Health Bill [HL]

I did mean a 1.5 per cent average cap on all acute foundation trusts in 2008-2009. There is a difference between giving mental health foundation trusts some flexibility where they have none, and changing the basis of the cap for all foundation trusts. There would need to be a proper review before making any wholesale change. This needs to be worked out with the NHS. The noble Earl said there was no issue of principle at stake any more. The principle of this is that wide-ranging change should take place with full consultation and consideration of the complex details, particularly given the divergence of strong views on this matter. My noble friend Lord Warner said that the concession did not deal with the arbitrary caps for acute foundation trusts. When MPs and Peers voted through the proposals in 2003, they knew that the cap would vary in an arbitrary way among acute foundation trusts. Mental Health foundation trusts were not conceived of in 2003, and are a clear exception. Change more widely than this should be based on wide consultation and debate. My noble friend also raised the Government’s position on judicial review. The Government’s position has to be founded on the formulation of the current law. We cannot advocate a flexible interpretation if it is not consistent with the legislation that exists at the moment. The issue under discussion today is how best to fix this for the future. In conducting our review of the cap, we are already seeking evidence widely from the NHS and others. We are committed to involving stakeholders at every step of our policy development, and the development of this concession was no different. It was developed through consultation with the parties concerned, including the trade unions. The noble Baroness, Lady Cumberlege, raised the issue of new developments such as Monitor and things being different now from the way they were in 2003. The same legislation that established foundation trusts also established Monitor, governors, terms of authorisation and all the other developments that the noble Baroness cites and supports so well.