House of Commons Hansard Debates for 19 Oct 1995

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relied on a derogation dealing with pensions and social security benefits? Will the Minister confirm that, although the judgment is retrospective to 1979, today's announcement effectively confines retrospective reimbursement to prescriptions supplied in the last three months?

The Minister told us that the judgment explicitly recognises that national rules, such as time limits, will still apply. What existing national procedural rules is he relying on in order to restrict retrospection to a three-month period? Given that he is accepting the principle of retrospection, albeit in a very circumscribed form, will he inform the House what implications that acceptance will have for other cases that are currently before the court?

What is the cost of equalising the exemption at the age of 60 in a full financial year? Will the Minister estimate the cost of the retrospective element in his announcement today, and will he tell the House whether the money that is to pay for it is new money, or will it be diverted from resources at present allocated to other areas of patient care in the national health service?

Finally, will the Minister confirm that, when the directive was introduced, prescription charges were 20p, and that, if they had been indexed in line with inflation, today they would stand at 53p? Surely that tenfold increase in real terms exacerbates the unfairness of the situation with which the Minister has dealt today.

Mr. Malone: I will not be tempted to respond to the issues raised by the hon. Gentleman that are slightly wider than my statement today. I can confirm that the Government understood that this course of action was a possibility under regulations and a directive that were agreed to by a Labour Government in 1978 and under a policy of paying at differential ages of 60 and 65, which was also introduced by a Labour Government.

As to retrospection, the answer is very simple: yes, it is for a three- month period only. I am not in a position today to inform the House about other cases. I am sure that hon. Members will understand that, on a busy day, I wish to deal with only this matter. The cost will be £40 million in a full year, and we estimate that the retrospective element will be about £10 million for the three-month period. I am delighted to confirm for the hon. Gentleman that those costs will not affect money that has already been allocated to direct patient care.

Mr. Nicholas Budgen (Wolverhampton, South-West): Does my hon. Friend agree that the European Union is a half-formed federal structure which has no means of enforcing its judgments against Britain? Does he agree that the time is rapidly approaching when the only honourable and sensible thing to say in response to the gross interference in our domestic affairs is that we will not obey the orders of the European Court?

Mr. Malone: No, I cannot say that. My hon. Friend knows full well that it is Government policy to comply with decisions of all courts when they cannot be appealed

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further--if the Government were to wish to appeal. That has always been the position, and it is well understood by my hon. Friend.

Mr. Terry Lewis (Worsley): Will the Minister undertake not to recoup the charges by extra charges on the rest of the prescriptions?

Mr. Malone: I have already told the House that the funds allocated to patient care will not be affected. As the hon. Gentleman well knows, the allocation of health service funds through the year involves decisions being taken at the proper time.

Mr. John Whittingdale (Colchester, South and Maldon): Is not the ruling another argument for a wholesale review of prescription charges? Is it not absurd that, four weeks ago, Mr. Allan Sharpe, a pharmacist, should be fined for dispensing a prescription privately when it was cheaper for him to do so? Has the time not come to restrict exemption categories to those who genuinely cannot afford to pay, and to use the money saved to bring down the overall level of the prescription charge?

Mr. Malone: My hon. Friend will be well aware that we reviewed prescription charges in 1993. There is no intention of carrying out a further fundamental review.

Mr. Archy Kirkwood (Roxburgh and Berwickshire): I welcome the Government's announcement. Having regard to the other options available to them in terms of age of equalisation, it was wholly right that they should act quickly to end any uncertainty. However, I was puzzled as to why the Minister selected three months for the retrospective element. As I understand the judgment, there was no time limit. He suggested that he was founding on some regulations to establish that time limit. I would be interested to hear exactly why he chose to implement those particular regulations.

Mr. Malone: I am grateful to the hon. Gentleman for his support for the way in which the Government have dealt with the matter. Our main purpose was to deal with it quickly, to end uncertainty and to put in hand arrangements so that people affected can take action as quickly as possible. The rules for applying for a refund of prescription charges have a time limit of a three-month period.

Mr. Patrick Nicholls (Teignbridge): I compliment my hon. Friend on the brisk efficiency with which he has made his statement, but it is a humiliating and demeaning experience to see one of Her Majesty's Ministers changing a settled policy simply because the Government have been told to do so by the European Court. If it was not possible on this occasion to pause and reflect a moment about whether that is a suitable position for the Government, at the very least will steps now be taken within the Government to consider how much longer we can be kicked around by the European Court?

Mr. Malone: I am sure that my hon. Friend will understand that I am here today to deal with the effects of this judgment. I am sure that others will have heard what he said on the wider matter.

Mr. David Winnick (Walsall, North): Leaving aside the xenophobia that we have just heard from the Tory Benches, is the Minister aware that many people--

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although not himself, apparently--will warmly congratulate Mr. Cyril Richardson, who lives in my borough? Is this not a demonstration of a single British citizen fighting for justice, be it in the British courts or the European courts? It is a fine British tradition. Many people will warmly congratulate Mr. Richardson and many will benefit from what he has achieved.

Mr. Malone: It is certainly a case of a private individual taking determined action against a policy which had been settled in terms of equality of payment by the Government and the Opposition for quite some time. I do not for one second accept that what has happened is good. We have to comply with the finding of the court, but I believe that the settled policy was right, and the Government were right to oppose the action by Mr. Richardson until today's conclusion.

Dame Elaine Kellett-Bowman (Lancaster): Does my hon. Friend agree that, even before the judgment, the rebate system in Britain was the most generous in Europe, with 80 per cent. prescription charges being remitted compared with only 60 per cent. when Labour was in office?

Mr. Malone: I agree with that. Of course, the funds from prescription charges--some £310 million--are devoted towards patient care. That is also to be welcomed.

Mr. Peter L. Pike (Burnley): Will the Minister assure the House that those who have prepayment certificates for prescriptions will be dealt with adequately in any refund arrangements that are made?

Mr. Malone: That will be the case. If they fall partially across the three-month period, there will be a proportional rebate.

Mr. Mark Robinson (Somerton and Frome): I would welcome my hon. Friend's assurance that the decision will not affect patient care. Can he confirm that prescription charges represent only two thirds of the average value of medicine dispensed?

Mr. Malone: I confirm that that is so--so they are extremely good value.

Mr. Andrew Miller (Ellesmere Port and Neston): Although I welcome the statement in general, I shall press the Minister further on the way in which the change will be funded. Already, 74 out of the top 100 prescribed items cost less than £5.25. There is already dual taxation on the privilege of being ill if one is working. Will the Minister ensure that that gap will not widen as a result of his statement?

Mr. Malone: I have told the House of the general principles on which the change will be funded, which will be from general budgets. It will not directly affect patient care.

Mr. Peter Butler (Milton Keynes, North-East): Will my hon. Friend confirm that European Council directive 79/7/EEC, which is being applied in this case, was passed unanimously during the time of the last Labour Government, and therefore with their support? Despite

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that, neither the Labour party nor the Government ever thought that that directive would have such an effect, until today's astonishing decision.

Mr. Malone: My hon. Friend is absolutely right. There was a consensus until the challenge. I find the European Court's judgment somewhat surprising, but that does not mean that we can do anything other than comply.

Mr. Hugh Bayley (York): Will the Minister clarify his answer to the hon. Member for Colchester, South and Maldon (Mr. Whittingdale), when he said that prescription charges were last reviewed in 1993? The previous Secretary of State, in her response to the Health Select Committee's report on the NHS drug budget, promised to review a series of anomalies. I will put one of them to the Minister. Chronic diabetics are exempt from prescription charges but a new drug, Navopen, has been introduced in such a way that the Government are insisting that chronic diabetics must buy their own needles, which should surely be included in prescriptions. It is inconsistent to provide the drug free of charge, but not the means of administering it. Today, I wrote to the Secretary of State on behalf of a constituent who is a student, who finds it extremely difficult to buy needles to enable her to administer that drug.

Mr. Malone: I congratulate the hon. Gentleman on reinforcing the point of his letter to my right hon. Friend by raising it in the context of my statement. I was referring to the wholesale review of prescription charges in 1993. No such review is in prospect.

Sir Teddy Taylor (Southend, East): Why did the Government choose to implement this humiliating decision today, rather than put a proposition to the House to decide whether to implement it in this age or in some other age? What is the European requirement to implement the judgment immediately? Was it the Government's choice to do so, without seeking the advice of the House and approval for the expenditure?

As the European Court is becoming a superior, non-elected Government, should not the British Government think terribly carefully before agreeing to further concessions of our freedom and liberty--as they have before, despite clear warnings by hon. Members on both sides of the House?

Mr. Malone: I have no doubt that colleagues responsible for wider matters will have heard my hon. Friend's remarks, not for the first time. The Government came to the House quickly, simply because of fairness, not compulsion. If the public must claim within a three-month period, it is important to make the arrangements as clear as possible, so that proper claims can be registered.

Mr. Dennis Skinner (Bolsover): Is not the truth that the Government- -faced with the judgment, and having calculated that it will cost £40 million in a full year and £10 million for retrospection--have already begun to devise ideas for clawing that money back in further prescription charges, with the result that the people will not benefit at all? That money will not come from the Exchequer. If prescription charges rise above the official

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cost of living index next time, millions of people will know that they have been conned again by this lousy, rotten Tory Government.

Mr. Malone: That will not happen.

Mr. Nigel Waterson (Eastbourne): Can my hon. Friend make it clear that the regulations concerning three months' retrospection for claims have been in place a long time? They were implemented not because anybody anticipated the decision in the Richardson case, and the European Court was well aware of the existence of those regulations when it gave its decision.

Mr. Malone: My hon. Friend is right. The fact of the existence of the regulations was before the court and was known to it when it came to its conclusions.

Dr. Norman A. Godman (Greenock and Port Glasgow): The Minister has confirmed that decisions taken by the supreme European Court cannot be challenged. How confident is he that retrospection of three months cannot be challenged in courts in England or Scotland? Is it not the case that about two years ago the European Court of Justice, in relation to the equality directive, made a decision in a Dutch case involving the Dutch Government that retrospective payments in social security cases could be made up to 1 April 1992? How confident is the Minister that his decision on three months is unchallengeable?

Mr. Malone: I am very confident.

Mr. Tony Marlow (Northampton, North): I have, as I am sure the House has, a great deal of sympathy for my hon. Friend in the predicament in which he finds himself. Will he tell the House when Britain decided that decisions as to who should and should not pay for their prescriptions should be made by a bunch of foreign judges, who do not have to find the money, rather than a democratically accountable Government, who do? Were the British people aware that such a decision was taken? If they were not, is it not a constitutional necessity that our powers should be regained?

Mr. Malone: My hon. Friend knows that I do not intend to wander down the tempting path that he and other of my hon. Friends have offered me. I am restricting myself to the statement. I have no doubt that he will make his views known in his persistent and regular way to others within the Government.

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Orders of the Day

Home Secretary (Prison Service)

4.21 pm

Mr. Max Madden (Bradford, West): On a point of order, Madam Speaker. During Prime Minister's Question Time the Prime Minister said that in the debate that is about to take place the Home Secretary would be producing comprehensive evidence to dispel the allegations that have been made against him in relation to the Prison Service. If the Home Secretary is to refer extensively to documents, are you aware of any preparations having been made by the right hon. and learned Gentleman to enable all Members to obtain copies at the Vote Office at the earliest opportunity? If not, hon. Members will be at a severe disadvantage if we do not have access to the full documentation.

Madam Speaker: The House must wait to see how the debate proceeds. I am sure that the Home Secretary will be as helpful as possible to the entire House.

I have selected the amendment that stands in the name of the Prime Minister. I understand that there is some uncertainty about the application of the sub judice rule in today's debate following the taking out of a writ against the Home Secretary. That is a civil case which has not yet been set down for trial. If hon. Members refer to page 378 of "Erskine May", they will find that in these circumstances the sub judice rule does not come into force. That said, I do not believe that it would be right for the debate to concentrate on whether the recent dismissal of the chief executive of the Prison Service was fair or unfair. I am glad to note that the issue is not mentioned in either the Opposition's motion or the Government's amendment.

As so many Members wish to contribute to the debate, I have had to introduce a 10-minute limit. Members will be lucky to be called today, given the short time that is available for the debate.

4.22 pm

Mr. Jack Straw (Blackburn): I beg to move,

That this House deplores the unwillingness of the Secretary of State for the Home Department to accept responsibility for serious operational failures of the Prison Service.

The Home Secretary has vested in him by section 1 of the Prisons Act 1952 all powers and jurisdictions in relation to prisons and prisoners in England and Wales. He is responsible to the House for the exercise of those powers and jurisdictions. The Act makes no distinction between his responsibility for the policy of the Prison Service and the operation of that policy. We say that the right hon. and learned Gentleman is following a constitutional fiction in seeking wholly to separate the two. He says that he is responsible only for his policy towards prisons but not for operational matters, for which he is accountable but not responsible. Responsibility for the operation of the Prison Service, says the Secretary of State, is in the hands of the Director General of the Prison Service. In return for that operational responsibility, the director general has vested in him, by the agency framework document and other documents, power over operational matters, in which the Secretary of State says emphatically that he does not interfere.

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We say, however, that in practice the Secretary of State has on numerous occasions taken decisions and otherwise interfered with the operation of the Prison Service, but because of the fiction that he is not involved in it or that he is not responsible for operational matters, he has at all times had to avoid any admission that he has been so involved. That has produced two results. First, in the damning words of Her Majesty's Chief Inspector of Prisons, Judge Stephen Tumim,

"it means that the Home Secretary is not responsible for anything at all."

That means that the Home Secretary takes the credit but is free of any responsibility. In other words, he has exercised power without responsibility.

Secondly, we say that the Secretary of State has had to be so evasive as to his real involvement in operational matters that in respect of the fate of Mr. John Marriott, the former governor of Parkhurst prison, he gave explanations to the House and to the Home Affairs Select Committee which are uncorroborated and wholly at variance with other evidence that is now available.

Mr. Edward Garnier (Harborough): On the subject of veracity, I assume that the hon. Gentleman accepts that Mr. Derek Lewis is a man of impeccable veracity. Will he therefore support the evidence that Mr. Derek Lewis gave to the Home Affairs Select Committee, "The Frost Programme", the Daily Mail and the "Today" programme in mid-January 1995, when he said that it was he who made the decision on operational grounds to move Mr. Marriott, the governor?

Mr. Straw: If the hon. and learned Gentleman will bear with me, I shall deal with precisely those points.

Let me deal with each of the matters in turn. First, there is the distinction that the Secretary of State draws between policy and operations. In questions on the statement on the Prison Service on Tuesday 10 January 1995, the right hon. Member for Berwick-upon-Tweed (Mr. Beith) put this to the Secretary of State when he said: "but there is no proper control of security at the prisons. Is not that something for which he--"

the Home Secretary--

must take responsibility?"

The Secretary of State replied:

"With regard to operational policy, there has always been a division between policy matters and operational matters . . . I really do not see . . . how, whatever structure or framework is in place, one can avoid a sensible distinction between policy and operational matters."--[ Official Report , 10 January 1995; Vol. 252, c. 39-40.]

The problem for the Secretary of State is that he is the only one who believes that in practice such a sensible distinction can be made to the point of rigidity to which he takes it, for if ministerial responsibility means anything, it must mean that his policy is judged against the operation of that policy. How else can we judge a policy? Policy is not some intellectual abstract. It can be judged only by whether it has good or bad effect.

Judge Stephen Tumim said earlier this year that the Prison Service faced a crisis of confidence. That crisis has grown worse since he spoke those words. Is it any wonder that the service is in crisis when it has no effective leadership? The Secretary of State provides none. Indeed, he does not even pretend to provide any, because he says

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that he is not responsible for the operation of the service. The Director General of the Prison Service, who was personally appointed by the right hon. and learned Member for Rushcliffe (Mr. Clarke), and was complimented to the hilt by the Secretary of State in the House on 10 January, has now been dismissed without notice. There is only an acting successor, Mr. Richard Tilt, who on the day of his appointment was in open disagreement with the Secretary of State, telling a meeting of prison governors that in his view the removal of Mr. Lewis was "unnecessary".

Virtually everyone associated with the Prison Service--the governors, the staff, all six trade unions, Judge Tumim--have palpably lost confidence in the Secretary of State. As we heard on the radio this morning, that now includes the chairman of the Association of Members of Boards of Visitors, Mr. Julian Alliss, who called on the Secretary of State to resign.

Mr. Bernard Jenkin (Colchester, North): Will the hon. Gentleman make clear his view? Does he think that the Director General of the Prison Service should have been dismissed? Let us have an answer to that.

Mr. Straw: As the--[ Interruption .] I am about to answer the question. As Madam Speaker made clear, perhaps before the hon. Gentleman came into the House, the issue before the House is not whether Mr. Derek Lewis should have been dismissed-- [Interruption.] That is the subject of Mr. Lewis's legal action against-- [Interruption.]

Mr. Deputy Speaker (Mr. Michael Morris): Order. The hon. Gentleman has the right to answer questions as he believes is appropriate.

Mr. Straw: The issue before the House is the responsibility of the Secretary of State for running the Prison Service.

Mr. Michael Fabricant (Mid-Staffordshire): On a point of order, Mr. Deputy Speaker. Has not Madam Speaker just ruled that the issue is not sub judice and therefore could be discussed if the House so wished?

Mr. Deputy Speaker: I do not think that it would be appropriate for me to read out the ruling, other than to say that the matter is not sub judice. However, Madam Speaker drew the attention of the House to the fact that neither the motion nor the amendment referred to the issue and she therefore hoped that the debate would not be on that issue.

Mr. Straw: It is certainly the case that a great many of those with far greater knowledge of Mr. Derek Lewis's competence do not believe that he should have been summarily dismissed by the Secretary of State. That is why two non-executive directors, both with great experience outside the service, have now tendered their resignation in protest against the treatment of Derek Lewis. Mr. Geoff Keeys resigned yesterday and Mrs. Urmila Bannerjee, a senior director of British Telecom, resigned today.

For all that, the Secretary of State continues blithely to refuse to acknowledge any responsibility. When the Woodcock report into the Whitemoor escapes was published, he denied responsibility by claiming that the report contained "no recommendations to me".

Mr. Gerald Kaufman (Manchester, Gorton): Surely the real question is not the one put to my hon. Friend by

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the hon. Member for Colchester, North (Mr. Jenkin), but the one answered by the Home Secretary on 10 January 1995. When I put it to him that Mr. Derek Lewis should be dismissed, the Home Secretary said:

"The Prison Service is clearly going through a difficult time. The director general is the best person to take it through that difficult time."--[ Official Report , 10 January 1995; Vol. 252, c. 40.]

What has changed since then other than the Home Secretary's need for a scapegoat?

Mr. Straw: For all the crisis which has now engulfed the Prison Service--I understand Conservative Members' unwillingness to consider the fact of the crisis over which the Secretary of State has presided, but that is the reality and it is known outside the House to everybody associated with the Prison Service--the Secretary of State continues blithely to refuse to acknowledge any responsibility for this crisis. He did so when the Woodcock report-- [Interruption.]

Mr. Deputy Speaker: Order. This is a relatively short debate and hon. Members should listen to the hon. Member who has the Floor.

Mr. Straw: As I have said, despite the extent of the crisis now engulfing the Prison Service, the Secretary of State refuses to acknowledge any responsibility for it.

Mr. Jacques Arnold (Gravesham): Will the hon. Gentleman give way?

Mr. Straw: I will give way later.

The Secretary of State evaded responsibility when the Woodcock report on the Whitemoor escapes was published, claiming that it contained "no recommendations to me" although it stated in terms: "There exists at all levels within the Service some confusion as to the respective roles of Ministers, the Agency Headquarters and . . . Prison Governors. In particular, the Enquiry has identified the difficulty of determining what is an operational matter and what is policy, leading to confusion as to where responsibility lies." The Secretary of State did the same on Monday, when he sought to avoid any responsibility for the matters which were the subject of the report by claiming that Learmont

"has not found that any policy decision of mine, directly or indirectly, caused the escape."--[ Official Report , 16 October 1995; Vol. 264, c. 31.]

No such words were used anywhere in Sir John's report. Moreover, the Learmont report is replete with criticism of political involvement by Ministers in the operation of the service. Paragraph 3.83 states:

"The Director General . . . needs minimum political involvement in the day- to-day operation of the Service",

and then charts how the reverse has been the case.

The report continues:

"Any organisation which boasts one Statement of Purpose, one Vision, five Values, six Goals, seven Strategic Priorities and eight KPIs"--

key performance indicators--

"without any clear correlation between them, is producing a recipe for total confusion and exasperation amongst those undertaking a most difficult and dangerous task on behalf of the general public." Who is responsible for the "total confusion" identified by Learmont? Is it the Prison Service board, the director general or someone else? That "recipe for total confusion" is contained within the framework document itself. It is here that we find the

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"one Statement of Purpose, one Vision, five Values, six Goals, seven Strategic Priorities and eight KPIs, without any clear correlation between them".

That document, drawn up by the former Secretary of State for the Home Department--now the Chancellor of the Exchequer--is explicitly endorsed by the current Secretary of State.

I wrote to the Secretary of State on Monday, asking him where the distinction between policy and operations was explained. His private secretary wrote back saying that the document

"explains the distinction between operations and policy." The document, of course, does no such thing. What it does do--in Sir John Learmont's damning phrase--is to prescribe a recipe for the total confusion for which the Secretary of State is responsible.

Mr. Iain Duncan Smith (Chingford): The right hon. Member for Manchester, Gorton (Mr. Kaufman) referred in an intervention to the question that he asked on 10 January. In that question, he described Mr. Lewis as "arrogant and incompetent". As so much of the charge that the hon. Member for Blackburn (Mr. Straw) is making relates to Mr. Lewis, will he now tell us whether he agrees with his right hon. Friend that the man was and is arrogant and incompetent?

Mr. Straw: The arrogance and incompetence are the Secretary of State's.

The Secretary of State will, I believe, seek to rely on the framework document for the Prison Service agency, or on that part of that document which states that

"the Secretary of State will expect to be consulted by the Director General on the handling of operational matters which could give rise to grave public or parliamentary concern."

However, the preceding sentence states:

"The Home Secretary will not normally become involved in the day-to-day management of the Prison Service."

We now know that the reverse has been the case. Mr. Lewis makes that claim in his statement of claim, and the Learmont report corroborates it. Mr. Lewis claims that, on average, he had to attend meetings lasting an hour every day with the Secretary of State and others. He claims that on occasion after occasion the Secretary of State questioned decisions that were plainly within the director general's remit of day-to-day management, including

"pressure brought to bear upon him in relation to internal disciplinary decisions taken by prison governors"--

relating to the disciplining of individual members of staff and prisoners--

"with a view to increasing the severity of the action to be taken".

There is overwhelming evidence in the Woodcock report, in the Learmont reports, in the now public documents produced by Mr. Lewis, and in the constant complaints made by prison governors, of day-to-day interference in the running of the service, which goes well beyond the right laid down in the framework document for the Secretary of State to be consulted in certain circumstances. There is, however, no more compelling evidence than the Secretary of State's involvement in the decisions about the future of Mr. John Marriott, the former governor of Parkhurst, which were announced to the House on 10 January. The framework document and the code of discipline in the Prison Service make it clear that

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