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Even if you succeed in removing the Secretary of State from the picture, is it likely that local NHS organisations will simply be left to get on with life without external interference? The public will certainly not go away and nor will their representatives, Members of Parliament. They will still encourage the Secretary of State to intervene in the health service. Even if the Secretary of State courageously resists that pressure, it will then fall on the national Commissioning Board. I doubt that the regulators, the CQC and Monitor, will be immune. Nor, I suspect will clinical senates, the health and well-being boards that will be established or the commissioning support units that are apparently to emerge up and down the country. Certainly, clinical commissioning groups themselves will not be immune.

The idea that if you remove the Secretary of State from reconfiguration proposals all will be sweetness and light, with rational bodies making rational decisions and a grateful public acquiescing to those decisions, does not seem to be in the real world. Is it really suggested that £120 billion of public money does not require full accountability of Ministers to Parliament? By full accountability I mean sole accountability, rather than the construct of this Bill, which quite remarkably gives the Secretary of State and a quango-the national Commissioning Board-concurrent powers in relation to the crucial duty in Clause 1. It is so important that the Secretary of State is solely accountable because that is probably the best protection of the overriding mission of the health service to provide comprehensive services to all.

I recently read the transcript of the evidence that the chairman of the national Commissioning Board, Professor Grant, gave to the Health Select Committee, which is very interesting. Professor Grant disarmingly described the Bill as "unintelligible" but we know that all Bills, on the face of it, look rather unintelligible. He went on to make much of the Secretary of State's responsibility for delivering, as he put it, a comprehensive NHS. He then laid great stress on the mandate set for the board by the Secretary of State. He suggested that it should be for three years, rather than an annual mandate as laid down by the Bill. He made it clear that if,

he can intervene. The professor concluded that,



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I found that, from the chair of the NCB, eminently sensible and I have no criticism to make of the points that he put forward. However, does that reflect the real world? Things happen, reports are published and crises occur. The Secretary of State cannot simply wash his hands of responsibility. There will be occasions when, mandate or no mandate, he will want to intervene.

5.45 pm

A number of today's newspapers carried stories that indicate that the Secretary of State is prepared to sack PCT chairs if they continue to save money by rationing treatments or making patients wait longer for operations. I do not know whether that is true but I say to the noble Earl that I certainly make no complaint about Mr Lansley's actions. It seems entirely appropriate for the Secretary of State to wish to intervene in that kind of event. However, what would happen if the Bill were to be enacted? Let us say that continuing financial pressures led clinical commissioning groups to implement a 15-week wait for non-urgent treatment, or that patient choice was restricted to ensure that sufficient money flowed into the local hospital to ensure its continued viability. Assume then that MPs raised complaints about that in Parliament to the Secretary of State, and that the Secretary of State wanted to intervene. How? Would he call in the chair of the national Commissioning Board? Would the chair say, "I'm afraid that's an operational matter-nothing to do with you, Secretary of State. It's not in the mandate"? In any case, the chairman of the national Commissioning Board might go on to say, "You set the NCB one of its main goals, which is to balance the books of the health service. If we take action in the way you want, the books won't be balanced". What happens then? I suspect that there will be a huge tension and tussle, with real confusion in the NHS and among the public as to who is in charge.

Coming back to my Home Office brief, in the past two weeks we have seen some of the problems that can arise between a Secretary of State and an executive agency such as the UK Border Agency. There is absolutely no question that the UKBA is a subordinate agency of the Home Office. Therefore, there is no question over the Home Secretary's right of intervention. Whether she intervened correctly is, of course, another matter. How much more confusion will there be if you establish a hugely powerful quango and give that body the same, concurrent duties as the Secretary of State in relation to the crucial duty set out in Clause 1?

I wish Lord Marsh was still here to talk about his experience in the nationalised industries. He was both Minister for and chairman of British Rail. Those of us who can recall those heady days will remember the inevitable tension between the Minister and the chairman of the nationalised industry. We certainly saw day-to-day intervention by Ministers in rail, steel and the other industries. We also saw a great deal of resentment on behalf of the chairmen of the boards of those industries. My suggestion is that the same is likely to happen over the NHS between the Secretary of State and the national Commissioning Board. That is why the relationship between the NCB and the Secretary of State is so important. Amendment 48 goes to the heart of this by removing the proposal in Clause 6 that the

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Commissioning Board should have concurrent powers with the Secretary of State in relation to Clause 1. I know that the Government have invited noble Lords to withdraw all their amendments to Clause 1 to allow for further discussions. I hope that the noble Earl will agree to do the same in relation to Clause 6.

The NHS Commissioning Board, however well led and powerful it is, ought not to be given the same, concurrent powers as the Secretary of State. There should be a clear hierarchy and the hierarchy should be the clear accountability of the Secretary of State. In Clause 1, clear responsibility should be given solely to the Secretary of State. That would therefore mean that the Secretary of State would have full power of direction over the national Commissioning Board. That would establish a sensible priority and ensure that clear accountability to Parliament through the Secretary of State is maintained. Above all, it would give clarity to the National Health Service. I beg to move.

Lord Mawhinney: My Lords, I too want to focus on line 27 of Clause 6:

"The Board is subject to the duty under section 1(1) concurrently with the Secretary of State".

This raises all the issues that we have debated at length. I know that the Minister has taken away Clauses 1, 4 and 10, but, as the noble Lord, Lord Hunt, said, it would be extremely helpful to the Committee if he agreed to take away Clause 6 as part of the package on which to consult. Otherwise, those words in the Bill continue to provide a fault line that at some point will need to be addressed. I hope that my noble friend feels that it would be more productive to address this point in the spirit of co-operation and cross-party support that he has engendered for Clauses 1, 4 and 10 and include Clause 6 as well.

Lord Warner: My Lords, I rise to speak on this amendment, mainly because of my puzzlement over why the Government want to give the national Commissioning Board a concurrent duty with the Secretary of State under new Section 1(1), given all the other provisions in the Bill which try to shape-if I may put it that way-the relationship of the Secretary of State with the national Commissioning Board. This is especially the case with Clause 20, the mandation clause. One interpretation of this concurrency is that the Secretary of State can pick and choose how he interprets his responsibility.

My noble friend Lord Hunt has mentioned, as delicately as he could, what has happened in the Home Office recently about the sometimes rather strange boundary between policy responsibility and management responsibility and the confusions that could arise. This is not the first time that the Home Office has got into this kind of territory. Your Lordships will remember the difficulties that Michael Howard, when he was Home Secretary, had with the chief executive of the Prison Service, Derek Lewis. It boiled down to this problem of uncertainty about where the remit of Ministers ended and where responsibility began, in this case with the Prison Service, an executive agency. Equally, though, I suggest it could have been a non-departmental public body.



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There is a lot of history in this area where one should be extremely wary about passing legislation in particularly high-profile areas and giving concurrency of responsibility to a Secretary of State and to a powerful arm's-length body, in this case a non-departmental public body, the national Commissioning Board. It is fraught with difficulties. I thought that the Government were trying to clarify this with Clause 20. I think the clause has been misunderstood a little bit by the new chairman of the national Commissioning Board, but the wording as it stands gives the Secretary of State the right, before the beginning of each financial year, to set out a mandate for the board.

There are a lot of safeguards in Clause 20, on both sides of that discussion and agreement. The national Commissioning Board has a lot of safeguards. The Secretary of State cannot keep coming back and adding bits and pieces as the year progresses. The Secretary of State also has quite a lot of safeguards. He or she can expect the national Commissioning Board to stick to what has been agreed in that mandate. There is no doubt about the Secretary of State's ability to give instruction to the board and there is no doubt about his ability to change those instructions on an annual basis after proper discussion and consultation. That is very clear. One of the strengths of Clause 20 is that it does make the relationship clear between the Secretary of State and the national Commissioning Board.

I have tabled an amendment that tries to restrict the number of requirements that the Secretary of State can place on the national Commissioning Board. I can well remember the time when the noble Lord, Lord Mawhinney, was a Minister with responsibilities for health, along with his colleague the noble Baroness, Lady Bottomley, who is not now in her place. We had somewhere in excess of 50 priorities in the NHS that we were required to deliver each year. In practice, we had no priorities, because no one could hold 50 priorities in their head, so there is an issue about how far you go on mandation. Nevertheless, the structure of Clause 20 clearly states what that relationship is, on an annual basis, between the Secretary of State and the national Commissioning Board.

We would do well to stick with that kind of relationship rather than muddy the waters with a concurrency of responsibility. I will be interested to hear what the Minister has to say on this issue.

Earl Howe: My Lords, as has been pointed out, this amendment returns us to the topic of the comprehensive health service. We have had a wide-ranging debate on that issue. I appreciate the concerns held by some noble Lords about the extent to which the Secretary of State will be genuinely accountable for the health service under the new arrangements introduced by the Bill. I have outlined the reasons why I believe accountability will be maintained and how accountability to Parliament and the public will be increased by our proposals. We have indicated our intention to look further at what could be done to put the Secretary of State's ultimate accountability for the health service beyond doubt. We will do that.

However, it is a core principle of our reforms that politicians should step back from day-to-day interference

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in the NHS to allow clinicians to take the lead in developing services that are built around the needs of patients. That would simply not be possible if the Secretary of State retained broad powers of direction over the NHS Commissioning Board. As I have previously described, the role of the Secretary of State in future should be to set the legislative and regulatory framework; to set the strategic direction for the NHS through the mandate, as the noble Lord, Lord Warner, has rightly reminded us; and to hold the national bodies in the system to account for fulfilling their responsibilities effectively.

I also understand the argument that the Secretary of State alone should be responsible for promoting a comprehensive health service. However, I believe that there are strong arguments that, in the interests of accountability, the NHS Commissioning Board should share this duty as far as it relates to NHS services. The NHS Commissioning Board will be the body responsible for ensuring that there is a comprehensive coverage of clinical commissioning groups covering every area of the country. It will be responsible for authorising and assessing clinical commissioning groups, providing support and guidance to them, and intervening if they run into difficulties. It falls to the NHS Commissioning Board to ensure that the continuity and quality of service provision is maintained at all times.

I am afraid that the arguments of the noble Lord, Lord Hunt, expose a clear fault line between the Government and the Opposition. We believe it is important that the board should be under the same obligation as the Secretary of State to promote a comprehensive health service in so far as this relates to the health services that the board and clinical commissioning groups will be responsible for. Let me be clear: the Bill's provisions would in no way dilute the Secretary of State's overarching duty. Indeed, they are intended further to reinforce the promotion of a comprehensive health service rather than to undermine it. With the general desire of noble Lords to strengthen accountability in the Bill, it seems odd that the noble Lord, Lord Hunt, should want to weaken accountability in this way, for that is what his amendment would do.

I listened to the point made by my noble friend Lord Mawhinney that this is another facet of the issues that we are going to consider in relation to Clauses 1, 4 and 10. He made a good point. Therefore, I suggest that, in the light of our intention to consider together how we approach the duty on the Secretary of State and return to this on Report, the amendment should also be withdrawn and that any consequential changes to the functions of the board or clinical commissioning groups are considered as part of those deliberations.

6 pm

I have omitted to cover a number of points made by the noble Lord, Lord Hunt. He referred to minimum waits and restricting patient choice. Of course, the mandate on the standing rules would allow for specific requirements. For example, they could be used to prohibit minimum waits, and it is very likely that they will be used for that purpose. The Secretary of State would be able to set that kind of direction in order to achieve that. Patient choice could form part of the

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mandate. It is also something that Monitor would look at. The purpose of the mandate is to set out exactly what the Government expect from the NHS. It is intended to provide the clarity that the noble Lord and, indeed, most other noble Lords would seek for the NHS Commissioning Board's remit.

I do not think that the noble Lord has made his case; in fact, far from it. It would significantly weaken the Bill if we were to go down the road that he is suggesting. I once again ask him to give further thought to this issue before pressing it any further.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Earl for his response. I am, of course, very happy for this to be considered in the light of the debate in relation to the other clauses around the Secretary of State's powers. I may not have convinced the noble Earl but he has convinced me that a "train crash" will inevitably occur given the ambiguity and confusion built into the Bill on the role of the Secretary of State and the national Commissioning Board. The more the noble Earl spoke about that, the more evident the ambiguity became. As regards the mandate, my noble friend's amendment suggests that only five functions should be given to the national Commissioning Board with five other objectives. I think that he is supported in that by other noble Lords. He has probably forgotten about the innate ability of the wonderful civil servants at the Department of Health to write very long functions which could probably embrace the world. However, I understand where he is coming from.

Lord Warner: I well understand the Civil Service's ability to use the semicolon to extend a sentence for a very long period.

Lord Hunt of Kings Heath: My Lords, my noble friend should refine his amendment by limiting the number of grammatical devices that can be used.

I raised this matter because of what the noble Earl said. I raised the reported intervention by the Secretary of State in relation to primary care trusts and the concern that because of their financial issues they are essentially putting in some artificial barriers in relation to patient treatment such as having a rule that on non-urgent treatment you have to wait a certain length of time before you can be treated, and other such mechanisms. When I asked the noble Earl how this would work in the future, he told me that it would be put in the mandate. Clearly, what will happen-

Earl Howe: I am grateful to the noble Lord for giving way. If the board was not delivering the mandate, it is surely right that the Secretary of State should intervene. He has powers in the Bill to do that. Equally, if it is delivering the mandate, it is also right that it should be allowed to get on without interference from the centre. All we are saying is that the Secretary of State should be clearer about the reasons for his intervention in future. That is in everybody's interests.

Lord Hunt of Kings Heath: Either the mandate is so detailed that you will have reams of paper telling the board what to do or the Secretary of State will rightly become concerned at issues that arise during the year. Those issues will not be covered by the mandate as

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they will not have been anticipated. The Secretary of State will wonder what to do and how to intervene. He will wonder whether he will be told by the national Commissioning Board, "Back off. It is nothing to do with you", as nationalised industries used to do. This is no different from a nationalised industry. I am concerned because I believe that giving concurrent powers to the national Commissioning Board as well as to the Secretary of State will lead to a great deal of confusion, tension and ambiguity. At the end of the day I would prefer one person to be accountable-the Secretary of State. However, I am encouraged by what the noble Earl said about agreeing to look at this in the context of the other questions about the duty of the Secretary of State. I beg leave to withdraw the amendment.

Amendment 48 withdrawn.

Amendment 49 not moved.

Amendment 50

Moved by Lord Warner

50: Clause 6, page 3, line 38, at end insert-

"( ) must include at least one member who is a registered public health specialist and who has a broad range of professional expertise in public health"

Lord Warner: My Lords, in the unavoidable absence of my noble friend Lord Rooker, he has asked me to move Amendment 50 standing in his name and those of a number of colleagues. This amendment is very simple in intent. It seeks to ensure that the national Commissioning Board has at least one member who is a public health specialist. Much of the work of the board and, indeed, of the clinical commissioning groups, is to commission services that arise from failures of public health, or the associated issue of the absence of clinical intervention at an early stage in a person's condition. Later we will discuss a raft of amendments for strengthening the Bill's provisions on public health itself. This group of amendments is concerned with the membership of the national Commissioning Board and the disclosure of information.

This amendment is intended to help the board in its deliberations. It is essential that it has ready access to public health expertise. I very much support Amendments 153ZA and 153B in this group, standing in the names of my noble friends Lord Hunt of Kings Heath and Lady Thornton, which seek to curb the administrative costs of clinical commissioning groups. I have degrouped my amendments on controlling the overheads and management costs of the board. I have also tabled amendments that try to curb clinical commissioning group management costs. I tabled these amendments because I wanted to ensure that we had a fuller discussion on the two linked issues of overheads and administrative costs at a later stage. I will not speak on that issue at length today but I want to flag up to the Minister that this is an extremely important issue in this very difficult financial climate. Rather unusually, we may need to put in a Bill establishing new bodies a curb on the extent to which they can grow their administrative budgets in the future. My noble friends are doing the House a service in giving us a chance to have a debate on this issue.



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I return to Amendment 50. It may not be directed at the right place in the Bill-I leave the Minister to think about that-but its substance should be in the Bill. I hope that the Minister will reconsider the Government's position on this issue. I beg to move.

Baroness Finlay of Llandaff: My Lords, I rise to speak to this amendment, which is also in my name, and to support the other amendments in this group. They have the effect of ensuring that public health considerations and public health expertise are given due weight in the new arrangements set out in the Bill.

Public health covers three main domains: health improvement; health protection; and health service delivery. Public health specialists are trained and skilled in interpreting data and information about populations, understanding health needs and securing the services required to meet those needs. That expertise is vital to having effective commissioning at every level, particularly that of the NHS Commissioning Board, which will have the overarching responsibility for commissioning health services, so as to ensure that the services are effective, appropriate, equitable, accessible and cost-effective. It therefore seems only sensible to make sure that that expertise is incorporated at board level.

The Commissioning Board exists to secure and improve the health of the population through the NHS services it commissions, and indeed through the services which are not NHS-provided, if I have understood this Bill correctly. To do this, the board would benefit from public health input. Public health specialists have an unparalleled overview of a community's need for health services and how they are best commissioned, including changing, adapting or even decommissioning services which could work better in other ways. The role of a public health specialist would also be to provide the essential expertise needed to commission preventive services, such as screening and immunisation, and to look at the evidence relating to those services. The board may need the courage to decommission some of those services as well, or to substantially alter the way that they are delivered.

It would be inappropriate to say that this is going to be too expensive, because a public health specialist should pay for themselves many times over with their presence on the board. It is only by having such an expert at board level that we can ensure their expertise is incorporated into decision-making, rather than only feeding into the process in an advisory capacity.

Baroness Williams of Crosby: My Lords, one of the most interesting aspects of the proposals in this Bill is the greater status to be given to public health. I think we all recognise that for some years public health has been something of a Cinderella in the medical establishment. To have public health lifted, as it should be, on to board representation seems to me absolutely central in our attempt to put greater accent on prevention, education and information; there are future amendments by some of my noble friends on some of those issues. I wish to say very briefly that I think that this amendment is absolutely right. It is crucial that public health recognition is given at board level, and I hope we can echo that in having it also represented in the clinical commissioning groups as they emerge.



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One other question to raise in relation to public health, which we have been considering very carefully, is how we deal with chronic illness. Chronic illness is obviously not unrelated to lifestyles and life behaviour, so here again, raising the influence of public health in the attempt to bring about a healthier lifestyle among our fellow citizens and ourselves is absolutely essential. I therefore completely agree with what has been said by the noble Baroness, Lady Finlay, and the noble Lord, Lord Warner, in moving this amendment: that it is vital that public health be represented at the highest level.

Lord Patel: My Lords, I have added my name to the amendment, and I strongly support it. It is absolutely crucial that a public health specialist is a member of the NHS Commissioning Board. I note that protection and improvement of public health is one of the two crucial functions imposed upon the Secretary of State for Health by the Bill, and in several places. Three different bodies will be involved in discharging this function: the board, the commissioning groups, and local authorities. It is therefore essential that each has a public health physician at board level to do so. Effective commissioning requires expert understanding of populations and the diseases they might get, as well as their health needs and how these can best be met.

There are major public health roles for the NHS Commissioning Board, including the direct commissioning of services, for which public health specialists' expertise needs to be embedded in the board's management structure. The NHS Commissioning Board will continue to manage primary care contractors, hold the population registers which make screening programmes possible-as the noble Baroness, Lady Finlay, mentioned-set the policy direction and operating framework of the NHS, and oversee major commissioning decisions and plan commissioning groups.

6.15 pm

Without a registered public health specialist as an integral member of the NHS Commissioning Board, national commissioning decisions will be made without an expert population health perspective informed by clinical and population-based data. It is critical that public health expertise informs all commissioning decisions and that commissioners have access to timely, reliable and relevant information and analysis. To meet this need, it is crucial that there is a registered public health specialist on the board of every health commissioning board, including the NHS Commissioning Board.

There are other issues. Public health expertise within the service is also essential if the escalating costs of low-benefit technologies are to be controlled and the health service commissioners are to have the knowledge to implement the most effective and lowest-cost services. There should also be a duty placed on commissioning organisations to work with directors of public health and the public health teams on all commissioning decisions to ensure they meet the health needs of their communities. In addition, health impact assessments, and especially health inequalities impact assessments, are needed in all commissioning group investments in healthcare and in all clinical care pathway design. Where different

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care options exist, it is necessary to model which intervention will deliver the greatest health improvement for the lowest cost. Public health specialists are trained to do this, and to not have them at the board level of every commissioning body, including the NHS Commissioning Board, would be wrong.

I know that there is a later amendment which proposes that, if there is a member of the executive or a civil servant with public health expertise on the board, the current amendment might not be necessary. I do not agree. I think it is absolutely necessary that the public health specialist on the board is there independently, to give an independent view.

Lord Rea: My Lords, I support all those noble Lords who have spoken so far and I agree with everything they have said; there is hardly anything for me to add. I just want to emphasise that a public health specialist will have had special experience and training in dealing with the massive amount of health data that comes into a health authority or, in this case, to the NHS Commissioning Board; it will be a huge amount. Public health specialists are trained in statistics and in epidemiology, and have other skills needed to handle this information and to help the board to make the correct decisions. I would like to emphasise the point made by my noble friend Lord Warner that very often this can be extremely helpful when certain services are deemed no longer appropriate. They may save a lot of money by giving backing to decommissioning and reconfiguring certain services, ensuring that populations are best served with the resources that are available.

Baroness Jolly: My Lords, it sounds as though there is a considerable level of agreement on this. I, too, believe that we should have a public health specialist sitting on the board. Members of the faculty have said that if there is not going to be such a specialist on the board by right, there should at least be one where the CMO is not a public health specialist. This Bill has put public health at its core and at every level.

I shall not say any more about the public health appointment but I will talk a little about the involvement of the patient. The patient is also meant to be fundamental to this Bill: "no decision about me without me." Again, we have the patient involved through local government and the local commissioning groups but not necessarily on the board. I think that whoever is chair of HealthWatch England should have a seat on the board.

What would both of these positions bring to the board? They would bring a level of expertise that nobody else has. I understand the Government's reluctance to be specific, and I know that lists are problematic. I also know that with these things there is a tendency to request that every man and his dog, or all and sundry, sit around the board table. However, it is a board table and not a representative council, so I would put those two people there for one distinct reason: they add a dimension that the board does not know it misses. Decisions made without them will be made in a vacuum and will be all the poorer for it. Somebody put it to me earlier today-your Lordships will have to excuse me

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for this-that the board knows what it knows, it knows what it does not know, and it does not know what it does not know.

A noble Lord: Was it Donald Rumsfeld?

Baroness Jolly: Apparently there was a Persian poet who got there even before him, but whether Donald Rumsfeld was a reader of Persian poetry, I know not. The point is that you do not know what you do not know. Both those voices would bring to the board serious added value.

I have another four or five amendments in this group which relate not to the composition of the board but to its work. Every year, the board is tasked with producing a three-year business plan on how it is going to discharge its functions. We have a Secretary of State who produces a mandate for the board. We are all in total agreement that the board has huge powers to shape the NHS. New Section 13S of the 1996 Act indicates that there should be an ability to revise the plan. It talks about a "revised plan" but says nothing about the process of revision. The Bill is silent also on the operational plans of the board. I am slightly curious as to which comes first-the mandate or the plan.

How might a conversation with patients and other stakeholders be managed to revise the draft plan? Clearly, we have to start with a draft and then it will be revised. To what extent does the Minister envisage the plan being amended? Might the details on board membership and business plan consultation be included in guidance to the board? One half of my amendments is about board composition; the others are about business planning. It will be interesting to hear the Minister's response to the latter because it will give us some indication of the way that the board plans to work or it is planned that it should work.

Lord Hunt of Kings Heath: My Lords, I have a series of amendments in this group concerning membership of the national Commissioning Board and its cost. There is common consent that getting the board's membership right is important.

My Amendment 52A would ensure that the chair could be appointed only with the consent of the Health Select Committee. I fully acknowledge that Professor Grant, the chair of the NCB, went before the Health Select Committee; I have already referred to the transcript. It is clear that the process ensured proper and effective scrutiny. However, I should just like to put the matter beyond doubt and make sure that the procedure will always be followed in future, and I hope that the Minister will agree to my amendment. I should say that I followed the legislation which established the Office for Budget Responsibility, so we have a precedent for ensuring that a Select Committee of the other place has an important role to play in such appointments in the future.

My Amendment 52B is simply a matter of good governance to ensure that a lay vice-chair is appointed, which I am sure I am right to assume is the Government's intention.

On the composition of the board, my Amendments 54 and 56 are intended partly to probe and partly to make a point. It would be helpful if the Minister could give some indication of the likely make-up of the

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board, both executive and non-executive, and perhaps some details about how non-executives are to be appointed. My specific point is to encourage the Minister to ensure that, on the executive side, a medical director, a nursing director and a finance director are always appointed. To be frank, my main focus is in relation to a nursing director. I have no doubt that there will always be a finance director and a medical director; I want to ensure, and I want the Minister to give an absolute assurance, that there will always be a nursing director on the national Commissioning Board. I go back to 1991, when NHS trusts were first appointed. Some noble Lords here will recall that some rather foolish chairs of those trusts did not want to appoint a nurse to their board. They were forced to do so, I am glad to say, through the intervention of a Secretary of State at the time. I have no doubt that it is the intention of the Government to ensure that there is a director of nursing on the board, but I should like to make sure that it always happens.

I understand that getting a range of expertise on the non-executive side will always be difficult. As the noble Baroness, Lady Jolly, said, the risk is that Parliament will always seek to legislate for a list of backgrounds, which we know is not a practical way to ensure that a fairly small board is appointed. My amendments seek to ensure that there are at least some non-executives on the NCB who have some experience of the National Health Service. While the temptation will always be to appoint people from other sectors because of the experience that they can bring, there is something unique about the National Health Service. I think that non-executives find it helpful if, among their number, they have people who know the business and help them to challenge the executives. One of the risks of the fashion-my own Government were as guilty of it as any other-of thinking that what the health service most needs is outside business expertise is that, when it comes to issues of safety and quality, you do not have anyone on the non-executive side who can effectively challenge the executives. I urge the Government to ensure that there are non-executives on the board who have real experience of the National Health Service and how it works in order to enable a proper challenge to be put to the executive directors.

Amendments 52D and 54A are probing amendments, designed to tease out the place of public health on the national Commissioning Board. I support the comments already made by noble Lords. On my proposal that the Chief Medical Officer be a member of the board, the Minister may say that he thinks it more appropriate for the Government's chief medical adviser to be seen purely as part of the department than to be on the national Commissioning Board. I sympathise with that point. I suspect that the answer to the question of the noble Baroness, Lady Jolly, in relation to HealthWatch is that there is always a problem if people are appointed because of their other positions. The problem is that they then have to take responsibility for the corporate decision-making of the NCB. I can therefore assure the Minister that my amendment to place the CMO on the NCB is probing, designed to enable us to hear how the public health function will be given sufficient prominence within the national Commissioning Board.



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My Amendment 55 would remove the requirement for the appointment of the chief executive to be approved by the Secretary of State. I have no problem with paragraph 3(4) of Schedule 1, which provides for the first chief executive to be appointed by the Secretary of State. This is normal practice and is entirely sensible in view of the need to get the national Commissioning Board up and running. However, my question is why the Secretary of State needs those powers in relation to subsequent appointments. After all, the Minister has waxed lyrical about the need for there to be distance and for the Secretary of State no longer to intervene, so why on earth does he have to approve the appointment of a chief executive? Surely that is for the board to do. Surely it is for the Secretary of State to nominate the chairman of the board to go through the necessary parliamentary scrutiny. For the Secretary of State to actually have to approve the appointment of the chief executive is ambiguous. The department has not sorted out the real relationship between the Secretary of State and the national Commissioning Board. On the one hand, there is the desire to give the NCB as much freedom as possible; on the other hand, one knows that in these clauses there is a desire to control it. I should have thought that the fact that the Secretary of State has a veto over the chief executive appointment is an example of that. I hope that we can see that go between now and the conclusion of our proceedings on the Bill.

6.30 pm

Finally, I come to some probing amendments concerning the number of staff to be employed by the national Commissioning Board and the staffing. I should like to hear from the noble Earl something about the size of the NCB and what its regional and local structure is likely to be, remembering that it will hold the contracts of thousands of practitioners. My understanding is certainly that it will hold the contracts of all GPs because it is deemed that presumably the local clinical commissioning groups cannot hold the contracts of the GPs who are members of the clinical commissioning groups. Clearly, if the Government's proposals are to streamline decision-making, then finding that the national Commissioning Board becomes an absolutely huge organisation with thousands of people employed will rather detract from what the Government seek to do. It would be very helpful if the Minister could give assurances about the cost of the NCB.

Baroness Masham of Ilton: My Lords, I should like to go back to Amendment 50 and, in supporting this amendment, to tell your Lordships that during the deliberations of the House of Lords Select Committee on HIV and AIDS this very subject came up. It was felt to be essential that a public health specialist should sit on the Commissioning Board. Also, I feel that he or she should be the link between the NHS and the local authorities. Public health needs to have a high profile. It is vital to have someone who understands the problem of sexually transmitted infections-in which we lead Europe-as well as PVL MRSA, which is a community-type MRSA, food poisoning and epidemics such as flu. It could be possible for somebody who was interested only in obesity and exercise to be put on the board. Our public health is vital.



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Baroness Murphy: My Lords, this is a very large group of amendments and I take them in the spirit that they are mainly probing. One cannot help but be sympathetic to the intention to have public health expertise available to the Commissioning Board, as well as the patient's view and all those other things. The professional point of view is vital.

I speak as someone who was the only NHS non-executive on the Monitor board for many years before I recently ended my term of office. I am also very sympathetic to the idea that there should be an external non-executive person on the board. Having said that, I think that the noble Baroness, Lady Jolly, and the noble Lord, Lord Hunt of Kings Heath, have mentioned that what we have here is a corporate board, not a representative committee, and a relatively small board. Therefore, it is vital that we do not put on the face of the Bill the number of people who we would like to see have an impact on this board. I look forward to hearing how the noble Earl responds on how we can address these concerns.

I strongly support the amendment of the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Thornton, about having a senior independent director on the board. I have seen how extraordinarily valuable that role can be in foundation trusts and, indeed, on the Monitor board. A little holding to account of the chairman by the non-executives through that senior independent director-a powerful second person on the non-executive front-gives the board great added strength. I support that amendment, although a deputy could well play that role. I certainly support the thrust and meaning of these amendments but I would not like to see them written into the Bill as they are.

Baroness Cumberlege: I would like to support the noble Baroness, Lady Murphy. It is really rather a mixed bag of amendments that we have before us. Clearly what is proposed in the Bill is that there should be 11 members on the NHS Commissioning Board. Perhaps the most wonderful Primate-I hope that Hansard will allow me to make the change-and the right reverend Prelate will think that the number 11 has a certain resonance about it, historically and religiously. We will leave it at that.

What I wanted to address was the size of the board and what has been said about whether it should be representative or whether it should be left to the board to decide the skills and experience that it needs to act effectively. I saw in the amendments-sadly, he is not in his place at the moment-that the noble Earl, Lord Listowel, suggested having a director or a previous director of children's services on the board. I can fully understand that because the noble Earl has done so much to try to promote the well-being of children. Clearly he feels that it is a constituency that needs to be represented on the board.

Other people might think that perhaps we need a past director of adult services on the board, especially as we have an increasingly elderly population. I can think of other professions which may ask where on the board are the pharmacists, the podiatrists, the physiotherapists, the occupational therapists and the dentists. We could have a litany of people who wanted to be on the board, so we have to be very careful.



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Lord Warner: I think that the noble Baroness is experienced enough, like me, to remember the 1974 reorganisation of the NHS, where we ended up debating whether area gymnasts should be appointed. Therefore, I have every sympathy with her particular line of argument.

Baroness Cumberlege: My Lords, I am very grateful for that intervention. I have no experience of gymnasts and, sadly, I cannot remember that particular time. However, I have chaired very big boards. I have chaired a board of 26 and it was a nightmare. It was a nightmare because we are such a lovely nation and we always try to get consensus. Trying to do that takes time and tough and speedy decisions are not taken. In the end, the board loses the grip necessary to manage the service, the organisation or whatever it is in charge of. Therefore, I strongly support my noble friend on the issue of having 11 members on the board. When one has a very large board, a clique forms; one gets a few people who in the end run the board. They run it outside board meetings. They make the decisions before they come to the board. One gets a body of people who are responsible on the board but are actually disenfranchised-they are accountable but disenfranchised-and I think that that makes the board totally dysfunctional. Therefore, we should resist the temptation to have representatives on the board. We need a chairman with considerable leadership skills; a chief executive of proven management expertise; executives who know the business; and non-executives who bring a breadth of experience.

I have some sympathy with the arguments that have been put on the issue of the Director of Public Health but I wish to reserve my position on that, as I do on the suggestion put forward by my noble friend Lady Jolly on HealthWatch England, because it could be that the board, or whoever, might decide that there is a non-executive who has wider experience and possibly could be more effective on the board than the chairman of HealthWatch England. This needs discretion and we should leave it in the hands of the board and the Bill and not try to make it representative.

In an earlier debate the noble Lord, Lord Davies of Stamford, who is not in his place today, referred to the "fatal tendency" of the NHS to be bureaucratic and exercise producer catch-up. He said that:

We have to be very careful that we do not fall into that situation and we must try to address that "fatal tendency", as he described it.

I wish to make one comment on the seductive amendment on limiting the numbers to be employed to 500. That again is a mistake. If we set a number, it is very likely that that number will be reached where possibly only 100 are required. It needs a great deal of scrutiny by the Secretary of State and others, through the mandate, to see what the board is doing and whether it is effective and keeping to its budget, which I am sure will be closely watched. I would like to keep the number on the board to 11.

Lord Harris of Haringey: My Lords, it is always a pleasure to follow the noble Baroness, Lady Cumberlege.

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She and I have sat opposite each other at meetings for more years than I care to remember.

However, her belief that the chair of the NHS Commissioning Board will only be able to manage a board of 11 is slightly misplaced. We already know that the person who holds this office will be able to walk on water, with due deference to the most reverend Primate. We know that this individual will have the most extraordinary qualities. Indeed, the Health Select Committee has demonstrated that by the overwhelming vote that it gave him on his appointment. Therefore, any person of such calibre who is able to manage a quango with such an enormous budget must surely be able to manage a board of more than 11 people. That goes without saying.

It is probably unhelpful for the Bill to specify precisely the number of people who will be appointed because circumstances will change. At different times it may be appropriate to have particular people or specialisms involved, but that will change over time. To lay down the numbers too specifically is probably a mistake. Indeed, I am not sure that 11 is a sensible number for the effectiveness of boards. It is too large for the most efficient and effective of boards but it is not quite large enough to bring together all the strands of opinion and expertise that you might wish to bring.

My main reason for intervening was not to pick up on that point but to question a couple of the amendments, in particular Amendment 52C in the name of the noble Baroness, Lady Jolly. The amendment refers to the board,

That is a misguided amendment. It is very important that the viewpoint of the patient is heard clearly by the NHS Commissioning Board, but it would be wrong to bind HealthWatch England into the collective decisions that will be taken by the NHS Commissioning Board. Had the amendment said something along the lines of, "The chair of HealthWatch England will be able to attend all meetings of the NHS Commissioning Board and to contribute to them fully" rather than talking about membership, it would have been much better.

There is already a concern that HealthWatch England will not be seen as a properly independent organisation, partly because in the Bill it is framed as a committee of the CQC and also because the local healthwatch organisations will be wholly owned subsidiaries of local councils around the country and the money for them will not even be ring-fenced. Under those circumstances, there is a real problem about the reality of the independence of HealthWatch England. Further, to put the chair of that body in the position of perhaps having collective responsibilities for NHS Commissioning Board decisions is potentially a serious mistake. I would like to see a position where the board has the chair of HealthWatch England as an adviser. His advice may or may not be accepted, but it will be on the record what advice has been given.

I hesitate to oppose an amendment moved by my noble friend Lord Hunt of Kings Heath but the same applies to the Chief Medical Officer. He should be

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there to advise the board-and that advice should be recorded-rather than being a member of the board and therefore being part of that collective responsibility. In framing the structure of the NHS Commissioning Board, there needs to be clarity of thought. There are a number of areas of expertise and interests that ought to be reflected in board membership-those individuals should bring their expertise to the table-but they cannot be there as representatives of those particular interests because they will have to take collective responsibility for the decisions of the board. However, it is also important that you have explicitly there a number of people to give advice. That should certainly include the chair of HealthWatch England and the Chief Medical Officer.

The Archbishop of York: My Lords, I was not going to speak to these probing amendments, but as I have been gratuitously referred to twice it is prudent that I should speak.

The noble Baroness referred to number 11. We should remember that Jesus had 12 disciples; the twelfth betrayed him and so there were eleven left. Then the disciples decided before Pentecost to choose Matthias, so they then had 12 again. They then ran into trouble once St Paul the Apostle came along and they had 13, but they did not know where to put him. Numbers are always dangerous.

I am with the noble Baroness, Lady Murphy. We may need all kinds of characters on the board but it would be wrong to specify them in the Bill. If we do, then we will not have the kind of liberty and freedom to be creative and to enable the Secretary of State to promote a comprehensive health service and improve the quality of service. He needs that to help him promote the health service and then improve it. The board needs to consist of people who have the calibre to do that.

I have sympathy with Amendment 54 but not in the precise form in which it is put. It states:

"The Secretary of State must ensure that a majority of the non-executive members of the Board appointed under subsection (1)(b) have relevant experience".

Those members should have relevant experience but as to whether they should be a majority, again, the discretion should be left to the Secretary of State and the board. If that is specified, they will all be there in big numbers but might end up not delivering or promoting whatever is required. Yes, the people appointed should clearly have relevant experience of either working in the NHS or serving on an NHS body-the NHS is not the same as Rover cars, Marks & Spencer or Tesco and you need people with relevant experience who are able to deliver properly-but I would go for the Secretary of State having people with relevant experience of working in the NHS or serving on a body without necessarily saying that they must be in the majority.

As these are probing amendments, I shall be interested to hear what the Minister has to say about that.

Baroness Hussein-Ece: My Lords, I want to make a few brief comments on Amendments 50 and 52C. I listened to all of the arguments about the public health specialists being on the national board, and I think it is really important. If we are going to have, or

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aspire to, a national health service that is about prevention and improving health rather than just treating it, there needs to be somebody on the board who attends or has that specialism and brings in the local government perspective. I was involved nearly 10 years ago in appointing one of the early public health directors. It was a joint appointment between the PCT and the local authority that I represented. That person sat on the senior management board of both the local authority and the PCT and was able to bring that expertise to both of those boards. Importantly, in the local government setting, he was able to bring together the directorships of education, environment and social services and to ensure that, when we were trying to address issues such as teenage pregnancies-which is still a massive problem in this country-it was everyone's responsibility. It was not just over there; it was not just a health problem: it was a borough-wide problem. In terms of bringing that thinking on to the national stage-as other noble Lords have mentioned in this and other debates-local government has to be seen to be a key member if we are to aspire to improving the health of the population. Someone experienced in public health should have a very strong voice on the national, as well as the local, CCGs .

I now turn to Amendment 52C in the name of my noble friend Lady Jolly, which aims to have as a board member someone who is also the chair of HealthWatch England. I support having the patient's voice heard at a national level. I listened very carefully to what the noble Lord, Lord Harris of Haringey, was saying: the important thing is to have the voice there. Quite often, with a group of 11 or however many it will be of the "great and the good", it is very important that we have somebody on that board who is going to represent the wider public as well-a lay person who can bring about some of the thinking that is going on locally around the country. The proposed chair of HealthWatch England might be bound in to some sort of collective decision-making which might sometimes make him or her quite unpopular with the other local HealthWatch organisations across the country. The most important thing we should be focusing on is that there is somebody on the board who has the authority, who can bring the voice of the patient and the public to this board.

Lord Beecham: My Lords, these are probing amendments: as the debate has shown, there is a great deal to probe. I hope that when the Minister replies, he will be able to answer some of the questions and give more details of the thinking that underlies the Bill as it stands, and how it might be carried out in practice.

The body that we are talking about will have-as the noble Lord, Lord Harris has pointed out-an enormous budget and enormous responsibilities, both nationally and extending to localities. It will be responsible not just-just!-for commissioning general practice throughout the country, as the noble Lord, Lord Hunt reminded us, but also for a range of other services which will effectively be delivered locally. Yet in terms of the structure, composition and governance of the board, this Bill is about as skeletal as I imagine is the specimen that will greet first-year medical students at their first anatomy lecture. It needs flesh on the bones. There are a number of suggestions here; I have rather

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too many suggestions and I plead guilty to having advanced only some of them, but we clearly need a view about how the board will work and who will serve on it. I concur with the views of the noble Lord, Lord Harris, in relation to the appointment of the chair of HealthWatch England as proposed by the noble Baroness, Lady Jolly, as a member of the board. That person is likely to be conflicted: part of the job of HealthWatch will be to look at the operation of the board in an objective way. It may be that an attendance, as he suggests, would suffice.

Although I put down the amendment about the Chief Medical Officer being a member of the board, I can see the logic of the suggestion of the noble Lord, Lord Harris, that the Chief Medical Officer should attend without necessarily being a member of the board. I am temperamentally averse to mixtures of executive and non-executive directors. In the local government sphere, I never felt very comfortable with chief officers voting alongside elected members, but I suppose that members of this board are not going to be elected: they are going to be selected. I therefore think that it is sensible to have the best advice possible available to the board in the way that the noble Lord, Lord Harris, has described.

In terms of public health specialism, I think there needs to be a public health specialist-but not necessarily a serving public health specialist. I see the noble Earl, Lord Listowel, has tabled an amendment calling for the appointment of a former director of children's services. Without necessarily agreeing that that particular post should be designated, the concept of somebody with that experience-not necessarily being a serving member and therefore not conflicted-might well appeal. It is crucial-given that we are now going to have public health delivered in a very different way from what we had before, and basically rightly so, though in a complex structure that will involve the Secretary of State, the Commissioning Board and local government as well-that there should be a public health specialist of some kind serving on the board. I hope that the Minister may indicate a degree of sympathy with that.

As to the total size, I am a bit ambivalent about that, too. It clearly needs to be a working board and therefore cannot be too large; it cannot possibly reflect every conceivable interest. I agree with noble Lords who said perhaps it would be a mistake to prescribe the number in the legislation. That is a matter that could well be discussed later by the Secretary of State, no doubt having taken views and not least the views of the Health Select Committee in another place.

I hope that we can make some progress tonight in identifying issues which the Government will look at sympathetically and bring back on Report. If they do not, then at least those of us who want to press points will have an opportunity of doing so.

Lord Greaves: My Lords, I have for most of this Committee so far been listening to and reading what people have said and have been astonished, as I always am, by the immense amount of expertise and distinction there is in this House. There are all the professionals, and there seem to be more former Health Ministers in this House than in any other place that could be

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gathered together. Most of the debate so far has been about high-level, national-level principles and structures, and we are now moving on to the area that I have been trying to get my mind around since I first obtained a copy of this extraordinarily huge Bill. That is the new structures that are being set up at all levels and how they are all going to work together.

At Second Reading, I laid some claim for my party for some of the improvements that were made to this Bill after the pause in the House of Commons, but one thing that certainly happened to the Bill after that pause is that it became more complex as the number of different organisations and bodies became greater. The need for this House is to sort out how this new galaxy, or kaleidoscope, of new bodies within the health service are going to relate to each other and how it is going to work-I use the word "work" in a neutral sort of way-how it is going to happen in practice and how they are going to relate to those bodies which continue to exist, such as the hospital trusts, the PCTs, the strange clusters of PCTs that will stagger on for a certain amount of time and then disappear by some means that is not completely understood yet and, of course, local authorities and the whole of the voluntary and private sector involved in healthcare.

7 pm

I was interested to hear the comments of the noble Lord, Lord Harris of Haringey, on HealthWatch and its relationship at national level-and, indeed at local level-to these other bodies. That is an important issue which I hope we will go on to talk about before long. The Committee is beginning to bring expertise and experience from all sorts of personal levels to the debate, not just political stand-offs. That is what we should be doing. Personally, I support what the noble Lord said about the importance of HealthWatch being sufficiently independent and detached while also being able to be present at the table at all levels of bodies and at the national Commissioning Board, without necessarily being part of the collective responsibility for decisions. Noble Lords may want to think carefully about that principle. We will no doubt come back to it when we talk about HealthWatch specifically.

There has also been discussion of the question of having a public health professional on the national Commissioning Board. This raises questions, which we will come to fairly soon when we talk about Clause 8, on the different ways in which the public health functions of the health service are to be dealt with compared with its clinical commissioning functions. In Clause 8, the public health functions of the health service are in future to be mainly divided between the Secretary of State, who will keep direct responsibility in this area, and local authorities, which will have enhanced responsibilities for public health and entirely new ones-though in many cases they regain functions lost in the 1974 reorganisation of local government.

I have not yet got my mind round what the function and responsibility is of the national Commissioning Board in relation to public health. How will that work? Whether a specific public health professional should be required to be on the national Commissioning

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Board may depend on what the functions are of the NCB in relation to public health. It is impossible to put a clear dividing line between public health and clinical health issues. They overlap and are obviously incredibly interconnected. Nevertheless, how the administration will take place in future raises these questions. They need to be thought about carefully before a final decision is made on whether there should be public health representation on the national Commissioning Board.

The particular amendment that I wanted to speak to before I started listening to the debate-which is always fatal: you should never do that but just stand up and say what you wanted to say-is Amendment 153ZA, presented to us by the noble Lord, Lord Hunt of Kings Heath, which goes under the beguiling title, "Duty to reduce bureaucracy". I could not help an ironic smile at that and could not help wondering why, if the noble Lord is so keen on that, he did not do a bit more to assist in it when he was a Health Minister. Perhaps that is an unkind thing to say-perhaps he did.

Lord Hunt of Kings Heath: Can I say how much I welcome the noble Lord, Lord Greaves, to our Committee? We have missed him. Now we have turned our attention to detail, his particular expertise comes to the fore.

On bureaucracy, I have tabled this amendment because I have genuinely been a passionate fighter of bureaucracy. That is why sometimes as Ministers we have to intervene in the bureaucratic affairs of the health service. The noble Earl may find that he himself has to do so. My concern is that, partly because of the listening pause, there is now a plethora of organisations to be established. Apart from clinical commissioning groups, we have commissioning support units-about which we have heard very little but apparently will be there-as well as the senates, the health and well-being boards, the clinical pathways and the national Commissioning Board. The regulators are likely to be given more power in the future: Monitor is being given more powers and, post Francis, there will probably be changes to the CQC and other regulatory matters. The risk is that, far from this being a streamlined process, it will be a very complex and bureaucratic one. I seek here merely to help the Government deliver their aims by encouraging them to restrain the cost of the whole exercise.

Lord Greaves: I was of course teasing the noble Lord in as pleasant a way that I could. This is another instance where Hansard ought to have a few smileys liberally littered round the text. The noble Lord made the same point, at slightly greater length, that I made when I referred to the kaleidoscope of bodies that we now have. An important job of this Committee is to sort out the relationship between all these different bodies before they are finally set up. We have got to do that absolutely vital job.

Subsection (2) of the noble Lord's proposed new section "Duty to reduce bureaucracy" says,



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That is a slightly different point, hitched on to his bureaucracy point. This is a vital question. Again, this will not appear in the Bill-it will not say that there will be X number of clinical commissioning groups-but, in general terms, we need to have clear in our minds when the Bill leaves the House how many clinical commissioning groups there will be and of what sort of size. This has evolved with discussion over the legislation. When the first proposals came out-when they were called GP commissioning groups because that is what they were-there was a feeling among many people throughout the country, the health service and among politicians that they might be quite small, or even that large GP practices might try and do it on their own. A lot of people were alarmed by this because they thought it would not be very efficient and it would not work. How on earth do you commission the kind of facilities which have to be provided, whether it is a local health centre or specialist clinical services, on a sufficient scale? The more people thought about it, the more it seemed that these groups had to be larger than just a large GP practice or group of GP practices in a smallish town.

The Government then encouraged GPs in particular areas to get together and co-operate to set up early-stage shadow commissioning groups. This happened and the Government issued a statement saying that a high proportion of the country-I forget what, but perhaps 70 or 80 per cent-was covered by these voluntary, shadow groups. These GPs quite rightly wanted to make things work in their area, whatever they thought of the legislation and changes. In my part of the world, it tended to come down to one commissioning group per second-tier or lower-tier district council area, in places like Burnley, Hyndburn and Pendle. Now, apparently because of pressure from above, people are talking very strongly about having-or having to have-a commissioning group on the same boundaries as the existing primary care trust. This would not be the cluster of trusts that is at the county level but at a sub-county level.

So in effect people are looking at the groups and saying, "What will be the difference?" What will be different will be the functions and the direct control of community services, which effectively has gone already to the hospital trusts. As for commissioning, it will be effectively the same body, probably in the same premises, controlled by different people. We need to understand this regardless of whether it is necessary to reduce bureaucracy or whatever, which is secondary, in a sense. Before we leave the question of the commissioning groups, which we will be talking about in great detail, we in this House need to understand the Government's thinking about the future likely site of these groups.

Lord Hunt of Kings Heath: I am grateful to the noble Lord for giving way again. I think it is a very interesting point about the size of clinical commissioning groups. My amendment was simply a probe to get a debate on this. Is there not a tension here? In order to get CCGs dealing with strategic issues, they have to be pretty large and cover a large population, but, in order to get the interest of GPs, they need to be smaller because the GPs need to feel involved. In essence, there is a tension there. The approach of the previous

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Government of taking primary care trusts and encouraging more practice-based commissioning may well have proved to be a better approach. The risk with CCGs at the moment is that, when they emerge with a board, they will be so removed from the individual GP that the very purpose of setting them up in the first place, which of course was about controlling demand through GPs, will lose that essential aim.

Lord Greaves: There is a great deal of truth in what the noble Lord says. Looking at this from afar, I think that the Government have had to struggle with this tension. In order for the bodies to be serious commissioning bodies, commissioning not just for their patients individually or collectively but for the health needs of their area, they have to be sufficiently large. What will happen is that the GPs who sit on these new commissioning groups almost certainly will represent the GPs in the whole of that area, and they will have to be appointed by some democratic process representing the whole area-perhaps one from each area. I do not know how they will do it but that will have to happen at a local, practical level.

In my view, one thing that has bedevilled this debate is that the word "commissioning" has been used in two quite separate senses. One has been the idea of a GP commissioning services for his particular-

Lord Warner: I am sorry to interrupt the noble Lord's flow, but I would like to press him a little further to give us some clue as to his thinking on this. My noble friend Lord Hunt gave us a snippet of history, but there is quite a lot more. We have been through a process where we have come down since 2002 from 300 PCTs to 50 or so PCT clusters. We have been on that journey because we found it extremely difficult to commission services effectively when there are very large numbers of PCTs covering small geographical and population areas. There is simply not the expertise to do that. Could he give the House some clue about where he thinks this is all going to end up? At the moment, in terms of starters for 10, we have about 250 of these clinical commissioning groups. I think it would be helpful to know where the members of his party and others who have argued for this stand on where the journey may end.

Lord Greaves: I am extremely flattered that the noble Lord, Lord Warner, thinks that I have the slightest idea where it is going to end up. I am doing exactly what the noble Lord, Lord Warner, and other noble Lords are doing-trying to get the Minister to give us some idea of that. We will be interested to see whether he gives that. Over the political lifetime of this subject, we have had constant changes. We started with bigger area health authorities and smaller district health authorities, going down to district level, and then going back to the area level, with the regional level having a greater or lesser influence. The fact is that this is a fundamental administrative difficulty-not a philosophical difficulty-for an organisation like the health service.

7.15 pm

Everybody tends to think that what they have at the moment is not perfect and therefore they try to change it. Because there are only a limited number of options

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available, it goes backwards and forwards, from local to less local back to local again. If the noble Lord thinks that I know what is going to happen, I am afraid that I do not have the slightest idea. It seems to me that we need a clear idea of what this Bill is going to result in when it leaves this House and we need to understand how it is going to work. In a sense, the details of that matter less than the workability of it.

The point that I was making about "commissioning" being used with two different meanings is that it is used for a particular GP practice commissioning services for the people on its list-

Lord Hunt of Kings Heath: From what the noble Lord said, why on earth did we not continue with PCTs and give them a kick up the backside to allow GP surgeries to commission more locally as well? Why have we gone through this?

Lord Greaves: I am not quite sure why the noble Lord is asking me that question. He is tempting me to make provocative statements in relation to the coalition Government of which my party is a member. I think that it is an open question and the answer can remain open. I am not in the mood to make provocative statements today. I might be tomorrow, and the noble Lord can come back to me then.

The point that I am trying to make before I finish, if the Labour Benches will not interrupt me just one more time-

The Archbishop of York: The Benches opposite are probably provoking you into some kind of statement because of your earlier comment that you were reputed to have influenced the Bill during the pause. Given that influence, why did you not go back to what was working?

Lord Greaves: It is our view that the original proposals were not working at all, and the proposals that we have now are better than the original ones. That does not mean to say that they are perfect, and it is the job of the House of Lords to check that the imperfections in them are removed before the Bill leaves your Lordships' House.

The point that I was trying to make, which I will finally make once more, is that there is a real difference between the two meanings of "commissioning". If you are a GP, you can commission services from an existing, static landscape or system of provision for your patients. However, commissioning services on a wider scale, commissioning the very landscape of services and the series of organisations that exist, whether it is deciding to put more money overall on a wide scale into one area of medicine and pulling back on others or just keeping the others going as they are, or whether it is financing capital projects-where to build new hospitals, new health centres or whatever it is-is very different indeed. You need bodies on a larger scale to do that. The idea that practices on their own or small groups of practices could commission that kind of undertaking on a wider scale is nonsense. You cannot rely on the market to provide them all because that

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will produce chaos and a lack of provision in many areas. That is why the original proposal for GP commissioning groups, which were to be quite small, simply would not have delivered at that level. The original proposals did not indicate in any way how that wider capital commissioning would take place.

Earl Howe: My Lords, this has been an excellent debate on a set of important issues, and I am glad to count my noble friend Lord Greaves as one of my staunchest supporters.

The NHS Commissioning Board is one of the key elements of our vision of a modernised NHS-a highly professional organisation, focused on quality and able to support clinical commissioning groups in delivering the best care possible to patients. I completely accept that these amendments were proposed with the best of intentions, to strengthen the way in which care is commissioned. However, in setting out why the Bill is drafted as it is, I hope that I can explain to your Lordships why I cannot accept them.

It will be key to the effectiveness of the board to ensure that it obtains sufficient advice and input from clinicians, public health experts, other professionals and those with relevant experience of the NHS-patients and the public-and that it has effective working relationships and arrangements with local authority government. We have stated our intention that there should be clinical and professional leadership on the board, but in terms of the legislative framework for the board it is an important principle to maintain that it should have autonomy of decision-making on matters such as its own membership and its structures and procedures, as far as possible, to determine how best to exercise its functions. This would include, for example, whether it has a vice-chair or a senior independent director, as Amendment 52B suggests.

One thing is absolutely clear. Members of the board will, in practice, need to have a range of skills, knowledge and experience appropriate to the issues faced by the board. Ensuring the right balance of non-executive members from a variety of backgrounds is key to achieving a successful board. But if the majority of non-executives were required to have a particular background, such as NHS experience, as suggested in Amendment 54, that might create an unbalanced board and effectively disqualify potential candidates from the private and voluntary sectors. I agreed with the most reverend Primate in what he said here. It is worth remembering that the board and its members will be expected to follow the seven principles of public life-the Nolan principles-one of which will mean that it must appoint a,

That sums it up very well.

A number of noble Lords made the point that if we require the inclusion of doctors and nurses or a public health specialist as put forward in Amendments 50, 52D, 54B and 56, what about representation on the board of dentists, pharmacists and allied health professionals? The list could go on. It would simply not be possible to accommodate all interests in the

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board's membership adequately, and we would surely invite valid criticisms that one group is being prioritised over another. Nor would this be desirable from a Government's point of view, given that the primary purpose of the members of the board is to hold the organisation to account. Nor, in my very firm view, would it be appropriate for a senior member of another organisation with a different purpose or remit, such as the chair of HealthWatch England, or indeed the Chief Medical Officer, to have a seat on the board, as suggested in Amendments 52C and 54A respectively. That could lead to a potential conflict of interest and confuse accountability. I agreed with the noble Lord, Lord Harris, on that point-although he is not in his place.

Of course, in practice, the board must have the freedom to determine how these varied and legitimate interests are best involved and represented in its work. The noble Baroness, Lady Murphy, was quite right-the board will want advice and expertise readily available to it-but that is a different issue from board membership. It is worth bearing in mind that the board will have the freedom to appoint committees and sub-committees as it considers appropriate, and this may prove useful to the board to bring in interested parties on specific issues.

A number of noble Lords asked about public health expertise. We are coming on to debate clinical senates, but one main reason for establishing them is to bring in this wider range of expertise in a way that would provide practical benefit. This would absolutely include public health expertise. We amended the duty to obtain advice to make this explicit. New Section 13J inserted by Clause 20 makes it absolutely clear that the board must obtain advice from those with professional expertise in,

There will be an interrelationship between the board and HealthWatch. The board must inform the body in writing of its response, or proposed response, to its advice; it must also have regard to the views, reports and recommendations of local HealthWatch.

My noble friend Lady Cumberlege asked about the size and membership of the board. The requirements in the Bill are that there is a minimum of seven members; the Secretary of State must appoint a chair and at least five other non-executives, so that is a minimum of six non-executive members. The non-executives must appoint a chief executive, who must be a member of the board. That is to say, there must be at least one executive member. Beyond that, they may appoint other executive members as long as the total of non-executives is always more than the total number of executives. The final decision on the number of other executive posts and the nature of their roles will need to be agreed with the chair and non-executive members, but it is envisaged that the other executive members besides the chief executive will include a nursing and a medical director, a director of finance, of performance and operations and of commissioning development.

All departments are required to ensure that appointments are open, transparent and made on merit. The Commissioner for Public Appointments regulates the processes by which Ministers make appointments to the boards of certain public bodies in England and Wales, and this

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will continue to be the case. It is not government policy to offer confirmation or affirmation hearings for public appointments, as Amendment 52A, tabled by the noble Lord, Lord Hunt, would require. These are ministerial appointments to make. The Cabinet Office maintains a list of posts that are subject to pre-appointment hearings by a House Select Committee. Ministers would consider the committee's views, but such hearings are not binding and do not represent a power of veto. Your Lordships will be aware that we followed this process in the recent appointment of Professor Malcolm Grant as the chair of the NHS Commissioning Board.

Lord Hunt of Kings Heath: I am grateful to the noble Earl for what he said, but did he pick up my point that the Government set the precedent in relation to legislation with regard to the Office for Budget Responsibility? The Government have moved on, and I am sure that they did it because of the importance of that body. My argument is that the National Commissioning Board will be such a responsible body that there might well be an advantage in giving the Health Select Committee rather more leverage on it.

Earl Howe: My understanding is that we are following the normal procedure. There is a list of appointments that are subject to Select Committee scrutiny. Departments are consulted over the list. It is our intention that the role of the chair will be included in that-and that is exactly the same situation that applied under the previous Government. The Office for Budget Responsibility is an exceptional body in this respect, given its role in providing both government and Parliament with essential, impartial information, necessary for both bodies to be able to fulfil their responsibilities. Although I will reflect on the noble Lord's comments, I do not know that there is the parallel that he seeks to make there.

Amendment 55 would remove the requirement from the Secretary of State to approve the appointment of a chief executive of the board. This requirement is included for the important reason that the chief executive of the board will be the accounting officer for the commissioning budget, so it is entirely appropriate that the Secretary of State should approve his or her appointment.

7.30 pm

Lord Warner: Can I press the noble Earl a little further on that? If a chairman has been appointed for this body who has a level of experience to enable him or her to function at that level, then requiring the Secretary of State to approve the appointment of the chief executive seems to throw into doubt whether the Government have confidence in that chairman running that kind of body-they need to be able to appoint an accountable officer as their chief executive. I find this a pretty considerable vote of no confidence in the kind of people who are being appointed as chairmen.

Earl Howe: Not at all, my Lords. Of course we have confidence in the chairman. However, it is a little strange to hear from the noble Lord that he suddenlythinks the Secretary of State should not be involved in an area where he has a legitimate interest to make sure, on behalf of the taxpayer and indeed patients, that we

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have somebody who is capable of fulfilling the role of accounting officer. This is an important role for the Secretary of State to have.

Turning now to Amendments 57, 153ZA and 153B, let me assure the Committee, and especially the noble Lord, Lord Hunt, that we want to reduce the amount of NHS funding spent on back-office bureaucracy. That is why have made a commitment to reduce administration costs across the health system by one-third in real terms, saving £1.5 billion annually by 2014-15. All that money will be put back into patient care.

Clause 21 provides powers for the Secretary of State to impose certain limits on the overall expenditure and use of resources by the board and clinical commissioning groups, including in relation to administrative matters defined through parliamentary regulations, for the first time. The board has the power to set similar limits for individual CCGs. I see no reason to change this to a duty to do so, as Amendment 153B suggests. As the board will itself be responsible for overall administrative spending, I am sure it will want to use this power carefully. Within those limits, it should be for the board to determine how best to use the resources available to it, and to decide on its own structures and ways of working, and the number of staff that it needs to perform its functions effectively. It is not appropriate to set a staffing cap on an arm's-length body.

How big will the board be? In a document called Developing the NHS Commissioning Board, Sir David Nicholson, chief executive-designate of the board, estimated that the board was likely to have 3,500 staff, carrying out the functions currently exercised by around 8,000 staff in the Department of Health, strategic health authorities, PCTs and a number of arm's-length bodies that are being abolished, along with its own new functions. It will deliver these in a much more streamlined way.

Likewise, setting an arbitrary cap in the Bill on the number of clinical commissioning groups or on their expenditure on administration in comparison to PCTs is not, in our view, an appropriate means of controlling administrative costs. CCGs will be different from PCTs. They put local clinicians in charge and align clinical decisions with the financial and quality consequences. It is a little unfair of the noble Lord, Lord Hunt, to say that we are creating a complicated and bureaucratic system, and citing clinical senates and networks and health and well-being boards. Clinical senates and networks are not new organisations in their own right: they will be hosted by the board. Clinical networks already exist. Health and well-being boards are also not separate statutory organisations: they will be hosted by local authorities. We are abolishing a whole raft of bodies under this Bill, as I have said on previous occasions. It is important to bear that in mind.

I appreciate the concerns underlying Amendments 58 and 59. It is important that there should be transparency in all the workings of the board. This is why Schedule 5 to the Bill was amended in another place to include the board in paragraph 7 as a body to which the duty in Section 1 of the Public Bodies (Admission to Meetings) Act 1960 applies. This would include any annual meeting

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that the board may decide to hold. I say "may decide" because the Bill is clear, in new paragraph 12 in Schedule 1, that:

"The Board may regulate its own procedure".

This would also apply to determining when it is quorate.

However, the Bill does include clear procedures around the publication of the board's annual accounts and annual reports, to ensure transparency. The board must send its annual accounts to the Secretary of State and the Comptroller and Auditor-General. The latter must examine, certify and report on the accounts and then lay copies of the accounts and the report before Parliament. The Comptroller and Auditor-General is responsible for the audit of the accounts of all arm's-length bodies. The board must publish an annual report and lay it before Parliament. The Secretary of State must then write to the board, providing an assessment of the board's performance of its functions, publish the letter and lay it before Parliament. That gives an indication that there will be maximum transparency here.

Turning to Amendments 145A, 146A, 147ZA and 147C, I am afraid that I do not agree that it would be worth while to add the unusual burden of an explicit duty of consulting on a draft business plan. The board is already required in new Section 13P(2)(a) to involve and consult the public in planning its commissioning arrangements. Under a duty in new Section 13J, it is required to obtain appropriate advice to enable it effectively to discharge its functions, including the planning of how it will exercise its functions.

I hope I can reassure noble Lords that Amendments 147A and 147B are also not necessary. First, the duty to produce a business plan already provides for transparency by obliging the board to publish its plan. Secondly, while the Bill requires that the board's annual report and annual accounts are laid before Parliament, that is part of specific processes for scrutiny of the board's performance against the objectives it was set and the outcomes it has achieved. It is right and proper that the board should be held to account in such a way. Another clear recommendation by the NHS Future Forum was that the autonomy of the board needs to be respected. With this in mind, although it is right that the board should be required to produce a plan and for that plan to be published for all-including Parliament-to see, I am not convinced that it would be appropriate to have parliamentary scrutiny of the board's plans or draft plans. The Bill places certain functions on the board, and it should be for the board to determine how it will seek to exercise these.

With regard to the questions asked by my noble friend Lord Greaves concerning the size of clinical commissioning groups, I respectfully suggest to him that we defer them to a later group of amendments, where this issue will come up and I shall be able to talk more about it. For now, I hope that the noble Lords are sufficiently reassured to be able to withdraw the amendment.

Lord Greaves: Before the noble Earl sits down, the question I asked about the specific role of the national Commissioning Board in relation to public health is one that he did not address. Can he tell us when he might address it?



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Earl Howe: I apologise to my noble friend. The national Commissioning Board will, we envisage, be tasked with commissioning a number of public health functions by Public Health England. There will be a close relationship between Public Health England and the board. Much of the work of the board will straddle both public health and the provision of NHS services. There will be an intimate symbiosis between the two bodies.

Lord Warner: My Lords, on Amendment 50, which I seem to have moved quite a long time ago, I will consider the noble Earl's remarks. I am grateful to noble Lords who spoke in support of Amendment 50. Public health is a rather special case and I would want to reflect, in a later debate, on the public health amendments. In the mean time, I beg leave to withdraw the amendment.

Amendment 50 withdrawn.

House resumed. Committee to begin again not before 8.39 pm.

Agriculture: Egg Industry

Question for Short Debate

7.39 pm

Asked By The Earl of Shrewsbury

The Earl of Shrewsbury: My Lords, I am most grateful to the House for providing me with the opportunity to raise this matter, which is of very considerable importance to the future well-being of the British egg industry. I declare an interest, as my younger son is a producer of free-range eggs in Lincolnshire and contracted to Britain's largest producer of eggs, Noble Foods. As my noble friend the Minister will be fully aware, the welfare of laying hens directive, which is the subject of this Question, comes into full force on 1 January 2012. The directive prohibits the use of conventional battery cages and the marketing of eggs from hens housed in such cages. The new cages, known as enriched colony cages, will provide a more animal welfare-acceptable environment. Yet again, Great Britain is leading the field in agricultural animal welfare but such action comes at considerable cost to this sector of agriculture.

The British Egg Industry Council estimates that the industry has, to date, invested some £400 million in the new cage systems and that this country will be fully compliant by 1 January. This has been a truly massive change to the industry. Those producers who have not been in a position to upgrade their systems to the enriched colony systems have gone out of business. Others who have been in a position to make the change have invested heavily in the new systems; such investment has to be serviced and the capital repaid. However, while Britain will be fully compliant there is

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a very real concern within the industry that producers in some other EU member states will not be-indeed, some might never be.

In recent research conducted on behalf of the British Egg Industry Council, it was found that UK retailers, caterers, manufacturers, processors and producers have for some time been working together to secure the supply of eggs and implement traceability systems to ensure full compliance with legislation. As a result, it is anticipated that the vast majority of shell eggs and all Lion Mark eggs produced in the UK will comply, and that all major retailers will sell own brand shell eggs with the Lion mark. However, further evidence suggests that the main difficulty will be in ensuring that imported shell or processed egg used in manufacturing or catering products will be compliant. This will be particularly so where eggs or egg products are imported directly from those member states where doubts have been raised about the producer's ability to implement the legislation, but also from member states which have taken in eggs to process from non-compliant producers in other member states.

The matter is further complicated by the fact that in member states where there will be non-compliance there are farms with both conventional cages and enriched colony cage systems, often on the same site, thus making policing and traceability extremely difficult. The fact is that we in the UK are not self-sufficient in our supply of eggs. I believe that we produce 85 per cent of the eggs that we need. Egg products are also included in this, and therefore we need to import.

When this directive was first discussed, the egg industry thought that it was not good news but following comments made recently by Commissioner Dalli, the industry is far more worried for the future. The industry is not afraid of competition from legal imported eggs but is extremely concerned that if the directive is not uniformly implemented across the EU from 1 January 2012-and it is as clear as crystal that it will not be-it will be at a serious and unfair disadvantage because of the risk of non-compliant eggs and egg products with considerably lower associated costs being imported. All the industry wants is to be treated fairly and to be able to compete on a level playing field. Can my noble friend the Minister say whether, following 1 January 2012, first, anyone in the UK using eggs or egg products from illegal cage systems will be breaking the law and, secondly, what action Her Majesty's Government envisage taking to ensure that only eggs and egg products from compliant cage systems will be imported into the UK following that date?

The British egg industry is highly successful and very efficient. It has improved in leaps and bounds since the introduction of the Lion brand as a measure of quality. Consumers have confidence in the product and the poultry sector is one of the great successes of British agriculture. Should Her Majesty's Government fail to act in the interests of the UK egg industry to stop the import of cheap non-compliant eggs and egg products, the British egg industry will be in very real danger of following down the path of the pig sector in the UK. Since 1999, the national pig herd has declined by 40 per cent through the import of cheap pig meat, produced in inferior systems and with far lower animal welfare standards.



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7.45 pm

Lord Plumb: My Lords, I declare my interest as a farmer-not as an egg producer, but one who recognises the egg industry as one of the most efficient sectors of British agriculture. I congratulate my noble friend Lord Shrewsbury on securing this short debate on an issue that is pertinent to today's problems and that affects producers and all who are concerned and involved in the industry. As my noble friend said, the pig industry went this way some time ago, when welfare standards were improving in this country; not so in some other countries from where we are still importing pig meat. This relates to the Council directive, agreed in 1999, that battery cages should be phased out and welfare standards improved. I remember it vividly because it was my last year serving in the European Parliament. I well remember the debates that we had then, but it went through and here we have it. It should now be fully implemented on 1 January.

The estimated cost to the industry of £400 million to convert from battery cages to what are called enriched colony cages, which afford the hen 50 per cent more space than in a battery, is something that we must obviously take note of. For a producer who has a medium-size unit of 100,000 birds, the cost of erecting a new unit will be in excess of £2 million. In addition to people who have been in that situation and are converting, we are seeing free-range producers, and those who are also involved in free range from battery hens that they had before, being involved heavily in the preparation for the 1 January deadline. This follows that European directive on the welfare of laying hens, which prohibits the use of battery cages from 1 January. We should be proud of a business whose people have responded to the demands of consumers concerned with welfare standards. I understand that the majority of birds are going into the enriched cages by the deadline. In this country, under the egg industry's assurance scheme, producers have agreed that they will meet the deadline by 2012.

As my noble friend said, the UK is not self-sufficient in eggs, with some 15 per cent being imported. We produce 9 billion eggs in this country every year, with 10,000 people being involved directly in the egg industry and 13,000 indirectly. I hope that my noble friend the Minister can satisfy British producers that the Government will not agree to eggs being produced in lower welfare battery cages, which can be imported into the UK, undermining the market and therefore distorting prices. From the figures submitted by the Commission, after requesting all member states to submit figures on the number of hens in cages, it would appear that there is still a significant number of hens in conventional cages, particularly in major countries such as Spain, Portugal, France and Italy. The single market surely has to be based on equal standards on trade and welfare grounds and there has been ample room and time for this to develop since 1999.

British consumers can be satisfied that the 31 million eggs consumed each day are a key source of food and nutrition. The salmonella scare of the 1980s sparked panic in the country and among producers but, in a test of 28,000 British eggs in 2004 the Food Standards Agency found no salmonella; tests in 2008, 2009 and 2010 showed further improvement. There is continued

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satisfaction, therefore, in the quality of the product. The progress made in the United Kingdom is a great success story which must not be undermined by cheaper imports produced in countries with lower welfare standards.

7.51 pm

Lord Greaves: My Lords, I too congratulate the noble Earl, Lord Shrewsbury, on bringing this matter to the attention of the House and look forward to the Minister's reply. As always, I enjoyed listening to my noble friend Lord Plumb and his robust representation of British agriculture, which, as he rightly says, is in the forefront of egg production.

The changes we debate originate from a welfare of laying hens directive 1999/74/EC, which comes into full force on 1 January 2012. From that date it will be illegal to use what most people would call battery cages but, in slightly obscure Euro-speak, are now called non-enriched cage systems of 550 square centimetres-a great deal less than it sounds. The minimum requirement will be an enriched cage system with more living space per hen-at least 750 square centimetres and a nest, perching space, litter to allow pecking and scratching, and unrestricted access to a feed trough. Many of us would still find this a small cage space in which to live but it is nevertheless a very significant improvement. That is the positive side and a good example of why we need to be in the European Union and why the European Union needs to legislate on such matters. Without legislation across Europe it would be very difficult to bring in this kind of law because of the competitive pressures which, in this transitional period, we are concerned about.

This is reported as being the first piece of EU legislation to ban a specific method of food production on animal welfare grounds. I do not know if this is true but there will be and there should be more. The problem with this, to be frank, is that the implementation of it by the European Commission has been botched. The House of Commons Environment, Food and Rural Affairs Committee issued an excellent report on this matter on 2 September. The press release said:

"The European Commission is sleepwalking into a potential commercial disaster over animal welfare regulations that could result in unfair competition for UK egg producers".

As previous speakers have said, that is the nub of the problem. It is being suggested by trade sources that perhaps one-third of European egg production on that date will not comply and will be illegal. It is suggested that half of the 300 million laying hens currently producing eggs in conventional cages in the 25 European countries do not at the moment comply and will have to change. It is a difficult position and the Commission has proposed a transitional period covering half a year but says this must be voluntary. It is absolutely clear there will be a problem, at least for a substantial part of the next year and perhaps longer. It is all a very worrying precedent for the future of animal welfare legislation in the European Union. The legislation may be excellent but if it cannot be introduced in a competent way then it will produce this kind of problem.

Can the Government of this country ban the import of eggs, processed eggs or products including eggs which do not comply? If they cannot, what action can

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be taken? The Environment, Food and Rural Affairs Committee suggested in its recommendation 13,

It therefore recommended that:

"Defra investigate establishing a voluntary approach under which retailers and food manufacturers",

in this country,

-and all egg producers throughout the European Union are supposed to be registered and declare what system of egg production they are using-

I suppose that is the "naming and praising" approach; people not on the list can be shamed. Recommendation 16 was that Defra should,

Is it doing that? It further recommends that after 1 January the Government should not purchase any eggs that come from non-compliant sources. Is that government policy? Will that instruction go out and will the Government make whatever effort they can to make sure that the whole of the public sector in this country follows such recommendations?

7.58 pm

Earl Cathcart: My Lords, I congratulate my noble friend on the timing of this debate. With EU civil servants failing to reach agreement on 28 October, this issue is to be discussed today and tomorrow at the meeting of the EU Ministers. Like my noble friend, my son has a free-range egg contract through Noble Foods, which takes place on my farm. With Brussels failing to reach agreement, UK egg producers fear that Britain will be subjected to a flood of cheap imports from countries breaking the law by still using illegal cages. While Commissioner Dalli says he will not postpone the introduction of this new legislation, he will not permit the destruction of illegal eggs. He has come up with a number of proposals to soften the blow for those countries which, unlike Britain, have failed to comply with the law. In effect, he will be postponing the introduction of the legislation.

It is important to appreciate the magnitude of the problem. There are expected to be 80 million illegal laying hens from 1 January 2012, laying between 20 and 25 billion illegal eggs a year. Italy will have a staggering 25 million illegal hens, France 9 million, Poland 17 million and Spain 20 million, which is about half its total laying hen population.

Let us look at some of Commissioner Dalli's proposals. First, he wants on-farm inspections followed by legal proceedings. Call me cynical, but I cannot see the Italian or Spanish inspectors bothering. They have not in the past, so why now? Secondly, Dalli proposes that all illegal first-quality eggs must be processed into liquid or powder. This would be totally impractical. There is neither the processing capacity nor the market demand for the processing of nearly 25 billion illegal

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eggs a year. In Spain, currently about 15 per cent of eggs go into processing. How on earth is its processing going to be increased to 50 per cent of its total egg production within the next two months? It is just not going to happen. Thirdly, Dalli proposes that no more pullets are to be housed in illegal cages from 1 January. This is impractical; for example, many of the pullets to replace the 20 million Spanish hens in illegal cages from 1 January have already been reared, as they will be delivered when they are already 16 weeks old. Where else can all these birds go if not into illegal cages? I cannot see the Spanish destroying them.

Fourthly, Dalli proposes a final cut-off date of 31 July to comply. Unfortunately this date makes no sense, as the life cycle for laying hens is 14 months, not seven. Even if there was the will to comply with the directive and the money was available to finance the required changes, this timescale is not achievable. It takes at least six months to refit or build a poultry house and there is not the capacity or money in the EU to erect housing for 80 million laying hens in the next nine months. It is completely unrealistic. Fifthly, Dalli proposes that if illegal cages are to be used, the current stocking requirement of 550 square centimetres per hen must increase to 750 square centimetres to give each hen more room. For most illegal cages, this would mean removing two hens per cage. Can you imagine this really happening-that the foreign farmer will slaughter his surplus hens, hens that have been making him a perfectly good profit? I do not think so.

Dalli plans that these and other proposals will be implemented under a gentleman's agreement. He does not propose any new legislation or regulations to enforce them. Can you see it? Once Dalli leaves the door ajar, the illegal egg producers will storm through it, entrenching large-scale illegal production in certain EU states and creating a deeply uneven playing field. UK producers would be at a permanent competitive disadvantage just like in the pig industry. Frankly, I do not believe that any gentleman's agreement would be worth the paper it is written on.

Where now? What do we want the British Government to do? First, the concerns felt by the British egg industry need to be conveyed to Brussels as a matter of urgency: that Dalli's proposals are unworkable and totally unsatisfactory as far as UK producers are concerned; that Britain will not import any illegal eggs, egg products or prepared food containing egg products after 1 January; and that Britain, along with other compliant countries, should insist that no illegal eggs or egg products can be exported from the country of origin, even for processing.

There is a chink of good news. Last Monday my honourable friend Jim Paice, speaking at the Egg and Poultry Industry conference, confirmed that anyone in the UK using eggs or egg products from illegal cages would be breaking the law. He went further by saying that it needed to be made clear to owners of branded food products that the law applies to their ingredients. He added that any company using eggs produced from illegal cages from 1 January would be breaking both the letter and the spirit of the law. Of course, this is most welcome, but what plans does Defra have to ensure that known importers of eggs or egg products from the continent are alerted to the change in the

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law-that the importation of eggs and egg products produced from banned cages from 1 January will be illegal? Will they be fined or threatened with closure if they persist? Treating like with like, if a UK egg producer still used illegal cages after 1 January he would be heavily fined and his business shut down. The same two questions apply to the owners of branded food products. Will the Minister alert them and will they be penalised if they break the law?

We joined the Common Market in 1973 thinking we would get a level playing field for trade. After 38 years, is it not about time we got one?

8.05 pm

Lord Lexden: My Lords, I am a newcomer to the important matters highlighted in this debate, for which we are indebted to the noble Earl, Lord Shrewsbury, who introduced it-the first of two Earls to speak in this debate, which lends it a splendid distinction.

I wish to speak briefly about the effect this directive will have on the egg industry in Northern Ireland, a part of our country in whose well-being-all aspects of it-I am always deeply interested, as I have pointed out before in your Lordships' House. I do not believe that the existence of a devolved Assembly should preclude the discussion of Northern Ireland issues in this House, particularly where a wider UK dimension exists, as it does with this issue.

It is estimated by the Ulster Farmers' Union, a long established and highly regarded voice of rural interests, that the Northern Irish egg industry is worth some £50 million a year to the Province's economy. This directive was published in 1999. Many of the problems foreseen then by the UFU and their colleagues in other parts of the country have still not been resolved, although the European Union has had 12 years in which to put in place measures to ensure that compliance does not entail a competitive disadvantage for our farmers, as other noble Lords have already stressed. They have also stressed that fairness-a level playing field, in today's well loved jargon-for poultry farmers is absolutely essential, given that in the United Kingdom in particular this industry historically has not enjoyed direct government support.

My friends in the UFU estimated in 1999 that 1.8 million birds in Northern Ireland would need to be moved to the new "enhanced colony cages", at a cost of around £10 a bird. The average cost of conversion to the Northern Irish poultry farmer has been estimated at £300,000-or more, should they decide to convert to free-range production rather than the enhanced colony cage systems. Farmers south of the border in the Republic of Ireland have been eligible for financial help amounting to roughly 40 per cent of the cost per bird of conversion. Despite helpful discussions with United Kingdom Ministers, no similar assistance has been forthcoming to help farmers in Northern Ireland, who compete in the same geographical market.

Those more familiar than me with the farm modernisation scheme will know it to be a heavily oversubscribed fund, with no specific remit to help the poultry sector in particular, and will be unsurprised to hear that it has been of little help to the Ulster farmer

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looking to convert. The £300,000 cost is coming in the form of bank loans which will require repayment in the harsh economic circumstances in which we find ourselves, and amid a price war among the major supermarkets, which is preventing producers from raising the prices of their product. Several UFU members considered the costs too great at the outset, and ceased production. Small-scale, family-run farms, vital to Ulster's important rural economy, have been replaced by major industrial producers, and others are at risk.

It is also worth bearing in mind that while the EU itself has had more than a decade to deal with the problems this directive might cause, farmers themselves have enjoyed no such luxury. A report due in 2005, but not published until January 2008, set the standards for these enriched colony cages, and farmers in Ulster prudently waited-they are extremely prudent, for the most part, in Ulster-until they could read this report before undertaking major financial risks. This was an excellent decision on their part, as it turns out that a farmer who converted to what might have been called an industry-standard enriched cage system in 1999 would have found his cages declared non-compliant after 2008. Farmers have therefore had just four years to raise the funds and complete the transitional process. This makes it all the more impressive that Northern Ireland expects to be fully compliant with this directive on 1 January 2012, in line with other parts of the United Kingdom, while other countries, as we have heard, have made public that they will not be compliant in time, if ever.

There was particular concern in Ulster arising from the fact that, under this directive, food manufactured using eggs from caged hens could still be tradable across the European Union. So we are back once more to the much invoked level playing field. Farmers in Ulster are looking for an assurance from the EU that products that use non-compliant eggs are at the very least clearly labelled as such for import and export so that farmers who invested in compliance are not at a serious disadvantage. There was a real risk that eggs from caged hens would continue to be used in the manufacturing of goods that could then be sold right across the European Union, pricing eggs from compliant farms out of the market.

For many farmers in Northern Ireland, as elsewhere, much is at stake. I ask the Minister to ensure that there is close communication between his department and the Northern Ireland Executive as these matters advance to a conclusion.

8.12 pm

Lord Grantchester: I would like to add my congratulations to the noble Earl on securing this debate at this time. All speakers have expressed concern as it was only on Friday 28 October that EU Ministers met to discuss how to address the problem of eggs being illegally produced in contravention of directive 1999/74, which lays down minimum welfare standards for laying hens and will take effect on 1 January 2012.

We have heard tonight about the cost that the UK industry has borne to convert conventional cages to the new standard and that all of the UK will be compliant. I know that an egg producer in the next village to me,

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Betley, has invested £10 million to convert, with a continuing added cost of 5p to 6p per egg over and above the cost of production under a more conventional system. He will be looking to the Government to protect his investment from competition from producers in some overseas countries that do not meet the same standards to which he must abide.

The EU commissioner for health John Dalli has confirmed that, despite predicted high levels of non-compliance, the Commission has no intention of postponing the 1 January ban. He is quoted as saying that the Commission,

Is the Minister satisfied that the Commission has the power to act? The industry is concerned that the Commission has not yet come forward with firm proposals for enforcement and penalties.

Furthermore, from the meeting in Brussels on 28 October, there is concern that egg-production units with conventional cages will be allowed to continue until at least July 2012, subject to certain rules and that these rules are less than robust-for example, no non-compliance shell eggs to be exported outside national borders and all non-compliant shell eggs to be prohibited from being placed on the shell market as class A but are to be processed within that member state. However, if there is no processing plant or insufficient capacity in that member state, shell eggs will be allowed to be processed in a neighbouring member state and then returned. Such egg products could then be used in prepared food and products and exported. Could I ask the Minister who will monitor non-compliant eggs moving across a border, and who has the responsibility and by what process to ensure the egg is then returned?

Could the Minister confirm whether any analysis of supply and demand has been undertaken to determine that there will not be any massive market distortions or a displacement effect on seconds from compliant producers? Has the Commission got robust data from all member states on the conversion status of their industries?

In a batch-housing production system, the industry is also sceptical that the reduction in stocking density can be actioned between batches. At the Egg and Poultry Industry conference, the Minister of State for Agriculture and Food in the other place welcomed the British Retail Consortium's commitment to ensure that all major retailers source their shell eggs and own-label products containing egg from producers with the new enriched cage system. What evidence will be available to consumers, and will any labelling system be put in place? Could I ask the Minister what action his department will be taking to ensure non-compliant shell eggs and egg products do not enter the market place? Is his department confident that there is ample consumer recognition of the industry's food assurance schemes and is there more it would like to see being done?

The Minister will know that in the past certain countries have banned imports of certain foodstuffs-I am thinking of beef in particular. Has the Minister's department made any plans to ban the import of shell eggs or egg products from any particular country that poses a more extreme risk of being non-compliant?



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The UK industry and its farms in particular must be congratulated that they have met the demand for higher welfare standards. There is cross-party support for these measures. The consumer must also be sure that the food supply is legal, especially if a product has been procured overseas.

8.17 pm

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Taylor of Holbeach): My Lords, there can rarely have been a more opportune moment to debate the egg industry than today and I would like to thank my noble friend Lord Shrewsbury for tabling this Question and giving us the opportunity of talking about it this evening. As he and all noble Lords know, my right honourable friend Jim Paice, the Minister of State for Agriculture and Food, has been at a Council of Agriculture Ministers in Brussels today dealing with this matter.

As has been said, the provision in Council directive 1999/74/EC, which bans the keeping of hens in conventional-battery-cages from 1 January 2012, represents one of the most significant welfare advances across the EU, and we wish to see it effectively implemented across the European Union. My noble friend Lord Plumb recalled the debates in Europe that led to its introduction. However, I recognise that the cage ban is causing great concern to the egg industry. It is also a huge challenge for the Commission and other member states.

I will address the issue of compliance first. The Government acknowledge the sterling job that the egg industry has done in preparing for the ban and the very big investment that it has made in converting to other production systems, which are more acceptable in terms of animal welfare. My noble friend Lord Lexden made evident the cost in human terms that this has meant for some farmers in Northern Ireland. Despite all that he told us, he said that Northern Ireland will be fully compliant with the directive. The vast majority of UK producers will be compliant by 1 January 2012. Of the remainder, we expect many producers to leave the industry at the end of this year.

Perhaps I can help my noble friend Lord Shrewsbury by explaining just what the legal position is. Who will be in breach of the legislation if eggs from conventional cages are used in products after 1 January next year-the producer, the processor, the product manufacturer or the retailer? The egg producer would be committing an offence by continuing to keep hens in illegal cages after the ban and then illegally marketing his eggs as caged when they would be non-compliant. If processors, product manufacturers or retailers bought eggs that they knew were from illegal production systems, they too would be committing an offence. I also say to my noble friend Lord Greaves that the mandatory criteria of government buying standards will include the provision that neither eggs nor egg products from illegal producers should be used in any supply after 1 January 2012. The Government will take tough enforcement action against any UK producers found to be non-compliant after 1 January.



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The far more significant concern is that compliant UK producers will be disadvantaged by having to compete with cheaper eggs still coming from non-compliant conventional cages in other member states in 2012. We want to protect our producers, who have invested some £400 million in converting from conventional cages, which is equivalent to spending £25 per hen housed.

The UK is the sixth-largest egg producer in the EU and the industry is an important contributor to the economy. The egg industry is one of UK agriculture's success stories and is used to responding to market signals, without receiving direct subsidies from the EU or the UK Government. A prime example is the way that the consumer demand for free-range eggs has increased dramatically over the past decade, and now around 50 per cent of the eggs produced in the UK are free range. The UK is 82 per cent self-sufficient in egg and egg products, with the remaining 18 per cent coming from other member states, in particular France, the Netherlands, Germany, Spain and Poland. Some of those countries have been mentioned as being non-compliant. Of the 18 per cent of eggs and egg products being imported, around 50 per cent is imported as shell eggs for use by UK processors, corner shops and caterers, and 50 per cent are imported as egg product, liquid and powder. The UK industry estimates that 23 per cent of the EU flock will remain in conventional battery cages on 1 January.

What sort of problem areas do we see? The vast majority of shell eggs marketed through the major retailers are UK sourced. Small retailers, street markets and food service outlets are more likely to provide an outlet for imported eggs from illegal cages. The Government are confident that we have a robust strategy to enforce imports of shell eggs. The prime concern is with imports of egg products, where the supply chain is less transparent and more challenging to audit. Currently, 27 per cent of the egg products used each week in the UK are imported. Along with noble Lords, the industry fears that this percentage will increase and prices will be dragged down by large-scale non-compliance in other member states.

Products which the industry considers most at risk from illegal egg imports from 1 January are Scotch eggs, sandwiches, quiches, cakes, gateaux and Yorkshire puddings, which use a high percentage of imported egg-I see my noble friend Lord Shutt raising an eyebrow at that information. The Government are working with the egg industry, retailers, food manufacturers and the food service industry in preparing their enforcement strategy to deal, not only with imports of non-compliant eggs from other member states, but also non-compliant domestic production.

The British Retail Consortium has come out publicly in support of UK egg producers and guaranteed that conventional caged eggs will not be bought by the major retailers or used as ingredients in their own-brand products. They have put in place stringent traceability tests to ensure that they will not buy non-compliant eggs. Retailers that have made this guarantee include Marks & Spencer, Morrisons, Asda, J Sainsbury, the Co-operative Group, Tesco, Waitrose, Iceland Foods, Greggs, Starbucks and McDonald's.



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Tomorrow, my right honourable friend the Minister of Agriculture will meet the Food and Drink Federation, which represents food manufacturers, and the British Hospitality Association, which represents the food service industry, to see whether they would be willing to follow the retailers' lead. I hope that this reassures my noble friend Lord Cathcart that the trade in this country is determined to stick to sourcing eggs from legally housed hens.

Ultimately, it will be the for the competent authority in each member state to take responsibility at source for ensuring that their producers no longer keep hens in conventional battery cages after 1 January 2012. If the Animal Health and Veterinary Laboratories Agency, the body that will enforce the conventional cage ban, has grounds to suspect that a particular consignment of eggs may have been produced in illegal conventional cages, then it will contact the competent authority in the member state to check if it knew whether it was sourced from a compliant producer. I can assure my noble friend Lord Greaves that traceability is a key responsibility placed on member states.

Alongside the preparation of a rigorous enforcement strategy, we are still pursuing UK interests in Brussels. For well over a year, the Government have been at the forefront of efforts to convince the Commission that simply relying on infraction procedures against non-compliant member states will not be enough to deal with the negative effect that non-compliance would cause and that additional enforcement measures would need to be put in place to prevent market disturbance. On my noble friend Lord Greaves's question about strengthening the Food and Veterinary Office, the FVO clearly has a key role here, but relying on infraction proceedings alone will not be enough.

We are pushing the EU hard to use all its available resources to ensure that a ban is implemented and enforced. In September, the Secretary of State wrote jointly with nine other concerned member states to the European Commission, urging it to act quickly. At the October Agriculture Council, the Commission ruled out the option of an intra-community trade ban. It is very disappointing that we have ended up with no legal solution to protect compliant producers from the large-scale non-compliance that there will be in January 2012.

As my noble friend Lord Cathcart passionately observed, given the scale of non-compliance that we are expecting, the Commission is now looking for a robust enforcement approach that avoids large numbers of producers having to close down their operations and the destruction of millions of hens and non-compliant eggs. At the same time, we rightly demand that the Commission must protect all those producers who have complied with the ban and implemented a flagship animal welfare policy. The Government are contributing to ensure that any solution is as tight as possible to protect our producers.

I can assure my noble friend Lord Lexden that we are working with the devolved authorities. Earlier today, Jim Paice, the Minister of Agriculture, fought our corner on this issue at a meeting of the Agriculture Council in Brussels. I regret to say that no agreement was reached, and there will now be further discussions on 29 November to try to find a solution.



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There have been some questions about a unilateral trade ban, which was raised by the noble Lord, Lord Grantchester. The Government have thoroughly investigated the possibility of taking unilateral action and bringing in a UK ban on imported eggs and egg products which have been produced in conventional battery cages in other member states. There are significant legal challenges in instigating a unilateral ban, but at this stage such a move is still on the table. We are also considering other measures that we could introduce swiftly.

In conclusion-and I am sorry if I have taken more time than I should-I thank my noble friend Lord Shrewsbury and all noble Lords who have spoken in this debate. UK egg producers must not be put at a disadvantage for leading the way on animal welfare issues. They should be able to operate within a level playing field across the European Union.

8.30 pm

Sitting suspended.

Health and Social Care Bill

Committee (5th Day) (Continued)

8.39 pm

Amendment 51

Moved by Lord Patel

51: Clause 6, page 3, line 38, at end insert-

"(c) must exercise its functions by overseeing sub-national clinical senates and networks"

Lord Patel: My Lords, in the absence of the noble Lord, Lord Walton of Detchant, I am very pleased to move the amendment on his behalf. I wish I had a better idea of what his purpose might have been in tabling the amendment. None the less, it is a good opportunity to explore the Government's thinking in establishing the clinical senate.

It is easier to understand the purpose of the professional networks, which I have spoken about before. I think they are a good idea, and there should be more clinical and professional networks embedded in the health system. The cancer and cardiac networks are two good examples. However, when it comes to the senate, I am less clear about the Government's intentions. I know that the NHS Future Forum:Clinical Advice and Leadership report said that commissioning consortia-now called commissioning groups-and the NHS Commissioning Board,

It also said that independent advice from public health professionals should be available at every level of the system, but that is by the way.

Therefore, we have a situation where the Future Forum suggested that clinical senates should be a way of getting advice to all the different new structures. In response to the Future Forum, the Government said that clinical senates will give advice to CCGs which they must follow in each area of the country. At the same time, Dr Kathy McLean, who led on the project, is leading another project and has issued a consultation letter to develop the role of clinical senates and clinical

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networks. Obviously the Government do not have a clear idea of what the clinical senates are for, otherwise why is Dr Kathy McLean leading the project and issuing a consultation letter?

It is proposed that 15 senates will be housed by the NHS Commissioning Board. They will feed their advice back to the NHS Commissioning Board, although about what is not clear. In his two amendments my noble friend Lord Walton of Detchant wonders whether they might be useful in feeding the Commissioning Board and the commissioners advice about specialist commissioning. The senates will have a major say in advising CCGs on their commissioning plans, but their advice will be exactly that-advisory. Membership will consist of doctors, nurses and other health professionals, so it will be a large group. The senates are to be involved in quality aspects of clinical commissioning and an annual assessment of CCGs, and they will report on their annual reports and performance. They have serious work to do in monitoring CCGs, yet they are only advisory for CCGs.

Future Forum suggested that clinical senates should provide advice and support for a range of bodies, including CCGs, the NHS Commissioning Board, health and well-being boards and others. Are senates not likely to end up as just another layer of bureaucracy? Therefore, what is the real role of all 15 clinical senates? Will they be involved in advising the NHS Commissioning Board in its commissioning role? Are they to be advisory for CCGs and check on the quality of their commissioning? Why are the professionals on the senate going to be from outside the commissioning groups' area of commissioning? The amendments are tabled to explore whether they will really have a role in commissioning specialist services.

Lord Hunt of Kings Heath: My Lords, I also have an amendment in this group. I say to the noble Lord, Lord Patel, that he anticipated the remarks of his noble friend Lord Walton remarkably well.

Having argued against bureaucracy in the previous group of amendments, I am now about to argue in favour of putting senates on a statutory basis. I shall explain why. First, this was a very good outcome of the listening exercise. I think that because I am concerned at the Government's decision to abolish the strategic health authorities. It is what I call the Hagley Road issue. In 1948, the Birmingham Regional Hospital Board was established; its offices were in Hagley Road and throughout 60 years there has always been something there. It may have been a regional health authority, a regional hospital board, a strategic health authority-call it what you will-but there has always been a regional outpost of the department acting essentially as a leader, with a positive role in looking at the region as a whole, ensuring that its services were cohesive and had proper direction and that, by and large, it was self-sufficient. That is to be removed and we are going to get large SHA clusters which will cover a much larger part of the country. Although we do not know the size of the clinical commissioning groups, they will clearly cover much smaller population areas.

I believe that there is still a need for a mechanism whereby strategic leadership can be given over a region, and I see the clinical senates as being the best approach

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to that. Noble Lords have spent at least two days debating reconfiguration and are concerned that these difficult decisions often have intervention from the centre. Clinical commissioning groups will be too small to take on the kind of strategic leadership that is required. When you are trying to establish in a region where the super specialty and tertiary services should be and trying to come to a view about how many A&E and emergency departments you need, you require a body that can take a strategic overview. The clinical commissioning groups are too small to do that. They could, of course, possibly come together in a kind of federated meeting to try to resolve those kinds of issues, but that could prove to be very difficult. Therefore, the senates could have an important role in setting some of the parameters and giving strategic leadership to a region.

However, as the Government intend them at the moment, these will be informal groups of people who could easily be ignored by the clinical commissioning groups, by the health and well-being boards, by the deaneries and by all the organisations that have an influence on the way in which the health service is going. My amendment is designed to set out a more structured approach to ensure that clinical senates are created as bodies corporate, that they are properly accountable to the national Commissioning Board and that they have the ability to give strategic leadership and have some oversight of the work of clinical commissioning groups.

I suspect that my amendment will not find favour with the noble Earl but the point about the need for strategic leadership in a region is important. I fear that the super SHA clusters will be too large to do that and the clinical commissioning groups will be too small.

Baroness Jolly: My Lords, I would like to speak to Amendments 51 and 84, but before I do, I have an interest to declare. I am chair of the Specialised Healthcare Alliance, an organisation campaigning for those with rare and complex conditions. The move to commissioned services for this particular group of patients by the NHS board is really welcome. It is the first time that there will be a common standard across England under the auspices of the board. However, we are not totally clear about the composition of the senates or their roles. I am not sure that the amendment of the noble Lord, Lord Walton-who is not in his place at the moment-actually gets to the meat of this. There is concern that specialised services within senates might get lost. If a specialised senate with expertise and integration were set up, that might be useful to this group of patients, but more often than not networks are where the specialised services go to for the expertise. We welcome the commitment to ensure that networks stay as they are and possibly expand. Maybe a network could set up a task and finish group to look at the problems around specific conditions. I would be grateful if the Minister would make the role of the senates clear. Would they have a role in specialised commissioning? Similarly, I would be grateful if he would shed some light on the ways in which the board will commission specialised services in general.



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Baroness Murphy: My Lords, I must confess that when I first read about clinical senates, I thought, "This is a great solution". But what is the question? The problem came home to me very much when visiting the New York mental health commissioning services and seeing the great difference in their approach. Mental health is commissioned by the public purse for a largely public service everywhere in the world, so it is a good way of looking at how people commission differently in different places. The big difference between New York's system of commissioning mental health services and ours was that they had clinical specialists involved on a day-to-day basis who could never be second-guessed by the provider system. That is because they were recognised experts who usually had run a service themselves and were very respected nationally or locally. They were incorporated into the commissioning group. The same was true of public surgical services, public health services, and so on. That was very impressive.

Therefore, when I heard about clinical senates, I thought that this could be the way to provide that kind of serious expertise from a region to clinical commissioning groups. However, it does not seem to be developing quite that way. The noble Lord, Lord Hunt of Kings Heath, is very optimistic, with a slightly grandiose idea of what these clinical senates might do. I would love to share his optimism but I remember those dreadful regional medical advisory groups. I know that the noble Baroness, Lady Emerton, will remember them, because we dealt with the same clinical regional advisory group for the south-east Thames. They were dire; they were the lowest common denominator of time-serving BMA-No, I am going to be very careful now. I do not want to be too rude, but on the whole, they were not the edifying cutting edge of specialties.

Lord Patel: Psychiatry.

Baroness Murphy: Even the psychiatrists were not. I can remember this group of people being pretty darn useless. You would send up a proposal; they would look at it; they did not like it because it was not in their best interests as a specialty and they would send it back again. I can see that my colleague, the noble Baroness, Lady Emerton, agrees with my every word.

I am a little concerned about what these people are going to do. Will they provide cutting-edge, evidence-based expertise of the best kind to local commissioners? Will they be a talking shop? Will they be a regional medical advisory group?

Lord Warner: My Lords, I rise to reassure the noble Baroness, Lady Murphy, and restore her confidence in the Labour Benches on the subject of senates. If the Conservative side can have the Mawhinney-Howe dialogue, why should we not have the Hunt-Warner dialogue on senates?

I can well understand why people would like to be a senator. It sounds very grand. It would be good to put on your CV that you are a member of the senate of wherever-even if it is Birmingham. To some extent, I can understand why the Future Forum thought it would be a good idea to have senates. I can imagine it received a lot of representations from specialists in various parts of the country that perhaps these GP

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commissioners, as they were then known, were getting a little uppity and needed to be curbed a little and put in their place. Why, then, not give a little more space to the people who really know about these things-the specialists-and bring them together in senates? Yet, since 2006, thanks to the helpful report by Sir David Carter on specialist commissioning, we have gone a long way in putting in place a sensible way for dealing with regional specialties and, on top of that for very rarefied stuff, a national commissioning capability. That has not been around for long. It would not be a bad idea to try to keep some of that learning experience together as we move into this brave new world.

I do not have any problem with networks. Networks have been a proven success. They have done a lot of good and there is a lot to be said for trying to reinforce them, even to put some wording about them in the Bill. But I struggle with senates. We need a really good explanation of what they are out to do. The noble Baroness, Lady Murphy, put her finger right on the button: it is a very good solution but what is it a solution to? I hope we can have some enlightenment on that from the Minister.

The Archbishop of York: In my day-to-day life, I have to do what they call "oversight". The trouble with oversight is that it is always remote. The person who comes on the round is the parish priest or the diocesan bishop. The moment you begin to take oversight seriously from a distance, you are in real trouble. How do you know that the delivery of what you want will work? I am not so certain that I want this Commissioning Board to have oversight of both clinical issues and the senates. That would lie somewhere else, not with the board. It is to the board that Monitor, NICE, clinical senates and networks, and the Care Quality Commission actually report. I can understand the other factors in the Bill but the moment you include the business of,

you are in real trouble. What is that, by the way? I remain uncertain. We certainly need a clear spelling out of what senates are for. That is a separate question from whether the board should oversee their work, let alone if we understood it.

I am not one to suggest that this amendment is helpful. What would be most helpful would be to hear from the noble Earl what are the senates, what are these networks, and where you would locate the whole question of accountability and responsibility. I do not think it is the board; otherwise you are giving it a much bigger function when it already has five functions; and there are further provisions in the schedule. If you really want the board to fail, add on more work. So my view is that it should not have oversight of the sub-national groups. However, I am still confused. Will the noble Earl tell us what the senates are for? Networks I can understand; but what are the senates for? If he explains, we may actually see that this amendment is redundant.

9 pm

Lord Kakkar: My Lords, I would like to ask the Minister what the potential relationship is between clinical senates and an expansion of academic health science networks, or academic health partnerships,

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that may be proposed from the ongoing chief executive of the NHS review of innovation. It is suggested that that review may endorse an expansion of the current academic health sciences network. I must remind noble Lords of my own declaration and involvement in University College London Partners academic health science centre.

As I understand it, the purpose of clinical senates is to provide support in helping clinical commissioning groups to draw on expertise available from a broader group of clinicians and disciplines within their region to help inform ultimate clinical commissioning decisions. However, if the proposal that the current network of five academic health science centres is expanded into a network of broader academic health partnerships, serving a population of about 3 million to 4 million for each partnership, within those partnerships there would be a broad range of academic and other disciplines. They would be represented in a health partnership or network fashioned on the current academic health science centres to be able to deliver expertise and advice on commissioning and provide the opportunity to aid in a transformation of health practice pathways of care, to provide a potential home for the education and training functions that will need to be rolled out at a sub-national level, and also promote interest with regard to research and innovation.

Under the circumstances, if academic health partnerships were to be expanded and promoted as a result of the ongoing innovation review, could not the responsibility suggested for clinical senates be undertaken by the academic health partnerships and current academic health science centres? This would avoid the need for yet another grouping or layer of bureaucracy to be created within the systems responsible for the commissioning and provision of health services.

Baroness Williams of Crosby: My Lords, if I may, I will pursue what has been raised by the noble Lord, Lord Kakkar, and also, in some ways, by the point made by the most reverend Primate the Archbishop of York. I could not help thinking that perhaps protesters count among the networks and the people responsible for running St Paul's count as part of the commissioning group. With that in mind, I will pursue also what was said by the noble Lord, Lord Hunt. If you look at his Amendment 224A(6), he helpfully refers to the clinical senate having,

in the area. I think that should be applauded. I am very impressed by the way in which networks at their best not only extend information very widely among patients with a chronic condition but bring the patients into the discussions about what should be done in their situation. It becomes a huge educational and, indeed, morale-boosting process. So on subsection (6) I think that the noble Lord, Lord Hunt, has put his finger on something that could be very important and where the clinical senate would give clinical backbone to the deliberations and thoughts of the clinical network. That is almost, I suppose, what we are all trying to achieve.

I am not so clear about subsection (8) of Amendment 224A, where the noble Lord, Lord Hunt, has effectively given the clinical senate something of a

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veto over the commissioning group. I am not sure that that is wise, as that plays right into what the noble Lords, Lord Patel and Lord Kakkar, were saying about creating yet another layer of bureaucracy. I think that would be unhelpful and might indeed feed into a certain self-importance on the part of people who call themselves senators, whether clinical or merely political.

I would like to ask the Minister, bouncing off the amendment from the noble Lord, Lord Hunt, whether, looking through that amendment, he does not find parts of it that are helpful, useful and constructive. It would make a clinical senator a significant part of the whole structure of the relationship between patients and clinicians. Whether he needs to press ahead with provisions that would bring in the senate as a requirement of the decision-making process of the commission is much more questionable. I am playing a kind of ping-pong, in which the ping of the noble Lord, Lord Hunt, has to go to the pong of the noble Earl, Lord Howe.

Lord Hunt of Kings Heath: Can I accept the invitation to come back on this? The reason why I am interested in the other bit of my amendment is that it is essentially about the strategic leadership that needs to be given to reconfiguration issues. When we debated the powers of the Secretary of State, a number of noble Lords complained that Ministers intervened in reconfiguration, which usually means the closure of services, perhaps emergency services, and their concentration around specialist hospitals. They are very contentious. As noble Lords have observed, MPs seek ministerial intervention, which is perfectly normal and democratic. In the new structure, there is no one to really lead this at a semi-national or regional level. The CCGs are far too small; they will not be able to come together to sort out how regional services should be operated, or the number of A&E departments you need within a region. The national Commissioning Board is far too big; it is national. That is why I think that there is room for some regional mechanism. The clinical senates seem the nearest that we can get to that. I do not see them as being like the old-style regional medical advisory committees; I see it as being a rather more dynamic process than that.

Baroness Williams of Crosby: I thank the noble Lord for his typically articulate and thoughtful response. The idea of clusters coming together in what one might call semi-regional groupings is a better way forward than bringing regional senates in as a way to resolve the problem that he rightly talks about of bodies being too small or too large.

Baroness Cumberlege: Can I also ask the noble Lord, Lord Hunt, about his amendment, in which he proposes setting up another very strong bureaucracy? It is a corporate body, known as a clinical senate; I presume, because it has a proper officer, that it will have a range of officials. It is suggested that it should revalidate doctors within the area, but I am wondering how that would work with the GMC and others. It will maintain a whole system of clinical governance within clinical commissioning groups and also authorise some of the clinical commissioning groups.



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I can understand the noble Lord's wish for some strategic leadership. I have been a regional chairman-and I have to say that our medical advisory groups were really excellent compared to those of south-east Thames. We had really good ones. But I am anxious about this matter. I sense that this is simply a probing amendment, because the membership of what the noble Lord proposes would be extremely bureaucratic. I understood that these were advisory boards, and that it was to try to get some of the clinical input from the acute centre into the commissioning groups so that they understood perhaps more clearly what they were commissioning in terms of acute services.


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