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10 Mar 2009 : Column 221

We did raise that matter, but if the hon. Gentleman wants to make a point later about retained firefighters I am sure that my colleagues would welcome it.

Angus Robertson (Moray) (SNP): Will the hon. Gentleman give way?

Mr. Lansley: No, I will make some progress. Let me at least explain why I think that this motion is timely. From the health service’s point of view, it is just four months until the introduction at the beginning of August of the 48-hour limit on junior doctors’ hours. However, the long-term future of the working time directive lacks clarity.

On 17 December last, the European Parliament voted against the common position that had been put to the Parliament on behalf of the Council of Ministers. The majority of Labour MEPs voted against the position that had been taken by the UK Government in the Council of Ministers. As a consequence of that vote, the conciliation between the Council of Ministers and the European Parliament will start shortly—I am told that it will start as early as next week. Although that conciliation could extend as far as the European parliamentary election, it would be far better from the point of view of creating certainty and clarity if, through that process, UK national interests could be secured through the retention of the opt-out and the redefinition of on-call time and compensatory rest. It is important to secure those interests, and the present lack of clarity is causing considerable difficulties for the national health service.

Angus Robertson: I am grateful to the hon. Gentleman for giving way so early. He talked about the important vote in the European Parliament. Is he as concerned as I am that the only Liberal Democrat MEP from Scotland voted to end the opt-out? Why do we get questions from Liberal Democrats here when their MEPs voted differently in Brussels?

Mr. Lansley: The hon. Gentleman makes an interesting point. We will have to find out why the Government have pursued a line that does not appear to be supported by their MEPs. Perhaps the Liberal Democrat spokesman will tell us why that party appears to be pursuing a line not supported by theirs, but I am happy to say that at least Conservative Members have taken a view on these issues that is supported by our MEPs.

If I may, Mr. Deputy Speaker, I shall focus on the issues as they affect the NHS. Later, I hope that my hon. Friend the Member for Rayleigh (Mr. Francois) will have an opportunity to talk about some of the wider issues raised by the European working time directive. However, the health service issues illustrate the impact that inappropriate and unthinking legislation can have on the delivery of public services and, by extension, private sector services and production.

I shall begin with some of the background to a problem that Opposition Members have found very frustrating. As far back as 1991, the excessive hours worked by junior doctors were clearly unacceptable. The problem needed to be tackled, and that is why the new deal for junior doctors was introduced in that year.
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Its objective was to bring us to the point where junior doctors worked a maximum of 56 hours a week, and we reached that position three years ago. That measure was introduced domestically by the UK Government for UK purposes. When the working time directive was introduced in 1993, it was recognised that there was a need for exemptions, and doctors in training were exempted.

When the directive was extended in 2000, it was recognised that there needed to be a substantial transition period. The 2003 regulations implementing the changes to the directive in this country specified a maximum working week of 58 hours from 1 August 2004, 56 hours from 1 August 2007, and 48 hours from 1 August 2009. I am sure that it will be part of the Secretary of State’s argument that the NHS has had notice since 2003 of what will be required by the law in 2009.

Mr. David Heathcoat-Amory (Wells) (Con): I thank my hon. Friend for his remarks so far, but is it not extraordinary that our employment policies depend on contorted negotiations in Brussels with other member states, many of which have every interest in imposing more and higher employment costs on the UK economy? Will he confirm that it is our party’s policy to repatriate employment policies back to this country from the EU, so that we can decide these matters ourselves?

Mr. Lansley: My right hon. Friend will know, as will my other colleagues, that our intention is to secure national control over social and employment legislation. I know that my hon. Friend the Member for Rayleigh will want to expand on that, but I entirely concur with what my right hon. Friend the Member for Wells (Mr. Heathcoat-Amory) has said about the absurdity—the perversity, as it were—of seeking to introduce European legislation that is applied in ways that go far beyond the original intention. We know that that has happened, because we are about to debate the further tightening—from 56 to 48 hours—of restrictions on working hours for junior doctors. There is no good evidence that that would have any meaningful impact on the health and safety of those employees—the ostensible purpose of the regulation—but, as I hope to go on to explain in detail, it would have damaging effects on the management of the NHS, as well as serious implications for patient safety and the delivery of services for patients.

Peter Bottomley (Worthing, West) (Con): Will my hon. Friend join me in pointing out to the Secretary of State that his predecessor had helpful advice from many doctors, including from some in my constituency? They said then that the Modernising Medical Careers and Medical Training Application Service systems would not work, and neither would the NHS IT system, and they are saying now that the working time directive will not work and that it is bad to have surgeons without enough work experience becoming consultants. I was a junior Minister involved with European legislation when this matter was first discussed in 1984. I have asked every Commissioner whom I have met since then, “Do you work more than 48 hours? Do you find that it affects your health? How many days do you have off work?” However, none of them seems to go sick, or say that 48 hours is enough. If the directive is not good enough for Commissioners, why should it be forced on other people who want to work?

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Mr. Lansley: My hon. Friend makes a good point. Indeed, the Opposition are beginning to see some striking parallels with how some quarters of the medical professions warned the Government about the disastrous implementation of MMC and MTAS. The Government simply did not listen. Some two years ago, the Royal College of Surgeons was warning about what was going to happen, and offering some solutions. Today, it is again expressing warnings and offering ideas and solutions to the Secretary of State. It is incumbent on Ministers to respond to those ideas, and not simply ignore them.

However, the challenge issued by my hon. Friend the Member for Worthing, West (Peter Bottomley) is interesting. Perhaps the Secretary of State worked more than 48 hours last week: if so, will he tell the House at what point his judgment and decision-making capacity were impaired?

The Secretary of State for Health (Alan Johnson): I knew that the Opposition were in favour of pulling out of the social chapter, but will the hon. Gentleman clarify whether it is their policy to pull out of the European working time directive?

Mr. Lansley: No. I said that our policy was to secure national control over social employment legislation. That is how we have expressed it, and that is what we will aim to do. The question for this debate is how the Government will secure their policy and our national interests in the next few months. Perhaps the Secretary of State has shifted his position so completely that he now thinks that the only issue is what the next Government are going to do. If so, that is fine: by all means let us have a debate about that, in recognition of the fact that we will be taking over these responsibilities. Unless and until we do, however, our task is to challenge the Government about how they are discharging their responsibilities to deliver our national interests now and over the four months before the working time directive is implemented.

David Taylor (North-West Leicestershire) (Lab/Co-op): Will the hon. Gentleman give way?

Mr. Lansley: I will give way in a moment, of course, but it is important to recognise that although the regulations were implemented to achieve a progressive reduction in working hours, the way that the European Court of Justice chose to interpret them also had a substantial impact.

The SiMAP and Jaeger judgements are relevant in this regard. The SiMAP judgment treated time spent as a resident on call as working time, regardless of whether the people involved were actively engaged in work. The Jaeger judgment reinforced that, and also applied the interpretation that compensatory rest for time worked should be achieved before the next scheduled work period. Both judgments, of course, had a substantial impact on junior doctors’ ability to fulfil their obligations in operating rotas and the like. They also effectively ended the resident-on-call status that until then had been a substantial part of their service contribution to the NHS.

David Taylor: I am grateful to the hon. Gentleman for giving way. Earlier, he seemed to agree with the suggestion from the right hon. Member for Wells (Mr. Heathcoat-Amory) that the working time directive was some dastardly European plot imposed on us from
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Strasbourg and Brussels. I stand second to none in my scepticism about many things European, but I am not aware that any foreign firms are seeking to deliver the retained fire service in Scotland or parts of the NHS in England. That is a daft suggestion. When the 56-hour and 48-hour working week were being trialled, it is true that there were gaps in provision, but surely they could be filled by locums if we were able to train enough of them. The health and safety—

Mr. Deputy Speaker: Order. I hope that the hon. Gentleman would not tolerate such a long intervention in any Committee under his chairmanship.

Mr. Lansley: Thank you, Mr. Deputy Speaker. In so far as I understood the hon. Gentleman’s intervention, I think that I will cover his point in my remarks.

In 2004, the European Commission, reviewing the working time directive, proposed to retain the individual opt-out and to redefine inactive time and compensatory rest in ways that would have been helpful, from our point of view. Unfortunately, as Ministers subsequently admitted in debates, they were unable, even during the UK presidency, to deliver that through the Employment Council. In June last year, a common position was reached in the Council; again, that would have been helpful from our point of view, but the European Parliament has voted against it. None of that impacts on the possibility of providing additional flexibility through the directive to provide a derogation beyond 48 hours to 52 hours through to 2012, so that the 48 hours does not apply to junior doctors in 2009. That is all by way of background.

What I find remarkable in all that is that the response of Government seems to have been so weak when it came to our national interests. The right hon. Member for Barrow and Furness (Mr. Hutton), who was Minister of State at the Department of Health at the time, was in January 2004 so misguided as to say:

People across the national health service know that it is an enormous burden, even in the pilot projects, which have sought to put the most charitable interpretation on the matter. There are enormous costs, and there are implications for rota design, staff arrangements, and in particular, the recruitment of additional locum and consultant staff. In recognition of that—it is scarcely full recognition—the Government are providing £110 million this financial year and £200 million next financial year to compensate. So we know that compliance is costly.

Mr. John Redwood (Wokingham) (Con): Is that not typical of this Government, whose approach to Europe is always supine? They try to find out what the answer will be first, and then they say that that is the answer that they want. They have never stood up for British interests on anything and seen it through to a successful conclusion. They gave the money away, and now they are giving the working rights away.

Mr. Lansley: Yes, my right hon. Friend is absolutely right. Interestingly, even two months after the right hon. Member for Barrow and Furness made the statement that I quoted, he recognised that there were problems with the working time directive. He said:

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Two years later, recognising the difficulties, the right hon. Member for Birmingham, Hodge Hill (Mr. Byrne), then Parliamentary Under-Secretary of State for Health, said:

They may have been key priorities, but they were not achieved; I am afraid that the Government have consistently failed on the issue.

Interestingly, in January this year, when we raised the issue in the course of a debate on emergency care, the Secretary of State said, in apparent contradiction of the Government’s intentions:

He did not qualify that. For a start, does he actually intend that consultants in the NHS should have no opt-out? Is he actually contending that he wants to get rid of the individual opt-out? Is he contending that there is no scope for derogations? It all appears to be completely contrary to the Government’s stated policy intention. The Secretary of State is all over the shop on that subject.

Rob Marris (Wolverhampton, South-West) (Lab): The working time directive is a piece of health and safety legislation. Can the hon. Gentleman tell me of two other pieces of health and safety legislation that allow the individual employee simply to opt out of something that is there to protect his or her health?

Mr. Lansley: That is a curious intervention. It is ostensibly the policy of the hon. Gentleman’s Government that there should be an individual opt-out, but he appears to be arguing that that is strange and anomalous. We are in favour of retaining the opt-out, even if Government Members—not only Members of the European Parliament but Members in this Parliament—appear not to have understood, or to support, anything that the Government tell them. What I find really curious is that although the Secretary of State told the House that the limit would be 48 hours and that was that, nine days later he sent the European Commission notification of the fact that there would be a derogation. Unfortunately, he wrote that on the basis that the derogation would relate only to

areas. He did not give the opportunity for a wider derogation—something that the Royal College of Physicians, for example, is very keen to have.

Mr. William Cash (Stone) (Con): My hon. Friend is making a very good speech on health matters, but of course there is also the question of business as a whole. Has he noticed that in this time of economic crisis, the number of countries seeking derogation has risen to 15 and is growing, precisely because countries now appreciate that they need that flexibility, particularly for small and medium-sized businesses? To do otherwise in an economic crisis is pure Alice in Wonderland.

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Mr. Lansley: Yes, it is interesting; 15 member states, including ourselves, make use of the opt-out. It is astonishing that throughout the process, the European Union, through its decision-making processes, appears to have been able to resist what, on the face of it, was the common position of most of the member states of the European Union, represented in the Council of Ministers. The way in which decision making is structured in the European Union gives one pause for thought. I shall say no more on that; it is not my place to do so.

Norman Lamb (North Norfolk) (LD): Will the hon. Gentleman give way?

Mr. Lansley: I shall make some progress, but I will give way in a minute. I do not want to lose sight of the nature of the problems that the issue creates for the NHS. This is not a theoretical debate about European policy, or the merits or otherwise of reducing working hours for junior doctors. As I said, in the absence of the working time directive, we would none the less have enforced a 56-hour limit on working hours for junior doctors, to prevent them from having an excessive work load.

Norman Lamb: Will the hon. Gentleman give way on derogation?

Mr. Lansley: All right, I give way on derogation.

Norman Lamb: I am grateful to the hon. Gentleman. Does he agree that derogation, which would still involve a four-hour reduction to the current number of hours allowed, does not solve the fundamental problems? It does not address concerns about patient safety or the impact on training; it simply delays the inevitable for two years.

Mr. Lansley: Yes, I agree with that, and I will come on to some possible solutions, although I fear—I know that some of my colleagues would say this—that the directive imposes a legislative straitjacket that limits our potential, even given the common position taken by the Council of Ministers.

Let me be clear about what the problems are for the NHS. First, the Government are proceeding on the basis that there is a much higher level of compliance than there really is. Ministers are working on the basis of compliance with the new deal for junior doctors, not with the working time directive directly. When the Royal College of Surgeons went to the north-west region, which the Government had said was already 97 per cent. compliant with the obligations for this August, it found that one third of those units in the north-west were not compliant, and about a third of those who were not compliant thought that they still would not be compliant by August.

Are the data that we see reliable? The Association of Surgeons in Training, which surveyed its surgical trainees, found that only a quarter of them had contracts and human resources department data that were an accurate reflection of the real hours that they were working, so we may not be getting proper data. Worryingly, 55 per cent. of members of the Association of Surgeons in Training went on to say that they were pressured falsely to declare their actual hours worked, and 80 per cent. of surgical trainees supported an opt-out from the European working time directive to protect their training.

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