NHS (Charitable Trusts Etc) Bill

Michael Tomlinson Excerpts

Friday 22nd January 2016 Commons Chamber

[Michael Tomlinson (Mid Dorset and North Poole) (Con)]

I beg to move amendment 4, page 1, line 15, after “may” insert “after appropriate public consultation”.

[Mr Speaker]

With this it will be convenient to discuss the following:

Amendment 1, page 1, line 17, at end insert—

“(2A) The Secretary of State may by order or regulations made by statutory instrument make such provision as the Secretary of State considers appropriate to re-establish the Secretary of State’s powers to appoint trustees in respect of—

(a) one,

(b) more than one,

(c) a type, class or category of, or

(d) every

(2B) A statutory instrument containing an order or regulations under subsection (2A) which amends or repeals primary legislation (whether alone or with other provision) may not be made unless—

(a) a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament, and

(b) a draft of the order or regulations was published three months before laying before Parliament.”

Amendment 3, page 1, line 21, at end insert—

“(bA) provision for one trustee to be appointed by the NHS institution, service or function for whose benefit the charitable trust exists,”.

Amendment 2, page 2, line 1, leave out “and” and insert—

“(cA) provision by which the Secretary of State may appoint one or more trustees where—

(i) the Secretary of State has satisfied himself that exceptional circumstances exist, or

“(ii) all the trustee positions in relation to a particular charitable trust have been vacant for a period exceeding three months, and”.

Amendment 5, page 2, line 4, leave out “Subject to subsection (5)”.

Amendment 6, page 2, line 7, leave out subsections (5) and (6).

Amendment 7, clause 2, page 3, line 14, at end insert—

“(8A) A statutory instrument under subsection (8) may not be laid before either House of Parliament without an accompanying statement by the Comptroller and Auditor General that he is satisfied with the treatment of public assets and funds envisaged in the regulations contained within such an instrument.”

Amendment 8, page 3, line 13, leave out subsection (8) and insert—

“( ) A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

Amendment 9, schedule 1, page 9, line 9, at end add—

“(14) The Secretary of State may grant permission for—

(a) one;

(b) any number of, or

(c) a category or type of

charitable trust, established for the purposes of supporting an institution, service or function of the NHS, permission to use the NHS logo or NHS branding in their fund- raising and other communications.

(15) The Secretary of State may, having given 6 months’ notice, rescind a permission granted under paragraph 14 (the notice period may be reduced in exceptional circumstances).”

[Michael Tomlinson]

I want to focus on amendments 4, 5 and 6, which stand in my name and that of my hon. Friend the Member for Erewash (Maggie Throup). Amendment 4 deals with the need for a public consultation; amendments 5 and 6 remove the requirement for the draft to be laid before, and approved by, each House.

I shall turn first to amendment 4 and the principle behind it. It inserts

“after appropriate public consultation”

in clause 1, page 1, after “may” in line 15. It seeks to oblige the Secretary of State to carry out a public consultation that he considers appropriate before making regulations. The principle of a public consultation should be relatively uncontentious. After all, the origins of the Bill being ably presented to the House by my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton), which I fully support, were found in public consultation. The Department of Health conducted a review in 2011, and consulted publicly in 2012. The 2012 consultation set out the rationale for reform. As a result of that consultation and review the Government committed to move to a model of greater independence.

[Jeremy Quin (Horsham) (Con)]

Does my hon. Friend have any idea of the costs associated with the consultation? While the principle of public consultation is not contentious, we need to make certain that consultation is necessary, and all these things come with a cost.

[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.

[Kit Malthouse (North West Hampshire) (Con)]

In my mediocre experience in local government I have participated in a huge number of Government consultations. I cannot recall a single one that changed the initial decision of the Government. Will my hon. Friend acknowledge that more often than not Government consultations just go through the motions? The only one I can remember ever having an effect was by the incoming Mayor of London on removing the extension of the congestion charge in the west of London, which was overwhelmingly supported by consultees, and he did in fact enact that in the teeth of opposition from Transport for London. Beyond that, I have never quite seen the point of consultation when Ministers’ minds are made up. Does my hon. Friend agree?

[Michael Tomlinson]

I certainly would not agree that my hon. Friend’s experience is mediocre—quite the opposite. I understand the thrust of his point, but I disagree, because at a time when politics can be seen to be remote it is important that the public are engaged in these debates. I also think it would be wrong to say Ministers’ minds are closed. I am sure those on the Front Bench this morning would agree that Ministers’ minds are not, and should not be, closed—certainly not before a public consultation.

[Mrs Sheryll Murray (South East Cornwall) (Con)]

May I repeat a question already asked: who would finance the public consultations? Would it be the charitable trust, the Government, or local government? Will my hon. Friend expand on that?

[Michael Tomlinson]

The point about cost is important. At the end of the day it would have to come from taxpayers, which I accept is a challenge and a potential disadvantage. My argument is that in the principle of a public consultation the advantages outweigh the disadvantages.

[Mrs Murray]

What is my hon. Friend’s estimate of the consultations’ cost to the taxpayer? Has he done any analysis of how many consultations there might be, and of their cost?

[Michael Tomlinson]

Again, I do not have those figures to hand. My hon. Friend is right to raise this because it is an issue of concern; cost must always be borne in mind, but, as I have said, I am speaking to the principle, and unfortunately I do not have the specific figures she asks for.

[Maggie Throup (Erewash) (Con)]

Cost is important, but the transparency angle outweighs it.

[Michael Tomlinson]

My hon. Friend, who has put her name to these amendments, makes a valid point, and helps me to make the argument that the public consultation is the right way forward.

[Jeremy Quin]

My hon. Friend the Member for North West Hampshire (Kit Malthouse), a far from mediocre figure in any sense, is far too self-deprecating, but I want to come back to the point he made. He referred to the consultation in west London, which was on a huge issue that affected vast numbers of people and had been the subject of a hard-fought political campaign. It was also a very costly consultation, but that was appropriate and proportionate. A lot of the changes that your amendment refers to—sorry, that the amendment of my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson) refers to—are purely technical in nature and this would not be necessary.

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[Michael Tomlinson]

I think Mr Speaker would agree that these are not his amendments, but are my amendments. I understand, again, the point my hon. Friend makes, but I disagree with it.

May I return to the review on which the Government consulted in 2014? Following that consultation, the Department of Health published its response—it is an important point of principle in public consultations that there is a formal response. As a result of that response, we have these proposals and eventually this Bill, which is being ably presented by my hon. Friend the Member for Aldridge-Brownhills.

[Pauline Latham (Mid Derbyshire) (Con)]

Who will the consultation be with? Will it be with other charities, hospital users, people who have been to see “Peter Pan”, every hospital in the country, or every child who has ever been treated at Great Ormond Street? Who exactly will my hon. Friend be recommending the consultation is with? So far, that is not clear to me.

[Michael Tomlinson]

I envisage the consultation being as wide as possible. My hon. Friend mentions everyone who has been to see “Peter Pan”, and that would be a pretty wide consultation—perhaps not everyone has seen “Peter Pan” and I highly recommend that those who have not, do so. I envisage that the principle is that it is as wide a consultation as possible.

The Bill, which has wide support on both sides of the House, is the product of a public consultation, so I fail to see how Members can disagree with this proposal.

[Kevin Foster (Torbay) (Con)]

I thank my hon. Friend for giving way; he is being incredibly generous in taking interventions. Every charity has a group of people it benefits. Does my hon. Friend agree that for this consultation to have any meaning, it would have to be with the entire area of benefit, which could in some cases involve literally millions of people? Does he also agree that most of them would probably feel their charitable funds would be better spent getting on with the job, rather than having a very large consultation about who appoints a director of the trustees?

[Michael Tomlinson]

I understand that point, which is similar to other points questioning the benefit and the cost, but I respectfully suggest that the benefit outweighs the cost in this case and that the public, seeing that they are consulted, would once again be re-engaged with the political process, which I think my hon. Friend should support.

[Wendy Morton (Aldridge-Brownhills) (Con)]

My hon. Friend rightly points out that my private Member’s Bill emerged as a result of consultation with NHS charitable trusts. Does he agree, however, that it is unusual to be seeking public consultation on a technical change that is consequential to my Bill?

[Michael Tomlinson]

Again, I am grateful for the intervention and understand the point being made, but I disagree with my hon. Friend. Although this is technical in nature, I believe the principle of public consultation would be beneficial to the wider public. It would be curious to be opposed to public consultation, certainly in principle, given that this Bill is a product of just such a consultation.

Let me give one further example of public consultations attracting wide support. Many in this House, on both sides of the Chamber, have been fighting for fairer funding.

[Mrs Sheryll Murray]

I completely agree with my hon. Friend that most of us would support adequate public consultation, but I am concerned that we do not know how much cost we will burden the taxpayer with. I press him again: how many consultations does he envisage? What would the cost be?

[Michael Tomlinson]

Once again, I am grateful for the intervention, but, with respect, may I say that my hon. Friend is merely repeating a point that she made before? As I explained, I do not have those figures to hand and so, with regret, I cannot give her a specific figure. I understand the general thrust of the point she makes, but I respectfully disagree with it and am giving a further example in relation to fairer funding, with which I think she will agree. I refer to the successful campaign for fairer funding for our schools, where there will be a period of public consultation following it.

[Mrs Murray]

Is my hon. Friend indicating that local authorities would have to bear the cost?

[Michael Tomlinson]

Again, with respect to my hon. Friend, may I say that she is repeating a point she made before? I did accept that this money would have to come out of the public purse, but I am seeking to persuade her and other hon. Members that the benefits of public consultation will outweigh the costs. I am giving a good example, or at least I hope I am, about fairer funding. I hope she will agree that having fought and campaigned for fairer funding for our schools, for example, those in Dorset and Poole, which are grossly underfunded, it is right that the public and the stakeholders are consulted. It is right that parents, local authorities, school governors and the general public are consulted, and I encourage everyone to respond to that consultation to ensure that we—

[Mr Speaker]

Order. I gently exhort the hon. Gentleman to consider the merits of moving on to one or other of the two other amendments that he has for consideration. I would not want him to be led astray by someone, discontented with his previous answer, somehow feeling that he requires to attend to the point beyond what he has already done. The hon. Member for South East Cornwall (Mrs Murray) has made her point and he has made his, and I know that he would not want to engage in tedious repetition.

[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.

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[Mr Speaker]

That would be entirely orderly and would involve no repetition. The hon. Member for North East Somerset (Mr Rees-Mogg) has done us a service in reminding us that his question has, thus far, been unanswered.

[Michael Tomlinson]

In which case, let me turn to that very point. As my hon. Friend rightly says, my amendment 4 contains the word “appropriate”. We can all envisage inappropriate public consultations. I again contend that this term should be relatively uncontroversial, because we all know what it means. An inappropriate consultation would be too short or would take place over a festive period such as Christmas, when either people would not have the opportunity to respond or an insufficient number would have the opportunity to do so. Although I welcome the opportunity to expand on the word “appropriate”, I believe it is pretty obvious what it means.

[Kevin Foster]

The word “appropriate” also relates to the level of the thing to be consulted upon. We have a tradition in this country: certain things—for example, Britain’s membership of the European Union—are decided by consulting every member of the public in a referendum. Other issues such as school funding also affect the wider public, but on issues such as who is a director of something we do not usually go to the length of a full public consultation to decide the process. This is about what is appropriate given the nature of the issue, as well as what is appropriate in terms of the time of year the consultation is held and how long we give people to respond.

[Michael Tomlinson]

I am very grateful for that helpful intervention. I would wish to expand on the issue of an EU referendum, but I suspect that Mr Speaker would encourage me to move on, so I will not be tempted down that line. I understand the point my hon. Friend makes and will merely respectfully suggest that the word “appropriate” speaks for itself and requires no further elaboration.

Given your encouragement, Mr Speaker, I will now move on to amendments 5 and 6, which also stand in my name and that of my hon. Friend the Member for Erewash. They seek to remove the requirement that the regulations may make provision consequential to the removal of the Secretary of State’s powers; in effect, they would remove the affirmative resolution procedure and insert the negative one. They are simple amendments, so I will not take up your time in debating them at length, Mr Speaker. In effect, the debate is being held now, as is perfectly appropriate, and it would therefore be unnecessary in this case to bring it back.

[Wendy Morton]

We have discussed the use of the word “appropriate”. Does my hon. Friend feel that these two amendments are appropriate and necessary? I do not feel that they add anything to the Bill, and there is no need for them.

[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.

[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 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.

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[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.

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[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.

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[Kit Malthouse]

Many years ago, my mother and father went on a camping trip in Europe. On their first night, they pulled in, in their Thames van, to what they thought was a campsite. In the dark, my father attempted to pitch the tent. Every time he tried to hammer a tent peg into the ground it went “Ping!” and disappeared off into the darkness. Only in the morning did he realise he had been trying to hammer the tent pegs into a concrete tennis court. That is how I feel this morning.

I have tried to explain many times now that these charities are different. They come with a badge upon them that says to the public they are partially in the public sector. Secretaries of State will always have an eye to their conduct, because what they do will impact politically and financially on the national health service and on whichever party happens to be running it at the time. I realise that, in the eyes of the sponsors, I might be pushing water uphill. Most people know I am a relatively optimistic person and I am hesitant to put these pessimistic circumstances to the House; nevertheless, someone has to do it.

I will move on now, finally, to other amendments. Amendment 9, in the name of my hon. Friend the Member for North East Somerset, seems eminently sensible and reflects exactly the point I have been making about the special connection. In these days of the internet, it is quite easy to download the NHS logo from any hospital website, affix it to a piece of paper and fire it off to raise money. I am sure it has, on occasion, been used fraudulently to raise money. I therefore completely support his wish to have some kind of control over the use of the logo, the name and the brand.

Giving that power to the Secretary of State seems eminently sensible to me, not least because these charities maintain most of their fundraising ability through their connection with the NHS. The leverage is extremely powerful and very useful. Many will raise millions and millions of pounds off the back of their connection with the NHS and they should be encouraged to do so. The judicious use of the brand, the logo and the name is absolutely to be supported, but it needs to be done in a relatively nimble way. The only way I can think to do that is via the permission of the Secretary of State, so I support the amendment.

Unfortunate amendment 4 deals with consultation. As I said in my intervention earlier, during my career in local and city politics consultation became the bane of my life, and of my residents’ lives. We all knew, when we participated in a consultation, that the decision had broadly been taken already and that the politician or Department in question was largely going through the motions to make sure they were not judicially reviewed or challenged.

Of course, the notion of consultation was promulgated by the Blair Government. It is a characteristic of our managerial, technocratic politics. Where we have a House filled with conviction politicians who know what they believe, and that what they believe is right for the country, they do not need to go out and consult. They consult once every four or five years through general elections and display the philosophical sheet-anchor that sits underneath every decision they make. However, when politicians drift from their basic principles into unknown waters, they feel a bit uncertain. They feel a need to consult, to be told what to do and to get a feel. That is what politicians do these days: they have focus groups and polls. They consult constantly about their image and what they should and should not do.

I would therefore like to play a small part in doing our bit to rein back the amount of consultation. We could get to a situation where this House becomes redundant. With the advent of technology, the thing that naturally follows consultation is permanent referendums where everybody can vote from their desks, and we do not need to have a House that discusses and debates from points of experience and different aspects. I therefore firmly oppose the amendment.

[Michael Tomlinson]

Is my hon. Friend not being, once again, overly pessimistic this morning? Does he not recognise the benefits of public consultation, such as the very one that produced this Bill?

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[Wendy Morton]

Absolutely. I hope not to be pushed out to sea either, but that remains to be seen. I sincerely believe, however, that the Bill has a lot of support, as I will mention later on Third Reading.

[Michael Tomlinson]

Does my hon. Friend not recognise the central thrust of my argument—that the Bill itself was the product of public consultation? All those doom-mongers who have spoken against public consultation fail to see that such consultation has produced some good—namely, her own Bill.

[Wendy Morton]

My hon. Friend is correct that my Bill is the result of public consultation, as I will expand upon later.

Schedule 1 already makes a range of amendments to primary legislation consequential to the removal of the Secretary of State’s powers in England to appoint trustees to NHS bodies and to appoint special trustees, and it would be unusual to consult the public on regulations making such consequential changes. Proper scrutiny of such consequential amendments would be undertaken by Parliament. That is the main reason I do not support his amendment even though it is a valid discussion point.

I will move now to those amendments that relate to the appointment of trustees. My hon. Friend the Member for North West Hampshire has clearly given a lot of thought to my Bill and introduced some very worthy and interesting amendments. I wish to make it clear, however, that I do not wish to swap the letterbox of Aldridge-Brownhills for that of North West Hampshire, given the apparent tone of much of the mail that he receives, and neither would I wish to go camping with his family—the thought of my sleeping bag being laid on concrete does not appeal. I would prefer something more comfortable. Even a field would be preferable—ideally undercover.

The removal of the Secretary of State’s powers to appoint trustees is central to my Bill. Having him appoint trustees makes it difficult for these NHS bodies to demonstrate visible independence from Government in the eyes of potential donors. That cuts to the heart of my Bill. Having read and considered the amendments carefully, and having listened to this debate, I struggle to see how they would work on a technical level. The current power is to appoint trustees to particular NHS bodies or to appoint special trustees, not, as the amendments suggest, to appoint trustees to NHS charitable trusts. They therefore seek to re-establish a power that does not currently exist in such a form. I know that the Bill at times gets very technical, but we have to keep coming back to what it sets out to do and the consultation it came from. Similarly, the amendments seeking to retain the Secretary of State’s power to appoint trustees in particular circumstances, when there is a commitment to remove them, are not appropriate.

Before I talk further about amendments relating to trustees, it is important to remind ourselves of the background to clause 1, which I have alluded to before. The Bill concerns the removal of the Secretary of State’s powers to appoint. Since 1973, the Secretary of State has had powers to appoint so-called special trustees to manage charitable property on behalf of hospital boards. In 1990, powers for the Secretary of State to appoint trustees in relation to NHS trusts were enacted, and have since been extended to other NHS bodies. These powers are now set out in the National Health Service Act 2006, as amended.

My private Member’s Bill fulfils a commitment made by the Government subsequent to the Department of Health review and consultation—there is that word again—in 2012, which covered the governance of NHS charities. As a result, NHS charities will be allowed to convert to independence and the Secretary of State’s powers to appoint trustees will be removed at the earliest opportunity. That is what my Bill is designed to achieve.

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[Jeremy Quin]

It is a pleasure to follow my hon. Friend the Member for Torbay (Kevin Foster). Like him, I am a great supporter of the Bill and, like him, I think that it emerged in good shape from Committee. I congratulate my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton) on steering it on its merry path to get here today. It is because I support the Bill that I look askance at some of the amendments. I wish the Bill a smooth passage today; that is why I oppose the amendments, particularly amendments 4, 2 and 7. My hon. Friends have been incredibly generous in giving way to a number of Members this morning, including me, so I do not feel the need to speak at length. However, there were one or two points that I thought would be useful contributions to the debate.

On amendment 4, tabled by my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson), I thought that my hon. Friend the Member for North East Somerset (Mr Rees-Mogg)—the fashionable Member for North East Somerset—was somewhat cynical in his approach to public consultations. There are at least three circumstances in which public consultations can be valuable. My hon. Friend the Member for Torbay mentioned one: cases of great constitutional import for this Chamber and this country. My hon. Friend the Member for North West Hampshire (Kit Malthouse) referred to others, and made an excellent point about the consultation on the congestion charge in London—a matter of wide regional interest. The cost of that consultation was borne to ensure that the relevant authorities had a proper appreciation of the views of the electorate, which was a wise step in those circumstances.

There are also circumstances in which consultation is appropriate at a local level. One such case in my constituency related to school catchment areas, which matter greatly. It is important that those consultations are carried out properly, and that all those who will be affected—or, in this case, whose children will be affected—are able to contribute to those consultations. Not every consultation is conducted to as high a standard as we would all wish.

The amendments are extremely technical. I urge my hon. Friend the Member for Mid Dorset and North Poole to reconsider his amendment 4, as it would place a huge burden on the Secretary of State and on the trustees to go through a process of consultation on highly technical issues that are not matters of constitutional, regional or local import affecting individuals. Although I greatly respect my hon. Friend, going through a process of public consultation is unnecessarily burdensome, particularly where the matter will be reviewed and can always be brought to the attention of this House through the normal procedure. We should empower the trustees to take decisions.

Understandably, my hon. Friend was not able, although pressed by my hon. Friend the Member for South East Cornwall (Mrs Murray) and by me, to give an approximation of the costs or who may bear them. That should be a point for consideration by the House.

[Michael Tomlinson]

I am grateful to my hon. Friend for not being quite so cynical about public consultations as other hon. Members have been during the debate. Perhaps he should cite one further consultation: that which was the foundation of the Bill. On cost, he does not press me to come up with a precise figure, I know, but does he accept the broad point that if public consultation is right in principle, the cost will have to follow, come what may?

[Jeremy Quin]

I am grateful to my hon. Friend for clarifying his views. I have no problem with paying for consultations when they are necessary and appropriate, but I do not believe that the circumstances likely to pertain to the Bill will be in that category. Issues worthy of consultation are those described by my hon. Friends the Members for Torbay and for North West Hampshire, and the local issues to which I referred.

On amendment 2 tabled by my hon. Friend the Member for North West Hampshire, I hope he will not be upset if I refer to it as the magic circle amendment—now you see it in the Bill, now you don’t—hey presto. With one stroke, his amendment would remove a power that is at the core of the Bill, as it creates clarity for the charities concerned. I know that every hon. Member who has tabled an amendment today is a passionate supporter of those charities, as are we all. The benefit of the Bill is that it provides clarity to the charities. Under the Bill, trustees will become fully independent. They are left in no doubt about who is responsible for the conduct of the charity and about their own corporate governance. That is a good thing, which empowers them and encourages responsibility.

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[Barbara Keeley (Worsley and Eccles South) (Lab)]

I congratulate the hon. Member for Aldridge-Brownhills (Wendy Morton) on bringing her Bill through to Report. The Bill will improve the independence of NHS charitable trusts, and I am pleased to speak on it. I did not serve on the Committee, but I note that it lasted only 10 minutes. The House has obviously since developed an appetite for debating amendments, which could be seen as surprising. However, the hon. Lady dealt with them very well, so I will keep my comments short.

[Michael Tomlinson]

Will the hon. Lady give way?

[Barbara Keeley]

No, because I want to keep my comments short, as I say.

As we have heard, funding from NHS charities supports innovation and research and enables the provision of additional facilities, services and equipment for their associated hospitals. Some Members have cast a shadow of doubt over the value of NHS charities, and I want to challenge that. Salford Royal NHS Foundation Trust in my local area has its own charity, and last year it raised over £450,000, which was used to provide additional services at the hospital. As with other NHS charities, the majority of its funding comes from donations and legacies, with some from investment income; there has been a great deal of debate about how donors feel about that. In some cases, however, donations come from patients and their families who are grateful for the care that they have received. Salford Royal is an excellent hospital, so it is very good that patients and their families are able to make donations via the charity to express their thanks. That is a very important aspect.



The charity funding of Salford Royal NHS Foundation Trust has been put to good use. In the past year, it has provided additional staff training and supported medical research, with the aim of promoting health and improving the treatment and care of patients. There has been a negative aspect to this debate, with doubt being cast on the value of NHS charities, but I do not agree with that. I agree with the hon. Member for Aldridge-Brownhills that the various amendments will not improve the Bill, and I am happy to support that position on behalf of the official Opposition.

[The Parliamentary Under-Secretary of State for Health (Jane Ellison)]

What 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.

[Michael Tomlinson]

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.

[Jane Ellison]

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.

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[Jane Ellison]

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.

[Michael Tomlinson]

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