of Midwives that a foundation trust could not stop providing maternity services. Such services remain part of the general duties that are laid on the regulator and on the Secretary of State under clause 3. In so far as maternity services were needed, they would be provided as part of the continuing comprehensive health service in England.

Photo of John Hutton John Hutton Minister of State, Department of Health, Minister of State (Department of Health) (Health)

I am grateful to the hon. Gentleman for giving me a chance to confirm that point. NHS foundation trusts will not be free to withdraw unilaterally from providing NHS maternity services. Those services will be protected services under authorisation, and any change to them would require local consultation. The regulator's approval would also have to be sought.

In addition, in deciding whether to approve the terms of an authorisation change, the regulator would have to take into account the wording in clause 14(6), which requires him to have regard to the availability of similar services elsewhere in the locality. There is absolutely nothing in the Bill to give a foundation trust the freedom to pull out unilaterally of the provision of essential NHS services of its own volition.

Photo of Simon Burns Simon Burns Shadow Spokesperson (Health)

On reflection, I shall not detain the Committee on this matter any longer, because I would rather that this, and the whole question of local government involvement, were considered at a later stage of the proceedings. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Peter Atkinson Peter Atkinson Conservative, Hexham

Who would have thought that such a simple amendment could stimulate such debate?

Clause 9 ordered to stand part of the Bill.