My Lords, this clause makes amendments to Sections 56A, 57 and 65LA of the National Health Service Act 2006. These provisions are all concerned with the transfer of property liabilities and staff between NHS bodies. The changes proposed in the amendment simply clarify the provisions in the existing legislation to ensure that it can be used in a seamless and efficient way. They do not create new policy.
The clause is needed to remove the current uncertainty over the powers of an NHS foundation trust in Section 56A to acquire another NHS foundation trust or NHS trust, and to correct the omission of key powers with respect to the transfer of staff and criminal liabilities in this provision. It would also explicitly extend Monitor’s power in Section 65LA to transfer the property and liabilities, including criminal liabilities, of an NHS foundation trust dissolved following special administration.
I am sure that it would help the Committee if I expand on those initial comments. The existing Section 56A provisions are uncertain and open to interpretation. Critically, there is no express explanation in the provision of what happens to the acquired trust’s property and liabilities, or third party rights and obligations. As a consequence of this uncertainty, NHS foundation trusts are unlikely to utilise the current provision for fear of legal challenges. We are keen to ensure that where acquisitions are deemed to be in the best interests of patient care, legislation supports this approach. Accordingly, paragraph 1(3) of the clause inserts new Section 56AA to provide for a direct transfer of property and liabilities by operation of law. The grant of application would also be conclusive proof that the acquired trust is dissolved, and in the case of an acquired NHS trust the establishment order revoked.
The Government are committed to ensuring that staff involved in transfers from one public body to another are treated fairly and consistently, and that their rights are respected. The amendment to Section 56A would give Monitor an additional discretionary power to make an order for the transfer of staff from the acquired to the acquiring trust. This would ensure that in cases where TUPE does not apply, or where it is unclear whether it does, Monitor can set out a clear mechanism of transfer that specifies which of the staff are transferring and the implications of transfer. The amendment would also apply to orders made under Section 57 in respect of mergers and separations.
It is established Department of Health policy that criminal liabilities must be preserved on dissolution and transfer of an NHS trust or NHS foundation trust, so that organisational change does not prevent the initiation or continuation of criminal proceedings. New Section 56AA creates a statutory authority for the criminal liabilities of an acquired NHS trust or an NHS foundation trust to transfer to the acquiring trust. Amending Section 65LA will enable Monitor to implement the recommendations of a trust special
administrator. Property and liabilities, including criminal liabilities of a failed NHS foundation trust, may need to transfer to more than one NHS body. Currently, Monitor can only transfer to a single NHS foundation trust, and this is not adequate.
As stated earlier, these changes simply clarify the provisions in existing legislation that already support the NHS in taking the decisions necessary on how to continue to deliver high-quality patient care. I beg to move.
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