NHS (Charitable Trusts Etc) Bill Debate
Full Debate: Read Full DebateJane Ellison
Main Page: Jane Ellison (Conservative - Battersea)Department Debates - View all Jane Ellison's debates with the Department of Health and Social Care
(8 years, 10 months ago)
Commons ChamberWhat a fascinating morning this has been. I add my congratulations to my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton), who has dealt with some of the amendments. I hope to add some additional information and clarification, and to provide the useful history behind the need for and origins of the Bill. It is good that it has been debated with such thoroughness and that it has been given clear attention.
I am grateful to the Minister for mentioning the thoroughness of this debate. Does she agree that one of the reasons for the short Committee stage was that this House was debating the important matter of Syria? The Bill is important, but some might argue that the Syria debate was more important. Perhaps that explains why the Committee stage was so short.
That is probably a helpful thing to put on the record. All Members have to use their time wisely and appropriately, whatever the business of the House is at any one time. That seems to have been a sensible thing to do. Thankfully, we have been able to give this small but important Bill the time and attention it deserves this morning.
I thank my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) for tabling amendment 4, which seeks to oblige the Secretary of State to carry out public consultation that he considers appropriate—we have dwelt on that somewhat—before making regulations that make provisions consequential on the removal of the Secretary of State’s powers to appoint trustees to NHS bodies and to appoint special trustees. I do not believe that the amendment is necessary, for some of the reasons covered by others and on which I will try to elaborate.
Schedule 1 already makes a range of amendments to primary legislation that are consequential on the removal of the Secretary of State’s powers. They remove references to trustees in other legislation, because they would no longer make sense given that such trustees will no longer exist. The regulations that the Secretary of State does have the power to make under clause 1(2) are technical and remove any outdated references to such trustees, so that, in effect, tidies up all related provisions in primary or secondary legislation that might come to light in future.
It would, therefore, be unusual to consult the public. Members have given interesting examples of consultations in their own constituencies. It is fair to say that a degree of cynicism has been expressed, perhaps unduly, but I certainly agree with the principle that one should go into a consultation with an open mind. I assure the House that the Government seek to do that when they enter into consultations.
The situation with technical issues, however, is slightly different. The amendment seeks to consult the public on regulations that make technical, consequential changes, but proper scrutiny of such consequential changes is undertaken by Parliament. Indeed, Members have referred to such occasions. That is especially the case when consequential amendments are made by regulations to primary legislation, as the regulations are subject to debate and approval in both Houses. I hope that that gives some comfort to those who were concerned about the consultation issue.
Amendments 1 and 2 propose the retention in one form or another of the Secretary of State’s powers to appoint trustees, and we have had a good debate about that. Amendment 1 would give the Secretary of State the power to make provision, by secondary legislation, to re-establish the Secretary of State’s powers to appoint trustees to NHS charitable trusts. It would make such secondary legislation subject to the affirmative procedure and require that the draft secondary legislation be published three months before it is laid before Parliament.
Amendment 2 makes provision for the Secretary of State to appoint one or more trustees where he or she is satisfied that
“exceptional circumstances exist, or…all the trustee positions in relation to a particular charitable trust have been vacant for a period exceeding three months”.
As has been said, independence is the next stage in the evolution of NHS charities. Now that NHS charities have the choice to become independent or to remain as NHS charities with corporate trustees, the Secretary of State’s powers to appoint trustees have served their purpose and are no longer necessary.
Before the Government’s reform of the regulation and governance of NHS charities, nearly all the largest NHS charities had trustees appointed by the Secretary of State. As other hon. Members have said, particularly the Bill’s promoter, my hon. Friend the Member for Aldridge-Brownhills, such charities were frustrated by the dual regulation of NHS and charity legislation, and one can quite understand why they felt limited in their ability to best support their beneficiaries. Many of the charities wanted the opportunity to become independent so that they could fully realise their potential. Other hon. Members have made good points about their need to express their independence and distance from the Government.
The Government’s reform of the regulation and governance of NHS charities has given those that wished to do so the opportunity to convert to independent status under the sole regulation of the Charity Commission. Six of the largest NHS charities with trustees appointed by the Secretary of State have already converted to independence, having decided that that is their best option for the future. The vast majority of the remaining 15 NHS charities with trustees appointed by the Secretary of State have indicated that they, too, plan to convert to independence in the near future. Three NHS charities with corporate trustee arrangements have also indicated that they wish to convert to independence.
At this point, it might be useful for the House and assist hon. Members who have tabled amendments that question some aspects of the Bill if I go a little into the history of this reform. It has always been a challenge to develop a system of regulation and governance that is workable for both the small number of very large NHS charities and charities with income of only a few thousand pounds a year. Within the sector, income is heavily skewed towards charities linked to large, high-profile hospital trusts, some of which have been mentioned during the debate. In 2012, the top five NHS charities accounted for more than a third of the total income, the top 15 for more than half of the total income and the top 30 for more than two thirds of the total income. However, the 50 smallest registered NHS charities had an average annual income of less than £10,000. The largest NHS charities require a different level of professional management.
Does my hon. Friend agree that NHS charities helping to put defibrillators in public places are doing a good job for the country? I am trying to persuade all my churches to have defibrillators outside their buildings for the benefit of the community, and some have already done so. It is an important fact that charities within the health service do a huge amount of good out in the community, as well as in hospitals.
My hon. Friend is absolutely right. Several hon. Members have mentioned charities in their area that are doing great work to increase the public availability of defibrillators. Perhaps I may take a moment to update the House on that matter. The Government were delighted, in partnership with the British Heart Foundation, to provide £1 million for defibrillators, meaning that this life-saving equipment will be given to communities right across the country—we have heard about several examples this morning, and my hon. Friend has mentioned another great example in Derbyshire—and that more people can be trained in cardiopulmonary resuscitation. That will make it easier for people to act in an emergency, and ultimately it will of course save lives.
I can update the House by saying that applications opened last October and interest was very high. The British Heart Foundation allocated funding to applicants who could demonstrate that the criteria had been met, and the application process has now closed. We look forward to hearing more about all the places around the country—I am sure that some of them will be in constituencies of hon. Members in the Chamber—where such life-saving work will be enabled.
I am interested to hear the Minister’s remarks. Given the slightly negative perceptions of charitable work and the descriptions of things that could go wrong that we heard earlier, would she like to comment on the things that are going very well? Will she put on the record her thanks, on behalf of Her Majesty’s Government, to the Torbay Hospital League of Friends? Over 62 years, it has raised millions of pounds to support local people and it is currently running its “This Is Critical” campaign to provide equipment for the new critical care unit that is under construction at Torbay hospital.
My hon. Friend is exactly right. At times, the debate has moved into rather gloomy territory. He used the “EastEnders” analogy. During the contribution of my hon. Friend the Member for North West Hampshire (Kit Malthouse), I began to think he was speaking to the Private Frazer amendment—the “We’re doomed!” amendment.
My hon. Friend the Member for Torbay (Kevin Foster) is right to bring us back to the great work that is being done. My experience of a local league of friends is similarly positive. Often, in the cut and thrust of our debates on legislation from Monday to Thursday we do not have time to put on the record the thanks of Parliament and the Government for the efforts of groups like his league of friends. It is welcome that this morning, when we have a little more time, we are able to put on the record our thanks to people who are not in the spotlight, but who are doing wonderful work in all our constituencies. I congratulate him on doing that and join him in praising the Torbay Hospital League of Friends.
On that note, may I draw to the Minister’s attention one charity in my constituency? Like my hon. Friend the Member for Torbay (Kevin Foster), we have charities that support the local hospital, but we also have Action Medical Research, which does a wonderful job for children. It was formed back in 1952 and has the distinction of being supported by Paddington Bear, which is wonderful. It runs the largest regular London to Paris bike ride to raise funds to support research into diseases that affect young children. It is not directly linked to the NHS, but it is a wonderful medical charity. I hope that the Bill will empower many more such charities to get going.
How nice it is to hear about that charity. I congratulate my hon. Friend on taking the opportunity to praise it and to shine a spotlight on a charity that so richly deserves it. Indeed, well done to him for name-checking Paddington in a debate that has been otherwise dominated by Peter Pan. We will see whether any more well-loved characters make an appearance before the end of the debate.
I cannot lay claim to any characters in my constituency. It is not just the work that charities do in hospitals that is important, but the work that they do outside hospitals to make sure that people do not go into hospital. One of my local charities, Community Concern Erewash, recently linked up with the Alzheimer’s Society to work in the community to help people suffering from Alzheimer’s to cope in their own homes and stay in their homes a lot longer. Will my hon. Friend praise that charity and recognise the contribution that such charities make to our society?
I am delighted to add my praise for my hon. Friend’s charity. I was honoured after the election to have dementia policy added to my portfolio as public health Minister. She is right to draw our attention to the need to work outside hospital to keep people safer in their own homes. As I know from working with dementia charities, large and small, much of that work is done by small local charities. I am delighted to echo her praise for the charity in her constituency.
To return to the amendments, although the largest charities require a level of professional management, the same is not required by many of the smallest ones. The corporate trustees arrangement, whereby the board of the trust or, prior to that, the board of the hospital acts as the trustee, is not sufficient to manage the large sums that are held by the largest NHS charities. They need a more professional approach, in many cases. The Government first took steps to address that issue in 1973. The Secretary of State took powers to appoint so-called special trustees to manage charitable property on behalf of hospital boards. Three hospitals—Moorfields, the Royal National Orthopaedic hospital and Great Ormond Street—appointed such special trustees to manage their charitable funds.
By no means was I trying to give the impression that charity workers and trustees across the UK are not doing brilliant work. Most of them are well-minded, and efficient in disposing of their duties as they should. As I am sure the Minister will agree, much of our legislation involves dealing with exceptions. Most people live their lives largely untouched by legislation in this House—although more and more they are touched by legislation from over the water in Europe—but we are dealing with exceptions. All I was trying to do was to deal with an exceptional circumstance where a negative situation may arise, and I have nothing but admiration and optimism for the vast majority of charities, charitable workers and trustees.
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.
I am grateful for the Minister’s reassurance, and I am more than happy to accept it.
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.
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.
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.
My hon. Friend has twice referred in her speech to defibrillators and the money that the Chancellor has given to the British Heart Foundation to provide more of them. I urge her to continue to lobby the Chancellor on this issue. In his forthcoming Budget, he might be prepared to consider adding to that fund so that more people in the community could benefit from defibrillators.
My hon. Friend has effectively just undertaken such an act of lobbying. The take-up of this fund is extremely encouraging, and I would be happy to give her more information, as I know she has spoken about this subject here on many occasions—as, indeed, have other Members. We had Backbench Business debates on it in the last Parliament, and I am sure it is one to which we will return. It is an area in respect of which parliamentarians can be great champions in their local areas. I greatly welcome hearing my hon. Friend speak with such enthusiasm about this matter.
May I encourage the Minister to continue her lobbying efforts in that regard? In my area, the west midlands, just 12% of the population feel confident enough to use a defibrillator. What is important is not just the provision of defibrillators, but the training that accompanies it, which I know is being promoted by the British Heart Foundation.
Order. Before the Minister responds, I should point out that the subject of defibrillators is some distance away from any of the amendments. The hon. Gentleman might like to save it for Third Reading.
I am sure we all recognise the truth of your judgment, Madam Deputy Speaker, but the example was given earlier of an NHS charity that had championed defibrillators in the local community, and I think that that is how the topic was introduced. My hon. Friend the Member for Mid Worcestershire (Nigel Huddleston) has made a good point, and I shall be happy to give him more information about the proportion of the fund that the British Heart Foundation has been able to spend on the training that he described.
I hope that what I have said about the amendments has been of assistance to the House.
In the light of the reassurances that have been given, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Third Reading
We have had a productive debate on this Bill. I thank hon. Members from both sides of the House for their contributions—well, there was a contribution from the Opposition Front Bench—and put on the record my appreciation of the consensual way in which the Bill has been approached by all parties. This has been a welcome opportunity to name-check a number of excellent local charities and some well-loved characters from fiction.
As others have done, I put on the record my thanks to my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton) for her dedication to piloting the Bill through the House. She has put a great deal of time and effort into understanding the issues that face charities. She has met the Association of NHS Charities, attended the annual business meeting for its members and wrestled with the complexities of charity law and its relationship with NHS legislation. I am sure that the House will join me in thanking her for her dedication to ensuring that the Bill has made such great progress.
Although I do not want to repeat what my hon. Friend has said, I will quickly summarise the aim of each of the measures in the Bill. The Bill completes the reform of the regulation and governance of NHS charities. It delivers the Government’s commitment to repeal at the first opportunity the Secretary of State’s powers in England to appoint trustees to NHS bodies and special trustees. Those powers are no longer needed. NHS charities can choose to become independent under the sole regulation of the Charity Commission or remain as NHS charities with the linked trust as corporate trustee, in which case they are subject to dual regulation by the Charity Commission and the Secretary of State.
The reform of NHS charity regulation and governance delivers the changes that NHS charities have asked for. A number of the largest ones, which we have spoken about in the course of this debate, have made it clear that they need those changes. The Charity Commission believes that dual regulation—being under both NHS and charity law—can make it difficult for NHS charities to achieve and demonstrate independence. That is why in 2014, following the public consultation, the Department announced its intention to allow NHS charities to move to independent charity status under charity law. Charities that decide to become independent are no longer NHS charities, but independent charities that appoint their own trustees.
The Department also made it clear in its response that, given the new freedom for NHS charities to become independent, the Secretary of State’s powers to appoint trustees were no longer necessary. The charities with trustees appointed by the Secretary of State need to decide whether to move to independence or revert to corporate trustee status before the powers are removed. Independence is not an option solely for NHS charities with trustees appointed by the Secretary of State. Many of the charities that we have discussed with corporate trustee arrangements are large enough to be able to consider independence as a viable option for the future. Corporate trustees should also actively consider whether independence is in the best interests of their beneficiaries.
The Department has indicated that the powers to appoint trustees will not be revoked before April 2018 to provide a period of grace for trustees appointed by the Secretary of State to determine the most appropriate legal form for their charity.
Should any NHS charity not have resolved its future by the time the powers are repealed, the Bill confers powers on the Secretary of State to make regulations to transfer charitable property from the trustees of an NHS trust or NHS foundation trust to the trust itself. There are strong grounds for believing that those powers will not need to be exercised. However, it is necessary to take such powers to ensure that all NHS charitable assets are appropriately protected and dealt with before the powers for the Secretary of State to appoint trustees are repealed.
The Government have listened to NHS charities and delivered what they asked for: the choice to become independent under the sole regulation of the Charity Commission or to remain NHS charities. Some of the largest and most successful have already taken the opportunity to become independent; others are preparing to follow in their wake. The vast majority of NHS charities with trustees appointed by the Secretary of State have indicated that they intend to become independent. All are actively considering the legal form that most favours their beneficiaries. It is therefore clear that the Government’s decision to repeal the Secretary of State’s powers to appoint trustees at the earliest legislative opportunity is right. The powers are no longer necessary and should therefore be removed from the statute book.
As we have heard from the measure’s promoter, the Bill will also secure Great Ormond Street Hospital Children’s Charity’s rights in perpetuity to royalties from performances and publications of the play “Peter Pan”. The hospital has always relied on public support, even after the founding of the NHS in 1948. It is important that that can continue.
The mission of Great Ormond Street Hospital Children’s Charity is to raise money to enable the hospital to continue to provide the very best care for its young patients and their families and to do all the groundbreaking work that we have heard about in the debate. Great Ormond Street Hospital Children’s Charity was eager to take the opportunity to become independent and it became partially independent on 1 April 2015. However, it was unable to complete its conversion to become an independent charity as the NHS charity had to remain in existence until the Copyright, Designs and Patents Act 1988 was amended, to avoid its statutory rights to “Peter Pan” royalties being lost. The Bill confers the rights to royalties from the play “Peter Pan” on the new independent charity for Great Ormond Street hospital.
The two parts of the Bill are very much related in that Great Ormond Street Hospital Children’s Charity needs to be able to complete its conversion to independent status without losing its rights to the “Peter Pan” royalties so that the Secretary of State’s powers to appoint trustees to NHS bodies may be repealed. The Government would not remove those powers until the charity no longer needed its Secretary of State-appointed trustees to receive royalties from “Peter Pan”.
The Bill is about completing the reform that NHS charities asked for. The Government have enabled NHS charities to become independent if they decide that that is in the best interests of their beneficiaries. Great Ormond Street hospital is one of the most cherished institutions in the NHS. The royalties from the play “Peter Pan” have been a hugely valuable source of funds for Great Ormond Street Hospital Children’s Charity in its support of the amazing work that we have heard about today. We want the charity to continue to receive those royalties in perpetuity, as J. M. Barrie would have wished. The Bill will secure the charity’s rights to the royalties from the play “Peter Pan”, enabling it to complete its conversion to an independent charity.
My hon. Friend the Member for Aldridge-Brownhills has shown, in steering the Bill so ably through the House, what we all know from our childhoods: Peter Pan and Wendy make a great team.
Question put and agreed to.
Bill accordingly read the Third time and passed.