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Monday, 9 May 2011.
2.30 pm
Prayers-read by the Lord Bishop of Norwich.
Bosnia and Herzegovina
Question
2.36 pm
Asked By Lord Ashdown of Norton-sub-Hamdon
To ask Her Majesty's Government what assessment they have made of the current situation in Bosnia and Herzegovina.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, the situation in Bosnia and Herzegovina is of serious concern. A new state-level Government have still not been formed following elections last October, preventing any progress on reforms. The process of government formation in the federation entity has proved divisive and problematic. Conclusions adopted by the Republika Srpska National Assembly on 13 April represent a serious challenge to the Dayton agreement and the rule of law. We have strongly condemned these conclusions and have made it clear that we will not tolerate such attempts to undermine Dayton or the rule of law in Bosnia and Herzegovina.
Lord Ashdown of Norton-sub-Hamdon: My Lords, I thank the Minister for that extremely helpful reply. Is it not the case that the plan by the President of Republika Srpska, Milorad Dodik, to hold a referendum is clearly against the provisions of the Dayton agreement and confirms the country's depressing dynamic back towards dissolution? Given that the country would be unlikely to go through dissolution without returning to bloodshed, will the Government give us their assurance that they are prepared to use every means possible to protect and preserve the territorial integrity of Bosnia and Herzegovina and act against those who would seek to put it at jeopardy?
Lord Howell of Guildford: My Lords, I congratulate my noble friend Lord Ashdown on his constant concern, backed by his huge expertise and familiarity with this issue, which as we all recognise is a serious one and trending in the wrong direction. Will I give that assurance? Yes, I certainly will. We will, if necessary, argue for the European Union to deploy fully all incentives and deterrents at its disposal and we will use all the pressures available to us against what looks like a blatant and clear attempt to contravene the Dayton agreement by Republika Srpska and its leader. These are bad developments, which we are determined to see resisted. We do not want the territorial integrity and structure of the Bosnian state undermined, as it would be if these kinds of proposals are pursued.
Lord Cormack: My Lords, is my noble friend convinced that the Republic of Serbia is doing everything possible to exert pressure on Republika Srpska?
9 May 2011 : Column 654
Lord Howell of Guildford: The Republic of Serbia is being helpful in some respects. I cannot say that everything one would like to see being done is being done. But the general support is there because that nation, too, has a clear interest in seeing that Bosnia-Herzegovina remains intact and does not fall back into its grim past, which we all remember and which was so stained with blood.
Baroness Falkner of Margravine: My Lords, will my noble friend agree that this dangerous situation, which may well lead to the dissolution of Bosnia-Herzegovina, has been aggravated by the failure to form a state-level Government as well? Does he agree that the EU and Washington need to move swiftly now to knock heads together and to use all legal powers at their disposal to prevent the referendum happening?
Lord Howell of Guildford: Yes, I think we do, and we have to address the fact that, on the Bosnian side, the formation of a Government has been very slow and stumbling, with the largest parties in effect excluded, so there is a very weak situation. That is quite aside from the Republika Srpska side, where, as we have recognised in the past few minutes, a policy is being pursued which, if pushed through to a referendum as proposed, would lead to a direct challenge to the whole Dayton structure. Do we need to move rapidly? Yes, we certainly do. Do we need to support the EU new strategy, including a new figurehead to work alongside the Office of the High Representative? Yes, we do. Will we do these things? Yes, we will.
Baroness Royall of Blaisdon: My Lords, would the Minister agree that in the longer term the only way to guarantee peace and stability in this region is to ensure that all countries are able to meet the Copenhagen criteria and that they are welcomed into the European Union?
Lord Howell of Guildford: That is certainly so. Obviously, the aspiration is there for the west Balkans to be part of the European Union in due course. Unfortunately, there are a number of very important conditions, and the noble Baroness is absolutely right to point to some of them. These immediate concerns that we are discussing need to be addressed; it is a question of consolidating the state of Bosnia and Herzegovina and preventing its breaking down into the old rivalries. Beyond that comes the prospect of the west Balkans joining the European Union, which we should certainly work for.
Lord Teverson: My Lords, is not the inclusion of Macedonia one of the fundamental ways in which the movement of the western Balkans into the European Union needs to start? That country's candidature has been agreed but those discussions have been blocked so far by the disagreement between Greece and Macedonia over a name. Surely that is one of the most important areas in which the integration of the western Balkans should start, and others can then follow.
Lord Howell of Guildford: The whole issue of the western Balkans and the particular issue that my noble friend has raised require very close attention. They are full of very difficult problems, which we must
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Lord Hylton: The Minister said something about consolidating Bosnia and Herzegovina. Would he agree that this means that work needs to be done at local level and city level to hold the thing together?
Lord Howell of Guildford: Most certainly it does. The work is going on and our own country, the United Kingdom, contributes directly-for instance, with work in judicial training, policing methods and community work of all sorts. This is a central part of the glue to try to bring these communities together again and enable one country to emerge.
Public Expenditure: Reserve
Question
2.43 pm
To ask Her Majesty's Government whether the public expenditure reserve is adequate to meet any potential requirement.
The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the contingency set aside in the Government's public expenditure plans over the period 2011-12 to 2014-15 amounts to 0.6 per cent, 0.8 per cent, 0.9 per cent, and 1 per cent of each year's total managed expenditure. The Government believe that this is a prudent level of contingency to hold against unforeseen costs during the 2010 spending review period, but it is not intended to cover all possible eventualities.
Lord Barnett: I thank the Minister for his Answer, but would not some flexibility be positively helpful? For example, if growth was not as good as we all hoped and unemployment continued to rise, could not additional funds for the contingency reserve be a sort of plan B? The Chancellor need not call it that but just do it, as it would be positively helpful. Indeed, that would help the deficit reduction by increasing growth and reducing unemployment.
Lord Sassoon: No, my Lords, that would not be the right approach at all. The words of a distinguished former Chief Secretary to the Treasury in another place on 17 March 1977 got it absolutely right:
"It is no good drawing up elaborate spending plans without the determination and means of ensuring that the planned total",
- "is not exceeded. We have that determination ... The contingency reserve regime is strict. We do not allow additional expenditure to count against the contingency reserve until we are fully satisfied that offsetting savings are not to be had".-[Official Report, Commons, 17/3/77; col. 641.]
That is what the noble Lord, Lord Barnett, said in 1977, and he got it absolutely right.
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Lord Newby: My Lords, do not the comments of Standard & Poor in the US on the possible downgrading of American debt show the folly of building up too great a deficit, however tempting it might be to spend more money on things which we would all like to see?
Lord Sassoon: Yes, indeed. As ever, my noble friend Lord Newby gets it absolutely right. Fiscal discipline is absolutely the watchword of this Government. I should say that the Armed Forces will get all the expenditure that they need in relation to net additional costs of military operations in Libya and elsewhere, but that is the exception to the rule.
Lord Eatwell: My Lords, before answering my question, perhaps the noble Lord could tell the noble Lord, Lord Newby, what impact the threatened downgrading by Standard & Poor has had on the funding of US debt. I am sure that I could help the noble Lord by telling him that its impact was nil. Will the noble Lord tell us what criteria the Treasury uses to judge whether events merit using the reserve and, given those criteria, would an increase in unemployment of 100,000 or 250,000 fall within the rules?
Lord Sassoon: My Lords, first, in relation to this discussion about borrowing costs, I am pleased to say that as of last week the UK's 10-year borrowing costs, the benchmark for our gilts, hit practically the lowest that they have ever done, while the margin we pay in relation to the German bund has hit its best position since the general election. We absolutely must do these things to make sure that our interest rates remain low. As to how the reserve operates, I am happy to copy to the noble Lord the published rules that the Treasury uses. However, they are for consideration only in exceptional circumstances and would not be linked to the sorts of factors that he sets out.
Lord Higgins: My Lords, did the European bailout of the Greek Government deplete this reserve and would any extension of that process deplete it?
Lord Sassoon: No, it did not and I will not talk about hypothetical situations.
Lord Peston: It is difficult not be cynical about any discussion of this subject. I spent the morning-I probably wasted it-looking at the history of what Governments say about their attitudes to contingencies. In all cases, they say exactly what the Minister has said, except for one thing. When the chips are down and they have what they call a crisis, which they are never short of, they spend all the money that they want to spend.
Lord Sassoon: My Lords, I have been back and looked at the record and it is certainly the case that the previous Government went and topped up the reserve on at least 10 occasions. They increased borrowings when it looked as if expenditure was going to exceed their totals. This Government, when they set a total for managed expenditure, intend that it will not be exceeded.
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Lord Naseby: Has my noble friend seen the number of recent articles about the Office for National Statistics and the conflict between the figures that it has produced for the output of the construction industry and the figures that that industry believes are correct? The difference appears to be 0.3 per cent of national growth. This is a severe and difficult area and therefore should not the Office for National Statistics resolve that issue once and for all before the next lot of statistics come out?
Lord Sassoon: We are straying a bit from the subject of this Question but, as there do not seem to be many other noble Lords wanting to get in, I will say that I know how difficult it is for the ONS to produce these statistics. I am sure that it will continue to look at all ways of improving the way that it deals with the data. There was a one-off change to the way in which construction data were reported and the industry is questioning that. I am sure that the ONS is on the case.
Lord Barnett: My Lords, I am flattered that the Minister thought it necessary to research what I said 34 years ago when I was that much younger, but could he try to answer my supplementary Question this time?
Lord Sassoon: I am hearing that people seemed to think that I gave quite a sufficient answer the first time around. The noble Lord got it absolutely right when he was Chief Secretary and that is what my right honourable friend the present Chief Secretary will be doing.
Israel and Palestine
Question
2.50 pm
To ask Her Majesty's Government what plans they have to encourage a settlement between Israel and Palestine.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): As my right honourable friend the Foreign Secretary said in Cairo on 2 May, we renew our calls for both sides to commit to peace talks, leading to a Palestinian state that exists in peace and security alongside Israel. We want to see a resumption of negotiations based on clear parameters supported by the international community: 1967 borders with equivalent land swaps, appropriate security arrangements, Jerusalem as the capital of both states and a just solution for refugees.
Lord Dubs: My Lords, the Minister will be aware of the widespread support that there has been for the Prime Minister's recent positive approach to the agreement between Fatah and Hamas. What is the Government's view on the Israeli Government's threat to withhold $105 million-worth of tax and customs revenues from the Palestinian Authority in case it should proceed with this agreement with Hamas?
9 May 2011 : Column 658
Lord Howell of Guildford: We think that that is the wrong approach. On the contrary, Israel and the two parties that are now coming together in some reconciliation should now take the opportunities offered to carry the whole peace process forward. It should be recognised that, unfortunately, Hamas's commitment to non-violence has not yet taken place-it has not yet committed to the quartet principles and we would like to see it be a more effective partner for peace-but on the whole we see these trends as the right ones and we think that the Israeli withholding of revenues is the wrong approach.
Lord Clinton-Davis: While I support a genuine rapprochement between Israel and the Palestinians-most of the Palestinians, not all of them-is it possible to broker a real deal as long as Hamas pledges to destroy Israel? Is it realistically negotiable?
Lord Howell of Guildford: The noble Lord is right that that is the obstacle. As I have just said in my answer to the noble Lord, Lord Dubs, we think that when Hamas is ready to be a genuine partner for peace and is committed to the quartet principles, we can go forward. Clearly, though, at the moment it is not and that is undoubtedly an obstacle, as the noble Lord acutely recognises.
Lord Ashdown of Norton-sub-Hamdon: My Lords, given that we all know that a settlement between Israel and Palestine can be based only on a two-state solution, and given that the present pattern of Israeli settlements makes the second state-that is, the Palestinian state-completely unviable, is it not the case that no such solution could ever realistically be achieved without a withdrawal of at least some, if not all, of the current pattern of Israeli settlements?
Lord Howell of Guildford: My noble friend is right that the settlements issue is also at the heart of this, and there are major difficulties ahead. In discussions on the two-state prospect, there have been some ideas of the settlements existing within Palestinian jurisdiction while, as my noble friend has said, other ideas include some withdrawal. These matters have all been examined in immense detail as part of the move forward, but first there has to be some movement in recognising that we now have opportunities for the peace process to develop in the right direction, rather than the attitude that we hear in some quarters at present that, "Nothing can be done for the moment because we don't know where anyone stands, we don't know where Egypt stands and we don't know where the Fatah/Hamas agreement really stands". That is a negative attitude. We must overcome that and move forward on all these fronts, including the settlements.
Lord Hylton: My Lords, was it not a great mistake to impose completely unacceptable preconditions on Hamas? Has the noble Lord noted that polls recently showed that 52 per cent of Israelis welcomed engagement with Hamas?
Lord Howell of Guildford: I hear what the noble Lord says, but our position remains that we are not prepared to talk to Hamas until it renounces violence, recognises Israel and adheres to the quartet principles.
9 May 2011 : Column 659
The Lord Bishop of Norwich: My Lords, does the Minister agree that the recent withdrawal of residency permits from any Palestinians is a grave violation of basic human rights, and diminishes the capacity of many faith and community leaders to contribute to a peace settlement? In the case of Suheil Dawani, the Anglican Bishop in Jerusalem, it also further alienates the small Christian community in the Holy Land.
Lord Howell of Guildford: Yes, these are further concerns. I was about to say irritants but they are more than irritants; they are the sort of worries that we raise again and again with the authorities concerned and with the Israeli Government. We will do so in the future as well.
Lord Clarke of Hampstead: My Lords, many people will be pleased-if that is the right word-to hear that the Government are not prepared to deal with a terrorist organisation until it renounces its determination to drive Israel into the sea. Does the Minister agree with me that the first stage in getting the understanding that the Government are looking for is for the people who are lobbing missiles into Israel, almost on a daily basis, to be brought to book?
Lord Howell of Guildford: That is clearly one of the necessary cessations that must occur. However, one must take a balanced approach and recognise that it goes hand in hand with an acceleration of the easing of the supply of provisions into Gaza, where conditions have been horrific. These things all move together. If one concentrates on just one transgression on one side, progress is inevitably halted. However, the noble Lord is absolutely right that one of the essential conditions is for one of the key parties concerned-Hamas-to desist, or to persuade minorities that it may control to desist, from shooting rockets into Israeli towns, wounding and damaging completely innocent people.
Lord Phillips of Sudbury: My Lords, does the Minister accept that power is given to the extremist wing of Hamas by the relentless Israeli colonisation of the West Bank and east Jerusalem, and that without a cessation of that at least there is no chance that the moderate majority within Hamas will be able to bring about the conditions that he mentions? At the same time, will he urge the Israeli Government to observe the results of the forthcoming Palestinian elections and not scupper them, as they did in 2006 by kidnapping 26 Hamas MPs?
Lord Howell of Guildford: Balanced handling of settlements and the Jerusalem problem is at the centre of the whole situation. Urging the Israeli Government to proceed in a way that will not scupper-in my noble
9 May 2011 : Column 660
Fraud: Staffing Levels
Question
2.59 pm
Asked By Lord Phillips of Sudbury
To ask Her Majesty's Government what assessment they have made of the staff levels at Government agencies dealing with financial, banking and tax fraud.
The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, the Government are determined to step up the fight against fraud. This important work is done by both government and non-government bodies, including the Serious Fraud Office, Her Majesty's Revenue and Customs, the Serious Organised Crime Agency and the Financial Services Authority. Ensuring that staff levels are adequate is a matter for each individual body, but I understand that the SFO expects to be able to adjust its numbers as necessary to meet its business needs, and that HMRC will be increasing the number of staff tackling fraud and tax avoidance.
Lord Phillips of Sudbury: I am grateful to the Minister for his reply, but he must be aware that HMRC will suffer massive cuts over the next three years, and that the current level of tax fraud and avoidance, on its own estimate, is £40 billion a year. Will he therefore look urgently at that state of affairs and have regard to the position of the Serious Fraud Office, which has lost roughly half its most senior personnel in the past few months to American law firms and banks, which makes its role in tackling complex fraud super difficult?
Lord Sassoon: My Lords, this is an extraordinarily difficult area. As my noble friend says, the level of tax fraud and uncollected tax receipts is extraordinarily large. That is precisely why, within a tight settlement for HMRC and every other department, HMRC has been allocated an additional £900 million over the spending review period. That will take up the number of full-time equivalent staff dealing with fraud and other tax avoidance matters from 20,000 at present to some 23,000 by 2014-15. That adjustment has already been planned for. As far as the SFO is concerned, we are clearly not talking about remotely the same order of magnitude of numbers of people, as that body has fewer than 400 people. The new management of the SFO has taken enormous strides since 2008, when the management changed. For example, the average time taken over its investigations has dropped from an average of five years on pre-2008 cases to some 15 months on newer cases, and the conviction rate has significantly increased, so the SFO is very much showing how it has become more effective with less resource.
Lord O'Neill of Clackmannan: Is the Minister satisfied by the resources that were made available for the investigation into the Phoenix four-the people involved in the so-called saving of Rover-which has resulted
9 May 2011 : Column 661
Lord Sassoon: My Lords, I will not be drawn into second-guessing decisions taken by the investigating authorities on any cases. However, I have heard absolutely no suggestion that the investigations in that case were in any way circumscribed by a lack of resource.
Lord Newby: My Lords, does the Minister accept that, while the additional £900 million that HMRC has to fight fraud is very welcome, the hollowing out of the HMRC regional structure means that many individuals and firms around the country now feel that there is no adequate, as it were, day-to-day supervision of their tax affairs, and that therefore they can get away with it? Will he take back to his colleagues at HMRC the fact that it is not just the people dealing with fraud who need to be reinforced, but that we need to have a continuing robust structure of local management of individuals' and companies' tax affairs if fraud is not to take place in the first place?
Lord Sassoon: I am grateful to my noble friend for bringing up that specific issue. Of course the question of local coverage is important. I will do as he suggests and take that back to my ministerial colleagues and to the management of HMRC.
Lord Eatwell: My Lords, the Minister will be aware that many of the organisations involved here, especially the FSA, have suffered serious and debilitating rates of staff turnover in the past few months-in part explained by the uncertainties associated with the reorganisation of financial regulation and management. A major source of that uncertainty has been that the Government's Bill to change the status of the FSA and associated organisations is at least four months late. When will the Government bring this legislation forward? Why did they not get on with it and end the uncertainty?
Lord Sassoon: My Lords, I suppose it is my fault for raising the FSA in my Answer, even though it is not a government agency and therefore, more than the other bodies we have been talking about, manages its own affairs. I would not for one moment, though, agree with the noble Lord's assertion about the state of staffing at the FSA, which continues to do an important and extremely difficult job-albeit within a flawed regulatory structure. We have been through rounds of consultation. If we brought the legislation forward too quickly, I would be criticised about the lack of pre-legislative consultation and scrutiny. It is coming forward with due speed because, as the noble Lord recognises, this is a big mess that we have to clean up, we have to get it right this time, and we will do so.
Lord Brooke of Alverthorpe: Will the noble Lord be prepared to place in the Library the response that he gets from his colleagues to the question asked by the noble Lord, Lord Newby? Secondly, in that reply, will he give details on the number of HMRC revenue offices that will be closing annually between now and 2014?
9 May 2011 : Column 662
Lord Sassoon: My Lords, I will certainly take that away and see whether a useful information note on the regional question can be produced without disproportionate cost. I will certainly see whether an information note can be produced on HMRC's regional coverage.
Pensions Appeal Tribunals Act 1943 (Time Limit for Appeals) (Amendment) Regulations 2011
Pensions Appeal Tribunals Act 1943 (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulations 2011
Motions to Approve
3.07 pm
Relevant Documents: 19th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 27 April.
Police Reform and Social Responsibility Bill
Order of Consideration Motion
3.07 pm
Moved By Lord Wallace of Saltaire
That it be an instruction to the Committee of the Whole House to which the Police Reform and Social Responsibility Bill has been committed that they consider the bill in the following order:
Clause 1, Schedule 1, Clause 2, Schedule 2, Clause 3, Schedule 3, Clause 4, Schedule 4, Clauses 5 to 26, Schedule 5, Clauses 27 and 28, Schedule 6, Clauses 29 to 31, Schedule 7, Clauses 32 to 38, Schedule 8, Clauses 39 to 57, Schedule 9, Clauses 58 to 76, Schedule 10, Clauses 77 to 89, Schedule 11, Clause 90, Schedule 12, Clause 91, Schedule 13, Clauses 92 to 96, Schedule 14, Clauses 97 to 99, Schedule 15, Clause 100, Schedule 16, Clauses 101 to 152, Schedule 17, Clauses 153 to 159.
Public Bodies Bill [HL]
Main Bill Page
Copy of the Bill
Explanatory Notes
Amendments
Third Reading
3.07 pm
1: Clause 10, page 5, line 34, at end insert-
"( ) Where the Minister considers that the changes proposed do not warrant a full public consultation under subsection (1)(g), the Minister must publish a copy of the proposal on the website of the relevant Government department or make it otherwise publicly accessible."
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Lord Hunt of Kings Heath: My Lords, the Bill's return after a period of some weeks is welcome. In this amendment I return to the issue of public consultation, a matter that we have debated on a number of occasions. Given the enormous powers that the Bill will give to Ministers-powers embracing the abolition, merger, finance and governance of a considerable number of public bodies-it seems only right that when changes are made to any of the orders listed in the Bill, the public should have a say.
The House did not agree to my amendment to ensure that whenever a Minister proposes to make an order under Clauses 1 to 6, the public should always be consulted. However, the noble Lord, Lord Taylor, was rather more sympathetic to a further amendment to which I spoke, which would have ensured that when a Minister considers that proposed changes do not warrant a full public consultation, the Minister must at least publish a copy of the proposal on the website of the relevant government department or make it otherwise available. The noble Lord kindly said that he understood the arguments that had been put forward and that where consultation does not take place, a proposal will at least be put on the website. He said that he would consider the issue between Report and Third Reading, and I should be grateful for, and am hopeful of, a positive response from him.
My next amendment, Amendment 6, relates to regional development agencies and the need for consultation on their proposed abolition. I will not reopen the whole question of whether or not it is wise to abolish regional development agencies, but I must say that the longer the economy flatlines, as it is, the more convinced I am that it is a very big mistake to remove a regional strategic body for economic development. I want to raise the issue of consultation, specifically the consultation that will need to follow the Government's proposals to abolish regional development agencies.
One problem with the Bill is that the Government have failed to engage in any pre-legislative consultation on these matters. One example of that is the remarkable decision to fire-sale the assets of RDAs. That has been the subject of a number of comments. I find it extraordinary that instead of the RDAs being allowed to pass on assets under deferred payment schemes to, for instance, local authorities, they are being forced down the route of selling off assets at the worst possible time. There is real concern here that if those assets are sold in the current economic climate, their values will not be at current market levels, to the detriment of the local economy and future work of both local authorities and local enterprise partnerships, which are to take the place of RDAs.
I come to the specific issue of consultation. The noble Lord will know that this matter was raised by the House Of Commons Public Administration Committee in its report. It refers to the evidence given by the Minister, who had been asked what consultation had taken place in advance of deciding to abolish bodies listed in the Bill. The report states that the Minister responded that,
- "the level of consultation would have been 'very varied [...] in some cases, will have been quite extensive; in other cases, will have been very little'".
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"These are essentially decisions in principle; these are decisions made where departments will know, or should know and I'm sure do, in a great deal of detail what those bodies do, what their functions are and how they are carried out".
The committee reports that it reached the view from these comments that the Minister had assumed that the nature of the decision was such that consultation was unnecessary. As the Commons Select Committee stated, that assessment is wrong. It concluded:
"The Government did not consult properly on these proposals. When undertaking such a fundamental review of the machinery of government it is desirable and sensible to do so. We welcome the fact the Government is now taking steps to rectify this, but question how useful consultation can be, given that decisions on the future of many bodies have already been taken. Having agreed to amend the Bill"-
as the Government did, and it has now been so amended-
- "to allow for more consultation we expect these consultations to have real effect on the outcome of the review; even if this means reversing decisions that have already been made. We expect the Government to give us such an assurance in its response to this Report".
In their response to the report published in March, Command Paper 8044, the Government state:
"The Government has always been committed to ensuring appropriate consultation and external input in relation to its proposals. There is a substantial role for consultation to play, and a strong impact to be made on the delivery of these decisions".
I should therefore like the Minister to confirm that, so far as it affects the bodies listed in the Bill but specifically RDAs, there will indeed be proper consultation, the consultation will be duly considered and, in the light of that consultation, the Government will, if appropriate, reverse their decision. My amendment is intended to ensure, if the Government decide to bring forward any orders that would embrace RDAs, the explanatory document that has to be brought forward in conjunction with the order will make it clear that a proper consultation was undertaken, including a summary of the representations received in respect of the principle of abolition. That would ensure a proper and genuine consultation process. I hope that the noble Lord will be able to be positive on both amendments. I beg to move.
3.15 pm
Lord Pannick: My Lords, I have added my name to Amendment 1. As the noble Lord, Lord Hunt of Kings Heath, said, at Report your Lordships rejected an amendment in the name of the noble Lord which would have required public consultation in all cases covered by Clause 10. Your Lordships rejected the amendment because the Minister argued that it cannot be appropriate and proportionate for a full public consultation to be undertaken on the implementation of all exercises of power under the Bill, however limited they may be. However, he also said:
"The Government support the principle behind this amendment, which is to ensure that the public are given an opportunity to make their views heard on the reform of public bodies.-[Official Report, 4/4/11; col. 1555.]
Amendment 1 would achieve that objective. It would ensure that the public were able to inform themselves of all proposals for change and were able to contribute to the debate if they wished. The amendment would therefore promote accountability, and it would do so at no cost or inconvenience to the Government.
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The Minister may say that the amendment is unnecessary as this is so obviously sensible as a practice that the Government would do it in any event. However, a ministerial assurance given, I accept, in good faith cannot bind Ministers in this or any future Government. Even after the very welcome amendments that have been made to the legislation in this House, the Bill will still confer very extensive powers on Ministers over public bodies, and it is therefore important to make clear in the Bill the essential obligation contained in this amendment.
Lord Taylor of Holbeach: My Lords, I thank the noble Lords, Lord Hunt of Kings Heath and Lord Pannick, for bringing back these issues because it gives me the opportunity to clarify the Government's position. As they say, Amendments 1 and 6 revisit the issue of consultation and so I shall respond to them together.
Amendment 1, to which the noble Lords, Lord Hunt of Kings Heath and Lord Pannick, have spoken, would require Ministers to publish the proposed reform on their department's website or to otherwise make it publicly available in the event that a full public consultation was not to be undertaken. This is a helpful amendment and one that speaks to an important principle, so I thank noble Lords for bringing it back at Third Reading.
I said on Report that I thought that this was something that the Government could consider, and I can assure your Lordships' House that we have done so. Supportive as we are of the objective behind this amendment, on balance, we do not believe that such a requirement is appropriate on the face of the Bill. We are debating ostensibly an issue of guidance and best practice, not imposing a legal requirement. For that reason I am able to support the purpose of the amendment but not its inclusion in the Bill. Given that I believe that this is an issue of guidance, I am happy to give a very specific assurance that the guidance for use by officials on making orders under the Public Bodies Bill, to be published by the Cabinet Office, will include a specific reference that departments ought to consider the most appropriate way of making a proposal publicly available.
The Government are committed to increasing transparency and accountability across the public sector. I do not believe that I can honestly stand here and say that I oppose the purpose of the amendment and still be true to that overall objective. I fear that our only point of divergence is on how to ensure that this purpose is reflected in the best way possible when Ministers are developing proposals and drafting orders. It is the Government's clear judgment that a more practical and proportionate way of achieving the noble Lord's objective is to capture this issue in the guidance which will be used by departments when bringing forward orders. On Report, the noble Lord, Lord Hunt, described my pledge to take this back to my colleagues in government as "handsome". I hope that he will not now consider this an ugly conclusion by the Government. I can assure him that the principle of making proposals publicly available is one on which all sides of the House agree.
I should like to make one further observation on the noble Lord's amendment. I agree that, in 2011, a website represents a very sensible vehicle for making
9 May 2011 : Column 666
I am disappointed that I cannot be more supportive of the noble Lord's amendment. I know that it is a sincere attempt to improve the Bill and to help the Government deliver a comprehensive and watertight piece of legislation. However, the vote on Report made it clear that consultation must not always be full public consultation and that a Minister must ultimately be responsible and indeed accountable to Parliament for deciding how to undertake proportionate and meaningful consultation. It is therefore not appropriate to seek to alter this legal framework through the noble Lord's amendment.
I shall now turn to Amendment 6 in the name of the noble Baroness, Lady Royall, and the noble Lord, Lord Hunt of Kings Heath. This proposed amendment to Schedule 1 in practice concerns the issues of consultation and subsequent procedure, set out in Clauses 10 and 11, and how they might apply to the closure of the regional development agencies. I shall start by once again taking the opportunity to pay tribute to the work of the RDAs. I also acknowledge that the noble Lords have a strong regard for the work that the RDAs did and would prefer them to continue.
We have had very thorough debates in the House, in Committee and on Report, on the RDAs. The noble Lord, Lord Hunt, referred to these debates. I have explained that the Government's strong preference is to abolish the RDAs, and I have set out the reasons behind this, including why the current arrangements are no longer sustainable. The coalition agreement, the June 2010 Budget Statement and the local growth White Paper are equally clear about the Government's proposal to abolish the RDAs. The Government continue actively to engage with RDAs and interested parties on how closure is to be achieved. Individual RDAs have been in touch with their stakeholders, for example about their asset plans. The consultation and engagement are taking place irrespective of the requirements in the Bill.
I have listened to the arguments for the reform of public bodies to be an open process. Clauses 10 and 11 underline the Government's desire for this to be the case. Clause 10 requires a Minister to consult on a proposal to which an order made using the Bill would give effect. The amendment proposes that in the case of RDAs, the explanatory document that accompanies an order should include, first, the question that was asked about the principle of abolishing RDAs and, secondly, a summary of the representations received on that question.
9 May 2011 : Column 667
The requirements of Clause 10 on a Minister to consult when making an order covered by the Bill are clear. The requirements applied to the RDAs would oblige the Government to ask about the principle of abolition. Similarly, Clause 11(2)(d) requires that any explanatory document should include a summary of representations received in consultation. Therefore, I do not believe that the amendments in this group would provide any additional information for Parliament. Instead, they would unnecessarily complicate the drafting of the Bill. I hope that, in the light of the clarification that I have given with regard to the existing requirements-
Lord Beecham: My Lords, does the Minister recall that on Report, I asked about the consultation process for RDAs in the light of a letter that the Minister had written to my noble friend Lady Royall, in which he stated that consultation effectively would take place after the passage of the legislation? I asked on that occasion whether in those circumstances the consultation that took place with individual RDAs would be on the basis that each case would be considered on its merits, or whether in effect it was all or nothing in terms of abolition. Will there be an individual consultation in respect of each RDA, with the possibility of a different conclusion in respect of one RDA as opposed to another, or is it to be abolition tout court?
Lord Taylor of Holbeach: The consultation will be based on the statutory instruments that will be tabled in connection with each RDA. Therefore, there will indeed be consultation, and an opportunity for each regional development agency to have input on its future. The regions of the country, if they feel particularly motivated, will be able to discuss the reasons why they believe no change should be made to their status.
Lord Beecham: Will the Government be open to persuasion?
Lord Taylor of Holbeach: It is the nature of consultation that the Government are open to persuasion: that is the purpose of a consultative exercise. The policy decision has been made. It is the resolve of the Government to implement the policy. None the less, there will be a consultative process, at which there will be an opportunity to argue the opposite case.
I hope that, in the light of the clarification that I have given on the requirements of Clauses 10 and 11, the noble Baroness and the noble Lord will not press their amendments. I also hope that, given my assurances on guidance and the problems with adding Amendment 1 to the Bill, the noble Lord will withdraw his amendment.
3.30 pm
Lord Hunt of Kings Heath: I am grateful to the Minister for his response. I shall take Amendment 6 first. My noble friend Lord Beecham surely put his finger on it, and it really takes us back to the comments made in the House of Commons Public Administration Committee, which made it clear that, having agreed through this Bill to have proper consultation, that consultation must be done properly. That must mean that the Government have to consider on their merits the responses received. Let me take the West Midlands
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I was disappointed with the Minister's response to Amendment 1. All noble Lords know that the heart of the noble Lord, Lord Taylor, is in the right place when it comes to this amendment. It is disappointing that his department has not been able to respond in the same way. I fully accept that your Lordships' House did not agree to my amendment to make public consultation apply in all cases. However, this amendment modestly suggests that when, in appropriate cases, a Minister decides that public consultation is not necessary, there should be at the very least a reference to it on the department's website. With the best will in the world, I have not heard any convincing argument as to why that cannot be in the Bill. I do not see why it should be left to guidance which can be changed at any point. Moreover, in referring to that guidance, the Minister carefully used the words "ought to". He did not say that departments "must".
This is a matter of principle. I accept that this House decided that there will be circumstances in which it will be appropriate for a Minister not to seek public consultation. In the interests of good governance, however, surely there should be a record, and a reference should be made to it at least on the department's website. I think that this is a matter of principle and I wish to test the opinion of the House.
3.33 pm
Contents 179; Not-Contents 185.
Adonis, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Best, L.
Bew, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Boateng, L.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Brooke of Alverthorpe, L.
Brookman, L.
Cameron of Dillington, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Collins of Highbury, L.
Corbett of Castle Vale, L.
Coussins, B.
Craigavon, V.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Deech, B.
Dixon, L.
Donaghy, B.
Drake, B.
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Dubs, L.
Eatwell, L.
Elystan-Morgan, L.
Emerton, B.
Erroll, E.
Evans of Watford, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Glasman, L.
Golding, B.
Gordon of Strathblane, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Guildford, Bp.
Hannay of Chiswick, L.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Hollins, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St Davids, B.
Howie of Troon, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L.
Jay of Ewelme, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kerr of Kinlochard, L.
King of Bow, B.
King of West Bromwich, L.
Kinnock of Holyhead, B.
Krebs, L.
Lea of Crondall, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lister of Burtersett, B.
Lofthouse of Pontefract, L.
Low of Dalston, L.
McAvoy, L.
McKenzie of Luton, L.
Mar, C.
Massey of Darwen, B.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Norwich, Bp.
O'Neill of Clackmannan, L.
Ouseley, L.
Palmer, L.
Pannick, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prosser, B.
Quin, B.
Ramsay of Cartvale, B.
Ramsbotham, L.
Rees-Mogg, L.
Reid of Cardowan, L.
Richard, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
St John of Bletso, L.
Saltoun of Abernethy, Ly.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Slim, V.
Smith of Basildon, B.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.
Stirrup, L.
Stoddart of Swindon, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turner of Camden, B.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Warwick of Undercliffe, B.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Winston, L.
Wood of Anfield, L.
Young of Hornsey, B.
Young of Norwood Green, L.
Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Attlee, E.
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Benjamin, B.
Berridge, B.
Bichard, L.
Black of Brentwood, L.
Blackwell, L.
Bonham-Carter of Yarnbury, B.
Boswell of Aynho, L.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Butler-Sloss, B.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlile of Berriew, L.
Cathcart, E.
Chalker of Wallasey, B.
Chidgey, L.
Colwyn, L.
Condon, L.
Cormack, L.
Courtown, E.
Crickhowell, L.
De Mauley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Feldman of Elstree, L.
Fellowes, L.
Flight, L.
Fookes, B.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
German, L.
Glasgow, E.
Glendonbrook, L.
Glentoran, L.
Gold, L.
Goodhart, L.
Goodlad, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Henley, L.
Higgins, L.
Home, E.
Howard of Lympne, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hussain, L.
Hussein-Ece, B.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Liverpool, E.
Loomba, L.
Lothian, M.
Luke, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Maples, L.
Marks of Henley-on-Thames, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Morris of Bolton, B.
Naseby, L.
Newby, L.
Noakes, B.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Palumbo, L.
Parminter, B.
Perry of Southwark, B.
Phillips of Sudbury, L.
Popat, L.
Rana, L.
Randerson, B.
Rawlings, B.
Redesdale, L.
Rennard, L.
Ribeiro, L.
Risby, L.
Ritchie of Brompton, B.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Ryder of Wensum, L.
Sanderson of Bowden, L.
Sassoon, L.
Scott of Foscote, L.
Scott of Needham Market, B.
Seccombe, B.
Selsdon, L.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shipley, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Stewartby, L.
Stowell of Beeston, B.
Strathclyde, L.
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Taylor of Holbeach, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Verma, B.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Willis of Knaresborough, L.
Younger of Leckie, V.
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2: After Clause 11, insert the following new Clause-
"Time limit on scheduled bodies
Any entry in Schedules 1 to 5 ceases to have effect at the end of the period of five years beginning with the day on which it came into force (without affecting any order already made by virtue of that entry)."
Baroness Royall of Blaisdon: My Lords, in moving Amendment 2, which will put a time limit on the bodies mentioned in Schedules 1 to 5, I will not rehearse the well honed arguments which have been put forward many times about the importance of sunsetting. Suffice it to say that the sunsetting of the schedules is one of the fundamental and welcome changes which have been made to this Bill. I am very grateful to the Minister for putting his name to this amendment, which appears for a second time because, I have to confess, I failed to move it on Report. I beg to move.
Lord Taylor of Holbeach: My Lords, I am delighted to have added my name to Amendment 2, which is also tabled in the names of the noble Baroness, the noble Lord, Lord Hunt of Kings Heath, and my noble friend Lord Norton of Louth. As the noble Baroness has said, perhaps she failed to move the amendment on Report, but then so did I. I think we were all caught up in the heat of the moment after a Division, so I am pleased that we have an opportunity to bring it back again. It is the outcome of a constructive engagement across the House and I thank noble Lords for their input into the process and for retabling the amendment to ensure that it becomes part of the Bill.
Grouped with Amendment 2 are three government amendments to clauses relating Welsh Ministers. They are essentially minor and technical in nature and have been requested by the Welsh Assembly Government. Amendment 3 clarifies that Clause 13(6) refers to internal drainage boards which have responsibility for geographic areas partially but not wholly within Wales. National boundaries do not necessarily follow catchment areas. Amendment 4 is a drafting amendment to ensure that the procedure for transfer schemes made by Welsh Ministers under Clause 23 applies to transfer schemes set up in connection with orders made under Clause 13. Amendment 10 alters the Long Title to reflect the fact that the Bill as amended on Report grants powers to Welsh Ministers in Clause 13 in relation to a number
9 May 2011 : Column 672
Clause 13 : Powers relating to other bodies
Clause 24 : Transfer schemes: procedure
Clause 25 : Transfer schemes: taxation
5: Clause 25, page 15, line 28, at end insert-
"( ) In relation to a transfer to another public body or to any other body of functions, duties or powers under section 1 or 5, or to a merger (where such transfers are involved), under section 2, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I. 2006/246) shall apply to a transfer which relates to rights or liabilities under a contract of employment whether or not the transfer would, apart from this subsection, be a relevant transfer for the purposes of those regulations.
( ) In the case of an employee of a body whose functions, duties or powers are transferred or merged under section 1, 2 or 5-
(a) a period of employment with the transferor is to be treated as a period of employment with the recipient organisation;
(b) the transfer to the recipient organisation is not to be treated as a break in service."
Lord Whitty: This amendment deals with the way in which the employees of the organisations covered by this Bill are dealt with. On one level, I apologise to the Minister for bringing the issue back because we debated it in Committee. Subsequently, I had a meeting with him and he sent me a useful letter. His goodwill in this respect is appreciated. However, I do not think that the situation is as clear as it should be, and I certainly do not apologise to the House or to the Government as a whole for bringing back an issue which is important to what are still several thousand public sector employees in those organisations which remain in the Bill.
One has to accept that some of the anxieties and suspicions relate not so much to the Bill as to the perceived general attitude of some members of the Government towards public service workers as a whole. Many employees of the organisations concerned have huge expertise and have been there for many years.
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I appreciate that the Government have reached a conclusion that some of these bodies are no longer necessary. They have also reached a conclusion that some of their functions, powers and responsibilities are best carried out elsewhere, either in central government, the private sector, the third sector or in other public bodies. That has left huge uncertainty among employees. The Minister's assurances have gone some way towards clarifying the position, but not entirely. The Minister's position seems effectively to be that where there is a transfer, TUPE will apply, except where there is a public function exemption, in which case the Cabinet Office guidance-the COSoP, as it is termed-will apply, which will give rights and responsibilities equivalent to TUPE. If there are any doubts, what is now Clause 23(6)(f) will apply and Ministers will be able to clarify the situation when the regulations regarding individual organisations come into play.
On the face of it, that is a relatively watertight position and, generally speaking, the principles of TUPE will apply where there is a transfer. I do not apologise for reverting to the organisation of which I was chair until Christmas and which is still in the Bill. For reasons best known to the Government it is listed under Schedule 1, for abolition, whereas BIS's policy as far as I understand it is to transfer the powers rather than to abolish them. They will be transferred in the main to Citizens Advice, which is a private sector body. If that is the case, it is not clear which powers, functions and responsibilities are being transferred or whether all of them will be, and whether they will all be transferred in the same direction-it is clear that they will not, because Citizens Advice Scotland and the Consumer Council for Northern Ireland will have some, other bodies will undertake others and others will lapse. That is not an unusual situation with the various bodies still stipulated in the Bill; indeed, we have just had a debate focusing largely on the RDAs, some of whose functions will in effect transfer to local partnerships, local government and elsewhere. Uncertainty is therefore quite widespread until the consultative process leading to the regulations makes the situation clearer.
In his letter to me, the Minister has said:
"In any transfer scheme relating to an order made under the Bill, a person will need to ... determine a 'relevant transfer', as defined by TUPE, is taking place. This will sometimes not be the case, for example where the new organisation will be carrying out a function or activity which is different in nature from the old, or where the exception in TUPE"-
which relates to public functions-
- "applies. In the first case, it would not be appropriate to apply TUPE. The reality is that a 'transfer' is not actually taking place-employees' roles are not going to be continued. Accordingly, the situation should be dealt with by their current employer terminating their contracts by reason of redundancy and meeting his liabilities as regards compensation".
That is quite logical, but, regrettably, it is not what the guidance on TUPE from BIS actually says at present. It effectively says that the responsibility for determining which measures will be regarded as transferred rests not with the existing employer but with the transferee employer-so not the transferor employer.
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That has caused some confusion in the past, as it did when Consumer Focus was first set up because it did not seem to be the logical way of approaching things. It made the Minister's words seem more logical in many respects. But they are at odds with what tribunals have been interpreting under the 2006 regulations and what, in slightly obtuse form, the rather lengthy guidance issued by BIS states very heavily: it places responsibility on the transfer organisation. That is one example of the lack of clarity and we need greater certainty on the record.
Relatively few bodies involved in this Bill are designated for merger, but when there is a merger, everything goes into the merged body, whether or not that merged body will have the responsibility for doing everything that the previous organisation was going to do. In which case, the exemption does not apply, but on the Minister's interpretation TUPE does not apply either.
I am well aware that there is a general view in Whitehall, following the Cabinet Office's guidance and so forth, that says to staff, trade unions and Back-Benchers like myself, "Don't worry about it, you lot. It will all become clear. The Government are committed to applying the TUPE principles". It is also true that in certain situations, where the function is not continuing, it may be in the interests of individuals for TUPE not to apply. But we still need clarification as to what is a relevant transfer.
In the case of my old organisation, it is not clear what is being transferred. It is not clear to whom and it is not clear whether some functions will not be transferred and whether TUPE or COSoP will be applied. In that respect and in relation to many of the other bodies, we anticipate a consultative document fairly soon. However, I understand that the consultative document on consumer structures that was expected to be issued in March has been significantly delayed and the final outcome of that is again not clear, so the whole process has been put back. I would like the Minister today to clarify the situation. I accept his goodwill in this matter and I assure him that I will not press the issue to a vote, but I would like on the record at this last stage an indication of where the Government stand.
It is not all that easy to rely as a safety net on what is now Clause 23(6)(f), which states that a transfer scheme may,
- "if the TUPE regulations do not apply in relation to the transfer, make provision which is the same or similar".
The clause says "may" and it is sensible in the drafting to say "may" because there are a lot of other subsections to which "may" clearly applies, but it would be helpful if the Minister would say that as far as that subsection is concerned, the transfer scheme "would" make provision for the equivalence of TUPE to apply in those circumstances.
I am asking the Minister to say what he has already attempted to convince me of, although I do not think we are yet there: that in all situations where there is a transfer or merger, individuals will be subject to either TUPE or the public sector equivalent. The default position should be that TUPE or COSoP applies and that in that sense the Government accept their responsibility to all employees of the quangos that
9 May 2011 : Column 675
If the Minister can use words to that effect, I will not press him further today and he will go some way to reassure several thousand rather anxious public sector employees, many of whom the Government will continue to need to rely on, albeit possibly in a different guise. I beg to move.
4 pm
Baroness Turner of Camden: My Lords, I rise to support my noble friend on this amendment and thank him very much for introducing it. As he rightly says, there is a great deal of uncertainty among public sector workers at the moment. Of course, there is a bit of a campaign about the public sector, as far as I can see, on the part of certain sections of the press, designed to give the impression that public sector workers are so much better off than people in the private sector. If you look at it very carefully, that really is not the case. On the other hand, it all adds to the sense of insecurity that many public sector workers feel. Therefore, it is essential that there should be something in this Bill that makes it clear that when people are transferred they have the protection afforded by the TUPE regulations.
Not to give that sort of protection would be to give the public sector workers, who provide the services that we all rely on, the sense that they are disposable. Our workers are not disposable and must be protected in the way suggested in the TUPE regulations. I therefore hope that the Government this time round feel that they have to support this amendment and that it eventually appears on the face of the Bill.
Lord Taylor of Holbeach: My Lords, I am grateful for the opportunity of coming back on the amendment proposed by the noble Lord, Lord Whitty. I am sorry if my prose failed to clarify the situation as well as it might, and I hope that my words and the speech prepared for me provide the clarification that the noble Lord seeks. He used the phrase, "words to that effect". Let us hope that these words that I am about to deliver are to good effect.
The amendment gives me, as the Minister taking this Bill through the House, an opportunity to say that the Government recognise the valuable contribution made by their staff. We want to be, and feel that we are, a good employer, and staff in public bodies are important for good governance. We are keen to support all those affected by change and are committed to TUPE and COSoP as they currently apply. The noble Lord, Lord Whitty, agreed that extending TUPE is not necessarily the best option for all staff, which is what makes this particular matter more complex than it might otherwise be.
The amendment would require that TUPE regulations apply to any transfer of functions or activities that take place as a result of an order made under the Public Bodies Bill. As I did in Committee, I would like to inform the House why the Government believe that existing protection for staff is sufficient and why it would be inappropriate to accept the suggested amendment.
9 May 2011 : Column 676
The purpose of TUPE and the European law that underpins it is to protect staff in circumstances where the business that they work for or services to which they are assigned are to be carried out by a different organisation. TUPE ensures that the staff retain their jobs and conditions with new employers stepping into the shoes of the old. When a change falls within the TUPE definition of "relevant transfer", TUPE will apply and the staff will be protected. The definition is broad and many changes brought about by the Bill will be covered. However, there may be circumstances where it is uncertain whether TUPE applies or is excluded.
Clause 23 gives the Government the power to provide protection to staff in circumstances where TUPE is not engaged. This is underpinned by the Cabinet Office statement of practice on staff transfers-referred to as COSoP-which provides that, even where TUPE does not apply to public sector transfers, organisations will be expected to apply TUPE's principles as a matter of policy. I assure the noble Lord that the Government remain committed to COSoP. In practice, such transfers are effected through legislation which closely follows the provisions in TUPE, including the continuity provisions.
Legislative transfer schemes which are used to effect transfers in non-TUPE situations do not always apply TUPE to the letter. For example, some schemes permit greater flexibility in relation to post-transfer contractual variations. This can assist the process of harmonising disparate reward packages, thus reducing the risk of unlawful discrimination, particularly on equal pay claims, and avoiding unnecessary barriers to reform. Where the change does not fall within the definition of "relevant transfer" because the new organisation will be carrying out a function or activity which differs in nature from the old, it would not be appropriate to grant TUPE protection; the reality there is that there is no transfer of employees' functions-the staff are redundant and should be dismissed and paid the compensation to which they are entitled. I assure your Lordships that, if there is legal uncertainty on whether a function is to be continued, Clause 23 gives scope for TUPE protection to be provided.
It would be inappropriate to accept the amendment because, in the Government's view, the blanket application of TUPE to all those transfers which are effected pursuant to the Bill is not appropriate and could lead to inefficiencies and unintended consequences. The Bill provides a framework for a wide variety of reforms to public bodies. Given this, it is crucial that those involved in transfers taking place under the Bill retain the flexibility to respond to each situation according to the facts. It is necessary to form a judgment in each case about whether the particular facts fall within the TUPE definition of "relevant transfer" and, if not, whether a transfer scheme which follows TUPE principles is appropriate. Staff could otherwise be compelled to move and, perhaps, relocate-even where their work is not going to be continued-and all those involved in the transfer could find themselves subject to restrictions which are not helpful nor apposite to the situation.
I appreciate the contribution made by the noble Baroness, Lady Turner of Camden, and I thank the noble Lord, Lord Whitty, for again bringing this to the
9 May 2011 : Column 677
Lord Whitty: My Lords, I, too, thank my noble friend Lady Turner for her points underlining the issue of uncertainty that surrounds so many employees in these organisations and beyond at the moment. I am also grateful to the Minister for stating pretty clearly the Government's commitment to the TUPE principles and to continuing to apply COSOP where that is the relevant coverage. I was slightly more dubious about the last two or three paragraphs. There is a slightly schizophrenic nature to the Minister's response. I do not know whether two people drafted his speech for him, as he carefully said at the beginning. On the one hand, there is that very clear commitment, which I appreciate. It is an important message for the Government to get out there. There were then references to flexibility in situations which hitherto may well have been regarded as transfers. I accept that some fine-tuning of TUPE is necessary and helpful, provided that that is done individually or collectively with the employees concerned.
The situation where neither TUPE nor COSOP applies probably requires one-off handling. However, if the principle is that the main principles of TUPE will be held to apply unless there is a good reason why they should not, I would rather have heard a speech from the Minister in those terms-that the default position is that TUPE should apply. However, clearly I am not going to get a lot more from the Government on this one; I think that I have done quite well over the previous stages of the Bill. I suspect that there will be some work for our learned friends in some of these areas, and I hope that the good will extended by the Minister at the beginning of his speech and the commitment to the TUPE principles that he reflected here will in practice be reflected in the proposals for the individual organisations and the approach that the individual departments take when we are drawing up the regulations to implement these parts of the Bill.
I thank the Minister. I am not entirely satisfied, and I suspect that some people outside will not be either, but I will not press this today. I beg leave to withdraw the amendment.
Schedule 1 : Power to abolish: bodies and offices
6: Schedule 1, page 19, line 36, at end insert-
"4 The explanatory document required under section 11(2) in respect of the regional development agencies must include-
(a) the wording of the question that was asked about the principle of abolishing regional development agencies;
(b) a summary of representations received in respect of the principle of abolishing regional development agencies."
9 May 2011 : Column 678
Lord Hunt of Kings Heath: My Lords, we have already debated my Amendment 6, which would ensure that when the consultation takes place on the abolition of regional development agencies, there has to be a proper consultation. It is an important point of principle and I beg to move.
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Contents 172; Not-Contents 215.
Adebowale, L.
Adonis, L.
Allenby of Megiddo, V.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Best, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Boateng, L.
Borrie, L.
Boyd of Duncansby, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corbett of Castle Vale, L.
Coussins, B.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Deech, B.
Dixon, L.
Donaghy, B.
Donoughue, L.
D'Souza, B.
Dubs, L.
Eatwell, L.
Elystan-Morgan, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Glasman, L.
Golding, B.
Gordon of Strathblane, L.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Guildford, Bp.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howells of St Davids, B.
Howie of Troon, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hutton of Furness, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
King of Bow, B.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Lea of Crondall, L.
Leitch, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lister of Burtersett, B.
Lofthouse of Pontefract, L.
Low of Dalston, L.
McAvoy, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
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Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Noon, L.
O'Neill of Clackmannan, L.
Ouseley, L.
Palmer, L.
Pannick, L.
Patel, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prashar, B.
Prosser, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Reid of Cardowan, L.
Richard, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Sewel, L.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Wills, L.
Winston, L.
Wood of Anfield, L.
Young of Hornsey, B.
Young of Norwood Green, L.
Aberdare, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Ballyedmond, L.
Bell, L.
Benjamin, B.
Berridge, B.
Bew, L.
Bichard, L.
Black of Brentwood, L.
Blackwell, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Campbell of Alloway, L.
Carlile of Berriew, L.
Cathcart, E.
Chalker of Wallasey, B.
Chidgey, L.
Cobbold, L.
Colwyn, L.
Condon, L.
Cormack, L.
Courtown, E.
Craigavon, V.
Crickhowell, L.
De Mauley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Empey, L.
Erroll, E.
Falkner of Margravine, B.
Faulks, L.
Feldman, L.
Fellowes, L.
Flight, L.
Fookes, B.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Garel-Jones, L.
Geddes, L.
German, L.
Glasgow, E.
Glendonbrook, L.
Glentoran, L.
Gold, L.
Goodhart, L.
Goodlad, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
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Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Home, E.
Hooper, B.
Howard of Lympne, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hussain, L.
Hussein-Ece, B.
James of Blackheath, L.
Janvrin, L.
Jay of Ewelme, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kerr of Kinlochard, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lexden, L.
Lingfield, L.
Liverpool, E.
Loomba, L.
Lothian, M.
Lucas, L.
Luke, L.
McColl of Dulwich, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Maples, L.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Newby, L.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Noakes, B.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Palumbo, L.
Parminter, B.
Perry of Southwark, B.
Phillips of Sudbury, L.
Popat, L.
Randerson, B.
Rawlings, B.
Redesdale, L.
Rees-Mogg, L.
Rennard, L.
Ribeiro, L.
Risby, L.
Ritchie of Brompton, B.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Rotherwick, L.
Ryder of Wensum, L.
St John of Fawsley, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Stewartby, L.
Stirrup, L.
Stoddart of Swindon, L.
Stowell of Beeston, B.
Strathclyde, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tope, L.
Tordoff, L.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warnock, B.
Warsi, B.
Wasserman, L.
Waverley, V.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Willis of Knaresborough, L.
Younger of Leckie, V.
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Schedule 5 : Power to modify or transfer functions: bodies and offices
7: Schedule 5, page 22, line 11, at end insert-
9 May 2011 : Column 681
"2 An order may not be made in respect of the Human Fertilisation and Embryology Authority or the Human Tissue Authority unless an independent assessment indicates that making such an order under section 5(1) would increase the cost-effectiveness of the functions exercised by that Authority."
Baroness Deech: My Lords, in a nutshell what I and others are calling for is that the HFEA and the HTA should remain untouched until a new research regulatory body is in place with its own statute ready to receive those functions, and that in the mean time there should be a wholly independent external review of the HFEA.
The HFEA is like no other quango. Its work touches deeply on the intimate lives of the one in six couples who cannot conceive naturally, the health of babies, scientific research, cures for diseases now and in the future, the profits of scientific companies, and public morality. It is unique, has an international reputation and was a British first. I am seeking to preserve it from being shattered and to prevent lasting damage being caused to that area.
The HFEA and the Human Tissue Authority, to which similar considerations apply, are both listed in Schedule 5 as bodies that may have their functions transferred or modified under Clause 5. In Committee and at Report, amendments were tabled to remove the HFEA and the HCA from that schedule but, for various reasons, the proposal was not voted on but withdrawn to give the Government a further chance to reflect on the damage that it seems to us will be done, which we were convinced would persuade the Government to change their minds. This did not occur. Indeed, it seems that the Government are developing policy in this area as they go along. I sometimes suspect that behind closed doors there would be relief if the amendments being looked at by the House today were to succeed.
The first two amendments in the group are set down in my name and those of the noble Baroness, Lady Warwick, the noble Lord, Lord Walton, and the noble and right reverend Lord, Lord Harries, who cannot be in his place today because he has an unbreakable prior commitment but is giving his full support. The amendments seek to rectify an omission-the need for an independent review-and to prove a point that change in the organisations will be for the worse.
We have the support of the key organisations in this field-the Association of Clinical Embryologists, the British Fertility Society, the British Infertility Counselling Association, the BMA, the RCN, the RCOG and the Infertility Network UK. They do not consider that the HFEA should remain in the Bill because there has been no full and impartial public review of the risks and benefits of the new proposals, including the financial costs of all the options. However, as I have said, the removal of the two bodies from the schedule is not now a possibility. There is agreement that there are some elements of its remit that the HFEA could do better. Therefore, there should be an independent external review of the HFEA, with the aim of reducing bureaucracy, increasing accountability and saving money-albeit that the cost to the public purse is only £2 million and can be reduced. Even those who are most critical of the HFEA cannot oppose these two amendments, which call for just such a review.
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The consultation proposed by the Government is not at all the same. No doubt the HFEA's working practices could be streamlined with other regulators. Efficiencies could be found in the back offices and research regulation could be improved. However, there was no need to include the HTA and the HFEA in this Bill. No matter how irritating the HFEA may have been found to be by clinicians, they must surely welcome a review, for if they accept the Government's way forward the irritations will no doubt increase and there will be no improvement of those functions.
I wish to say a few words about the third amendment, Amendment 9. Just shifting the HFEA into the Care Quality Commission will not achieve money savings or efficiency. The shift will not meet the objections of the professionals to some of the ways in which the HFEA works. I am saying: do not take it apart but make it better, with an impartial review by, for example, the King's Fund, the Nuffield Foundation or the Wellcome Trust. Indeed, the proposed overarching regulatory body could work with the HFEA to achieve the aims desired by the Government. By splitting away the research functions of the HFEA as the Government propose, there is the risk of creating additional bureaucracy and increasing, rather than diminishing, the burden of regulation. The HFEA and HTA functions will be transferred to the Care Quality Commission, and research will go to a new body that has not yet been created. There is to be consultation about that reallocation of functions, even about the database-perhaps the most important feature to be concerned with in dismembering the HFEA-but in the mean time, the shadow of destruction hangs over the HFEA. That will affect staff morale and retention, and the confidence of scientists and clinicians, who rely on it for legitimacy and guidance, not to mention international respectability.
4.30 pm
I submit that the CQC does not have the experience or expertise in the complex areas governed by the HFEA and the HTA, and there is the danger of losing the corporate knowledge developed over the past 20 years, along with the relationship built up between the HFEA and the clinics. There is no practical benefit in abolishing the HFEA and handing its responsibilities over to the Care Quality Commission. More members of staff will have to be recruited and trained to replace the existing ones. Rearrangement of all external relations will have to be accomplished. The efficiency and cost-effectiveness of that has not been tested. Nobody can understand why that is being done, when other countries such as Canada are trying to emulate what has been done so successfully here over the years to regulate infertility practice and embryology while staying ahead of the field in maintaining safety and patient confidence.
If ever there was a time to protect consumers in this field, it is now. Patients are used to having a single port of call for information and complaints. To disband the HFEA and the HTA sends the message that the Government do not trust the way that tissue, infertility and embryology is handled in this country. It is a message that will go right around the world.
I fear that there will be fragmentation in an illogical way. The latest government proposal is that the licensing of embryo research, the release of identifying treatment
9 May 2011 : Column 683
If noble Lords think that that is incomprehensible and confusing, they are right. The cost of a bridging research agency will no doubt far outweigh any savings-not that we have been told what they might be-that could be envisaged in the transfer of HFEA and HTA functions. That is why the third amendment has been tabled. Our preference, of course, is that your Lordships should vote for the first amendment, which calls for a review, but even so, if there is to be transfer, the Government's intentions have not yet been made plain in detail. Why is a bridging authority necessary? How much will it cost? How can an interim body deal effectively and authoritatively with ethical questions-those specific to the sensitive functions of the two existing bodies? That is why the third amendment is here, for it covers newly revealed policies not hitherto debated or explained in sufficient detail. Can the Minister guarantee that the HFEA and the HTA will remain untouched until legislation is in place and all is set to receive their functions into a new body? Of course we do not know what the other place will do in this area.
Some have said that IVF is routine and does not need special attention. That is not the Government's view, for they rightly propose to stick to the primary legislation. The Human Fertilisation and Embryology Acts will stay in place; they will not go. The demands that they place on laboratories and clinicians will stay, every word of them. Nor do the public think that IVF is routine. Their emotions and intelligence are engaged by every new development-for example, as recently reported, in treating mitochondrial disease, set out in some of the tabloids as having three mothers; in screening embryos; and in protecting the patents on stem cell work. All those who hope for cures for terrible diseases are involved in this debate. The uniting of eggs and sperm, and the resultant possibilities, can never be routine unless one is very hard-boiled. This is what commentators have said. The Guardian said:
"The abolition of the HFEA will leave a major policy vacuum in biotech ethics. Without intervention, it'll be filled by the Daily Mail".
"The regulation of fertility and embryology ... will now be hidden within the remit of the Care Quality Commission ... There will be repercussions ... Without a distinct, visible body to oversee reproductive ethics, scientists in the field stand to lose public trust".
I should have said that I declare an interest, in that I was chairman of the HFEA years ago, and my heart is engaged in this topic for the sake of the patients and
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Lord Walton of Detchant: My Lords, I added my name to the first two of these amendments for a variety of reasons. Four or five years ago in a debate on the National Health Service in your Lordships' House, I remarked that I had identified more than 40 organisations that had the right to inspect, assess and consider health service activities, and I defined those organisations as constituting an intolerable "quangocracy". I believed that I was the first to create that neologism but since then others have claimed authorship. However, when I heard of the Government's intention to embark upon a bonfire of the quangos, the two quangos that I would never have contemplated being the first to go on the bonfire were the Human Fertilisation and Embryology Authority and the Human Tissue Authority. In my opinion, each of them has fulfilled and continues to fulfil a vital function-vital for suffering humanity and vital for the pursuit of medical research-and I believe that the Government's current proposals are likely to be damaging to both bodies and their functions.
Why do I say that? Perhaps I may go back. The Human Fertilisation and Embryology Authority was established by the Human Fertilisation and Embryology Bill based on a splendid report prepared under the chairmanship of my noble friend Lady Warnock. From the moment the authority was established, it required that any individuals wishing to work with human embryos up to 14 days after fertilisation would have to have a licence from the authority. In the first instance, that licence helped greatly to improve the treatment of infertility.
However, as time went by, the Act was amended and we went on to develop the pre-implantation diagnosis of genetic disease, allowing individuals carrying harmful genes which would produce in their offspring very harmful diseases to be studied so as to prevent diseases such as cystic fibrosis and Duchenne muscular dystrophy. Later still, amendments to the Act led to many other crucial developments. Further regulations made it possible to use spare embryonic material in in vitro fertilisation programmes to generate stem cells for the treatment of human disease, and that is slowly but surely becoming a reality. As my noble friend Lady Deech said, only recently the HFEA established an expert committee to examine the results of some highly fundamental world-leading research, carried out in my former university of Newcastle upon Tyne, using the technique of pro-nuclear transfer for the prevention of mitochondrial disease. I as a neurologist have seen and tried to help and treat patients with devastating mitochondrial diseases. This is a massive development which is likely to be of enormous value to humanity.
I agree that it is possible to consider the transfer of these research functions to other organisations but let me make one or two important points relating to that proposal. The Care Quality Commission has recently merged the Healthcare Commission, the Mental Health
9 May 2011 : Column 685
Let me turn for a moment to the Human Tissue Authority. The Alder Hey scandal was a failing on the part of members of my profession. Everyone in the profession knows that when a post-mortem is carried out inspections of the organs that one sees at that examination cannot, except in most unusual circumstances, give you the full diagnostic picture or the information necessary to prove the cause of death, or give evidence that is likely to help in future research. To obtain that information it is necessary to remove the organs and to fix them in formalin. After they have been fixed you then take sections that are examined under the microscope which give you diagnostic information. Regrettably many pathologists took the view that when permission for a post-mortem was given, that gave them authority to retain the organs and they did not regularly seek permission to retain them. Now, of course, the Human Tissue Act makes it absolutely clear that the retention of organs after a post-mortem for examination and diagnostic purposes absolutely requires the permission of the next of kin of the individual who is undergoing a post-mortem examination.
Quite apart from that the HTA has major responsibilities on issues such as the transplantation of human organs. There are many sensitive issues, such as whether someone donating an organ should be in any way compensated, whether it is appropriate that it should come from blood relations or whether well-meaning individuals not related to the individual should be allowed to give an organ for transplant. These and many other issues fall to the remit of the HTA. I recall very well when we considered the Human Tissue Act in your Lordships' House and in Grand Committee-it took hours and hours of consultation. The Bill as it came to us from the Commons contained several major defects. Those major defects would have hamstrung diagnostic purposes and been immensely damaging to the future of medical research-not least the constraints on the use of archive material which had been removed from patients years before and which were vital for research purposes.
Happily we were able to introduce some major amendments in your Lordships' House to improve the Human Tissue Act and to establish the Human Tissue Authority. I remember very well, as I am sure will the noble Lord, Lord Jenkin, that several people in the research community and in the royal colleges said, "Thank God for the House of Lords". That Act was improved and the Human Tissue Authority was given the appropriate regulations to enable it to fulfil its function.
If the process that the Government intend goes ahead, and if these bodies are merged with the Care Quality Commission, who will be responsible for licensing? Will they carry out inspections and have the authority,
9 May 2011 : Column 686
4.45 pm
I have heard a suggestion that the research functions of these bodies might be transferred to a future health research agency. I am immensely supportive of the splendid report produced by a committee chaired by Sir Michael Rawlins for the Academy of Medical Sciences on the future regulation of research. The main purpose of the report is to clarify and make easier many of the constraints that have been imposed on multicentre research projects; it is to make medical research easier to regulate and conduct. To convey to that body, if it is eventually established, the responsibilities for research held by these two organisations, will not be its primary function, although of course the Government have not yet legislated-and may not for some time, until the next Session of Parliament-to establish the health research agency. In the mean time, it is crucial that the HFEA and the HTA-which are not perfect; they each have problems, which can readily be resolved without legislation-should be allowed to continue with their functions, because the proposals that the Government have put forward will be inestimably damaging to the future of embryo research and research in a variety of medical fields. I warmly support the first two amendments in the group.
Baroness Bottomley of Nettlestone: My Lords, I, too, support the amendments of the noble Baroness. My interest is that I appointed her as chairman of the Human Fertilisation and Embryology Authority all those years ago. One of the first Bills for which I had responsibility in Parliament when I was Minister for Health was the Human Fertilisation and Embryology Act, following the very distinguished report of the noble Baroness, Lady Warnock. I have also served on the Medical Research Council.
The noble and right reverend Lord, Lord Harries, said that umpteen days had been spent debating the Bill. I like that term, and it is absolutely accurate. I, too, when I was a Minister in another place said, "Thank God for the House of Lords", because, whenever a particularly difficult and emotional issue arose, I knew that words of wisdom could be consulted in the House of Lords. They were a very good touchstone for me when I took on the task.
If ever there was emotion between scientists, clinicians, social scientists, theologians and patient groups, it was then. The fact that it has now become a relatively quiet issue does not mean that it does not have the potential to become once again extremely noisy. It speaks for the hugely effective way in which the HFEA has gone about its work, and the confidence that it has built not only in the United Kingdom among all parties but, as has rightly been said, around the world. If clinicians are irritated by the HFEA from time to time, that makes me even more convinced that there must be something good about it, because there is a distinction between the mind of the scientist and pioneering doctor, and the ethical balance of those calling for slightly more caution, control and constraint. When the area is that of the creation of life outside the body, it is a moral issue: we should never forget that.
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The Minister, who is sympathetic, thoughtful and kind, and who listens endlessly to requests from Members of this House, has already been extremely accommodating. He has agreed to coherence and transparency; he has agreed that he will not rewrite the ethical standards; and he has agreed that most of the functions should be kept together. Nevertheless, the Care Quality Commission has a huge agenda of work, as was rightly said by the noble Lord, and most of its activities are of a different nature from those of the Human Fertilisation and Embryology Authority, so can the Minister give us further assurances and find a way to meet the objectives of the noble Baroness's amendments?
Amendment 9, which is about the establishment of the health research regulatory agency, is even more important to me because it seems to be a prerequisite for the changes taking place. Of course we all believe in what we have now learnt to call a bonfire of the quangocracies. The easiest thing for any junior Minister to do is to make their name by setting up a quango; it is much harder to make your name by shutting down a few quangos, and we know it needs to happen. However, like other noble Lords, I urge the Minister to think very carefully before he puts the HFEA and the HTA at the top of his list.
Baroness Warwick of Undercliffe: My Lords, I shall speak to all three amendments in this group. I declare my interest as chair of the Human Tissue Authority, whose work is so much affected by this Bill. At the start of the passage of the Bill, there was much confusion over its purpose and the future direction of travel for many of those arm's-length bodies listed in it. Much progress has been made during the passage of the Bill. The Government have given due attention to concerns raised, thought through the potential outcomes and clarified many issues for all of us. I want to thank the Minister, the noble Earl, Lord Howe, for the attention he has paid to our specific areas of interest: the HFEA and the HTA. I particularly welcome his statement in the letter he sent to my noble friend Lady Thornton in which he recognised the need for our preferred option, which is to keep the functions of the HFEA and the HTA together, and gave a commitment to discuss directly with the HTA any potential movement of our research-related functions to another organisation.
I believe we are nearly there, but I feel that these amendments are necessary and will act as a safety framework for the Bill as it enters the other place and then goes onwards for external consultation. We are seeking a set of reassurances and safeguards from the Minister to ensure that the hard work everybody has done to shape this Bill will not be lost further down the road.
The noble Baroness, Lady Deech, and the noble Lord, Lord Walton of Detchant, have already set out the main arguments in favour of the amendments. I support them and shall not reiterate them. The amendments suggest measures by which the Government could assess the cost-effectiveness of the proposed moves, and I urge the Minister to consider utilising them. In his letter to my noble friend Lady Thornton, the Minister addresses the need for an impact assessment, but he proposes only a partial assessment. I believe
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The HTA is already recognised as an efficient regulator with a clear focus on improving value for money. We are a lean organisation costing only £1 million in government grant in aid and we will reduce that by 14 per cent in cash terms this year. We have reduced our licence fees across all sectors this year, including a 30 per cent reduction in the research sector. I have already raised and evidenced my concerns that any proposals to transfer the HTA's research functions would not achieve either simplification or financial savings. Indeed, we estimate that it would impose additional regulatory and financial burdens on around 200 establishments across various sectors. So I suspect it will not surprise your Lordships to know that I am concerned to ensure that cost-effectiveness is real and not just perceived as an outcome of this assessment.
I now turn to the amendment that deals with setting up the new independent health research agency. As I mentioned, I seek reassurance from the Minister in a set of safeguards. The Government have set out a draft transfer timetable, and have made clear their intention to cause the least amount of disruption to all involved by enacting all transfers of the HTA and HFEA functions at the same time. None of this can happen until the health research agency has a legal basis in its own right and it has been decided whether any HTA functions should transfer to it. Will the Minister therefore outline a more specific timetable for its establishment, and reaffirm his commitment to hold off transfers until then?
In addition, the amendment would require that a separate ethics committee be established within the new agency to undertake the ethical considerations of any functions that are transferred. This would be paramount in ensuring that we do not lose public and professional confidence through this period of change and that we continue to ensure that tissues and organs are used safely and ethically and with proper consent. Finally, therefore, is the Minister minded to establish such a committee and so accept this amendment in full?
The Lord Bishop of Guildford: My Lords, I support both this amendment and the two related amendments that follow it. They would guarantee in one way or another that the enormously valuable work of precisely the present ethics committee of the two bodies is continued. I speak in general, so far as a Bishop can ever speak, for the Christian churches and for other faith communities for whom the human embryo and human tissue have moral significance. That is not to say that the present ethics committee is in the pocket, so to speak, of the Bishops or of any faith community leaders. It is not, and the range of views and commitments
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Also of great significance for me is the serious support of the relevant professional bodies, so I urge the Government to consider these amendments very favourably.
Lord Alderdice: My Lords, I declare an interest because my wife is a pathologist who works in the National Health Service. She does no forensic work. Nevertheless, I declare that interest appropriately.
A number of noble Lords have mentioned the importance of the role of the House of Lords in considering such difficult and complex matters. We had plenty of evidence of that even before the Bill came to your Lordships' House, at least in debate on these two issues. Indeed, we had a very fruitful debate on 1 February this year in the Moses Room on the questions. There is a great deal to commend the amendments, although I have some difficulty with the fact that they link the two bodies. They are quite different in many ways and have a somewhat different track record and set of relationships.
I listened very carefully to what the noble Baroness, Lady Deech, said, and I do not disagree with any of it. She put forward her case clearly, but she focused in particular on the HFEA. A whole set of very important issues are involved there, and I hope that my noble friend the Minister may be able to give some kind of comfort to her and her colleagues, because I have a lot of sympathy for her case, as I do for much of what the noble Lord, Lord Walton, said. However, one of the difficulties has been that although there is clearly a need for legislation and for a body that undertakes these matters-the operation of the HTA in Scotland has been rather better than it has in England-it is important to draw to the attention of your Lordships' House that the impact of the way in which the legislation has been interpreted and conducted by the HTA has not inspired confidence, particularly among pathologists. I heard what my noble friend said about that proving what a good thing it is, but that does not show a very nuanced understanding of what is going on.
5 pm
One of the problems, which the noble Lord, Lord Walton, and other medical noble Lords will know very well, concerns the final diagnostic tool, the post-mortem. We all have our thoughts about diagnosis from a clinical point of view but in the end you will get a definitive answer from the pathologist after a full post-mortem and all the investigations. When I was training, the Government's ambition was that 10 per cent of all non-forensic cases would have post-mortems conducted. Why? It was in order that there would be a proper audit of clinical diagnosis. Is that the case? On the contrary, it has gone completely in the opposite direction. There are whole departments now where month after month scarcely a post-mortem takes place. We are now coming to the point where many members of the Royal College of Pathologists feel
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I shall quote from a letter written in February by the president of the Royal College of Pathologists to the right honourable Andy Burnham, the Minister. It is an eight-page letter from which noble Lords will be relieved to know I will quote only a short amount. The letter states:
"The Royal College of Pathologists does not contest the need for legislation on the uses of human tissues that led to the Human Tissue Act 2004-though we do continue to protest, with others, that aspects of that legislation are not working as intended and that the parallel Scottish legislation is much more sensible. Nor do we deny the need for a regulatory body such as the Human Tissue Authority. But it seems obvious that the HTA and the profession need to work together with mutual respect, and that at present neither group is displaying that respect. The recent actions of the HTA have considerably exacerbated an existing problem. Since the events"-
he refers to earlier events to which he has referred in the letter-
- "pathologists will inevitably perceive the Human Tissue Authority as an aggressive regulator, all too ready to wield the force of the criminal law even when, it transpires, a crime has not been committed"-
thus wielding the law against medical practitioners. The letter continues:
"Changes in the attitudes of pathologists cannot be expected to occur without very visible and major changes in the Human Tissue Authority".
The letter goes on to list a page of suggested changes.
That is not to say that there should not be some kind of authority or legislation. But it is important to put on record in your Lordships' House that everything had not been going smoothly and suddenly the Government have come in to knock over something that was working perfectly well. As I say, I exclude the HFEA from that discussion. That is not the issue for me.
Having said all that, and giving that as a backdrop to my sense that it would be easier if the HTA and HFEA were not in the same amendments because they involve different issues, I have considerable sympathy with the intentions behind these amendments. They are thoughtful and are an attempt not to knock the whole applecart over. They try to ensure that the transitional arrangements, and where we come to at the end of the journey, are building and capitalising on all the very good things that have happened and that none of that is lost. In that regard, I hope my noble friend may have some comfort for those who have put their names to these amendments and that they will find some satisfaction.
Lord Newton of Braintree: My Lords, I wonder whether I might start by expressing my warm thanks to my noble friend Lady Bottomley for intervening in this debate. I had been dithering about whether to do so because for reasons I cannot understand my Front Bench regard me as a bit of a troublemaker on this Bill. Since no one could possibly accuse my noble friend Lady Bottomley of being a troublemaker, she has leant me a cloak of respectability, which I now put on. I agree very much with what she said. I should perhaps declare an historic interest as chair of a hospital trust that did transplants at the time that the
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But even without that, there is a concern that what we may be doing here is upsetting arrangements that appear to have worked pretty well without being at all clear about what we are going to put in their place. My noble friend also referred to her concern, as I have done on an earlier occasion, about whether the Care Quality Commission, which already has more on its plate than it can deal with, can take on any more until it has settled down to what it is seeking to do at the moment. Given the eloquence of the speeches made, particularly those of the noble Baronesses, Lady Deech and Lady Warwick, the noble Lord, Lord Walton, and others, I hope that my noble friend the Minister will give these amendments very careful consideration indeed.
I hope your Lordships will not think that I am indulging myself if I take this opportunity to express my gratitude for the kind words said at the last knockings of the Report stage about my absence at the time through ill health. My particular thanks go to the noble Lords, Lord Pannick and Lord Whitty, for picking up a couple of my amendments, even though they did not get what I would regard as perfect answers. I am also grateful for the very warm words of the shadow Leader of the House, the noble Baroness, Lady Royall, who I am sorry not to see in her place. She was kinder about me that I ever thought I would deserve, and as a result probably caused more upset on these Benches. It would be tempting as a counterpoint to say that my noble friend Lord Taylor of Holbeach saw me here last week and his first words were, "Should you really be here? Wouldn't you be better off at home?". But that would be very unfair because he has been genuine solicitous of my welfare and has actually offered to release me from slavery even when he thinks I would not cause trouble. I am very grateful to him.
I have already indicated to my noble friend Lord Howe that I have some sympathy with these amendments and that I shall listen carefully to what he says if he does not want to accept them. I want simply to tell him that what he says will have to be good.
Lord Willis of Knaresborough: I rise to speak specifically in support of Amendment 9, to which I have added my name. However, I want first to record my thanks to the noble Earl, Lord Howe, on the Front Bench for the very courteous way in which he has tried to respond to these issues throughout the passage of the Bill. The reality is that we should not be at this particular juncture now. If we had had proper consultation before these proposals came to light, we would have been able to argue the issues out sensibly and carefully. I recall the way the last Government treated the draft tissue and embryo Bill. They created a committee of both Houses that looked carefully at the issues and prepared a report. It was accepted by them and actually changed the legislation that was going through the House. With hindsight, we can always do things differently, as we learnt last Thursday.
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I think that Amendment 9 is crucial. The Academy of Medical Sciences made a proposal to create a health research agency that was not just supported by the medical and research professions, but by all the political aspects of all the parties in both Houses of Parliament. It is rare for that to occur. I have argued with the Minister that the real crux of this Bill is not knowing what you are actually going to move to. I think that the concerns about the CQC are a little unfair. The reality of the situation is that the CQC already regulates and inspects a significant number of premises and establishments that deal with the use of embryos, embryo research and the clinical application of techniques using embryos. There is already significant duplication, so to argue that a new body would either increase or decrease duplication would depend on how you finally decide which functions will go to which organisation.
Health research is also crucial. The report of the noble Baroness, Lady Warnock, has rightly been mentioned often today. She established firmly back in the 1980s the fundamental issue of the special nature of the embryo, particularly when dealing with research. The noble Baroness, Lady Deech, is absolutely right that the founding of the HFEA has enabled research using the embryo, particularly when we started to look at stem cells and admixed hybrid embryos, to go through. That is because there has been a regulatory authority for which there has been public as well as clinical and academic support. We throw that away at our peril.
I put it to the Minister in Committee that we could not move to an interim authority for health regulatory research and believe that we could maintain continuity and credibility within the research communities both here and abroad. Unless we establish the health research agency, we will lose ground. It is too important an area for us simply to say, "Well, we'll wait and see'. In his incredibly helpful letter to the noble Baroness, Lady Thornton, the Minister referred to setting up an interim authority. However, in Committee, I proposed to my noble friend that a new clause be inserted in the Health and Social Care Bill to set up the paving legislation for the new regulatory research agency. My noble friend makes it clear in his letter to the noble Baroness that that Bill is now on hold for a while for a variety of reasons. Surely this is an excellent opportunity for the draftsmen to put into that Bill a clause which enables the agency to be set up. At one fell swoop, an early place in the legislative timetable-literally within the next six months could be given to an agency that all of us agree needs to be in place. Amendment 9 offers the Minister the opportunity to respond positively today and we could go ahead with those proposals.
The second part of Amendment 9 deals with the incredibly important business of an ethics committee. Many people who are not involved in the ethical consideration of these issues believe that this is somehow a sop or an add-on. It is not; it is fundamental to maintaining confidence in the research frameworks and the regulatory authorities. I hope that when my noble friend the Minister responds to the amendment he will give us clear direction on how the new agency
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Lord Winston: My Lords, I have not decided whether I shall vote for or against the amendment if it is pressed. I shall listen very carefully to the Minister's response.
One of the greatest ethical issues involved in this treatment is its lack of accessibility. It is a highly privileged treatment, because it is mostly in the private sector. It is true that the NHS provides some, but many health authorities have based their fees to some extent on the private sector. Therefore, the hard-pressed PCTs have not been able to offer as many treatments as many people recommend.
When I left practice running a large IVF clinic some five or six years ago, we were charging very much less than is currently charged by clinics. We were still able to turn more than £1 million a year over to research and provide the Hammersmith Hospital with a great deal of surplus income, which was then used to treat other patients.
One of the key issues with which the HFEA has not dealt is the high cost of IVF treatment. In my view, it is a scandal. There are clinics that treat patients for around £3,400 a cycle. It is only when you look at their websites that you see that they are charging up to £1,100 to £3,200 for drugs that should be obtained on contracts at around £500 to £700 per cycle. Embryo freezing will be increasingly required if we are to limit the number of pregnancies that result in multiple births by transferring just one embryo each time. One clinic in London charges £915 for embryo freezing. That is for a mechanised treatment that is extremely easy to do in the laboratory. If that were not enough, the storage fees are £325 a year. Given that liquid nitrogen, which is what the embryos are stored in, costs a few pence a litre, that seems somewhat excessive, even allowing for the costs of regulation. I am afraid that the HFEA has shown itself to be completely unable to deal with this issue at all. This privileged treatment is a shocking issue.
Secondly, one thing that the HFEA claims to be doing is giving accurate information to patients. This morning, I trawled a few IVF clinic websites. A prominent clinic in London-which I can name but will not-argues on the front page of its website a 69 per cent IVF success rate. That figure is repeated twice on the website. It is only when you delve into the small print that you realise that it is nowhere near that. That is the cumulative success rate over several cycles of treatment. Another clinic argues that it has a 30 per cent success rate in women over 40 or 42. That is a biological impossibility given that the implantation rate alone of a patient under 40 is something around 18 per cent per embryo-at best 25 per cent. What the site does not say is that this is for pregnancy but not delivery of a live baby. It does not take into account the vast number of miscarriages that presumably these patients are going through. This kind of misinformation occurs again and again.
The Bridge fertility clinic offers a 71 per cent pregnancy rate per blastocyst treatment and 67 per cent success rate for pre-implantation genetic diagnosis. As someone
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Then we come to the ways of promoting treatments that are not acceptable in this country. There are several clinics in London alone that offer their services in, for example, Mauritius-that is one of the Harley Street clinics-the USA, India and Spain. There they can display all sorts of unvalidated success rates on their websites and in addition can offer treatments that are not acceptable in the United Kingdom, such as multiple embryo transfer. Why has the HFEA not withdrawn the licences of those clinics? Why has it not argued that this is dishonest and dangerous?
Then, of course, we have the question of the database, which has been referred to already. The database ought to be very valuable but, sadly, in practice it is useless because we cannot follow up patients in the long term. That is a very serious issue. As the Minister knows, epigenetic issues-early experiences in development from fertilisation onwards-may have a profound effect on our health when we become adults. IVF in this country is not followed up in this way, so we have no way of knowing whether some of the treatments or exposures of the human embryo may be more likely to cause damage at a later date.
Then we have the question of another issue, which the HFEA seems to have been totally powerless to deal with. That is the issue of treatments without any evidence base that they work. Let us take the example of immune therapy, which is charged at anything from £1,000 to £3,000 a time, in addition to the already high fees of IVF. Where is the evidence that immune therapy actually improves the success rate of pregnancies? I do not know of that evidence-and, indeed, the treatment may even be damaging or harmful to the patient's residual immune system.
Then we have preimplantation genetic testing, which is testing of embryos genetically when IVF has previously failed. I accept that preimplantation genetic diagnosis works, as the noble Lord, Lord Walton, has said, and it is a valuable technique in a few patients. However, there is actually no evidence base showing that preimplantation genetic testing in people who do not have a genetic defect, as widely used by many clinics, provides a helpful and improved chance of a pregnancy afterwards. The control trials and the control evidence are not there, and this treatment-if it is done at all-should be done on a research basis. However, the HFEA has failed to license it on that basis. The same applies to the treatment of assisted hatching. These are not small treatments; preimplantation genetic testing is charged in one clinic at £2,690 in addition to the £3,000 or so charged for the IVF and the £800 to £1,000 for the drugs that the patient pays for. At this stage, patients who are desperate will do anything to ignore the avarice of the people who might be treating them. This is a massive issue, as it is with another treatment, widely offered, of assisted hatching, in which a little piece of damage is done to the zona pellucida around the embryo or egg in the hope that it
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We have heard from a number of speakers in this debate that the HFEA is the envy of the world. If it is the envy of the world, why has no other jurisdiction accepted this method of regulation? It is not used in Singapore, the USA, France, Israel or Australia, the countries that are most successful at reproductive treatments. I am not suggesting for a moment that we should not have a proper culture of regulation or a proper ethical standard in how we deliver medicine, but the current workings of the Act of Parliament are now not suitable for the original purpose. We have outgrown it. With the burgeoning private practice that has occurred with this treatment as a result of the failure to fund it in the health service, we have an increasing problem, which is very far-reaching.
It is true that there are virtually no good academic units in the United Kingdom that really produce cutting-edge research in the field of reproductive biology where it applies to humans. That was not true 30 or 40 years ago, when we led the world, in places such as Cambridge, London, Edinburgh and many other centres in Scotland. Now we cannot find people to appoint to chairs in reproductive medicine. The chair at Hammersmith was left vacant for three years after my retirement, and eventually they decided not to seek anyone to fill it. They could not find somebody who was a suitable academic because people are being attracted to the highly lucrative business that IVF provides. In my view, this is a very serious problem.
One of the most respected academics in this field is Professor Alison Murdoch, in Newcastle, who has pointed out something really quite interesting. I take her view very seriously as I believe that hers is an example of a really well-run, ethical practice. She points out that regulation of in vitro fertilisation is now far greater than regulation of, for example, abortion. That does not seem to make sense. I listened very carefully to the right reverend prelate the Bishop of Guildford. However, does he really believe that the protection of the embryo is more important than the protection of the foetus or the protection of research on the newborn child, the patient who is pregnant or the elderly patient who may be about to die from various diseases? Surely the notion of centralising our research under one body makes good sense, because we can then have a rational basis for important ethical decisions. I shall listen with great intent to how the Minister responds to this debate. However, I am not convinced that, even if we vote for this amendment, it would be a good idea to vote for the preservation of the HFEA as it stands.
Lord Patel: My Lords, I shall be brief as we have been debating this for a long time. I spoke to this issue in Committee and, apart from the noble Lord, Lord Winston, and the noble and learned Lord, Lord Mackay of Clashfern, who is not in his seat, I was the only one to argue against preserving the HFEA's current status and role, particularly on the clinical side.
I start by agreeing with the noble Lord, Lord Willis of Knaresborough, about the medical research authority. I totally agree with him that the Academy of Medical
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I turn to the HFEA and its other role. Yes, it is true that we should all feel a glow when we mention the HFEA. When it was established, soon after the birth of Louise Brown, a voluntary licensing authority established by the Royal College of Obstetricians and Gynaecologists and the Medical Research Council had been operating for two years. Its creation gave both clinicians and the public the confidence that the newspaper headlines of the time-that monsters would be created in Petri dishes-would not be realised. It is true that in its formative years the HFEA did a fantastic and useful job in establishing and licensing premises for delivering good care to those requiring IVF treatment. Yet the world has moved on. More than 1 million children the world over have been born following IVF treatment.
There is no reason to think that the clinical care provided for patients requiring infertility treatment, including IVF, is any different, or should be any different, from the care provided for children with cardiac anomalies. Both treatments are properly regulated by the CQC and the professional organisations. We hear of units being shut down because of poor outcomes; so let us consider the recent performance of the HFEA. How should we measure it? We should measure it against the success rate for IVF. As the noble Lord, Lord Winston, mentioned, apart from spurious claims, there is no evidence that our outcome for patients requiring IVF treatment is any better than anywhere else in the world; in fact, it is poorer than in some other countries. Measured against promoting better outcomes for the patients, the HFEA has not delivered.
5.30 pm
I agree with the noble Baroness, Lady Bottomley, that clinicians would complain if threatened, but these clinicians are not complaining because they are threatened-they are complaining because they think that they could do better if they were not so harshly regulated by an authority that looks at more and more ways of regulating. It has become a legend in its own mind. It makes the delivery of clinical care more difficult and, therefore, the outcome for patients poorer.
The noble Lord, Lord Winston, was right to mention the promotion of research. One of the objectives in setting up the authority was to promote research to improve the outcomes of patients with infertility. In fact, it blocked the use of valuable data. The noble Lord mentioned the example of using epigenetic factors-environmental, dietary and other factors-that would affect the health of the babies born. There has been an ideal opportunity to do so over the past 20 years, but we failed to.
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Let us be quite clear: the glow that we feel about the HFEA may be slightly tarnished. We have to ask which of the functions we need to retain. I seek an assurance from the Minister that the medical research authority will be set up soon and that it will take over all the research functions of the HFEA. Let us have a debate about whether the HFEA delivers now when it comes to improving care and outcomes for the patients. That, I think, is when we will find that it is currently found wanting.
Baroness Thornton: My Lords, I thank the noble Baroness, Lady Deech, my noble friend Lady Warwick and other noble Lords for their determination to have the future work of the HFEA and the HTA clarified during the course of the Bill. I join others in thanking the Minister for his patience and accessibility in discussing the different aspects of the issue.
We have had another excellent debate that has illustrated why it was necessary to bring the issue back to the Floor of the House for further discussion. The House needs to heed the voices raised across the Chamber-as well as the pleas contained in the letters that we have received from some of the parents of Alder Hey children, the letter in the Times this morning signed by a galaxy of medical experts and the briefing from the BMA on behalf of several organisations-as a sign of increasing concern.
Since Report, the Minister has kindly written to me explaining further the Government's proposals for the HFEA and the HTA and the staged break-up that seems to be the Government's preferred option at the moment. In brief, the break-up involves HFEA and HTA functions being transferred to the CQC except for research-related functions, which will be transferred to the health research regulatory agency, presumably covering what have been broadly referred to as the ethical issues. To facilitate this, as the noble Baroness, Lady Deech, explained, a special health authority will be created in 2011-12 and there will be primary legislation to establish the agency proper in the second Session of this Parliament. Presumably, the ethical issues will therefore be dealt with by the interim body in that process. Notwithstanding the proposals of the noble Lord, Lord Willis, regarding the Health and Social Care Bill when-indeed, if-it reaches us, it is clear that there will be primary legislation to establish the new research body.
I am further grateful to the Minister for his explanatory letter because it served to strengthen my view that these bodies should never have been in the Bill in the first place. It also illustrated for me the question that I want to put to him: why go through such disruption, risk, lack of stability, potential loss of expertise and expense for the next two years prior to the introduction of primary legislation to establish the new health research agency, which will address all of these issues? Why not agree the amendment that establishes an independent assessment of the work of both bodies? That could feed into the pre-legislative process and consultation, which will include all the questions that need to be asked, leading to primary legislation in about two years' time. If the Government go down the route that the Minister is proposing, they intend to launch a consultation this summer, as outlined in the
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That is why we on these Benches will be supporting all these amendments. It is not that either the HTA or the HFEA should be preserved for ever; indeed, it is clear that my noble friend Lord Winston and the noble Lord, Lord Patel, have grave problems with the HFEA. I make the point to the noble Lords, which I have also done outside the Chamber, that that is not the point of the Bill. Passing the amendments would actually be more likely to address their concerns than would leaving the situation as it is. In other words, there is no guarantee that their concerns about the HFEA, which I am sure are legitimate, would be addressed if we left the Bill as it is without the reassurances.
The one thing that we know is that there is going to be a health research agency. It is an idea of merit. It is also a proposal that is ideally suited to the expertise and inclination of this House; the Select Committee, the pre-legislative scrutiny, the draft Bill and, if I may say, the skills that the Minister brought to bear when he helped to create both these agencies make this the place where that process should start. I am certain that that would ensure a good outcome.
The amendments are different from the simple deletion amendments that we tabled in Committee and on Report, particularly the third amendment, because it accepts the principle that the Minister may transfer or modify the functions under Clause 5 in respect of these bodies but would require the Minister to have first established the Government's new regulatory body with a separate ethics committee. It would ensure that there were no gaps between what is happening now with the current bodies and the Government's intended independent regulatory body in future, a point that many noble Lords have made. However, it would not preclude an examination and independent assessment of the work of both these bodies. It would ensure that the critically important ethical functions performed by these bodies were recognised and catered for, which, in a way, is where we came in at the first stage of the Bill.
Earl Howe: My Lords, I thank noble Lords who have moved or spoken to these amendments. I recognise and understand the sentiments underlying them. I do not in the least wish to argue against or downplay the importance of cost-effectiveness in any legislative changes that we propose, or of ensuring that the right successor arrangements are in place for discharging the relevant functions of the HFEA and HTA. I therefore hope that what I am about to say will satisfy noble Lords that in most key respects I am in the same place as they are regarding the points at issue.
Since our debate on Report I have written to the noble Baroness, Lady Thornton, to set out my reflections on the points that she and others have made. There were common themes: a desire for greater clarity on where the Government intend to transfer the functions of the HFEA and HTA to; concern that the dispersal
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The noble Baroness, Lady Deech, expressed the fear that the Government's proposals would lead to a vacuum as regards the ethical focus of these bodies-in the decision-making process for research and treatment involving embryos in particular. Let me explain what we intend. Ethical safeguards-for example, the type of embryo and gamete that can be used in treatment, the need to consider the welfare of the child, and the need for consent in respect of human tissue-are clearly enshrined in legislation in accordance with the wishes of Parliament. These safeguards will remain firmly in place.
In keeping an integrated approach to HFEA functions, the CQC would be the focal point for ethical considerations of treatment licensing that arise from the Human Fertilisation and Embryology Act. There is no reason whatever to suppose that it is not up to fulfilling that role. I say to my noble friend Lord Newton that my department's officials have had discussions with the CQC senior managers about the proposed transfer of functions. The CQC is confident that these can be taken on effectively. The health research agency will provide a focal point for the ethical consideration of research using embryos. It will draw on expert advice, as the HFEA does now. The aim is to simplify and rationalise the ethical approvals process for all kinds of research. Far from the ethical focus for each type of activity being lost, it will be actively preserved.
My noble friend Lord Willis suggested that we might use the Health and Social Care Bill, now in another place, as the vehicle for the proposed changes, rather than this Bill. I recognise the force of his proposal. He will know why we have chosen not to go down that road. We do not want to add to what is already a substantial Bill. It is important, too, that the Government retain momentum for their planned changes across the ALB sector. The ALB review process has already garnered significant rationalisation across the health sector and we do not want that rolled back. By keeping the HTA and the HFEA within the Public Bodies Bill, we can deal discretely with complex issues and undertake detailed consultation and impact assessments in a timely and considered way. We also, as I have indicated on several earlier
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5.45 pm
Lord Willis of Knaresborough: Does the Minister not understand the incredulity of many of us? This is a Bill that deals with getting rid of quangos, yet the Minister's solution is to set up a quango to create time in order to set up a bona fide agency. Surely the Minister sees that by simply delaying the whole process until the agency is in place, everything can be transferred either to the CQC or to the new agency, all at once, without an interim body.
Earl Howe: I ask my noble friend to wait a few minutes; I hope I will tell him something that he will welcome.
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