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House of Lords

Wednesday, 9 November 2011.

3 pm

Prayers-read by the Lord Bishop of Bristol.

Cyprus: EU Presidency


3.07 pm

Asked By Lord Harrison

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, as the noble Lord may be aware, President Christofias has publicly stated that he would like to achieve a settlement before Cyprus's presidency of the European Union, and it is the United Kingdom's hope that this is achieved to the benefit of all Cypriots. In such circumstances, both the Greek Cypriot and Turkish Cypriot communities will be part of Cyprus's EU presidency.

Lord Harrison: My Lords, the United Kingdom is, thankfully, one of the guarantor powers for Cyprus, and we are in an ideal position to bring sensible people together from all sides in an attempt to ensure that the presidency of the European Union, over which Cyprus will preside from July of next year, brings credit to all members and all people in Cyprus. Will the noble Lord contemplate thinking about how to ensure that the two sides do joint planning, and that the venues for the six-month presidency are shared so that all can participate in this enterprise?

Lord Howell of Guildford: This would clearly be the ideal objective, and at the moment many people are working hard on it, including HM Government. Of course Alexander Downer is playing his role as adviser and mediator; and there was the meeting with the UN Secretary-General about a fortnight ago in which there was-I am advised to say-some progress but no breakthrough. So it was not totally negative, but obviously there is a long way to go. The next meeting is in January and we hope that there will be a further basis of agreement after that, as we move towards the kind of solution that many of us have sought and longed for for so long.

Lord Hannay of Chiswick: My Lords, what steps have the Government taken to remind all parties in Cyprus and around Cyprus that the dispute over the exclusive economic zone is one that should be dealt with by peaceful dialogue, not by menaces and threats? Have the British Government made known the view that the 1960 Treaty of Guarantee gives absolutely no right of unilateral intervention in a matter of this sort?

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Lord Howell of Guildford: This is an extremely sensitive issue. As the noble Lord knows, the whole problem of the Levant basin and the discoveries of offshore gas in considerable quantities are relevant to a number of nations in the area. Like all parties to the UN Convention on the Law of the Sea, we recognise Cyprus's sovereign rights to exploit mineral reserves within its exclusive economic zone, and we call on all parties to cease from inflammatory actions or statements. In particular we welcome President Christofias's statement that any gas revenues that emerge-and they will emerge -will be for the benefit of all Cypriots, even in the absence of a settlement. We hope that a mechanism can be found to ensure that all Cypriots share in the proceeds of gas finds and developments in the Levant basin.

Baroness Hussein-Ece: My Lords, is the Minister aware that the present Government do not represent the whole of the island? Having joined the EU in 2004, Cyprus has six Members of the European Parliament, none of whom is a Turkish Cypriot. Does he agree that the fact that the benefits of EU membership six years on do not apply to the citizens of north Cyprus-Turkish Cypriots-is, in the words of one MEP, an ongoing scandal?

Lord Howell of Guildford: This is the kind of asymmetric situation that is bound to have arisen from the lack of a settlement and the fact that the north is not recognised as a separate state by this country and by many other countries, except Turkey. That is the problem. Somewhere in the future lies a better and happier relationship in which the bi-zonal federal solution for Cyprus is achieved and the whole of Cyprus is represented in the European Union. Somewhere beyond that, perhaps even a satisfactory Turkish relationship with the European Union will also be achieved.

Lord Hunt of Kings Heath: My Lords, will the Minister expand a little on the question of potential Turkish accession to the EU? Can he give any prospect of success, given the position that Cyprus is taking?

Lord Howell of Guildford: We have always recognised, as I am sure the noble Lord has, that these things are intimately bound up together; and there are dangers. Certainly Turkey has stated that it would freeze further negotiations over the EU unless progress is really made on the Cyprus situation generally and unless issues such as oil and gas and the undersea boundaries can be resolved. So there is always a fragility and a danger that the negotiations between Turkey and the EU will be halted. They have been prolonged for a very long time already, and I am afraid that there are still a number of issues ahead. These things are at risk from the ugly division of Cyprus.

Lord Kilclooney: My Lords, increasingly there are doubts about Greece's membership of the European Union, and especially of the eurozone. Did the same doubts apply to bringing Greek Cypriots into the European Union before there was a settlement with the Turkish Cypriots?

Lord Howell of Guildford: I did not quite catch the full extent of the noble Lord's question. The aim of all of the processes in which we are involved, with the UN and Alexander Downer, is to create a bi-zonal

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federation that would be part of the European Union and would have the benefits, conditions and status of full membership of the European Union for a united Cyprus. I hope that that answers the noble Lord's question.

Lord Maginnis of Drumglass: My Lords, is this not a case where we should remember that once we are in a hole, we should stop digging? Is it not time that our Government stopped digging a hole in terms of a lack of settlement in Cyprus? Was the lack of settlement not brought forward because Nikos Sampson and EOKA-B overthrew the regime of Archbishop Makarios? Why do we still pander to the Greek Cypriots and virtually ignore the Turkish Cypriots in this problem?

Lord Howell of Guildford: I honestly do not think that pander is the right word. We want to see a resolution of the problem. We are all aware of the history-the bitterness and the feelings of unfairness and injustice on both sides. We are all aware that Turkey is a major and responsible nation and would like to seek outside, as would no doubt the Greeks, to see the north and south of Cyprus united. There is no question of pandering; it is a question of working very hard to overcome bitter past differences and difficulties.

Armed Forces: Afghanistan and Libya


3.15 pm

Asked By Lord Lee of Trafford

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever): My Lords, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of Private Matthew Haseldin, 2nd Battalion The Mercian Regiment; Rifleman Vijay Rai, 2nd Battalion The Royal Gurkha Rifles; Marine David Fairbrother, Kilo Company, 42 Commando Royal Marines; Lance Corporal Jonathan James McKinlay, 1st Battalion The Rifles; Sergeant Barry John Weston, Kilo Company, 42 Commando Royal Marines; Lieutenant Daniel John Clack, 1st Battalion The Rifles; Marine James Robert Wright, 42 Commando Royal Marines; Corporal Mark Anthony Palin, 1st Battalion The Rifles; and Lance Corporal Paul Watkins, 9th/12th Royal Lancers (Prince of Wales's).

My thoughts are also with the wounded, and I pay tribute to the courage and fortitude in which they face their rehabilitation.

On my noble friend's Question, as of October 2011, ISAF consists of 49 nations working alongside Afghan national security forces. Denmark and Estonia are the UK's main operational partners, and Tonga provides support. UK forces also work in close co-ordination with US allies.

In Libya, at the height of Operation Unified Protector, 17 nations-13 NATO and four partners-contributed. These were the US, France, the UK, Italy, Denmark, Spain, Belgium, the Netherlands, Canada, Turkey, Greece, Sweden, Romania, Norway, Qatar, the UAE and Jordan.

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Lord Lee of Trafford: First of all, I join these Benches in the earlier condolences.

On Monday, our ambassador in Rome hosted a lunch for the Italian air force to thank them for their support in the Libyan operation, which yesterday, at an RAF briefing, the commander of our expeditionary air wing described as absolutely outstanding. Over the years, Parliament has received a number of our service units returning from duty in Iraq and Afghanistan; last week we had 3 Commando back here. Can we not consider hosting a major reception here and perhaps at No. 10 for representative service personnel from all our allies in the Libyan campaign and, in due course, similarly for Afghanistan, to emphasise the partnership in these campaigns, to acknowledge the sacrifices made and to say thank you?

Lord Astor of Hever: My Lords, my noble friend raises a very good point. The UK is rightly grateful to its coalition allies for the contributions that they have made. But in these times of austerity, this may be difficult. Furthermore, it should be remembered that the UK is only one country within the broad NATO-led coalition of allies that has been operating both in Afghanistan and Libya, so we would more likely look to NATO to conduct such an event.

Lord Rosser: My Lords, the Minister has had the sad duty of reading out the names of nine members of our Armed Forces who have recently lost their lives in the service of our country. On this side, we, too, extend our sincere condolences to their loved ones and friends at this particularly difficult time for them. No words can adequately express the debt that we owe to all who have given their lives on active service.

Will the Minister accept that the Libya campaign illustrated both the strengths and weaknesses of NATO? The strength was NATO's continuing relevance in a mission that was quick and successful; the weakness was that less than a half of NATO members contributed to the mission. On top of that, there are still issues over the significant number of European nations not meeting NATO expenditure targets on defence. Will the Government use the success of the Libya mission in particular to pursue again this issue of NATO members making an appropriate contribution?

Lord Astor of Hever: My Lords, I agree with the noble Lord's last point. Some allies shared significantly more of the burden in Libya than others and this imbalance needs to be addressed in the future. In practice, we saw a two-tier alliance in terms of operation. Only half of the allies took part militarily, exasperating the limited availability of NATO's capability.

Lord Stirrup: My Lords, the Minister has reminded us once again of the tragic cost of our ongoing operations and the whole House echoed his sentiments. Does he agree that our most important partner in Afghanistan is Afghanistan itself? And can he say what progress the Afghan national army and police are making towards taking lead responsibility for security throughout their country, at which stage our combat operations can cease?

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Lord Astor of Hever: My Lords, I can assure the noble and gallant Lord that support for Afghanistan will certainly not end in 2014. It is President Karzai's aim that by the end of 2014 the Afghans will take lead responsibility for security costs right across the country, and we are on track to meet this aim. The Prime Minister has been clear that we will not have troops in a combat role or in numbers anywhere like current levels by 2015.

Lord Glenarthur: My Lords, bearing in mind the huge contribution of Britain's Reserve Forces to both campaigns, particularly to that in Afghanistan, to what extent have those foreign countries my noble friend mentioned also been using their reserve forces? Can any lessons learnt from their deployments be used and developed in the international fora which exist for discussion on international reserve issues?

Lord Astor of Hever: My Lords, my noble friend makes a very important point about the reserves of our allied countries. I am afraid I do not have an answer to hand but I will certainly write to him on this and give him a detailed answer.

Lord West of Spithead: My Lords, a number of us were dismayed that a relatively simple campaign like the one in Libya could not have been conducted by the European members of NATO but needed American enablers. Will the Prime Minister, when he visits and has his dialogue with France very soon, be raising the issue that there needs to be a slight increase in defence as a percentage of GDP among all the European NATO nations, including ourselves?

Lord Astor of Hever:My Lords, the noble Lord makes a very important point. Having said that, co-operation between the United Kingdom and France, both militarily and at the political level, has been exemplary and contributed significantly in Libya towards developing the level of co-operation and interoperability envisaged in the UK/France defence co-operation treaty that was signed in November 2010.

Lord Palmer of Childs Hill: My Lords, I echo the comments of my noble friend Lord Lee, and I hope that the Government will reconsider having a represented reception. We must also remember those who did not return from Afghanistan and Libya. The Minister was very fulsome in telling us all the various nations which have contributed to these conflicts. Will he enumerate the deaths in those two conflicts-those who did not return-and indicate how those unfortunate deaths were split between the various nations which took part?

Lord Astor of Hever: My Lords, I have a list here of all the deaths of members of our allied countries. Rather than reading the list out, I will write to my noble friend and I will make sure that a copy of my letter is placed in the Library.

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Prisons: HMP Wandsworth


3.25 pm

Asked By Lord Hurd of Westwell

The Minister of State, Ministry of Justice (Lord McNally): My Lords, since the inspection was undertaken in February and March, Wandsworth prison has strengthened its management team and improved access to purposeful activity. The issues of showering provision and access to telephones have been tackled and first-night provision is better. In addition, the primary care trust has commissioned a health needs assessment to identify better the requirements of the prison population.

Lord Hurd of Westwell: What were my noble friend's feelings on first reading this very disappointing report? It details several ways in which Wandsworth prison has fallen backwards since the earlier report and is now holding people in conditions that are unsafe and fall well below the level of human decency. He has listed some things that have happened since the report was published. Can he add to that list and is he satisfied that when those things are carried out, they will solve the problems that the chief inspector reported?

Lord McNally: My Lords, my noble friend asked me what my reaction was. I was appalled. It is a disgraceful and shaming report that lists many failings. I can say only that the National Offender Management Service has reacted to the faults with proper determination. Wandsworth is a very difficult prison. It is one of our Victorian prisons, with over 1,600 prisoners, which puts a great strain on the staff, but there is no doubt that the inspection revealed many weaknesses. All I can assure my noble friend is that the strengthening of the management team signals a determination that the things that were identified will be put right.

Lord Ramsbotham: My Lords, when I was the Chief Inspector of Prisons I also had the problem of inspecting Wandsworth and producing a report very similar to the one that has been mentioned. We introduced a procedure whereby the Prison Service was required to produce an action plan on what it was going to do, which was copied to the Secretary of State and the chief inspector and was then updated after nine months and 18 months. That report listed who was to do what, and by when, to put the recommendations right. The Minister has listed some things that have happened. Can he tell the House whether that action plan procedure is still in force and, if so, whether one has been instigated for HMP Wandsworth?

Lord McNally: I am not quite sure whether the system that the noble Lord refers to is still in action, but I know that Amy Rees, the new governor, has the clear direction to move with all possible speed to

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implement the action plan. It would be inconceivable if the Secretary of State and Ministers in the Ministry of Justice did not pay the closest attention to making sure that the recommendations made by this report are implemented with all possible speed.

Lord Bach: My Lords, this is obviously a significant and worrying report and I am sure that the House is grateful to the noble Lord, Lord Hurd, for raising the issue this afternoon. As I understand it, Wandsworth has a larger number of prisoners than any other prison in Europe-some 1,665 at the date of the report. Can the Minister either tell the House today or perhaps write to me telling us how many of those prisoners are doubled up in cells at present? Perhaps I might briefly broaden my question. Can he confirm that capital investment in the Prison Service is generally going down heavily, year on year, and that in fact there will be no capital investment by 2013-14? In the light of the fact that the largest number of prisoners ever is in prison today-the figure on 5 November was 87,749-and in the light of cuts to prison staff, and particularly to probation staff, can he tell the House how the rehabilitation revolution is going?

Lord McNally: We will return to the rehabilitation revolution on 21 November when we discuss the Legal Aid, Sentencing and Punishment of Offenders Bill. I hope that the noble Lord will help me then with the fact that the Ministry of Justice, as part of our deficit reduction programme, has to find £2 billion in cuts. In a department that spends money only on prisons, probation, court services and legal aid, tough decisions have been made. Today it is prison spending cuts that the noble Lord does not like; I suspect that, the next time he gets up, it will be legal aid cuts that he does not like. To govern is to choose, and we have had to make some very tough decisions.

On the question of doubling up, again one of the problems for Wandsworth is that a prison built for just over 1,000 people has 1,600 prisoners. You can work out the number that are doubled up in cells. About the only good thing that I can think of in that circumstance is that they all have in-cell toilet facilities, but even that makes you squirm with horror when you think about sharing a cell containing those facilities.

Lord Dholakia: My Lords, does the Minister share my concern that the policies on diversity and race relations identified in the report have not been adequately addressed? Would he have a word with Her Majesty's Inspector of Prisons to ensure that there will be an automatic review of this issue, not only in Wandsworth but in other prisons as well? At the end of the day, is it not right that all inmates should be treated fairly?

Lord McNally: Absolutely, my Lords. One of the reasonable things that came from this report and the prison visitors' report is that there was no identifiable race problem in the treatment of prisoners. Indeed, 29 per cent of prison officers and staff at Wandsworth are from black and ethnic communities, a figure that I found reassuring, but it is also true that the report said that because of general failures across the board, black and ethnic minority prisoners suffered from those common problems.

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On the question of dealing with race relations, I understand that all prisons now have an adviser on such matters, but I will also ensure that my noble friend's suggestions are drawn to the attention of Her Majesty's Chief Inspector.

Companies: Executive Remuneration


3.32 pm

Asked By Lord Dubs

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): My Lords, the Government believe that executive remuneration which is well structured and rewards long-term success is an important way of promoting sustainability and growth. However, there are justified concerns about the disconnect between how our largest listed companies perform and the rewards that are on offer, particularly at a time of economic restraint. We feel that that is unsustainable. That is why the Government have published a discussion paper that explores these issues and invites views on what can be done.

Lord Dubs: My Lords, does the Minister accept that our top executive pay has gone up by nearly 50 per cent while that of the rest of the population has gone up on average by 2.5 per cent, and that this is deeply offensive to many people who feel that the bankers and others who caused the crisis are now exploiting us? Does the big society not require consent? In the absence of consent, there is a threat to our social cohesion.

Baroness Wilcox: Concern over this is coming not just from Government but from investors, business groups and captains of industry, who have all told us that this is a problem that needs to be addressed. Business should be a force for good but, understandably, figures showing soaring executive pay are causing resentment towards large companies. We want to see transparency, proper accountability to shareholders and a sense of responsibility from British boardrooms.

Lord Renton of Mount Harry: My Lords, would the Minister consider supporting a Bill that would require the chairmen of publicly quoted companies to announce to shareholders regularly, at their annual general meetings, the average wage of the 10 best paid employees, including directors, and the 10 least paid? Might that not bring back some sense of reality?

Baroness Wilcox: My Lords, these sorts of suggestions are exactly why the Government have published this discussion paper. By the end of this month, we hope that we will have received all sorts of ideas so that we can come up with some really good suggestions to make for a better balance going forward.

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Lord Davies of Stamford: My Lords, I have experience of corporate boards and was for a number of years the chairman of the remuneration committee of a major multinational, Vinci. Is it not the case that the present position on top executive pay is highly unsatisfactory, utterly unedifying and a threat to the good reputation of our market economy? Most sensible people would totally exclude either statutory regulation of pay or penal taxation as a solution, but simply making speeches, publishing discussion papers or trying to use moral suasion with institutional investors does not seem to get anywhere at all. In that context, may I put two specific practical suggestions to the Minister? One is that we place a statutory duty on public companies to publish the criteria and rationale for their decisions on top executive pay. The second is to adopt the French practice of having two elected representatives of the employees as a whole on the board of every publicly quoted company. Additionally, at least one of those representatives should be on the remuneration committee.

Baroness Wilcox: I am interested to hear the noble Lord's tales of being on a FTSE 100 board. I, too, have been on a FTSE 100 board, so like him I have also served on a committee. We all know that there are problems and that things are not right. The question is how we put it right without damaging Britain's competitiveness. Those 100 top companies employ so many people and it is very important that we get this balance right. As to his suggestion of worker representatives on company boards in the United Kingdom, we will of course look at this, in the same way that we will look at everything else in the consultation. We would be only too delighted if the noble Lord writes in and makes sure that his views are known on the record.

The Lord Bishop of Chester: My Lords, have the Government considered the evidence that the greater the inequality in remuneration, salaries and wages in a society, the greater there tends to be a great underclass in that society, which the prison population amply demonstrates? Any addressing of the issue has to take that into account.

Baroness Wilcox: My Lords, the Prime Minister himself has expressed concern about this growing divide. He feels that it is wrong for our country and does not make for a happy country. It is so important that we look again at encouraging the very big companies to make sure that there is transparency, accountability and responsibility in boardrooms today.

Privileges and Conduct Committee: Eighth Report

Privileges and Conduct 8th Report

Motion to Agree

3.38 pm

Moved By The Chairman of Committees

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The Chairman of Committees (Lord Brabazon of Tara): My Lords, in speaking to this Motion, with the leave of the House I shall also speak to the three following Motions on the Order Paper. Noble Lords will be only too well aware of the background to this report and the accompanying ninth report on the conduct of the noble Lord, Lord Hanningfield. Both noble Lords were tried earlier this year for crimes under the Theft Act 1968; both were convicted and subsequently sentenced to prison terms. The offences of which they were found guilty involved false claims for expenses under the Members' reimbursement scheme. The noble Lords, Lord Taylor and Lord Hanningfield, were guilty of serious offences which have damaged the reputation of the House. They have been heavily punished and have now acknowledged their guilt and apologised to the House.

The noble Lord, Lord Taylor of Warwick, has repaid in full the sum he owed the House. Although the noble Lord, Lord Hanningfield, has not yet been able to repay the money he owes the House, he has undertaken to do so as soon as he can, possibly before the end of the year and at all events before he returns to the House following his suspension. The Select Committee and its sub-committee were clear that neither noble Lord should be eligible to return to the House until the sentences imposed by the court-12 months in the case of the noble Lord, Lord Taylor, and nine months in that of the noble Lord, Lord Hanningfield-had run their course. Therefore, we have recommended in each case that the period of suspension should begin on the date of sentence and run for its full length.

I do not believe that I need to say more. The House has now replaced the Members' reimbursement scheme with a simpler and more transparent scheme of allowances, which is far less open to abuse. We devoutly hope that the cases before the House today will be the last of their type arising from the expenses scandal of 2009.

Baroness Prosser: My Lords, I rise briefly to put the record straight regarding some remarks made by the noble Lord, Lord Hanningfield, in his evidence to the Commissioner for Standards. On page 16 of the report on the noble Lord, he is quoted as saying:

"Lord Prosser paid back £20,000 or something".

I want to make it absolutely clear that this remark does not refer to me and that at no stage have I been found to have wrongly claimed sums under the Members' reimbursement scheme.

The Chairman of Committees: My Lords, I am grateful to the noble Baroness, Lady Prosser, for her clarification, of which I was given advance notice. I fully endorse what she has said.

Lord Dobbs: My Lords, I take to my feet with huge regret, a very heavy heart and considerable trepidation as one of the newer Members of your Lordships' House. However, I feel I must intervene to express my dismay that this House does not have the power to take more robust action in this matter.

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I campaigned for the noble Lord, Lord Taylor of Warwick, in his attempts to be elected as a Member of Parliament. I bear him absolutely no personal ill will; indeed, personally, I wish him well. However, I suspect that I am not alone in being horrified by his lengthy interview in this morning's newspapers, in which he declares his resolve to resume his place in this House on the basis that his experience in prison will make his input even more valuable. This House does not exist to provide a means of rehabilitation. We are here as individuals to serve a greater purpose. We are here not to serve ourselves but to serve others. The reputation of this House is of far greater importance than the interests of any one Member.

If the noble Lords, Lord Taylor of Warwick and Lord Hanningfield, were to return to this House, and perhaps claim further expenses, the damage done to the reputation of the House would be immense. The public would not understand; neither would they forgive. The media would mock. The reputation of this House and of every single one of us would be tarnished. We would be made out to be all the things that we are not-self-serving, mercenary and hopelessly out of touch. At a time when we are asking our young men and women in the Armed Forces to risk-and all too often to give-their lives, it would seem shameless.

We are currently in the process of debating the Bill of the noble Lord, Lord Steel, which would give this House powers to expel Members permanently. However, it is not the law-not yet, at least. In the mean time, the noble Lord, Lord Taylor, has challenged us with his very public, very lengthy and, in my view, desperately unwise interview. This forces me, sadly and with a desperately heavy heart, to make publicly these points which might have been better made more privately. That would have been my preference but this is now all too public an issue.

The noble Lords, Lord Taylor and Lord Hanningfield, have broken the law of this land, for which they are being punished. They have also broken the rules of this House, for which we are about to punish them. However, our powers are limited. We can do no more than formally suspend them for a while. This is all that we can do and I do not believe that it is enough.

I therefore ask the Chairman of Committees if, in addition to moving the Motions on the Order Paper, he will take measures to take the mood of this House, and that he, or a more appropriate official of this House, remind the noble Lords, Lord Taylor and Lord Hanningfield, by letter, that the interests and reputation of the House are supreme and override the interests of any one Member; and further ask them, in the wider interests of this House, not to resume their places here.

The Chairman of Committees: I am grateful to the noble Lord, Lord Dobbs, for his remarks. As he has said, and as noble Lords well know, the powers of this House to suspend Members are limited. The noble Lord suggests that I or someone else write a letter to the noble Lords, Lord Taylor and Lord Hanningfield. I will take back that suggestion to the Privileges and Conduct Committee, but I cannot respond now as to what that committee might decide.

Motion agreed.

9 Nov 2011 : Column 240

Privileges and Conduct Committee: Eighth Report

Motion to Resolve

3.45 pm

Moved By The Chairman of Committees

Motion agreed.

Privileges and Conduct Committee: Ninth Report

Privileges and Conduct 9th Report

Motion to Agree

3.46 pm

Moved By The Chairman of Committees

Motion agreed.

Privileges and Conduct Committee: Ninth Report

Motion to Resolve

3.46 pm

Moved By The Chairman of Committees

Motion agreed.

Privileges and Conduct Committee: 10th Report

Guide to the Code of Conduct (10th Report, HL Paper 212

Motion to Agree

3.47 pm

Moved By The Chairman of Committees

The Chairman of Committees (Lord Brabazon of Tara): My Lords, I hope that this report is self-explanatory. Under the Code of Conduct, the Sub-Committee on Lords' Conduct is required to keep the Guide to the Code of Conduct under regular review. It has done so and has recommended to the Select Committee a number of changes to the guide. We endorse the sub-committee's proposals and, in turn, recommend them to the House. If the House agrees the report, I understand that the amended guide will be reprinted in the near future. I beg to move.

Motion agreed.

9 Nov 2011 : Column 241

Terrorism Prevention and Investigation Measures Bill

Order of Consideration Motion

3.47 pm

Moved By Baroness Stowell of Beeston

Motion agreed.

Health and Social Care Bill

Main Bill page
19th Report from the Delegated Powers Committee
18th Report from the Constitution Committee

Committee (4th Day)

3.48 pm

Clause 4 : The Secretary of State's duty as to promoting autonomy

Amendments 35 and 36 not moved.

Amendment 37

Moved by Lord Warner

37: Clause 4, page 3, line 9, leave out "manner that it considers most appropriate" and insert "interests of the health service"

Lord Warner: My Lords, in the absence of the noble Lord, Lord Patel, I should like to speak to Amendment 37 as my name has been added to it.

Before getting down to the precise wording of the amendment, I want to give some context to my remarks by talking about what I regard as the total incoherence of Clause 4. I note from the letter of 7 November from the noble Earl, Lord Howe, to my noble friend Lady Thornton that the Government now seem to want to treat Clause 4 in the same way as Clause 1. I have to say that that is hardly a ringing endorsement of the drafting of Clause 4. I wonder, privately, how many other clauses we will have this problem with as we progress through the Bill. In effect, the Government are seeking to take these clauses out of the normal consideration of a Bill in Committee. We are getting into rather strange territory where, as we wander through the Bill, we find that, when the Government find themselves under pressure with regard to bits of the Bill, they sweep those bits aside to have another go in some procedure, which is less than clear to the House, and promise to come back later. Before I go any further on the amendment, as I am already unclear as to how the Government are going to handle Clause 1-and, it now seems, Clause 4-procedurally, I would

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welcome any light that the Minister can shed on how we are going to deal with these clauses and have a proper discussion of them in Committee.

I turn now to Amendment 37. I am completely supportive of reducing or even stopping ministerial and Department of Health micromanagement of the NHS.

Lord Mawhinney: I am extremely grateful to the noble Lord. Is he aware that the concern which he has just expressed is held by other noble Lords as well?

Lord Warner: I am grateful to the noble Lord for that intervention. The more the merrier, I say, on this theme and I hope that noble Lords will speak out about this issue in our debate today.

As I was saying, I am completely supportive of reducing or stopping ministerial and Department of Health micromanagement of the NHS, which, as I understand it, is the Government's purpose in framing Clause 4. However, I struggle with reconciling the clause in its present form with the other duties and powers that the Secretary of State has taken unto himself in the Bill. I do not mean just the relationship between Clauses 1 and 4, which itself seems to have produced a hefty dose of confusion and uncertainty, not to mention, in the case of Clause 1, many attempts at drafting alternatives. How will Clause 4, for example, fit with Clause 3, which most of us in the previous session in Committee-except, perhaps the Minister-seemed to favour strengthening in terms of the duty on inequalities? How will it fit with Clauses 16 and 17, with their very extensive regulation-making powers for the Secretary of State, or indeed Clause 18 or Clause 20, which gives the Secretary of State extensive mandating powers, which seem to me to be rather stronger than the new chairman of the NHS Commissioning Board seems to think?

Many people who have looked at the Bill do not understand what the Secretary of State is trying to do in relation to the issue of central control, central powers and autonomy and delegation. Is he trying to let go or to tighten his grip? I do not see, at present, how the Government can retain in the Bill a clause as loosely drafted as Clause 4 and, at the same time, retain all the other powers of the Secretary of State that we will be discussing later. Apart from anything else, this is a recipe for confusion in the minds of many local decision-makers.

Are people to take Clause 4 as drafted at face value? If they do, will they not be wondering whether the Secretary of State or his henchmen and henchwomen in the Department of Health or the NHS Commissioning Board will come down on them like a ton of bricks using other powers in the Bill if they think that they are not acting in the interests of the NHS? What will the courts make of all this? If people do not like a decision taken higher up the line, as the Royal Brompton and Harefield NHS Foundation Trust is demonstrating now over paediatric surgery changes, do they seek judicial review of the central decisions, praying in aid Clause 4 as drafted? Will not Clause 4 in its present form simply encourage legal challenge and create local uncertainty?

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I turn to the wording of the clause and why Amendment 37 is at least an improvement. It is an attempt to improve what is a highly defective clause. As I read Clause 4, it seems to place little inhibition on local decision-makers,

in any manner that they consider appropriate. If that means what it says in the dictionary, if people want, for example, to provide a wide range of alternative therapies for which there is no scientific evidence of clinical benefit, they can do so, praying in aid the powers under Clause 4. If they want to remove tattoos or do a bit of cosmetic surgery, I cannot see that there is very much to stop them. Under the clause as drafted, the Secretary of State can intervene only after the event. If he finds out what has been going on, he can, in effect, try to stop it happening again, but that is ex post facto. He cannot intervene earlier, as I understand the drafting of the clause. I am happy to be corrected by the noble Earl, but I am not the only one who thinks that these powers will have that effect.

Amendment 37 is an attempt to require those behaving autonomously locally to apply the test that their actions are in the interests of the NHS before they take their decisions rather than relying on the Secretary of State deciding that they were not in the interests of the NHS after the event. I see that my colleague, the noble Lord, Lord Patel, is now with us. I suspect that we both agree that it is a far from perfect solution, but it is better than the way that the clause is currently drafted. I know that some noble Lords are very attached to the clause-like me, they are attached to the idea of autonomy-but I hope that they will consider whether in its present form it is really in the best interests of the NHS. I suggest that the Government rethink the form of Clause 4 if they want to proceed with it. As I see it, what would get nearer to their intentions but not create some of the loopholes that I have identified is a kind of drafting that gives a commitment that the Secretary of State would not exceed the powers provided elsewhere in the Bill, would impose only burdens that are totally consistent with those powers and would maximise operational freedoms for those delivering NHS services consistent with public accountability. That seems to me to be the direction in which the Government are trying to go, but the way the clause is drafted does not do that.

I would prefer the Minister to accept that the clause is seriously deficient and either abandon it altogether or take it away for a serious makeover. In the mean time, on behalf of the noble Lord, Lord Patel, and myself, I move Amendment 37, which goes a modest way to improve the shape and drafting of the clause. I beg to move.

Lord Patel: My Lords, first, I offer my sincere apologies to the House for being delayed. I was also thrown by the fact that that the first two amendments were not moved. I am sorry about that. I am grateful to my friend, the noble Lord, Lord Warner, for moving the amendment in my absence, and I join absolutely in his comments. I shall try to cover some other points. My name is also on the amendment tabled by the noble Baroness, Lady Williams, and I support that too.

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As I interpret it, under the clause, as long as the Secretary of State does not think that it is inconsistent with the interests of the NHS, he or she must act positively to allow any other person exercising health service functions to do so in a way that that person thinks appropriate. Although the Secretary of State keeps some form of oversight, it is the views of other persons and bodies delivering health services on how those services are to be delivered that are important.

This duty would therefore require the Secretary of State, when considering whether to place requirements on the NHS, to make a judgment. The challenge for the Secretary of State would be to justify why these requirements were necessary. Does this mean that the Secretary of State has the power to act only when the steps to be taken are really needed or essential, rather than because he or she thinks that something is desirable or appropriate? He or she would have to demonstrate why no other course of action will be followed. Is that a high test to meet on the part of the Secretary of State?

4 pm

What happens if the Secretary of State uses his or her powers to impose requirements on commissioning boards-consortia, for example? Would there be a judicial review challenge from a consortium that opposed the requirements on the basis that they infringed the principles of autonomy and could not be justified as necessary or essential? This approach replaces the power that the Secretary of State currently has to make directions. It is the same autonomy duty that is placed on the NHS Commissioning Board, and it is of course the board that will have closer contact with commissioning consortia than will the Secretary of State. This clause gives powers of autonomy way beyond any duty that the Secretary of State would have.

I know that the excuse will be given that this autonomy is required to prevent any micromanagement of the health service by the Secretary of State, but there are no examples of micromanagement by the Secretary of State-I have no doubt that I will hear of them if there are any. Another excuse will be made that this autonomy is required to allow the NHS Commissioning Board and commissioners to reconfigure services. I have spoken before and I am pro reconfiguring services-I think that they do require reconfiguration-but that does not require this degree of autonomy and powers to be given away by the Secretary of State. Like my noble friend Lord Warner, I hope that the Minister will at least indicate that this clause needs amending or abandoning.

Baroness Cumberlege: My Lords, I very strongly support the spirit of Clause 4, and I oppose the amendment that the clause should no longer stand part of the Bill. I accept that it could be amended and could be clearer, but I want to hold to its spirit.

In the past I have put down six amendments to two major health Bills in an attempt to achieve something similar to what is in Clause 4. I have to say that my attempts, although I was supported by the King's Fund, were puny compared with the weight of this mighty Bill. I hoped that my time had almost come. I say almost, because I know that the Minister, in his

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letter dated 7 November to the noble Baroness, Lady Thornton, which the noble Lord, Lord Warner, mentioned, is suggesting a strategy. I understand that the noble Lord, Lord Warner, does not like this strategy. In contrast, I do. One of the real hallmarks of this House is that we try to negotiate and accommodate what we, as a whole in this House, feel is appropriate.

In revising and amending the Bill, I appreciate that an enormous amount of time and care-

Lord Warner: I am not opposed to having a strategy, if I may say so to the noble Baroness, and I thank her for giving way. However, when a Bill reaches this House with a major clause in it, it has been through the other place and has been subject to a lot of scrutiny by Professor Field and his group, the Future Forum, it is reasonable to assume that the drafting does not have the kind of loopholes that this clause has. I am not the only one raising this; other people are raising the same issue. There is a lot of concern outside. We are not opposed to having a strategy, but it is reasonable to expect the Government to have got the Bill into a better shape than it was in before it came here.

Baroness Cumberlege: My Lords, I thought that that was the whole purpose of Committee stage. This stage is intended to question some of these concerns and to see whether a resolution can be achieved.

Lord Warner: The noble Earl is taking this clause out of the Committee stage, so far as I understand his proposal. If the strategy is to take clauses out when the going gets rough, that does not seem to be in keeping with the spirit and behaviour of this House.

Earl Howe: My Lords, I have no desire to take this clause out of the Committee proceedings. These proceedings are continuing. We have heard the noble Lord and his views, and I look forward to hearing other noble Lords. I am not in the least desirous of inhibiting debate on this clause, which I think is very valuable. However, perhaps noble Lords will consider that, in view of the undertaking that I gave on 2 November, there is a certain amount that need not be said today because I have undertaken to look at this clause on a cross-party basis and with an open mind. It is a clause that the Government were and are satisfied with and they believe that it can stand as worded without amendment. However, I appear to be accused of being too concessionary on this. It is a case of the Government being damned if we do one thing and damned if we do the opposite.

I felt that my offer to the Committee was helpful. I think that there is concern around the Chamber about this matter and I can only repeat my offer to look at that concern and, if we can reach an agreement, to put beyond doubt the fact that these clauses do what I believe many noble Lords wish them to do. I hope that in that spirit the noble Lord, Lord Warner, will agree that, while we can debate the clause today for as long as we wish, the offer is there on the table from the Government to engage in cross-party discussions with a view to reaching consensus.

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Baroness Williams of Crosby: My Lords, if the noble Baroness, Lady Cumberlege, will allow a moment's interruption to her speech, I promise to give way. It is very important to state that a number of us who have tabled amendments to this clause, including those of us who have expressed a desire for it to be omitted, did indeed inquire whether it might not be wise to try to discover more about the precise meaning of the clause. There are some arguments among lawyers about its effect and about whether it should be taken together with Clauses 1 and 10, to which it is clearly very intimately related-a point raised by the noble Baroness, Lady Jay, in her role as chairman of the Constitution Committee. Therefore, we must stand accused of having asked the noble Earl, Lord Howe, whether he would be willing to consider taking this group together, not forgetting the long debate that we had on Clause 1, in order to find out whether there is common ground about their precise meaning, their weight and their relationship with one another. The matter will then of course come back to the Committee for wider consideration.

I hope that the Committee will recognise that, with such a difficult balance of legal opinion, it may be sensible to discuss the issue further before bringing it back to the Chamber for the continuation of the Committee stage. In fact, what I thought the noble Lord, Lord Warner, was most eloquently asking for was that the clause be taken away for reconsideration. He went on to say that that might be a good way to deal with the matter. We are in total accord with the view of the noble Lord, Lord Warner, and I therefore ask him to allow us to continue with that reconsideration.

Baroness Cumberlege: I am very grateful to the noble Baroness, Lady Williams, who has put the matter eloquently and correctly. I am very much in favour of my noble friend's wish to try to get some negotiation. As the noble Baroness said, many of us feel that that is the way forward.

This is a difficult issue. It is trying to get the balance right between, on the one hand, the accountability and responsibilities of the Secretary of State, and, on the other, the freedom of those managing the service to do so without interference. Many of us are trying to achieve that balance.

I should like to refer to the letter that the noble Lord, Lord Warner, mentioned because I want to get it into Hansard. My noble friend urges us to consider three key factors in his letter and I quote the second one. He said that,

Those are my views entirely.

I am now going to say something that I know is extremely unpopular in the Palace of Westminster: politicians are really neither loved nor trusted by the public to a great extent and I have to say also that they are seldom admired by those working in the NHS. There have been too many decisions that have been taken without any evidence to support them, resulting

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in very long delays in things such as reconfigurations. Those delays have jeopardised patient care. Reversals have been made at the last minute, ignoring well founded clinical advice from clinicians saying to us that the service is unsafe, yet the position of an inadequate, unsafe hospital or service continues because of political interference. That undermines the confidence of managers to manage.

I want to mention Kevin Barron, who is the Labour MP for Rother Valley-

Baroness Thornton: I do apologise to the noble Baroness, but I absolutely cannot resist asking her whether she thinks that the public love quangos more or less than politicians, since the intention is to put our National Health Service in the hands of an extremely large quango. So is it Andrew Lansley or David Nicholson?

Baroness Cumberlege: My Lords, I have not seen any evidence from MORI or any other polling organisation that has put that question to the public, so it is left in the air. I have seen the MORI poll that very recently showed that 88 per cent of people who were questioned said that doctors were the most trusted profession to tell the truth, whereas only 14 per cent thought that the truth was told by politicians. I think that is really sad-sad for democracy and sad when it comes to trying to build the confidence of people who are in charge of the National Health Service.

One real problem, which exists even if the same party is in power for a length of time, is a lack of a consistency of leadership. The Secretaries of State are here one minute and gone the next. Really successful organisations-I am thinking of schools, hospitals, companies-benefit from continuity in leadership. I read the other day that Sir Alex Ferguson has been in charge of Manchester United for 25 years. If we had had that inspiring leadership for a real length of time, I wonder what difference it might have made to the NHS. Since 1997 we have had seven Secretaries of State. Frank Dobson was in charge for 17 months. Alan Milburn, the longest serving Secretary of State, served for four and a half years and some might think that he was the most successful. At least he had time to draw up the NHS Plan, which made an impact on the service and he had time partially to implement it. John Reid-now the noble Lord, Lord Reid-Patricia Hewitt and Alan Johnson all served two years, and Andy Burnham less than a year.

Those of us who have served in government know, as Ministers, that you take up your post with enormous enthusiasm and unrealistic aspirations. You want to do things. Above all, you want to improve the NHS. You believe that you are in charge and that you can set policy. But, no, the first thing that happens is that you inherit the policies of your predecessor, which are not your policies that you know and love. They are not yours, but you do your very best to implement them. Then you have a chance to set your own policy but, before you have had time to implement it, you are off again. In the mean time, you are expected to make some very courageous, unpopular decisions about institutions that you may know very little about and

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about people whom you have rarely met. So how do you exercise judgment and build relationships when you are there for such a very short time, possibly just two years? That contributes to an NHS that gets confused and fed up and is mistrustful of its masters.

4.15 pm

The NHS Confederation, the organisation representing chairs, non-executives and managers, has stated in its briefing for the Bill:

"Providing the Secretary of State's overall accountability is clear"-

on which your Lordships are working at the moment-

Having listened to the noble Lord, Lord Patel, I followed this up and asked the confederation for some examples. Many of us know them: Chase Farm, the south London reconfiguration and a number of others. The noble Baroness, Lady Wall, who is in her place, is the chair of Chase Farm. After years of dithering and of advice that it was an unsafe place to be treated, she has now almost resolved the problems, and I am delighted.

The response from the confederation was: "How many examples do you want? We have so many and they cross all three political parties". I can quote examples where herculean efforts have borne fruit in that the public, staff, clinicians, the media and others involved have agreed to a change in service only to find that the party-political systems have overturned those decisions, in one instance-and I know it well because I was a regional chair at the time-overnight.

I am sure that the noble Lord, Lord Hunt, will say to me-because we have had similar debates to this in the past-that individual MPs who are rightly concerned about local facilities and may not agree with the decisions that are being taken will represent their views not only to the NHS Commissioning Board, which will be their right, but also to the Secretary of State and Ministers. That is part of the democratic process and, quite rightly, Clause 4 does not stop that happening. But what Clause 4 does is give the Secretary of State an opportunity to exercise his duty to promote autonomy and resist the temptation to meddle in and micromanage the NHS when he feels it appropriate so far as it is consistent with the interests of the health service.

In my early days, when I was working in the NHS, I felt that there was much more trust in governing boards. To be honest, I do not think that the calibre of members was any higher at that time than it is now, but when people asked the Department of Health to intervene, the stock answer was always: "This is a local matter". Knowing that there was confidence in our judgment made a huge difference to us in reaching decisions and implementing them, and to our willingness to take a bit of a risk and innovate.

It was no accident that the White Paper setting out the philosophy for the Bill was called Liberating the NHS.We should not be timid in allowing liberation: indeed, I think we should encourage it. I am confident

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that when we have worked through these issues on the Secretary of State's accountability, as suggested by my noble friend, that will come into place and be much clearer. However, I am concerned that in negotiations we do not lose the spirit that is in Clause 4, and that we protect the NHS from the whims and wishes of politicians to meddle, micromanage and maul the NHS to its undoubted detriment.

I am, therefore, seeking an assurance from my noble friend that he will safeguard the spirit of liberation that is contained in this and related clauses. When he negotiates with noble Lords in seeking an agreement on the Secretary of State's powers of intervention, I hope he will hold on to this very important principle: to allow managers to manage and to ensure that, although the democratic process takes place, we have enough safeguards to enable those who are really determined to make and implement decisions to do so. We must ensure that they will be much more free to put into place what they know is right on the ground, and that we do not lose that spirit.

Lord Davies of Stamford: My Lords, the first thing I want to say in the light of the Minister's comments a moment ago is that of course I read his letter dated 7 November to my noble friend Lady Thornton, which was copied to a number of us. I think the Minister deserves considerable credit for it. I have no doubt at all that the letter was written in total good faith and was totally sincere. The Minister is trying to see if a compromise is possible: whether there is something that would be an improvement both to the existing text of the Bill and to the various amendments that have been put down. It is a creditable initiative on his part. I have tried in the past as a Minister myself to do things in that direction and I do not think the Minister should be penalised for that in any way.

Equally, as he said himself, the Minister does not want to inhibit the freedom of debate in any way this afternoon. It is very important that we express our views, because they can be taken into account when those informal consultations subsequently take place. If in fact his aim can be achieved and we can get something that we can all agree to, everybody should be happy. That is because we will be content that the Bill will be improved and the Government will find that they have a much easier ride on Report and Third Reading. If there is an agreed solution to this and other problems, I trust that the whole thing will go through Report and Third Reading like a dose of salts. Everybody could be satisfied with that outcome.

This group of amendments includes a clause stand part debate, and this clause raises two very important issues. First, I do not think that micromanagement is ever a good idea. You cannot run a business on that basis; when running a business you must appoint the best people you can find and let them get on with the job. It is exactly the same thing in respect of the armed services. Micromanagement is always a mistake in running or managing any human institution. That pretty much goes without saying.

The problem is that good management sometimes needs the ability to intervene very rapidly in a crisis, when things are going wrong. You cannot allow yourself-if you are going to have a well managed

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organisation-to be inhibited by bureaucratic procedures or rules from taking the necessary action to make sure that things are set right on the front line. That is probably more important for the NHS than any other human institution I can think of, because, literally, the activities of the NHS are a matter of life and death. Of course, that happens to be true of the armed services as well, but there are not many institutions of which that is true. The general principle is there.

My first point is that many of us are worried that, if the Bill is passed, there will be insufficient ability by the Secretary of State to take that necessary action, perhaps very dramatically, in a crisis. That is a matter of deep concern. There is of course-and I hope I do not offend either the noble Earl or others on the other side of the House by saying this; they know this perfectly well-a real concern out there in the public that the reason why the Bill has been drafted this way and why the Secretary of State's powers have appeared to have been, or some people feel they are being, emasculated, and the reason why autonomy is being emphasised, is that the Government think there is going to be a crisis in the NHS. The Government are not going to be funding the NHS at the same rate as the last Government did.

I accept that a lot of the money that we spent was not spent with enormously good value and probably too much was spent on paying more for inputs-perhaps excessive pay rises-rather than buying new outputs. A lot was spent on bureaucracy. Nevertheless, the bulk of it was spent immensely usefully. It was an incredible achievement to get maximum waiting times down from 18 months to 18 weeks. There is a general feeling out there that that progress is not going to be sustained and that this Government are not going to be committed to funding the NHS in the same way. They are trying to make savings of £15 billion to £20 billion, we hear. There is going to be a crisis and some nasty news coming through; hospitals are going to be closed and so forth. At that point, the Secretary of State is going to be able to turn round, because of the effect of this Bill if it becomes an Act, and say, "Don't talk to me-it's not my responsibility. Go and talk to the national Commissioning Board or your local clinical commissioning group. Go and talk to anybody. Don't talk to me".

We have that already. I am a total supporter of the independence of the Bank of England. I refused to vote with my then party, the Tory party, when it opposed that independence. However, an inevitable consequence of making the Bank of England independent is that when we have questions here on monetary matters, the Minister who is responding-quite normally and naturally-says, "Don't talk to me about it, go and talk to the governor or the Monetary Policy Committee. Don't talk to me". We do not want that situation to arise in relation to the NHS. That is the issue raised by this particular clause.

Secondly, I do not think that micromanagement or political management is actually the real problem in the NHS. I am sure there has been unfortunate political intervention and interference over the history of the NHS, and there is no doubt that is the case, but that is not the real problem. The actual, fatal tendency of the

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NHS-the besetting sin, if I can use a theological concept-is something quite different. Its fatal tendency is bureaucratic or producer capture: the tendency of any organisation that is in a monopolistic position to be run for the convenience and in the interests of those who are providing the service, whether doctors, nurses, managers or whatever. That is the problem we should really be addressing.

However, I am awfully afraid that the way this clause is drafted at present, far from acting as a barrier or corrective to that unfortunate tendency, may actually reinforce it. The text we have before us says that any person,

must be,

That seems almost an invitation to bureaucratic or producer capture.

I am not actually sure, with great respect to my noble friend Lord Warner-whose knowledge in this area I greatly admire-that his amendment fully addresses that. The amendment says,

That is a little ambiguous-the interests of the health service could indeed be what I define as the producer interest of the health service. I would much rather that it said "in the interests of the patient", or "according to the principles of the NHS". That would be clearer and would address the point that I am making.

Something needs to be done to redress the balance against this fatal tendency for the NHS to be run in the interests of producers, where the patient simply sits in line and then is grateful for what he or she receives. That is a culture we want to oppose and against which we must introduce long-term, structural, corrective mechanisms. That is a vital task for anybody framing a Bill to manage the future of the NHS.

4.30 pm

Lord Marks of Henley-on-Thames: My Lords, as my noble friend the Minister points out, the autonomy clauses are to form part of the Government's discussions with other noble Lords about the Secretary of State's duties. These clauses are of considerable significance. In my judgment, Clause 4, relating to the Secretary of State's duty, and the new Section 13F, relating to the Commissioning Board, threaten the Secretary of State's primary duty to secure provision of services, however that is ultimately worded after discussions are concluded.

In principle, promoting autonomy is to be welcomed; so is avoiding micromanagement within the NHS, as my noble friend Lady Cumberlege so eloquently pointed out in her speech. One of the best features of this Bill is that it establishes a well-defined decentralised structure in which decisions about arranging and commissioning services are made at a local level in accordance with local needs and conditions. However, as the Government have recognised, it is also essential that final responsibility, both for the quality of the health service and for the very large sums of taxpayers' money spent in providing

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it, should rest with the Secretary of State, and that he or she should be accountable not only to Parliament for the exercise of that responsibility but answerable in the courts for failure to exercise it in accordance with the law.

I will say a few words now about how the difficulty arises in drafting provisions that strike the right balance between decentralisation and the Secretary of State's ultimate responsibility. As we all know, under Section 1(2) of the National Health Act 2006, the Secretary of State had a primary duty to,

That was underpinned by a direct duty under Section 3 to provide a list of specific services such as hospital accommodation. That duty was in turn supplemented and buttressed by powers under Sections 7 and 8 to delegate and give directions to other NHS bodies. So there was under the 2006 legislation a simple linear structure down from the Secretary of State. Under the Bill, the position is more complex, because under Clause 10 the Section 3 duty to provide the specific services is devolved to the clinical commissioning groups, and the general powers to delegate and give directions are removed. That is why it is challenging to provide for an overarching duty on the Secretary of State to secure the provision of services under Clause 1, and to provide for the exercise of all his other functions to that end. It is that challenge that is principally to be the subject of discussions.

If the Secretary of State is bound by a duty to promote autonomy, as proposed in Clause 4, the force of his duty to secure provision of services is weakened, because his failure to intervene in any given case would be very difficult to challenge on judicial review, except in an extreme case. Generally, the Secretary of State could respond to any challenge regarding a failure to act on his part by claiming in his defence that he was declining to act pursuant to his duty to promote autonomy. It does not help that the Secretary of State would only be bound to promote autonomy,

in the context of any such challenge. That is because the arbiter of what those interests were would be the Secretary of State himself. A court would not substitute its own view of the interests of the health service for his unless it was satisfied that his view was irrational; and that is too high a bar. It follows, in my view, that there is an inconsistency between the proposed duties to promote autonomy and fulfilment of the Secretary of State's overall responsibility, however it is to be expressed.

The problem with proposed new Section 13F is that it is proposed that the board, with regard to its autonomy provision, be similarly bound to promote the autonomy of the commissioning bodies and others. So the board can argue that it should decline to intervene with the commissioning bodies in accordance with its duty to promote autonomy. That could be relevant if the board were challenged by judicial review on its failure to exercise its intervention powers or, alternatively, relevant if the Secretary of State wished to exercise his powers in respect of the board on the board's failure to intervene where the Secretary of State thought that the board ought to intervene. Thus, while it is desirable-

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and I entirely agree that it is-for the chain of responsibility to allow plenty of slack as a general rule, when the chain needs to be tightened in the event of failure or threatened failure, the danger is that the chain will be found to be weak in two important links.

I look forward to the discussions to be held with my noble friend the Minister and pay tribute to his and his department's willingness to hold those discussions on a cross-party basis. I hope that we will see some way as to how this conundrum may be resolved, to retain a strong legal chain of responsibility without encouraging or permitting micromanagement of the bodies in the NHS, to which powers are rightly to be devolved. If we find a solution, that in itself will do a great deal to assist in the confidence that my noble friend Lady Cumberlege rightly points out is lacking among the public and the NHS in the political process.

I add only this. In my view, these two clauses could simply be deleted without doing any violence to the purposes of the Bill. That is because the principles of decentralisation and autonomy and the avoidance of micromanagement are defined and limited by the Secretary of State's powers woven into the very structure of the Bill and into the way in which the bodies relate to each other under the provisions of the Bill. I suggest that these clauses merely serve to muddy the waters.

Lord Mawhinney: I noticed that the noble Lord, Lord Davies of Stamford, pointed to me when he talked about making a theological point about a besetting sin. Because I was going to compliment him and say how pleased I was that he did so, I will happily share that endorsement with the right reverend Prelate.

The noble Lord also made an extremely important point, and around that point I want to speak for a few minutes, with the House's indulgence. His second point was right; the problem with the health service is bureaucracy-it is not anti-liberation or shackles, but systems and procedures and a pressure coming from all sides that nobody should rock the boat. I listened to my noble friend Lady Cumberlege, and I shall come back in more detail in a moment on what she said, but I suspect that I cannot be the only one in this House to think that, for every case where outsiders did not like some political intervention, outsiders, including patients, did not like the lack of intervention from inside the health service.

On the whole, my experience of over 30 years at both ends of this Corridor has not been that patients come to me and say that the problem with the health service is the politicians. They more frequently say that the problem with the health service is the management or, as we discussed the other day, the doctors who will not admit when they have got something wrong, or the nurses who simply do not provide even the most basic care for the elderly in today's health service. So the noble Lord, Lord Davies of Stamford, did us a favour when he pointed out that bureaucratic point.

I remain extremely grateful to the Minister for the willingness that he expressed the other day to take away Clauses 1 and 4. Those in the House for that debate will know that it was a widely held view across all the Chamber-and the Minister not only agreed to do it but did it with a tone and spirit that was widely

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admired. I thank the noble Baroness, Lady Williams, for her contribution in support of that. I would not want anything that I or others say to make my noble friend feel as though the House was reneging on the request made to him to take Clauses 1 and 4 away, which he showed a willingness to do. My contribution to this particular debate is to suggest a few of the things that he might like to think about when he does so which may need to be clarified, resolved or excised, so that when we get back to this on Report he will have a much smoother run-one which I and I suspect other noble Lords hope that he will be able to enjoy.

When the noble Lord, Lord Warner, made his comments, I intervened to say that he is not the only one in the House who thought what he thought. I was referring to a very pertinent phrase which he used. He said that he was not clear whether the purpose of Clause 4 was for the Secretary of State to be engaging or disengaging. I think that is part of the problem of the drafting of this clause. Those of us with some knowledge of the health service are still unclear whether this is meant to help the Secretary of State engage or disengage.

That takes me to my noble friend Lady Cumberlege. She and I served happily together in the department. We conspired for the common good on many an occasion, both in public and over a cup of coffee in our offices. She knows it to be true that there are few people in the health service who I hold in higher regard for a lifetime of work. But I am going to add a "but". On this occasion, while I admired the tenacious adherence to what she read as the spirit of this clause, most of the rest of what she said left me wondering exactly where she was trying to go. Nobody is claiming that democracy is a clean and simple process. It can be messy. Part of my noble friend's argument was that Ministers were not to be trusted and that it would be much better to hand it over to the professionals. I respect my noble friend for that view but I do not think it carries a lot of weight. I, too, read the NHS Confederation's paper. In fact, I have it with me. Every time I read what it said on Clause 4, I thought to myself, "There is just the chance, Brian, that you are giving these people more credit than they deserve". Perhaps this is a politically incorrect thing to say, but I was reminded just a smidgen of Mandy Rice-Davies in the sense of, "Well, they would say that, wouldn't they?".

The problem with this debate is that you have the masses of the health service with their procedures and bureaucracy intermingled with outstanding professionals who, I know from my experience, feel as frustrated with their colleagues as sometimes Ministers feel with the bureaucrats. On the other hand, you have this messy democratic process that occasionally shifts Ministers. Listening to my noble friend, you would be amazed by the claim that the NHS is the envy of the world. I think it is only the envy of the world in certain aspects and that there are other aspects where the world thinks it can do a better job than the NHS. The health service is right up there competitively but given the history of the past 40 years, in which Ministers have played a leading role, it is hard to envisage the outcome that my noble friend talked about. Therefore,

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I have to say to her that I had a real problem with what she was trying to convey to the Committee. If you do not have democracy, you do not have any public accountability.

4.45 pm

Baroness Cumberlege: Does my noble friend agree, however, that when I was putting forward the case, I said that we would not negate democracy but that this was a method whereby we could give the Secretary of State more discretion when he wished to interfere-or, rather, not to interfere but to let local people run the service? As a manager, I know that if you are going to achieve things you have to win the hearts as well as the minds of the people who are running the service. I sense that my noble friend is trying to ensure that I will be isolated in these arguments. When I proposed this, I said to your Lordships that I knew that the line I was taking would be unpopular in the Palace of Westminster. Of course it is, because the House is full of politicians. However, I would like to explain to my noble friend that it is not just my view.

Kevin Barron, the Labour MP for Rother Valley, who is a previous chairman of the Health Select Committee, told his colleagues-this was at the Labour Party conference, which understandably I was not at but I read the report-that he recalled looking at statistics for the east of England, some years ago, which were worse than for the rest of the country. The region had retained more local units, which corresponded with marginal constituencies and he said that it was his belief that health experts' advice, rather than party politics, should determine how and where facilities were provided.

In addition, Paul Corrigan, adviser to No. 10 when Tony Blair was Prime Minister, said that "the public want accountability"-we agree with that-"but are not very keen on the fact that the responsibility lies with elected politicians, who they do not altogether trust". I serve on a lot of committees, have been on a lot of platforms and have talked to a lot of people over the years in the National Health Service. The question that is often put to me is, "Can you not depoliticise the NHS?", because it is seen as a very real problem. I accept that we cannot, with this democratic process that we are in, but, as I was saying, there is a balance to be struck. At the moment, unless we have something similar to Clause 4, I cannot see that balance being achieved.

Lord Mawhinney: I am grateful to my noble friend. The answer to her question is no. No, I was not trying to isolate or misrepresent her and no, you cannot run a publicly accountable health service without politicians-and without politicians being in charge. In her first speech, my noble friend prayed in aid the tendency of politicians to micromanage. There is one noble Lord in this House-who I will not name, for reasons that will become obvious very soon-who came to me when I was party chairman. He wanted to micromanage politically the hospital in his constituency. He was shown the door pretty quickly by me, precisely because that is not the sort of micromanagement that even politicians want to buy into, much less the medical

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profession, the nursing profession and all those who work in the health service. That is not micromanagement; that is pure political interference for self-interest.

I am not at all clear what micromanagement really is. Occasionally, as my noble friend pointed out, decisions are so difficult and tricky that they take quite a lot of time. I invite her to cast her mind back to those heady days when we shared Richmond House.

Baroness Cumberlege: That sounds very suggestive, my Lords.

The Lord Bishop of Chester: My Lords, perhaps the noble Lord, Lord Davies, was right to refer to besetting sins behind me.

Lord Mawhinney: Moving on, I remind my noble friend of the times we sat with a cup of coffee and a private secretary or two-just to make her feel better-and we wrestled over some fairly difficult and complex issues. Either she or I would say, "We need a bit more information about that", the civil servant would say, "Yes, Minister", and in due course, when diaries permitted, we would sit down again with a bit more information. That can be said to be good ministerial governance-or it could be said to be politically motivated delay when others in the health service knew better, and if only we had got out of the way they would have done what they wanted, but they would do what those in power at the time happened to want, ignoring the contrary views of those who did not happen to hold the management positions at that moment.

I want my noble friend to accept that I still hold her in as high regard as I did before this debate started, but we part company fairly fundamentally on the issue of the accountability on a spend of £128 billion a year. As I said in an earlier debate-I have expressed this privately to the Minister, and my noble friend had the grace to say that he understood-my difficulty is that if you are spending £128 billion of public money, the public whose money are spending are simply not going to say when big problems arise, "Well, that's okay, we'll listen to him or her because he or she is chairman of a quango"-even a quango as highly thought of as my noble friend no doubt hopes the national Commissioning Board will be.

There is no debate in this House about the fact that the Secretary of State must be held accountable by Parliament. My noble friend Lord Marks of Henley-on-Thames made the point, which has to be right, that the Secretary of State must also be held accountable by the courts. However, the Secretary of State also needs to be held accountable by the public and the patients, who have not had a huge showing in our debates thus far. I have concerns about this clause because I am not at all clear how the Secretary of State is going to satisfy X billion people by putting in £128 billion that he is accountable to them for if they are absolutely determined that they want him to be accountable to them.

To help the Minister when he takes this clause away and thinks about it, I say to the noble Lord, Lord Warner, that I was not convinced by the amendment. I am happy that he has made that part of his contribution

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to the review that my noble friend will conduct, but I hope that he does not press it to a vote because I for one would not be able to support it.

There are parts of the clause that the Minister really needs to look at, such as the phrasing in new Section 1C(a):

From that, I am not clear-I do not necessarily want the Minister to tell me this today, but I ask him to think about this-at what point these actions start to become health service policy in their own right. We quote precedent in here. If someone takes an action because they think it is right in the circumstances, does that become a policy or a guideline? Where does the Secretary of State play any role in developing a policy for the NHS?

New Section 1C(b) goes on to say,

I have to say to my noble friend that I do not understand what that means. Who decides whether it is a burden? Who decides whether the burden is unnecessary, and where can you challenge the decision whether a burden is a burden and when it becomes unnecessary? It is okay if you consider your action to be the most appropriate in the circumstances. My party occasionally gets criticised for being inclined to being a bit too individualistic, but you cannot run a health service in which everybody can make the decision that they think is most appropriate in the circumstances without a well defined political framework within which they would be expected to act.

I will tell my noble friend something that I have said to him in private but do not mind sharing in public. I spent 26 years at the other end of the Corridor. In all that time I never once voted against my party. Some in this House will see that as wimpish and craven, and some will see it as a fine expression of loyalty. Frankly, I do not mind how you see it. It is how I see it that is important to me.

I have not done a Committee stage of a Bill since I left the Cabinet in 1997, so I want Members of your Lordships' House to understand that I am not having much fun in these Committee sittings. This is not something that comes naturally to me, and I have tried to reassure my noble friend that my participation in these debates is because of my commitment to the health service and my desire that it should be as excellent as possible. This is for the sake of my former constituents, who are patients. In that spirit, I hope my noble friend will take away Clauses 1 and 4 and think about them again.

Lord Warner: My Lords, I compliment the noble Lord on his speech and say that we hope to see him every day of this Committee.

Baroness Murphy: My Lords, could I try to cheer up the Committee? We are getting very gloomy about this topic. To me, this is one of the most important clauses in the Bill and we must support it. I hope that we can reassure colleagues on the opposition Benches that there is no intention, as far as I can see, to withdraw any accountability, which we have discussed

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at great length. Nor is there any intention to interfere with the ability of the Secretary of State to intervene when necessary. It is clearly written in the Bill that the Secretary of State has a mandate and a multi-year setting of objectives, but he has to stay clear of interfering until something is really at crisis point, is going wrong or is urgent. There is plenty of opportunity for him to interfere.

I want to intervene because we have gone into the stratosphere with ideological and constitutional issues. We have certainly talked about political interference, and I agree wholeheartedly with the noble Baroness, Lady Cumberlege, about this. As a senior manager, I have a little list of Ministers around this Chamber who I can tell noble Lords did or did not interfere. I am delighted to say that the noble Baroness, Lady Cumberlege, was one of the least interfering of Ministers. Others around this Committee must wait for my judgment elsewhere.

5 pm

However, we are forgetting the impact of the status quo on patients and their care. For me, this is the most important clause because it underpins the move away from the strangulation of the management chain from the centre to every part of the service, down to the healthcare assistant, towards a devolved, regulated system. What is more-and this is, I have to say, very irritating-this has been the intention of all Governments for the past 20 years. It was very strongly pushed by the Opposition when they were the Labour Government, and reducing this micromanagement has remained a key policy. I will tell the noble Lord, Lord Mawhinney, what micromanagement is because I have often experienced it.

Clause 4 is being called a hands-off clause but, as I have said, the mandate that is given over a multi-year period, with annually refreshed objectives, gives the Secretary of State a great deal of freedom to determine which policy objectives will be given priority. If the Secretary of State wants to interfere, he must come to Parliament to change that mandate and justify his reasons, but he can still do so.

The key role of autonomy will be given teeth-not just the autonomy of the Secretary of State and various bodies such as the national Commissioning Board and the foundation trusts, but that of the clinical commissioning groups. This goes all the way down through the system. To be described as autonomous, an NHS body must be responsible for strategic management, procurement, financial management, human resource management and administration. By strategic management I refer to defining the overall mission of the service or hospital, setting the broad strategic goals, managing the service or hospital's assets and bearing ultimate responsibility for the hospital's operational policies.

In the past few decades many countries have adopted various styles and degrees of autonomy, often giving autonomy to providers and to local purchasers and commissioners in public health systems. In countries as diverse as Thailand, New Zealand, Singapore and Spain, there have been a number of successful initiatives. In particular, I point to Catalonia, where, over the

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past 20 years, the public health system has been devolved to local commissioning organisations allied to the local authorities. This has freed providers from the predations of central government, which has had an enormously beneficial effect on the quality and efficiency of the public hospital system.

Let us look at the UK and the imposition of what the central chain of command does. It manifests itself in performance targets. Targets are always popular-they are brilliant and, what is more, the NHS always meets them. It may take some time but, usually, if you tell the NHS to manage something and hit a target, eventually it will get there. In practice, a project board forms. Some hospitals have as many as 500 projects going on at the same time. That was the number that was found by one consulting agency. It found an enormous number projects under way to deliver these targets, often with external consultant help from the centre or the assistance of external consultants such as the big five. It can be demonstrated very easily that when a project is going on it is possible to reduce admissions, for example, by 60 per cent, with positive effects on cost, quality of outcomes, follow-up and discharges. It is possible to reduce the proportion of beds occupied by patients who are medically fit for discharge by 25 per cent to 30 per cent and so on.

Baroness Thornton: I am sorry to interrupt the noble Baroness. I am listening carefully to her because she has great experience. Is she not talking about transferring the setting of targets, projects or whatever from the responsibility of Andrew Lansley as Secretary of State to Sir David Nicholson as head of the NHS Commissioning Board? If the problem, as she sees it, is the setting of too many targets and projects-although I do not know what that has to do with Clause 4- I am not sure what safeguards there are to stop that from happening anyway.

Baroness Murphy: Perhaps I may respond. It is a direct result of that chain of command that goes from the Secretary of State, to Ministers, to Sir David Nicholson and to everyone inside the Department of Health. It is a direct result of the impact on the management system.

Baroness Thornton: My point to the noble Baroness is that I do not believe that it will change.

Baroness Murphy: I am sorry but I think it is the direct result of Clause 4. I shall continue my theme, if I may.

It is vital that we do not get lost in the impact of what the setting of targets does to the management structure. If the Government set goals and we have key performance targets, at the moment hospitals, services and local commissioners have no responsibility for their strategic direction or goals. I talk as someone who has been a strategic health authority chairman and I know exactly what micromanagement of health authorities and trusts means. I will come on to foundation trusts and why it has not worked entirely with them.

The targets are passed down through commissioning organisations without any understanding of the capacity to deliver. No sooner has one directive been issued

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than another set of politically interesting goals arrives as an additional directive-without removing the first. All this has no connection to how healthcare is delivered at the front line to patients and it creates a sort of parallel universe of management that never really touches operational patient care.

In mental health services, the care programme approach was an absolutely classic example of something that was implemented without any thought being given to how the service was really delivered and it therefore took 10 years to put in place. In successful businesses, managers focus their time and attention on operational realities-on how to help staff solve problems and improve day-to-day operational performance. This is the front-line machine that implements management decisions. However, in the NHS, managers are not interested in the front line. At every level, they focus upwards to the next level and, as a health authority chairman, I was pretty horrified to find that at least 25 per cent to 30 per cent of my CEO's time was taken up at meetings and other activities, to which we referred as "feeding the beast" of the Department of Health or of Ministers. I understand that in many trusts some 50 per cent of this time is taken up with managing the centre.

The preoccupation with satisfying the centre leaves front-line staff-unsupported and often demoralised-to cope with broken systems, unless they have a substitute in a charismatic clinician who leads them instead. That is why high-flying specialist units work exceptionally well and why everyday bog-standard services are often a disgrace. That is why meeting targets is often a game. Data are manipulated and money is diverted from one front line to another to achieve a target temporarily until the Minister's attention is diverted to the next enthusiasm.

The four-hour waiting time target at A&E is a very good example. This was an admirable target-some would say it was not tough enough-but it was achieved only with horrendous diversion of funds from other front-line areas and a reordering of clinical priorities, but with no real change in hospital behaviours or any understanding by staff as to why they were doing it. Metrics for the purpose of compliance are almost always different from those that one would wish to collect to understand and improve patient care pathways. A&E services targets were achieved at the cost of diverting increasing numbers of patients into medical assessment units and we have ended up with an 11.8 per cent increase in emergency admissions and vast numbers of patents being admitted from A&E who would not previously have been admitted-all in the interests of reducing a particular target, but without any fundamental change in the way that hospitals are run.

That is what this autonomy clause is meant to assist-we seem to me to be forgetting that. We must have organisations within the health service which set their own objectives, manage them properly and start concentrating on the front line of patient care. There is ample accountability in the Bill to ensure this along with the proper regulatory system. I know that autonomy can lead to machismo behaviour and that it can go wrong. We do need tough regulation, but we need

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tough light-touch regulation, with a mandate that has been agreed beforehand. With that, we will see that this autonomy clause is utterly vital to the way that we should be developing the health service.

Lord Newton of Braintree: My Lords, I wonder whether I may contribute. It is perhaps rather rash of me as it will be obvious that I have not been here all of the time, partly because I had not anticipated that we would have such a lengthy debate after the agreement that I thought we had reached on Clauses 1 and 4.

It is perhaps appropriate that I should intervene, not least because I am the third former Conservative Health Minister to speak in the debate. I ought to make it clear to my noble friend Lady Cumberlege that it is 2:1 to my noble friend Lord Mawhinney, as indeed I made clear to her in a more private conversation yesterday. Nevertheless, I am unhappy to find myself disagreeing with her, and also, for the second time in two days, disagreeing with the noble Baroness, Lady Murphy. However, the fact is that I do disagree with them.

I cannot claim the record of my noble friend Lord Mawhinney of not having spoken against the Government since 1997. My record is much more sinful. I agree with every word that he said. I shall say that, rather than repeat it all. The problem with micromanagement is that what it means is to some extent dependent on the perception of the trouble that it is causing. Picking up the report published today, is it micromanagement for the Secretary of State to say that it is unacceptable to be leaving patients screaming all night, not to give them water, not to make sure that they are getting a proper diet and not to look after them or clean up for them? That could all be micromanagement, but the public will not regard it as micromanagement. They will say, "This is the NHS. You are responsible for the NHS. Get something done about it".

At the core of this is a point that my noble friend made and I made in different terms much earlier in our discussions. The notion that the Secretary of State can wash his hands of certain things is for the birds. Two of us here have been Ministers for Health and others in the Chamber have also had that position. If things went badly enough wrong, the Secretary of State could not go to the Dispatch Box and say, "Nothing to do with me, guv. Go and ask the Commissioning Board. Go and ask Monitor". It is nonsense, and we need to recognise that.

5.15 pm

Lord Darzi of Denham: My Lords, I enter the debate speaking as a professional working in the health service, but also as someone who has had the opportunity and privilege of serving in government. I might know something, therefore, about the accountability of driving quality and improvements. I also had to learn fairly quickly about the accountability in this democracy and the accountability, as the noble Lord, Lord Mawhinney, put it very clearly, about the expenditure of the health service.

I will use the example of a piece of work that I had the privilege of leading. Many noble Lords in the Chamber helped me through it. It was a review of the

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London healthcare services, called Healthcare for London: A Framework for Action. I led this piece of work with 150 clinicians, in addition to 100 Londoners-members of the public and also patients. The work took place in 2006, after a formidable amount of expenditure and growth in the expenditure of the NHS. As someone who worked and lived in London, looking at the quality of some of these services, the case for change was quite striking. Thirty-one organisations in London were providing stroke services but none of them was meeting the international guidelines and standards for stroke services. One-third of our primary care providers were single-handed and patient satisfaction was well below the national average.

I will put inequality in health on one side, but there are inequalities in healthcare not far from this building. If you take the Underground from Westminster to Canning Town, you will find that life expectancy there is about eight years worse. Those were striking issues that had to be dealt with. The question is who deals with that important issue-the accountability for quality in improving and changing services. That was a fairly long, democratic process. It had very important principles. It had to be clinically led, locally owned and evidence-based. We made a strong pledge: if change is to happen, an alternative needs to be described to the local population and patients before such change happens.

A year later, a significant amount of public consultation ended in an agreement to drive those fairly radical changes in a city that is competitive globally, whether considering its financial services, its scientific output or its universities. That was 10 years after another review by my noble friend Lord Turnberg in the same city, trying to address the same challenges facing us back in 1996-97.

I could not agree more about accountability. I say that having had the privilege of serving in government. Ultimately, accountability has to rest with the Secretary of State. It is important to recognise that. However, I support the noble Baroness, Lady Cumberlege, to a degree. I will mention the K factor. I am not sure how many noble Lords have heard of the K factor. It was well before "The X Factor" was invented. The K factor refers to Kidderminster, where something interesting happened. There was a significant change in a little hospital, for which the whole driver was quality and improvement in facing the challenges of that local health economy. A local MP lost his seat and was replaced for a decade in the other House by a retired physician, who is no longer there. The K factor created a huge amount of sensitivity within the political world-in all political parties in this country. The noble Lord, Lord Mawhinney, was a brave man to throw out the person who came to challenge him about that reconfiguration. I was not the Secretary of State; I was the most junior Minister; I was starting on the learning curve and I wanted to be the most junior Minister in the department. I cannot remember a single week in which I was not lobbied about a change. It was never written; it was all mentioned over cups of tea.

There is a challenge. On the one hand, the Secretary of State needs to be accountable-I could not agree more about that-but at the same time the Secretary of State must have regard to evidence, if independently

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proved by groups of professionals, to make change happen. There must be a clear red dividing line between what I call the politics of saving votes and the politics of saving lives. There is a fine line between the two. One deals with accountability to the public purse and expenditure; one deals with accountability for quality. I have seen Secretaries of State who have had the leadership and strength to balance those two. I do not believe that such balancing could be written into legislation. It requires political leadership and political strength to make some of those tough decisions.

Change is happening all around us. Scientific discoveries have meant that life expectancy has increased by about 10 years since the creation of the NHS. We should not contaminate that with our own local agendas. It is unfortunate that even up to now our consumers-our patients-have not been empowered with the knowledge that I and other noble Lords in this House have of what is good and what is not good. Transparency is extremely important. I see evidence of that being reinforced by the Bill that I had the privilege of taking through in the past. Transparency is one way of getting the balance right between the politics of saving lives and the politics of saving votes.

Baroness Masham of Ilton: My Lords, I want to say only a few words. I cannot agree with the noble Baroness, Lady Cumberlege, that members of the public do not trust their Members of Parliament. Unfortunately, there have been a few problems, but surely we have moved on from there. I have just been to a meeting with about 20 Members of Parliament of all parties, who are supporting their constituents over the children's heart surgery unit in Leeds. They trust their Members of Parliament more than they trust the people doing the review.

Baroness Finlay of Llandaff: My Lords, I hesitate to join in this debate, because it has been fascinating and wide ranging, and I hesitate particularly to come in after the noble Lord, Lord Darzi of Denham. However, I would like to pull out two factors which are important here.

First of all, there are inherent tensions. Fears have already been expressed by the noble Lord, Lord Davies, in particular. One of the fears is whether we will have a National Health Service or a national health insurance, which will actually be an insurance programme. Those who belong to a GP and are part of a clinical commissioning group will then access those services which that clinical commissioning group determines to commission, irrespective of who the provider is, and there will actually no longer be a National Health Service.

That is linked to autonomy, because the worry in this clause-the second anxiety-is where the boundaries of that autonomy lie. This clause does not seem to stipulate any boundaries to the autonomy at all, nor indeed, whose autonomy overrules another's. Will it be the Commissioning Board, or the clinical commissioning groups? Where is the hierarchy? Health services are actually a spectrum. You cannot divide the actions of one from another, because they have a knock-on effect. A clear and very simple example is that delayed diagnosis in primary care results in later presentation and more

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expenditure in secondary care, but more importantly, in poorer outcomes for the patient, who has effectively been withheld from accessing expertise for too long.

Behind all that is a worry, because general practice per se is not an NHS employed service. GPs are individual contractors whose general medical services contract is remarkably poorly defined. It may be that the autonomy of the Commissioning Board will allow it to define very clearly what is in general medical services and what is out. The whole concept of GMS suffered hugely when the 24-hour responsibility went and out-of-hours services came in. That fragmented, to a large extent, what GPs did.

It is completely mistaken to believe that liberating the NHS depends on these clauses in the Bill. I have my name to one of the amendments to delete one of the clauses, but I do not see, from the debate that we have had today, how deleting the clauses will stop the changes to liberate the NHS that everybody has been arguing for.

Unfortunately for patients-and the NHS service is there for patients-the NHS has indeed become risk averse in a culture where the managers have become frightened, for whatever reason, of speaking out, and of taking patient-oriented decisions, and have often put pressure on clinicians to not do what they have wanted to do. I fear that behind that, too, there has been peer pressure and a mistaken view that it is unprofessional to show that you care. There has been a view that, if you step out from the local culture to do what is right for the patient, even though it may not be right for the service or the system, that can result in severe disciplinary action against an individual. We see the extreme of that with people who whistleblow and speak out for services. However, I do not think that any of that will be affected whether the autonomy clauses are in or out of the Bill.

In the past, I have argued with the noble Baroness, Lady Cumberlege, that the NHS should not be a political football and that there should be some distance between political interference and the way that the service is delivered on the ground. However, I must admit that I had never imagined that we might be discussing what could potentially be complete fragmentation of the service.

I should like to run through some of the boundaries that I think are very important in discussing this matter, and I know that we will be debating this further in relation to the role of the Secretary of State. Like others in the Committee, I commend the Minister for the way in which he handled the debate on Clause 1 and for his very positive approach to the discussions that we all need to have on these clauses at the beginning of the Bill.

Do the people with the autonomy have the skills and capabilities to exercise that autonomy, and how will those skills and capabilities be measured? How will autonomy interact, when you are trying to drive forward collaboration and integration and trying to drive performance management, with a decent level of services and consistency to improve quality if one part of the system decides, for whatever reason, that it does not want to provide a particular service or part of it? Will there be a requirement on these autonomous

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bodies to publish the evidence of their performance, or would such a request be deemed to be burdensome and to be impeding their autonomy?

I was particularly struck by a line in the impact assessment, which states that the reforms will create,

In other words, the K factor would not be able to function.

In the past, I have understood the concept of earned autonomy, where the power and ability to take decisions at a more local level come when there is proof that quality has been driven up. However, I fear that these clauses will not do that, and they may just give unfettered autonomy to organisations which may be ill equipped to cope with the range of responsibilities that will suddenly be thrust upon them.

Baroness Tonge: My Lords, I intend to be very brief because we have already had a long debate, but I am bursting to say something. We have heard very erudite and learned speeches, not least from my noble friend Lord Marks, who put the situation very clearly. However, I am a simple soul. I told your Lordships at Second Reading that I was a barefoot doctor trying to protect patients and my staff from the ravages of health service reorganisation, and I want to try to tell the Committee briefly how they see the combination of these two clauses.

If Clause 4 were adopted, that could lead to different sorts of health services all over the country. Provision would not be equal throughout the country and people would not like that. On the other hand, if Clause 1 were amended after discussion to make sure that the Secretary of State had a duty to provide certain services, that would rule out Clause 4-there would no longer be autonomy because, as I understand it, the Secretary of State would be able to say, "No, you must provide this tariff of services".

5.30 pm

The noble Lord, Lord Warner, pointed out this afternoon-it was a long time ago now-that Clauses 1 and 4 do not affect just each other. They affect other clauses in the Bill, such as Clauses 17 and 20. An awful lot in this Bill is affected and it all interacts. That leads me of course to say: will the Government please go home, do a bit more homework, look through this Bill and take out all the clauses that are interdependent and cannot be decided until another one has been decided-in other words, start all over again? I fear that this Committee stage is going to degenerate into a sort of mad hatter's tea party and we shall end up with the noble Earl, Lord Howe, taking off his wrist-watch and putting it in his glass of water.

Lord Beecham: My Lords, this has been an important and thoughtful debate which I am sure will inform the discussions which the noble Earl is about to embark upon with colleagues across the House. I rise to speak

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to Amendment 38 on a much narrower point. In the spirit of that amendment I will undertake not to impose any burden on the Committee in terms of taking a disproportionate amount of time to deal with it. The amendment refers to paragraph (b) of new Section 1C, which the noble Lord, Lord Mawhinney, also referred to in what I thought was a masterly and devastating critique of Clause 4 as a whole.

The amendment would replace "unnecessary" with "disproportionate" in terms of the relief of burdens on organisations within the framework of the health service. The noble Lord is quite right to say that "unnecessary burdens" could mean anything. He might think that "disproportionate burdens" could also mean almost anything, but at least it gives a sense of direction which would be more acceptable to your Lordships. The Government as a whole are somewhat obsessed with burdens in the belief that almost any duty-whether in terms of employment law or other issues, notional concerns about health and safety or even human rights legislation-is deemed to be somehow a dreadful burden. What is a burden to one set of people may be a perfectly reasonable duty in the eyes of others. In this particularly sensitive context of a key public service affecting everybody in the country as a patient or potential patient, it seems necessary to err on the side of caution when setting out a stall which could lead to great difficulty in any sensible degree of regulation. Of course one can overprescribe regulation. One can also underprescribe it. As it stands the clause appears to err very much in the direction of the latter. I hope therefore that the Government will look again at the drafting of the clause and that some move can be made in the direction set out in Amendment 38 in my name and in that of the noble Lord, Lord Rooker.

Baroness Wall of New Barnet: My Lords, I had not intended to participate in the debate because I did not arrive until it had started, but I have been here a long time now and want to share with people how it feels on the ground. What the noble Baroness, Lady Cumberlege, said is absolutely true. I do not envy the noble Earl because I think that the analysis that the noble Lord, Lord Darzi, gave is exactly how it feels. There is that dilemma. The noble Baroness congratulated us on now having a decision from the Secretary of State. We do, but the decision is bound up in another clause, which brings about another kind of action that we must take. It has not removed anything; it has just given us another dilemma and delay in what we must do.

I say to the noble Lord, Lord Mawhinney, that I only wish that everybody in his position did what he did. Though I have five years of experience, I am not medically qualified; I am just somebody who cares about the people that I have responsibility for as the chair. My experience from those years was often of political interference. I ask noble Lords to forgive me for being emotive about this, but it is absolutely true. We had consultation for many years, authorised by the independent review body. The Secretary of State at the time, Alan Johnson, said, "Whatever the review body says, we will go with it". That was perfect. Then we had a hold-up and a change of government. The new Secretary of State, Andrew Lansley, then came to our

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trust and said, "This isn't going to happen. We want people on the ground to be able to say, 'Yes, if I want this service, I can have it here, and, yes, if I want my baby here, I can have the baby here'". Both those services were questionable in terms of their clinical reliability. They were not unsafe, because we would not be doing it otherwise, but certainly questionable. And so we started all over again.

A year later, we have gone through not a consultation but the four tests, where the clinical members of the local authority team went through the same process as was involved in the previous consultation-is it clinically safe or is it not? It took a year or so for the Secretary of State to come back with another response to that. That was another stall until, just a matter of weeks ago, we received a letter from the Secretary of State addressed to the local authority-because it had put the case to him-which said, "Yes, I think that the BEH strategy should go ahead, but, actually, I think that you should consider other things as well". Those things cut right through the BEH strategy.

Local MPs are very open about the fact that they have interceded and expressed their views. They are very proud to say, "I've spoken to Andrew about this and I'm not going to have that". This goes on all the time-I am not sure that this is inappropriate language to use in this House I ask your Lordships to forgive me if I am saying things that I should not; I am just trying to tell noble Lords what it feels like as somebody who is working in the health service on behalf of patients. That is how it feels. I do not know whether political interference by the Secretary of State, as I see it, can be removed by having the national Commissioning Board make the decisions, because my view would be that MPs will always go to whoever can make an intervention in Parliament. That goes for MPs from all parties; it is not about the present Government.

I do not envy the noble Earl in the decisions that he has to make about this, but the view of the noble Lord, Lord Darzi, is very much attuned to what I see in reality. There is a dilemma; there is that interference. But, on the other hand, there are major decisions that have to be made that can be made only by the Secretary of State in the sense of his or her national perspective. I have no words of wisdom, but I have a lot of feelings. Please can we get this right?

Baroness Thornton: My Lords, I have added my name to those opposing Clause 4. We have had a very good debate, to which my noble friends Lord Darzi and Lady Wall have brought an element of reality. However, their remarks do not take us from the point of wondering whether this is the right clause in terms of autonomy. They have both succeeded in pointing to the problem that exists, and I am not sure that the Bill solves it.

Autonomy, from the ancient Greek, means,

It might be thought that a health and social care Bill would reflect the second part of the above definition-culled, I have to say, from Wikipedia-given the concern for the interests and dignity of patients. However, such

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is not the case. Clause 4 seeks to insert a new section into the National Health Service Act 2006 under the rubric: "The Secretary of State's duty as to promoting autonomy". The clause requires the Secretary of State when exercising functions in relation to the health service, so far they are consistent with the interests of the health service-not, it may be noted, in the interests of patients-to act with a view to securing certain things that the clause then goes on to list.

I had a discussion about this clause with the noble Baroness, Lady Murphy, yesterday or the day before. I say to her that the fact that we both seem to have completely different views of what this clause seeks to do actually tells us something about it and its drafting. We totally disagree about what we think this clause seeks to achieve. That alone should make us think that perhaps we need to go back to look at this clause.

Clause 4 places upon the Secretary of State a duty to promote autonomy, as we have said. We feel that this clause is part of the general shift of the Bill to denude the responsibilities of the Secretary of State, because-viewed alongside of the removal of the Secretary of State's current powers under Section 8 of the 2006 Act to give directions to PCTs and SHAs-it significantly dilutes the Secretary of State's powers to influence the provision of health services. Independent legal advice from Stephen Cragg QC, for example, commented on the consequences of Clause 4:

"If the Secretary of State attempts to use his or her powers to impose requirements on commissioning consortia, for example, then there could well be a judicial review challenge from a consortium which opposed the requirements on the basis that they infringed the principle of autonomy in the new Section 1C and could not be justified as necessary or essential. This approach replaces the, more or less, unfettered power that the Secretary of State has to make directions currently to be found in Section 8 of the NHS Act 2006 with a duty not to interfere unless essential to do so".

The emphasis on autonomy links to the change in the role of the Secretary of State, as was explained wonderfully and adequately by the noble Lord, Lord Marks.

Since the founding of the NHS, the Secretary of State has always had powers of direction and intervention over NHS bodies, which enabled him or her to control the system. While some providers such as foundation trusts could be given earned autonomy-as was referred to by other noble Lords-the Secretary of State retained control through commissioning and the nature of contracts with foundation trusts.

This is a very important clause, and nothing that has been said in this debate makes me think that I was wrong to put my name on behalf of these Benches to the Question relating to clause standing part of the Bill. I appreciate that we will be having a broad discussion of these matters along with Clauses 10 and 1 but, unless the Minister has something very significant to say about how he sees this clause evolving, I absolutely have to agree with the noble Lord, Lord Marks, that this can come out of the Bill because of all the other powers that remain in it, which we will look at in due course.

Finally, I thank the Minister for his letter to me, which was circulated around the House. I thank him and his staff and the noble Baroness, Lady Williams, and her colleagues for the fact that we are finding a way forward to having a discussion which I hope and trust will bear fruit.

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5.45 pm

Earl Howe: My Lords, I, too, think this has been a very valuable debate and I thank all noble Lords for their contributions to it. I do mean that. Ministers always like to hear support, and I have had some of that today, but at the same time no self-respecting Minister would wish to brush aside the kinds of concerns that have been voiced this afternoon about the effect of this clause. I certainly do not wish to do that; hence my offer to engage in discussions with those noble Lords whose concerned voices have been heard.

Following the consensus that we reached at last week's Committee session on that proposal, I express the hope that the noble Lord will feel able to withdraw his amendment at the end of this debate and that we will use the time between now and Report to reflect on the concerns that we have heard expressed about Clause 4-and, indeed, on Clause 1 last week. I recall from discussions in the Chamber on 2 November that the Committee had little appetite to hear me dwell on Clause 1 or the amendments to it. I am therefore going to keep my remarks brief. However, I hope that the Committee will find it helpful if I provide a bit of context to this clause.

As I said at Second Reading, our proposals for the NHS involve a fundamental shift in the balance of power away from politicians and on to patients themselves, as well as to doctors and other health professionals. This is not an abdication or divestment of power by politicians but a shift. I think that we all agree that empowering front-line organisations offers enormous potential to unleash innovation and to drive up the efficiency and quality of services. The noble Lord, Lord Darzi, to my mind, said it all. That is why the Bill retains the key powers that the Secretary of State needs in order to remain properly accountable but removes his current sweeping powers to delegate and give directions to other bodies.

Instead, the Bill sets out roles and responsibilities in primary legislation that local commissioning will be carried out by clinical commissioning groups-with their own distinct statutory duties, set by Parliament-rather than by PCTs acting under the direction of the Minister of the day. Ministers will have specific but extensive powers to set requirements for commissioners, in particular through the mandate to the NHS Commissioning Board and through regulations known as standing rules. As the noble Lord, Lord Warner, observed, I am sure that we will give some thought to the impact of the autonomy duty when, in future Committee sessions, we debate the clauses that give the Secretary of State these powers.

However, there is a clear need for Ministers to have sufficient flexibility to respond to changing circumstances in the health service. Given that, there is very little limit on what or how many objectives or requirements the Secretary of State can impose. That leaves open the risk that a Government-or indeed the board, which has an equivalent duty at Clause 20-could introduce process targets or burdensome rules that inappropriately interfere with front-line clinical decision-making. That is the last thing anyone wants. To my mind, this makes it vital to have some kind of countervailing force to establish the principle that

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Ministers should use their powers carefully. We believe that the autonomy duty provides this important safeguard, enabling organisations to act in the best interests of patients, free from the risk that Ministers or the board revert to a command-and-control style in order to achieve their objectives. The noble Baroness, Lady Murphy, put the point very well.

The duty is therefore an important symbol of the shift of power that the Bill seeks to achieve. I agree with my noble friend Lord Marks that the autonomy duty must be subsidiary to the general duties of the Secretary of State, including, in particular, his duties under Clause 1 of the Bill to promote a comprehensive health service and to exercise his functions so as to secure the provision of services. Although we believe that the duty of autonomy would not inhibit the Secretary of State in exercising his overarching powers and duties as set out in Clause 1, I recognise, as I say, that there are concerns about legal clarity. I therefore welcome the prospect of further discussions with my noble friend and other noble Lords outside this Chamber as to how we might put this matter beyond doubt.

Baroness Jay of Paddington: My Lords, I apologise for interrupting during the Minister's conclusion but I hope this will be helpful. I want to explore whether he can just help me by describing what he sees as the scope of these discussions, in terms of the clauses to be discussed. As the noble Lord, Lord Marks of Henley-on-Thames, pointed out for example in his very helpful intervention when he made passing reference to it, the proposed new Section 13F of the 2006 Act, at Clause 20 in the Bill, is very relevant. It may be helpful to the House to know that the Constitution Committee was invited to look at this again. We have met since the last day of Committee and have agreed to look again at Clauses 1, 4, 10 and 20 precisely because of that interrelated matter. Could the Minister help us on that?

Earl Howe: I am grateful to the noble Baroness. As she has indicated, there is certainly a read-across from Clause 4 into Clause 20, and I readily accept the suggestion that we should factor in issues that emerge from Clause 10.

I am clear that a successful process will be one that can take account of views from all political parties and the Cross Benches. As well as hearing in full from those Peers, many of whom have put their names to amendments and have become particular experts on this issue, there is also an implicit legal perspective to this and I believe that an important building block will be to engage with the Constitution Committee of your Lordships' House and other legal experts in this House on these points. To start that dialogue, I propose to meet next week with a number of noble Lords, if they are willing, to explore the process for going forward. Following that, I will write again to all Peers setting out the proposed process in more detail. I hope that that is helpful.

I have very clear answers for the noble Lords, Lord Patel and Lord Warner, and other noble Lords to the concerns that they have raised. However, for the reasons that I have set out, if they will bear with me, I shall refrain now from providing a detailed commentary on

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the amendments in this group. I hope that, with the prospect of future discussions that will factor in the valuable points in this debate, the noble Lord will feel able, for the time being, to withdraw his amendment.

Lord Warner: My Lords, there is a film showing in local cinemas called "We Need to Talk About Kevin"; I think that this excellent debate has shown that we do indeed need to talk about Clause 4. I do not intend to comment on all the excellent contributions that have been made. I just want to say two things in conclusion.

I think that the noble Lord, Lord Marks, has provided an excellent forensic analysis of what is wrong with this clause. My personal view is that he has holed this clause below the water-line. I hope that the Minister, in conducting these cross-party discussions, will really keep in the front of his mind the easy solution that the noble Lord, Lord Marks, has helpfully given to the Committee, which is that we simply drop the clause.

Secondly, I would say to the noble Baroness, Lady Cumberlege, that I do not disagree with her about many of the issues that she raised. However, if she is really concerned about reducing political interference in decisions on service reconfiguration, I would direct her towards Amendment 304 in the names of myself, the noble Lord, Lord Patel, and the noble Baroness, Lady Murphy. There is room for another name on that amendment, which will indeed actually reduce political interference in this area. So I commend it to her. In the mean time, I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendment 38 not moved.

Clause 4 agreed.

Clause 5 : The Secretary of State's duty as to research

Amendment 39

Moved by Lord Willis of Knaresborough

39: Clause 5, page 3, line 16, leave out "have regard to the need to"

Lord Willis of Knaresborough: My Lords, if I may, I will say to your Lordships' Committee that this group of amendments is about Kevin. It is also about Kate. This is perhaps the first time that we have had an opportunity to look at a group of amendments that will have an immediate and direct effect on the patients and patient outcomes. In moving Amendment 39, I will also speak to Amendment 41 standing in my name and those of the noble Baroness, Lady Morgan, and the noble Lords, Lord Walton and Lord Warner.

I should say from the outset that I am extremely supportive of other amendments in this group from noble Lords. Indeed, the fact that noble Lords from every quarter of the House recognised the importance of research and wanted to support this group of amendments demonstrates the real commitment that there is in seeing research at the centre of the new National Health Service.

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I listened to the previous debate, and much of the debate on Clause 1, and so far a great deal of the debate has been about structures. Not one piece of empirical evidence has been brought forward that demonstrates that the proposed structures, either now or in previous health Bills, have been there with evidence that they will improve the service. On what we are about to discuss now, there is a mass of empirical evidence to demonstrate that putting research at the centre of the National Health Service will improve patient care and outcomes-and that, if I may respectfully say so, is really what this Bill should be addressing. How do we make things better for our patients and how do we give clinicians the very skills, tools, drugs and procedures that they need to make it better?

Your Lordships received this week a lovely bound book by the British Heart Foundation entitled 50 Years at the Heart of Health. Throughout it there are a number of very interesting statistics. One that I draw to noble Lords' attention is fact number 24. It says that in 1961 somebody died from cardiovascular disease in the UK every 98 seconds; in 2009, it was every 174 seconds. The reason for that dramatic change was twofold: first, the clinicians dealing with those patients; and, secondly, the research they had at their disposal to make the treatments more effective. We celebrate the fact that we ended up with a significant drop of some 78 per cent in outcomes of deaths, but the reality is that far too many patients still die of cardiovascular disease, and we need the research and new techniques to be able to deal with this.

At the John Radcliffe Hospital, Oxford, an experimental new treatment using gene therapies to help prevent the onset of blindness is in its early stage of clinical trials. The use of gene therapies and of genomics and bioinformatics will make a radical difference to how we deal with our patients in future, offering them if not personalised healthcare at least far more targeted support for whatever disease they have.

Other noble Lords will speak from great professional and personal depth about the use of research and its importance. I declare two interests: first, my belief that training the workforce in giving access to research is the best way in which to improve patient outcomes-and I think noble Lords would agree with that; and, secondly, I chair the Association of Medical Research Charities, whose 127 member charities contribute more than £1 billion a year to medical research, some 30 per cent of all expenditure in this area.

We see daily the results of good clinical practice and research, but we also see the challenges that lie ahead. Of course, the UK starts from a very strong position. We are simply-and again there is clear evidence to support this-the most productive health research nation on earth when you judge the dollar input against research success. That fact was confirmed just last month by the global research report from Thomson Reuters. What we do not do nearly well enough is bring research to clinical practice quickly enough or exploit our advantage vigorously enough. To deal with that we require a quantum change in the regulatory framework and we need to use our NHS patient database far more effectively, which is why I am delighted that Amendment 40A in the name of the

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noble Lord, Lord Turnberg, who I will call my noble friend, begins the debate about how we use the National Health Service database much more effectively.

6 pm

Patients want to be involved in trials and they want the NHS to be involved. In June 2010 the Association of Medical Research Charities commissioned MORI to ask people whether they wanted their local NHS to be encouraged or required to support research. Ninety-three per cent said yes. The National Institute for Medical Research in its work with INVOLVE got exactly the same results when asking patient groups whether they wanted to be involved. The public have a thirst to be involved in research and we need to take that up.

To be fair we ought also to congratulate the work that went on under the previous Government. The National Institute for Health Research, led by Professor Sally Davies, and the work that has been done since the Cooksey report on identifying NHS research resources and how to apply them has given us a huge start. We have recognised where the resources are. We know what the capabilities are. It is now a matter of using them. I welcome the fact that, for the first time in the history of the National Health Service, the Secretary of State will have a duty to promote research, as will the NHS Commissioning Board, the clinical commissioning groups and Public Health England. That is a huge step forward in putting research at the centre of the national health.

I welcome, too, and recognise the importance of the changes that have come to this Bill. The fact that none of these things was in it when it began its journey and yet, following the review, we now see that research is in the Bill is something to build on and to commend the Minister and the Secretary of State for.

The amendments that we are discussing today are probing, but they are the beginning of a process to elicit from the Minister how the duty of the Secretary of State will actually be carried out, because having a duty without defining that duty is a hollow gesture. What will be the extent of it? How will it be assessed, and who will assess it? How and to whom will it be reported? Crucially, how the culture of an organisation that is to see ever greater levels of devolution will retain the ability to require a research culture at the heart of everything it does is quite frankly beyond me, and we are looking for the Minister to explain how that will happen. These amendments seek to explore how far the research duty of the Secretary of State will compel him to lead the embedding of research across the National Health Service and public health systems at a national level.

Amendment 39 seeks to leave out the words,

They are totally unnecessary. The Bill should say simply, "The Secretary of State must promote". That is a clear definition, a clear statement of intent. Perhaps the Minister will explain the meaning of the words. Surely if this new duty is to have real meaning, the words,

must be removed. Can the Minister provide more clarity on how this duty requires the Secretary of State to act to promote research and to use research evidence across the NHS? What powers will the Secretary of

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State have to make often overburdened clinicians, chief executives and governors put research at the heart of their own trusts, GP practices and commissioning groups? How will this duty extend to those who are private-sector or third-sector contractors? If a great deal of our services are to be delivered outside what we regard as the normal NHS structures, how will these people be encouraged to put research rather than profit or pure service delivery at the heart of their practices, or will it apply only to those organisations delivering NHS services within the NHS?

Can the Minister provide more clarity on the extent of the Secretary of State's duty to promote research and the use of research evidence contained in the very strange phrase,

What does that actually mean? The phrase is incredibly broad. Virtually every aspect of health and social care that impacts on the treatment of patients could come within this responsibility. Surely that is not what is meant. Can the Minister provide further clarity on the research captured by this definition and reassure us that this will incorporate all research supported by the health service for the purpose of protecting the public in England from disease or other dangers to health?

Amendment 41 seeks to make the duty of using research in the field of public health more explicit by adding,

This amendment begins to explore for the first time the duty of the Secretary of State to protect the public from pandemics or other national health threats. If there has been a devolution of those responsibilities to other boards, where does the Secretary of State's power begin and end, and what is his duty to ensure that there is adequate research in order to prevent those pandemics affecting the public as they have done in the past? It also begs the question of whether, if the Secretary of State is to lead and embed a culture change whereby no health research should fall outside his responsibility, this should include research in public health. Without rerunning the past debates about duties, I fully recognise that the Secretary of State will need responsible officers to help him perform or carry out his duties.

Can my noble friend explain who will be the executive officer responsible to the Secretary of State for research in the NHS and in Public Health England? In a recent Answer to a Written Question I put down the Minister said:

"It is not expected that Public Health England will, itself, directly hold funds to commission research ... the National Institute for Health Research (NIHR) will continue to take responsibility for the commissioning of public health research".-[Official Report, 7/11/11; col. WA20-21.]

But how will the NIHR, now to be wholly subsumed into the national Commissioning Board, carry out that function? Will the Chief Medical Officer, Professor Sally Davies, retain the equivalent of her current responsibilities as head of the National Institute for Medical Research, and by definition her responsibility for NHS research, or will that go to Sir David Nicholson

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as chief executive of the new national Commissioning Board? And what will happen to the £1 billion currently allocated and ring-fenced to NHS research, currently within Sally Davies's budget and the NIHR? I ask this because there is an obvious concern that the Nicholson challenge to save £20 billion in four years could seriously affect NHS research if, in fact, it were deemed to be part of the pot led by Sir David Nicholson within the board. What guarantee can the Minister give that current research budgets in the National Health Service will be protected? We have those guarantees within the research councils, particularly the Medical Research Council. We need to have exactly that same guarantee within the Department of Health.

I recognise, as I hope most people in the House do, the fantastic commitment we have seen through the CSR both for the Medical Research Council and the NIHR. We have seen the commitment to the new Crick centre in terms of basic and translational research. We can do nothing other than welcome the direction of travel of the Minister and the Secretary of State. This is not a carping set of questions; it is a genuine attempt to find answers. I do not expect my noble friend to have all the answers today. This is a probing set of amendments that seek to start a debate about the duties of the Secretary of State towards health.

I hope that by the time we finish this preliminary skirmish about research we will be a little bit clearer. It would be extremely helpful if the Committee could have an organigram, or at least some diagrammatic form, of where the responsibilities will actually lie so that we know what the research landscape will be. That would help us to concentrate our minds on finding productive solutions. I beg to move.

Lord Walton of Detchant: My Lords, I warmly support this group of amendments, so ably proposed by the noble Lord, Lord Willis. The questions which he has posed to the Minister are of considerable importance. I do not propose to repeat them, but I look forward to hearing the answers.

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