NHS (Charitable Trusts Etc) Bill — House of Commons, 2016-01-22
Topic: Health
Jane Ellison (Conservative, Centre-right): That is a helpful note of clarification. I sense we all felt that beneath the Private Frazer amendment lurked a Private Walker amendment instead. My hon. Friend is right to draw our attention to some very high-profile exceptions to the general rule. His exposition of the challenges that some high-profile charities face was compelling. It is helpful for us to have that on the record and to go forward with consensus on the merits of being a charity trustee Amendment 3 seeks to give the Secretary of State the power, in the regulations he may make, to make provision consequential on the removal of the Secretary of State’s powers to appoint trustees in clause 1(1) to make "provision for one trustee to be appointed by the NHS institution, service or function for whose benefit the charitable trust exists." The guidance to NHS charities, produced jointly by the Department of Health and the Association of NHS Charities, suggests that the constitution of the new independent charity could provide for at least one trustee on the board being appointed by, or from, the NHS-linked body. It is a suggestion, rather than a binding obligation, that the new charities constitution should make this provision. The constitution of the new independent charity is a matter best decided by those nearest to the beneficiaries. In the case of an NHS charity with separate trustees, the board of the linked NHS body must support the terms of the conversion, including the terms of the new charity’s constitution, for the Secretary of State to agree to the revocation of their appointment. In the case of a charity with corporate trustee arrangements, it is self-evidently the board of the relevant NHS trust or NHS foundation trust that agrees the constitution of the new charity—again, offering that safeguard Ultimately, this is all about independence and local autonomy. The level and the nature of the agreement between the NHS body and the new charity needs to be a matter of local agreement. It is a matter for the local NHS and the charity to agree a constitution for the new independent charity that best meets the needs of beneficiaries Amendment 3 has similar technical difficulties to those I outlined in relation to amendments 2 and 4. It is unclear to which bodies amendment 3 relates, and what is meant by "the NHS institution, service or function" A service or function referred to in the amendment cannot appoint a trustee. Again, I am afraid that such regulation-making power would not be workable Amendments 5 and 6 seek to remove the requirements that the regulations, which may make provision consequential on the removal of the Secretary of State’s powers in clause 1(1), would have to be subject to the affirmative resolution procedure if they amend legislation. Instead, the two amendments propose that the removal of the Secretary of State’s powers should be subject only to the negative resolution procedure. We believe that the affirmative resolution procedure is the appropriate form of oversight for these regulations. Parliament should have the opportunity actively to debate and vote on secondary legislation that amends primary legislation. Making such regulations subject only to the negative resolution procedure would not provide an appropriate level of parliamentary scrutiny There has rightly been much discussion this morning about the appropriate level of parliamentary scrutiny—and indeed the meaning of the word "appropriate"—but I think there was a strong feeling in the House that there are moments when parliamentary scrutiny is very important, particularly when it can be done with the level of detail we have seen this morning. I believe the current level of parliamentary scrutiny provided for in the Bill for this regulation is appropriate, and there are a huge number of precedents to support this approach I thank my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) for tabling amendments 7 and 8. The amendments seek to provide that the regulations that may be made by the Secretary of State under clause 2(1) to transfer trust property from appointed trustees for an NHS trust or NHS foundation trust back to the NHS trust or NHS foundation trust, should be subject to the affirmative resolution procedure. The amendments would also require that such transfers be accompanied by a statement by the Comptroller and Auditor General—again, a title that attracted a bit of debate in itself—that he is satisfied with the treatment of public assets and funds envisaged in the regulations.