NHS (Charitable Trusts Etc) Bill

Jacob Rees-Mogg Excerpts

Friday 22nd January 2016 Commons Chamber

[Michael Tomlinson]

My hon. Friend makes a sound point: one must always balance the benefit and the cost. I do not have figures on the cost of the consultation, but I think he will agree that the principle of a public consultation is a sound one, and that is what I am speaking to.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

Will my hon. Friend explain what he means by “appropriate”? Does it mean the Secretary of State should ask a few mates in the pub what they think of the proposals, or a more formalised system through petition of this House?

[Michael Tomlinson]

I shall turn to what I mean by “appropriate” in due course, but I think hon. Members on both sides of the House will know on plain reading of the word “appropriate” what is or is not appropriate.

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[Michael Tomlinson]

I am very grateful for that guidance, Mr Speaker.

[Mr Rees-Mogg]

I remind my hon. Friend that he said he would explain what the word “appropriate” meant in this context, which is an important point for the House to be clear upon.

--- Later in debate ---

[Michael Tomlinson]

I am grateful for that intervention, but my view is that in this case it is unnecessary to use the affirmative procedure to approve the matter and the negative procedure would suffice. I understand the point that my hon. Friend makes, but I respectfully suggest that these amendments are appropriate. I was looking up one of the notes in the Library, perhaps one prepared by one of your predecessors, Mr Speaker, and I found that it stated that the affirmative procedure is less common, being used in perhaps only 10% of cases.

I will not take up time by referring to the other amendments, merely noting that several and other hon. Members will speak to them in due course. I look forward to a constructive debate on this group.

[Mr Rees-Mogg]

I had not intended to follow on so quickly, Mr Speaker, as I thought there would be a great rush to the barricades of people wanting to speak. I am moved to speak in opposition to what my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) is proposing before dealing with my own amendments. I am very concerned about what he is suggesting, given its radicalism and its move away from proper parliamentary scrutiny and from the sovereignty this House enjoys. He asks us to throw all that away for this vague “appropriate” consultation. One of his amendments would remove the following provision in the Bill:

“A statutory instrument containing regulations under subsection (2) which amend or repeal primary legislation…may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House”.

You will know, Mr Speaker, that one of the most dangerous powers this House can give to Ministers—one we have always been cautious about giving them—is the power to amend primary legislation without going through the normal procedures for repealing primary legislation. Therefore, slipping in an amendment to a Bill that would take away that safeguard from this House and the other place, and allow things to be nodded through, is an extraordinarily radical proposal. It takes away the authority of this House and is therefore fundamentally dangerous, and so I oppose it.

[Jeremy Quin]

Does my hon. Friend envisage any de minimis provision whatsoever? Should everything come before this House as primary legislation?

[Mr Rees-Mogg]

If primary legislation is being changed the default position should be that it can be changed only by primary legislation. That should not be subject to a de minimis level because primary legislation is by its nature important. If something is not important, why is it in primary legislation? If it is in primary legislation it can be assumed that it is a matter of such nature, state and standing that it has required this House, the other place and Her Majesty to approve it. If we are dealing in trivialities, that is a broader constitutional question that should be considered and we should stop doing that. If something is in primary legislation, it ought, as a starting point, only be changed by primary legislation.

To allow Ministers what have been known as Henry VIII clauses to wipe out primary legislation is something that constitutionalists have been concerned about for many years. That is why I am very uncomfortable with this provision being slipped in as an amendment and brushed over when what it does is of fundamental importance and is quite rarely used. My hon. Friend the Member for Mid Dorset and North Poole made the point that the affirmative route for statutory instruments is rarer than the negative one, and that is quite correct, but the negative one is mainly used for routine regulations that do not engage in any change to primary legislation. When primary legislation is changed, that ought to be brought to the House.

[Michael Tomlinson]

My hon. Friend says that this is being slipped in, but surely now, today, we have the opportunity to debate it and he has the opportunity to speak against it. We are having that discussion right now.

[Mr Rees-Mogg]

That is absolutely right, but I think that slipped in is a perfectly fair phrase on Fridays, because the debates then tend to be quiet and relatively poorly attended. However, it is nice to see our Benches so full and well trooped, if I might say so, by people who are in the Chamber to support the Bill. I am rather surprised that our friends from Scotland are all absent, but I suppose that the Bill does not immediately affect them, at least not in the first half.

I want to move on to the comparison between the amendment getting rid of the affirmative route for statutory instruments and the one on public consultation. It seems to me to be an extraordinary approach to take to say that when a regulation is changed by the Secretary of State, it is better that it should be consulted on with a group of self-selecting individuals who take the time to get in touch, taking away the ability of this House to act as that safeguard and check. Surely we are here, with a democratic mandate, as the main people to be consulted on behalf of our electorate, to whom we have to report every so often. Issues should not be put out to local consultation, which, as my hon. Friend the Member for North West Hampshire (Kit Malthouse) said, is often more of a fig leaf and an attempt to consult and either achieve a result that is already intended. If not, the consultation is ignored. Consultation has become immensely fashionable and we should always be cautious of fashion. Fashion ebbs and it flows, it comes and it goes, but there is a permanence to this House and in our way of doing things. We are the democratic sounding board for our constituents, so that there are not endless self-selecting consultations with people who are not necessarily particularly interested in the issue.

[Mr Speaker]

Order. If the hon. Gentleman himself has ever been fashionable, which is in itself extremely doubtful, it can only have been by accident.

[Mr Rees-Mogg]

Mr Speaker, as always, you are correct. I think that I would take being called fashionable as a grave insult, although I know that your ties are regularly a model of fashion.

[Michael Tomlinson]

Moving away from the dangers of fashion back to the substance of what we should be debating, will my hon. Friend address the point about the principle of the public consultation and the fact that this very Bill was the product of public consultation?

[Mr Rees-Mogg]

I am grateful to my hon. Friend for that intervention, but I am afraid that I think that most public consultation is bogus. It is about going through the motions and pretending we are interested in views when the Government, or councils or whatever else, want to get on and do whatever they wish to do anyway. It simply allows opportunities for judicial review to gum up the process. We should be incredibly cautious about chucking public consultation into Bills, because that does not actually achieve anything.

[Seema Kennedy (South Ribble) (Con)]

Does my hon. Friend agree that our constituents would look on agog at a Bill designed to simplify the process requiring a three-year consultation followed by yet another one?

[Mr Rees-Mogg]

My hon. Friend hits the nail on the head. That is the problem with this endless consultation; nothing gets done. Last May, people voted and gave us a mandate to do things, not to ask them what we should do.

[Michael Tomlinson]

May I ask my hon. Friend to consider this point? He mentioned the word “appropriate”. Nowhere does my amendment suggest a three-year consultation period—rather, it suggests an appropriate consultation.

[Mr Rees-Mogg]

I raised the question of what the word “appropriate” meant earlier and I was indeed intending to come back to it. Appropriate, inappropriate, unacceptable and disappointing are those new Labour words that get dropped into conversations and they mean remarkably little or what, in a Humpty Dumptyish way, what the person hearing them wishes to think that they mean. What is an appropriate consultation? There is no qualification or clarification in the amendment, so what is it intended to achieve? Does “appropriate” mean that signs should be put on noticeboards, as with planning issues? Does it mean that letters should be written to local residents? Does it mean that something should be squirrelled away on the internet? Does it mean that a paper should be laid before this House, or put in the Library, where, no doubt, many people would follow its contents closely? Or does “appropriate” mean that the Secretary of State has a word in his office with the permanent secretary, saying, “Do you think this would be a good idea, Sir Humphrey?”, then Sir Humphrey replies, “Well, you would be very brave, Minister,” and then the idea is dropped on the basis of that consultation? Does it mean the Secretary of State can have a word at home with his family—with his kitchen cabinet—telling them that he is minded to appoint or not appoint a few trustees? I could tell all sorts of anecdotes about how that used to happen in the good old days, but I think it might be wandering slightly from the point. “Appropriate” is a very imprecise word and legislation ought to be precise.

[Kevin Foster]

My hon. Friend is giving us the benefit of his usual style of speech—[Interruption.] Of fashionable speech, yes. It is certainly in fashion on a Friday to hear my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) speak so well. Does he agree that the problem is that “appropriate” can mean anything under the sun and that various people have different views? For example, with the recent pension changes, some have said that the information should appear in adverts in the press and others that it should be provided in individual hand-delivered letters. This term is so vague and really would have to be defined. I think it is strange to say that we want to consult if we are handing out something that is unlikely to get more than a handful of responses given its detailed and technical nature. That will merely build up in the public’s mind the idea that yet again people have decided what they will do and are now consulting on it.

[Mr Rees-Mogg]

I agree with my hon. Friend. I want to finish on this set of amendments by saying that this House should be jealous of its role as the major focus of consultation in the nation. We were elected to represent our constituents and therefore to express views on these issues. That is why we are here, and what is done with consultation so often is a pretence. It is not about the Government wanting the wisdom of the millions before making up their mind but about the Government wanting the comfort of having been through a rigmarole to get what they wanted in the first place. We should not give up our authority lightly or increase the power of the Executive.

I know want to turn briefly to the amendments tabled by my hon. Friend the Member for North West Hampshire, which are absolutely glorious in their conception. They basically reverse what the Bill is trying to do in the first place, which is a great thing for him to have slipped past our ever-attentive Clerks. That does not often happen on Report. Perhaps the amendments—and this is why our Clerks in their wisdom let them go through—would ensure that there is a safeguard. Safeguards may be sensible. There have been occasions where charities have got into trouble when public money is being spent. Although it is broadly considered a good idea to remove the power from the Secretary of State to appoint trustees so that a decision is made more locally and so that the construction of the charities may be more suitable for the local organisations—that has a great deal of support —we know that something will go wrong at some point.

That is not a particularly Cassandra-like view to take; it is just the experience that we have. We know that there will be a small charitable hospital that puts all its money into an Icelandic bank, for example, and suddenly loses it. The trustees get criticised and attacked, or they write 3,000 letters a year to elderly ladies asking them for money and are seen to have behaved badly. Then somebody will come forward, probably a Member of this House, who will ask the Secretary of State at Question Time, “Why is it that you, Secretary of State, are not doing anything to stop this problem arising? Why have you not kept those residual powers? Why did you not ensure that when the Bill went through Parliament, there was a safeguard, something to protect—”

[Maggie Throup]

I agree with my hon. Friend’s argument. That could happen to any charity, not just an NHS charity, so why introduce safeguards specifically for NHS charities?

[Mr Rees-Mogg]

My hon. Friend makes an interesting and important point. NHS charities are different because of the structure of the national health service and the conception of the national health service in people’s minds. There is much less of an immediate governmental interest, or concern with, ordinary private charities that were founded sometimes centuries ago with grants from generous benefactors that through the mists of time have evolved and developed. NHS charities work side by side with the state in all that they do, so they are a marginal extension of the state rather than something completely different from it. If we draw a Venn diagram of the third sector, we have a part that is very private and another part that is very much state. NHS charities are very much in the state part of the Venn diagram.

[Kevin Foster]

I thank my hon. Friend for giving way. He is generous with his time, as always. He talks about NHS charities being close to the state and therefore needing particular provision, but many other charities work closely with our national health service. I think of Rowcroft hospice in my constituency which provides palliative care across south Devon. Why, then, safeguard only certain charities? Why not expand it to all? The amendments do not strike me as worth while.

[Mr Rees-Mogg]

My hon. Friend ignores the starting point, which is that the Secretary of State makes the appointments, whereas that has never been the case for other charities. They have evolved differently, whereas NHS charities are evolving out of the NHS, more towards the private sector. To put in place a safeguard which one hopes would not be used seems to me quite a prudent thing to do. It says, “This is our hope, this is our intention. We expect it to work and we think it will work in the vast majority of cases and make NHS charities more like other private sector charities.”

[Wendy Morton]

Will my hon. Friend give way?

[Mr Rees-Mogg]

Of course I give way to the promoter of the Bill.

[Wendy Morton]

I am grateful. The Charities (Protection and Social Investment) Bill is proceeding through this House. It comes back to the Chamber next week, giving us the opportunity to hear more about the work of the Charity Commission. Does my hon. Friend agree that when the NHS charities that we are discussing today become independent, there is the assurance that they will be covered by the Charity Commission? That goes a long way to ensuring public trust in those charities, which is the crux of the matter.

[Mr Rees-Mogg]

I suppose the answer is “Up to a point, Lord Copper.” The Charity Commission has marvellous and admirable elements. It has a brilliant chairman who has been a great force for good in that organisation, sorting out some of the problems that it had before his appointment. I think particularly of the dreadful treatment meted out to the Plymouth Brethren before he was there. It is none the less an unelected, unaccountable quango. I take the rather extraordinary view that we should trust our democratically elected politicians more than we should trust the unelected. That is why I am always banging on about this House maintaining its own powers, and why we should hold Ministers to account. We should be very cautious about thinking that an independent, unaccountable body is a better supervisor than the democratic will of the nation expressed through this House.

When responsibility is shifted, it is prudent to do that cautiously, in stages, and to keep a safeguard in place. When the first case goes wrong, which it will—within 10 years something will have happened; there will be an NHS charity where the accountant has snaffled off all the money and gone to Barbados or wherever it is fashionable to go at this time of year, or perhaps gone off to South Africa to watch the test match—at that point people will say, “Why didn’t the Government do something about that? Why have they not got a plan? Why didn’t they make sure that they could keep it under control?”. Having a protection, possibly even a time-limited one—

[Jeremy Quin]

I agree with the gist of what my hon. Friend is saying, but does he agree that if that power exists, it is even more likely that charities will fall into that predicament? If they are fully cognisant of their own responsibilities and know that they have to look to themselves to ensure that such problems do not occur, it is far more likely that fewer such problems will occur.

[Mr Rees-Mogg]

No, I cannot follow the logic of that argument. I do not think charities will be more likely or less likely to have ill governance because the Secretary of State is in or out. The protection would be there in case there is ill governance, which there invariably is to a small degree. In charities, businesses and Governments there is invariably ill practice somewhere along the line, and I do not think the motive for ill practice is affected by the knowledge that the Secretary of State may be keeping an eye on them or a feeling that he is not doing so. We need to ensure that if the problem arises, there is a safeguard—a mechanism to put things right.

[Jeremy Quin]

My hon. Friend misunderstood me. I was not for one moment suggesting that a board may be encouraged to act in an adverse way because of powers resting with the Secretary of State. A presence that could rescue a charity in dire straits may influence the judgments of a board of trustees.

[Mr Rees-Mogg]

I quibble about the word “rescue”. It is not so much rescue as fire. If the trustees do things badly, the Secretary of State may fire them and put other people in their place. That would not encourage slackness, idleness or malpractice. It would encourage probity, forthrightness and good management. The logic of my hon. Friend’s argument supports what I am saying, rather than what he thought he was promoting.

My hon. Friend the Member for North West Hampshire has proposed extremely sensible, prudent measures that will keep a broad eye on what is going on.

[Kevin Foster]

I am listening to the points being made, but I am still struggling to understand why a handful of NHS charities performing wrongly would be any different from any other charity performing wrongly. I see the hon. Member for Bristol South (Karin Smyth) in her place. We remember the recent discussions in the Public Accounts Committee about the Kids Company collapse. Why should we not have a good system of charity regulation, rather than a specific power, as suggested in the amendments?

[Mr Rees-Mogg]

I reiterate—I am sorry, Mr Speaker, to reiterate. I may be becoming repetitive, but I hope not yet tediously repetitive; that may come at a later stage. We need to look at the starting point. These charities are coming out of the control of the Secretary of State. To move them completely away from his control in one fell swoop may be relatively imprudent, whereas to do it more cautiously and keep a safeguard is perfectly sensible. By contrast, in the case of charities that have never been under the Secretary of State and have never had their trustees appointed by the Government, it is perfectly sensible to leave them with their existing regulatory system.

[Wendy Morton]

We have had a lot of debate about the term “appropriate”. What exactly does my hon. Friend mean by “cautiously”? I have to say that I am very sceptical about this amendment.

[Mr Rees-Mogg]

I am grateful to my hon. Friend for trying to out-pedant me, which is a great thing to do, and she may well have won this particular bout of pedantry. By “cautiously” I mean proceeding in a step-by-step way. I am fully supportive of the thrust of what her Bill is trying to do, which is admirable, sensible and wise. I am merely suggesting that in seeking to reach the same destination, we should ensure that there is a fall-back position in case things happen that are less than ideal. That is simply a matter of good sense and good housekeeping. There is no need to do everything in a great rush. As somebody once said, “Rome wasn’t built in a day”, and there are no doubt other clichés of a similar kind that I could use.

I want to turn to my own amendments, two of which are concerned with preserving the rights of this House. Amendment 8 would remove clause 2(8), which is about how the statutory instrument setting out regulations of this kind should be brought forward. It would ensure that a draft of the instrument is laid before the House and approved by a resolution of each House of Parliament. Laws are always best made when they go through the full democratic process, controls are kept on Ministers, and we do not have arbitrary government.

We need to ensure that the assets underlying this are being protected, so in amendment 7 I suggest that there should be a statement by the Comptroller and Auditor General—a comptroller who is properly spelt rather than a controller with the modern spelling—that he is satisfied with the treatment of public assets and funds envisaged in the regulations. This is public money, to some degree—money that is under public auspices.

[Jeremy Quin]

I challenge my hon. Friend on that remark. Surely it is not public money but charitable money. It has been invested in the charity by donors, and the last thing they would expect is for the Comptroller and Auditor General to opine on it.

[Mr Rees-Mogg]

I go back to what I said earlier about where NHS charities sit. By virtue of the money being given to a charity that supports the NHS, that money comes into the public purview and is subject to the way in which the public sector ought to ensure the good management of money. That is why I think it is appropriate—“appropriate”; I am using that awful word—rather, suitable and proper that it should be audited thoroughly to make sure that assets are not handed over that should not be handed over or misappropriated, and to give confidence to this House, and indeed to the other place, that moneys are being sensibly protected. These are very modest amendments.

[Kevin Foster]

Does my hon. Friend agree that some of his comments strike against the heart of this Bill, which says that these charities should be independent so that people feel encouraged to donate to them rather than feeling that by doing so they are replacing what could be, or they might believe should be, funded by the Government. Saying that it becomes public money when donated hits at the whole point of the Bill.

[Mr Rees-Mogg]

What a pleasure it is to see you taking the Chair, Madam Deputy Speaker. We have been waiting for this happy hour to arrive to help us carry our debates forward.

No, I do not think my hon. Friend is right. When people give money to a charity that is linked to the Government, they are even more concerned that it will be spent well, and they therefore want extra protections to assure them of that.

[Seema Kennedy]

Does my hon. Friend not agree that the entire point of the Bill is to dissociate the charities from the Government and to provide independence, which is what gives them such a great reputation in their local areas?

[Mr Rees-Mogg]

As I said, it is a question is how we get to where we are going from where we are starting. As we make the transition, it is absolutely crucial to ensure that the money is handed over in a way that is properly audited so that people can have confidence in the NHS charities and not feel that there is some kind of sleight of hand or money is being siphoned off.

[Wendy Morton]

Does my hon. Friend not agree, though, that funds donated to the NHS and put into these charities must be held separately from Exchequer funding provided by the taxpayer? Charities exist to support their beneficiaries, and there is a special relationship between the charities and the—

[Wendy Morton]

Thank you, Madam Deputy Speaker. It is wonderful just to be able to imagine my hon. Friend in my mind. I have finished my intervention, but I am grateful for your advice and reminder.

[Mr Rees-Mogg]

Thank you, Madam Deputy Speaker. This has been a very distracting interlude, I must confess.

The key is the safeguarding of money and ensuring that things are done properly with an audit trail.

[Kit Malthouse]

Does my hon. Friend agree that my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton) gave herself away at the beginning of her intervention when she referred to this money being donated by the public to the NHS? In the public’s mind, there is often a confusion between the charity and the institution that it serves, and it is therefore crucial to have these controls.

[Mr Rees-Mogg]

My hon. Friend puts it extremely well. That confusion is almost inevitable. In the case of charities linked to hospitals, most members of the public will expect the money that is spent charitably to be as thoroughly audited as the money that is spent by the state, and it is prudent to formalise that.

[Jeremy Quin]

I am desperately trying not to look at my hon. Friend; I will try to imagine him. He is being typically modest in saying that these are modest proposals, as they go to the heart of the Bill. He refers to the necessity of an audit trail, and I agree. However, there are plenty of very good firms of auditors fit and proper for making such pronunciations, so I do not see why we need to trouble the Comptroller and Auditor General, who is a busy man with lots of other stuff to do.

[Mr Rees-Mogg]

My hon. Friend’s kindness towards the Comptroller and Auditor General is, I am sure, noted in many other places beyond this one, and I expect that his office would be delighted not to have the extra work. However, my hon. Friend is missing a point that I may already have laboured, so I will labour it only once more. This is a transition phase. This money is very close to public money. It is in a Neverland, one might say, in that it is not quite separate from charitable money and not quite ordinary public expenditure. Therefore, keeping an eye on how it is used in the most formal and protected way, at least in an initial stage, is a prudent way of ensuring that the assets are not used or transferred unsuitably.

Amendment 9 is different in nature and arises from a constituency issue. A constituent of mine, with the support of the NHS, established a charity that put defibrillator boxes around the country. These are very admirable boxes that operate in conjunction with the ambulance service and have been shown to save lives by ensuring that defibrillation equipment is available throughout small villages across the country. It has been a most successful charitable endeavour.

While my constituent was working with the ambulance trusts, they wrote to him to say that it was perfectly all right—indeed, they wanted him to do this—to put the ambulance service logo on the boxes, so that people would know that they were formally connected to the NHS. He then received a letter out of the blue from some little-known bureaucracy that protects the NHS logo. I understand the reasons for that: we do not necessarily want random private companies to call themselves the NHS or for unrelated businesses to use the logo. Some protection is needed, but the letter struck me as a heavy-handed way of going about things. It was an excessive response to something that was linked to the NHS and that was, at its core, a health issue operating with and through the support of the NHS.

The amendment would merely make it straightforward for the Secretary of State to overrule the whole procedure. When there is an issue of this kind, the Secretary of State would have the power to say, “Well, there may be this bureaucracy that safeguards the NHS logo, but I am overruling it and giving permission for the logo to be used, because I think it is a sensible thing to do.”

The reason I like the amendment is that, in a strange way, it relates to what this place is about. It is about seeking redress of grievance for our constituents when they are badly treated by bureaucracy. The best way of doing that is not through independent, unaccountable and unelected bodies that have been separated off from Government, but by a Minister being held accountable at the Dispatch Box. That is how we get things put right for our constituents.

This very small amendment would simply allow the Secretary of State to short-circuit the system when it is behaving badly. It provides that the permission given by the Secretary of State can be cancelled with six months’ notice, which is a reasonable amount of time for people to change any boxes, stationery or anything else they may have with the NHS logo on it, if they are found to have been abusing the permission or for some other reason. The principle that power should be with democratically elected people, and that it should be there to override offshoots of bureaucracy that nobody previously knew about or cared for, is a very good and sound one. As I understand it, the issue that my constituent has had has been mainly sorted out, but the amendment would be a better and clearer way of dealing with such things.

Of the amendments that I have tabled, amendment 9 is of the greatest importance to me. As is the case with so much of what I have been saying, it is about the fundamental principle of what we are trying to do when we legislate. We are trying to ensure democratic accountability and the rights of our constituents, and not to be constantly handing things over to ever-growing bureaucracies.

[Kevin Foster]

The primary aim of this Bill is to make very clear that the charities are independent of the Government. The NHS logo relates to an organisation that is the epitome of what many people see the public sector as being about—that is, the Government. My hon. Friend’s amendment would, therefore, strike at the very heart of the Bill and make it less worthy.

[Mr Rees-Mogg]

My hon. Friend is absolutely wrong. He has misunderstood, misconstrued and possibly even misread the amendment, which uses the word “may”. I am not compelling the Secretary of State to go out and chuck the logo on to every box he sees all over the country or to spray the NHS logo on every shopping centre he passes. I do not see him as a vandal going around with a spray can and a little cut-out stencil, spraying “NHS” on everything or engraving it on our foreheads when we come into the Chamber. That is not what the amendment proposes—it uses the word “may”. It says that when those charities that work immeasurably closely—hand in glove, on some occasions—with the national health service find it useful to use the logo and the Secretary of State thinks it is a good idea, he may give them the authority to do so.

[Michael Tomlinson]

Is my hon. Friend not at risk of falling foul of his own test? He criticised my amendment’s use of the word “appropriate”, but is not his use of the word “may” just as vague and risky?

[Mr Rees-Mogg]

Of course not. “May” is a very precise word: it is an allowing factor and it gives permission to somebody to do something, and they are allowed to use their discretion to do it. The amendment uses “may” so that people may go directly to the Secretary of State, who is democratically accountable, and get the decision made, rather than have to go off to a bureaucracy that is not accountable or that is accountable only indirectly. “May” is about restoring democratic and, ultimately, parliamentary control over something that belongs to the nation as a whole.

--- Later in debate ---

[Jeremy Quin]

I was halfway to asking whether my hon. Friend would give way, so I am glad that he has invited me to intervene. His argument in favour of the amendment is very persuasive, but I am not fully convinced. Some liability is accrued by the use of a well-known logo associated with a national asset such as the NHS. Does he believe that the Secretary of State is the right person to be the final arbiter of whether it is acceptable to the public purse to undertake such a liability? The charities may be doing a great thing, but they are not actually the NHS.

[Mr Rees-Mogg]

I am grateful to my hon. Friend for giving me the opportunity to clarify that. I think that the Secretary of State is the right person, because that is his responsibility and that is where the buck stops, but the financial liability for the use of the NHS logo in the circumstances I have described is likely to be highly limited. Its use would merely indicate co-operation and collaboration with the NHS, not that the NHS was taking on all the responsibilities and liabilities of the organisation. Legally, it would not create the liability my hon. Friend suggests.

The amendment is the result of a specific constituency issue, which I have raised with Ministers on behalf of my constituent. It is an answer to that issue, but it also has broader application, which is why in due course I hope to move it formally.

[Mr Richard Bacon (South Norfolk) (Con)]

Will my hon. Friend give way?

[Mr Rees-Mogg]

I was about to finish, but yes I will give way.

[Mr Bacon]

I was in the Tea Room and heard that a very fashionable Member was making a speech, so I thought I had better return to the Chamber at speed, which I did, and I am glad that I caught the end of my hon. Friend’s remarks. A liability might not arise in the way he describes, but surely he recognises that if the Secretary of State may allow the logo to be used, that would give rise to the possibility of judicial review. The Secretary of State may allow it in one case but not in another, and somebody who felt aggrieved by that could challenge the decision in the courts. Has my hon. Friend made any assessment of the extra cost of litigation for the Government and the NHS in defending such proceedings?

[Mr Rees-Mogg]

My hon. Friend has been caught up in this idea of fashion, and I am afraid that he speaks of yesterday’s fashion of judicial review. The great work done by the now Lord President of the Council and former Lord Chancellor, my right hon. Friend the Leader of the House, in restricting judicial review means that I simply do not think that that would now be a risk. It would have been a risk in those fashionable new Labour days, when people were judicially reviewing everything and having bogus consultations, which I spoke about earlier. That set the fashion for judicial review, but it is yesterday’s fashion. Those of us who are modern and who are with it—in the current phraseology—know that judicial review is yesterday’s news in such a context. Therefore, I do not believe that this would be a risk. It is a sensible way to deal with a problem that has arisen and to prevent it from arising again.

[Jeremy Quin]

Madam Deputy Speaker, I promise that this will be my last intervention on my hon. Friend. To return to the logo, if any of my constituents saw the NHS logo on a letterhead, they would naturally assume that they could go through the relevant complaints procedures for the NHS. Is that what my hon. Friend has in mind? To me, it seems that that would be perfectly apparent to my constituents and a natural thing for them to do.

[Mr Rees-Mogg]

I am not sure that those are the circumstances under which the Secretary of State would use his discretion to allow the logo to be used. I am thinking more of a sign outside a charity shop that supports the NHS, saying “We support the local NHS”, with the name of the local hospital that it is supporting and the local hospital’s logo, which includes the letters “NHS”. I am thinking of that sort of circumstance. It is not about promoting the charity as an offshoot of the NHS; it is about indicating its co-operation with the NHS.

Defibrillator boxes give the name of the ambulance service—the ambulance service’s logo includes the letters “NHS”—to indicate that people should ring 999. The ambulance service will then give them the code to open the box and talk them through how to use the equipment. Most of us probably would not know how to use it without some advice. It was entirely rational to use the logo until some idiotic bureaucracy got in the way. Initially, it was very stubborn—the worst type of pettifogging bureaucracy. If the Secretary of State had had the power to cut through such bureaucracy, that could just have been done.

The circumstances in which the discretion is used would be limited to where there was genuine co-operation—where the charitable sector and the NHS are working hand in glove—and there was a benefit from using it. It is not about charities posing as the NHS where they are not part of the NHS. If the Secretary of State thought the logo was being misused, he would have the power to rescind the permission. This protected and limited power would solve a particular problem.

[Kit Malthouse]

I rise to speak to amendments 1, 3 and 2, which—inexplicably, given their strength—stand in my name only, as well as the splendid amendment 9 and the unfortunate amendment 4. It is a pleasure to speak under your chairmanship, Madam Deputy Speaker. In my experience, debates with you in the Chair are often the most efficient and good natured. I hope that today’s debate will be just that.

On amendment 1, when one tables an amendment, it is a great pleasure to have one’s speech made for one much more eloquently than one could make it oneself, so I am grateful to my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) for his support. Recently, there have been significant charitable scandals in this country. Much of the time of the House and of the Public Accounts Committee has been taken up with Kids Company. I have become convinced that one of the phenomena at work in that organisation was group-think. Those hon. Members who are students of psychology will know of the phenomenon of group-think: individuals in a group, often when they are led by a charismatic leader, can get lost in a miasma of consensus, in which they are unwilling or unable to acknowledge any view that departs from theirs, and indeed are hostile to outside views of their conduct.

The most famous political example was the Bay of Pigs disaster: the group around President Kennedy became trapped in group-think. We have seen commercial examples of it in the UK. Marks & Spencer and British Airways got trapped in group-think in the 1980s, when they went for massive international expansion. They did so against the views of everybody on the outside, but both boards convinced themselves that it was the right thing to do. Disastrously, Kodak and Swissair, which was once talked of as the “flying bank”, went bust because the management were unwilling to look for outside views.

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[Kit Malthouse]

My hon. Friend makes a remarkably good point. For Members of this House, that is a very pertinent example of the damage that social media can wreak on our ancient institutions, such as the Labour party.

The truth is that the modern mind is much more susceptible to such things, and particularly to charismatic leaders. One only has to look at the effect of Instagram, and the millions of followers that otherwise unmeritorious individuals have on it, to see how willing people are to go along with such things these days, like sheep in a herd.

[Mr Rees-Mogg]

Will my hon. Friend give way?

[Kit Malthouse]

Yes. Sorry, I should have said “flock”, not “herd”.

[Mr Rees-Mogg]

That was exactly my point.

[Kit Malthouse]

I thought so. I am grateful to the hon. Member for pedantry, who is right.

This is one of the things about which I am concerned. We saw the notion of group-think in Kids Company. A group of trustees, led by a charismatic leader, felt themselves to be invulnerable. They thought that they should not be doubted, and they were hostile to external views expressing doubt about them. One only has to review the correspondence of Mr Yentob, with his wild claims about the death and insurrection on the streets that Kids Company’s demise would cause, to see that group-think in action.

I studied politics and economics at university, specialising in the psychology and behavioural side of politics, and we studied group-think quite closely. When future students come to study group-think, they will look at Kids Company as a perfect example of it. Those involved were trapped in group-think. If only somebody had been able to step in and take control earlier, the charity and the remnants of its good work could have been saved.

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[Kit Malthouse]

I acknowledge that point, but we have been round this carousel a couple of times. I pose just one question to those who are nervous about my amendments: in the event of something going wrong, who would fire and replace the trustees? No one. They become a self-governing group. One of the problems with charitable governance is that there are no shareholders to dispose of underperforming trustees. Charities have to acknowledge their own bad performance and fire themselves. In a situation where there is an inextricable link to a particular establishment, the Secretary of State needs to have the ability to step in, in extremis.

It is often forgotten that charities receive public money, and no charity is more likely to receive public money than an NHS hospital charity. Such charities are more likely to receive grants for their performance of services, projects, equipment and so on. We therefore have a particular interest in NHS charities.

[Mr Rees-Mogg]

I support my hon. Friend’s amendment because it is an emergency provision that would be rarely used. From the tone of the debate, there is an impression that the Secretary of State would use it the whole time. Does my hon. Friend agree that it would probably not be used more than once in 10 years?

[Kit Malthouse]

My hon. Friend is right. Proposed subsection (2B) in amendment 1 provides that the Secretary of State would be allowed to use the powers only by permission of the House. I am with my hon. Friend in his desire to protect the House’s privileges and powers. I did not get elected to give the Government a free run. When the good people of North West Hampshire elected me, they placed two votes: one for a Government and the other for somebody to hold them account. I will try to do that job. Should the Secretary of State wish to step in, he would have to lay a statutory instrument before both Houses of Parliament and seek their support. It could not be done easily, on a whim or through a signature on a piece of paper. It would require debate and examination, and need all of us to do our job of scrutiny and reach a settled decision to allow him to step in. I recognise that it is a fundamental step and that an element of separation should be maintained.

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Clause 2 provides that those regulations would be subject to the negative resolution procedure, which we consider to be the appropriate level of public scrutiny in this case. Any regulations made under this power would be simple and technical, transferring all the trust property held by the appointed trustees back to the NHS trust or NHS foundation trust to which they were appointed. We do not think that such regulations would require active debate in both Houses or a report from the Comptroller and Auditor General. The National Health Service Act 2006 contains several equivalent powers for the Secretary of State to transfer trust property between NHS bodies by means of secondary legislation subject to the negative resolution procedure, as the regulations in clause 2 would be. I hope I have reassured my hon. Friend that an affirmative procedure is not required in this regard.

[Mr Rees-Mogg]

I am grateful for the Minister’s reassurance, and I am more than happy to accept it.

[Jane Ellison]

I thank my hon. Friend. It gives me great pleasure, as a Minister at the Dispatch Box, to receive such a note of approbation from him, given that he is rather expert when it comes to Friday sittings and these technical amendments. I am honoured, indeed, by his intervention.

On amendment 9, my hon. Friend took the opportunity to praise a local charity in his constituency promoting the use of defibrillators. In common with other hon. Friends who drew attention to this, I thank his local charity for its work on this important undertaking. I am glad that, as has been mentioned, the Chancellor was able to give £1 million to this important cause, which is working with the British Heart Foundation to bring far more defibrillators into public places in North East Somerset and far beyond.

I thank my hon. Friend for his question about the use of the NHS logo. I know from his contribution on Second Reading that he has interest in its licensing. I hope I can put his mind at rest by confirming that independent charities, including former NHS charities, can use the localised NHS logo of the NHS organisation for which they raise funds. Independent charities can arrange permission to use the logo, if they are working in partnership with an NHS organisation. We heard examples of local charities working in close partnership. In addition to heaping praise, rightly, on the Torbay Hospital League of Friends, my hon. Friend the Member for Torbay mentioned a Paignton charity working closely with a local NHS body. That is a good example.

The NHS logo generates high degrees of trust and reassurance among patients and the public, as my hon. Friend the Member for Horsham (Jeremy Quin) drew out in his contribution. We all understand why. We can all cast our minds back to the many occasions when that trust and reassurance have been in the public spotlight. I think, in particular, of the opening ceremony of the Olympic games. Who can forget the spelling out of “GOSH”? I am sure will hear far more about that admirable institution on Third Reading.

The use of the NHS logo is carefully controlled because it indicates that the NHS is in some way accountable and responsible for the services or materials to which it is applied. It is a registered trademark and an important public brand, so there are strict rules governing the correct use of the NHS identity. Generally, the NHS identity guidelines do not permit independent charities to use the NHS trademarks in their names or promotional material, as it could cause confusion and give the public the incorrect impression that a charity is officially endorsed or organisationally linked to the NHS, as many hon. Friends have said. As I have mentioned, however, independent charities can seek approval to use the NHS logo, if they are working in partnership with it. An independent charity will often set up an agreement with a local NHS organisation to fundraise on its behalf. We have already heard some examples of close, long-standing links between charity organisations and the NHS, and I am sure that Members will be aware of many more in their constituencies. It is possible for a local organisation to use the NHS’s identity in a supporting position with respect to promotional and fundraising materials—on the proviso that there is a local agreement in place for the fundraising activity to benefit solely local NHS services.

It is fair to say that there has been some slightly wild speculation in the course of our debate about some of the far-flung places to which people might go, using NHS charity resources inappropriately. It is important to ensure that the association with the NHS is guarded. From a legal perspective, however, the amendment would make no change to the current position. The Secretary of State is the registered owner of a number of NHS trademarks. As such, the Secretary of State is already free to license trademarks to independent charities in accordance with his statutory powers and duties. Furthermore, as the registered trademark owner, the Secretary of State may set the terms of any such licence as he chooses, including specifying the notice period required for termination—an important power, as I think Members would agree. In some circumstances, it may be more appropriate to make provision for a licence to be terminated at shorter notice or immediately—where, for example, a charity is in breach of the licence terms.

On that important point, about which Members were rightly expressing a degree of concern, I hope I have been able to provide reassurance. I hope, too, that I have provided clarity as well as reassurance on some of the other amendments.

[Mr Rees-Mogg]

May I ask the Minister about one further point? When the NHS logo is licensed to small charities, I hope the process will not be too bureaucratic or onerous for them and that the application of the regulations will not be too pettifogging.

[Jane Ellison]

My hon. Friend is wholly consistent on this issue. Since he came here in 2010, I have been delighted to hear him stand up on many occasions for people who find overbearing state bureaucracy at either the national or local level. He seeks to ensure that any such bureaucracy is always light touch and appropriate. He rightly seeks reassurance and I think I can give him that. We would never seek to make the process overbearing. It would obviously be inappropriate, given that the central drive of the first part of this important private Member’s Bill is to bring clarity and to avoid double-regulation. It would be nonsense if any aspect of what we have discussed this morning added to the bureaucratic burden. We are trying to head in an entirely different direction—one of which I hope my hon. Friend, given his long-standing role as a champion in this House, will approve.