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House of Lords

Monday, 28 November 2011.

2.30 pm

Prayers-read by the Lord Bishop of Liverpool.

ETA: Ceasefire

Question

2.36 pm

Asked By Baroness O'Loan

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever): My Lords, all EU member states including the United Kingdom agreed a statement at the October European Council welcoming ETA's announcement of a definitive ceasefire as a victory for democracy and freedom and supporting Spain's long struggle against terrorist violence. This is primarily a sovereign matter for Spain, but the UK Government would, of course, respond to any requests from Spain or France for further action.

Baroness O'Loan: My Lords, I thank the Minister for his helpful response. I declare my interest as a member of the International Contact Group on the Basque Country, which was present at last month's international conference that culminated in the declaration by Kofi Annan and others calling on ETA for this definitive ceasefire. British Governments have had extensive experience. I ask the Minister, in the light of that experience in the conduct of dialogue leading to peace and in particular to normalisation and more beneficial outcomes for victims, as well as to decommissioning, verification and monitoring, will the British Government respond positively to this situation?

Lord Astor of Hever: My Lords, we have supported the Spanish and French Governments in their efforts to secure a peaceful and democratic future for the Basque Country, free of terrorism. Should we be asked for support, we would respond in any way that they would find helpful. We are aware of the work that the noble Baroness is doing as a member of the International Contact Group, and my noble friend Lord Howell is very grateful for her update last month.

Lord Alderdice: My Lords, given the increasing evidence that cities and regions coming out of conflict do so successfully only if they have continuing external support after the cessation of violence, and that indeed such support often comes best from other cities and regions that have gone through the same experience, would Her Majesty's Government encourage Bilbao and the Basque Country to join the Forum for Cities in Transition, which includes cities such as Kirkuk, Beirut, Mitrovica, Mostar and indeed Belfast and Derry and which will meet again in Kirkuk next year, in order that Bilbao and its region receive the best support from people who people who, like them, have been through such terrible times?

Lord Astor of Hever: My Lords, my noble friend makes a very good point. I am aware of the excellent work of the Forum for Cities in Transition and its help to other cities that have been in, or have emerged from, such conflict. This would be a matter for Bilbao, but I have no doubt that the Forum for Cities in Transition will be in touch with the Bilbao authorities.

Lord Anderson of Swansea: My Lords, are we just waiting for an invitation? Should we not positively seek an invitation? We at least are independent in a way that neither the French nor Spanish Governments are, and we have very considerable experience in Northern Ireland, which we have used very positively in reconciliation in South Africa.

Lord Astor of Hever: My Lords, the noble Lord makes a very good point. The situation is very fluid at the moment, with a new Government about to take

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power in Spain next month. We should wait and see how things turn out and then decide what to do. But it is essentially a sovereign matter for Spain.

Lord Brooke of Sutton Mandeville: My Lords, does my noble friend the Minister share my view that help is always defined better by the receiver than by the giver? Does he also recall the observation of CS Lewis, that if you hear about someone going around doing good to others, you can generally tell the others by their hunted look?

Lord Astor of Hever: My Lords, I shall certainly make a visit to the Library afterwards and have a look at that.

Gambling Commission: Health Lottery

Question

2.41 pm

Asked By Lord Faulkner of Worcester

Baroness Garden of Frognal: My Lords, the Gambling Act 2005 requires that at least 20 per cent of the proceeds of a society lottery go to the good cause that it supports. Each of the 51 society lotteries that are promoted under the umbrella brand of the Health Lottery must comply with this requirement. We understand from the Health Lottery that 20.3 per cent of the proceeds of each individual society lottery will go to the relevant good cause, addressing health inequalities in specific geographic areas of Great Britain.

Lord Faulkner of Worcester: My Lords, may I ask the Minister two questions? First, is she aware of the great concern that has been expressed by the beneficiaries of legally run society lotteries in the health sector, which have benefited immensely from those local society lotteries, about what is seen as the unfair competition from the Health Lottery? Is she aware that the hospice movement is particularly alarmed, because it depends very heavily on society lotteries? In Worcester, for example, our two hospices receive £70,000 a year from the South Worcestershire Hospices Lottery, which pays 50p in the pound-not 20p in the pound-to those good causes.

Secondly, notwithstanding what the Gambling Commission may have decided initially about the Health Lottery's legality, how can it be legal to have 51 community interest companies linked to the Health Lottery which have no independent existence, but which all have the same three directors and all operate out of the same virtual office? How is that legal?

Baroness Garden of Frognal: My Lords, the noble Lord has great expertise in these matters. In his first question, he raises the concern about the hospices. We share the concern about the potential impact on society lotteries, although a number of existing health-related charities have been supported through the Health Lottery arrangements so far, and we will ensure that the impact on other society lotteries is monitored.



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On the noble Lord's second question, about the legality, he will also be aware that compliance with the requirements of the Gambling Act 2005 is a matter for the Gambling Commission, which has issued the necessary licences for the Health Lottery. As with any major scheme entering the market, however, it will work with the operator to ensure that what is delivered is actually compliant. We expect initial findings from that monitoring to be with us by next March.

Lord Addington: My Lords, would my noble friend give some thought to the idea that charities which are created to allow a lottery to be organised might be against the spirit that was initially taken on in this field? If that is right, will she undertake that the Government might look at the whole legal framework? If it is against the spirit, we can change the rules.

Baroness Garden of Frognal: My noble friend makes a very valid point that, so far, the legality has been in the matter of the fact of the law. However, as I have mentioned, there will be ongoing monitoring and, as he so rightly says, all these things can be changed if it turns out that the spirit of the law is not being respected.

Lord Brooke of Alverthorpe: My Lords, are the Government content with the system that they have in place for monitoring the operations of the Gambling Commission and, if not, what can they do about it? Are they content that Mr Desmond is a fit and proper person, given what was said at the Leveson inquiry last week and the failure of his organisations to associate themselves with the independent press commission, and that this is the way forward given some of the issues which now surround the operation of this lottery?

Baroness Garden of Frognal: My Lords, as I say, it is for the Gambling Commission to look at this. We recognise all the issues around Mr Desmond and his other organisations, but those are not perhaps directly relevant to this. One thing that the Government have done is to merge the Gambling Commission and the National Lottery Commission, which we expect will make regulation easier and create cost savings but also help to produce a more robust form of monitoring.

Lord Collins of Highbury: My Lords, may I press the Minister on the issue of what I consider, as I think many would, an apparent loophole exploited by the Health Lottery with its 51 separate companies? Will she give an assurance that this loophole will be examined and perhaps closed by the Government, bearing in mind that the Health Lottery has a turnover of £510 million a year and is in effect an alternative national lottery, affecting funding not only for other health charities but for the arts in general?

Baroness Garden of Frognal: My Lords, the noble Lord raises an important point about the issue of whether the Health Lottery will impact on the National Lottery. We are well aware of the vast amount of good work that the National Lottery does for the arts and a whole range of charitable organisations in this country. This is the first time that a lottery has been set up in this mode, with 51 society lotteries under an umbrella. It is a new model, which is why we are looking to the

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Gambling Commission to report back to the Government on how it is going to operate. Of course, the Health Lottery has been going for only eight weeks so it is early days as yet to see how it will pan out, but I hope that the noble Lord will rest assured that the Government are monitoring the situation.

Lord Haskel: Following on from my noble friend Lord Faulkner's question, should the Minister not be speaking up for those charities that give 50 per cent of their income rather than those that give only 20 per cent?

Baroness Garden of Frognal: My Lords, I am sorry if I was not speaking up loudly. One indeed commends the society lotteries that give on average 51 per cent to good causes overall, which is a much more significant proportion than 20 per cent. The question remains whether this will be a form of raising additional funding for good causes, and only time will tell whether that is the case.

Lord Harris of Haringey: My Lords, is it not the case that the public assume that a much higher proportion of the money that they put into these lotteries is going to the good cause concerned? Should the Government not be looking to raise the 20 per cent threshold to a more realistic figure? That may then squeeze out those who see setting up these lotteries as a way of making extra cash for themselves rather than for the charities that they are supposed to be supporting.

Baroness Garden of Frognal: My Lords, the raising of the threshold has been under discussion. We feel that at the moment, with the Health Lottery still so new, this is not the moment to change the thresholds for the lotteries as a whole. As I say, though, we are monitoring the situation since, as far as we are concerned, it is a new set-up in the lottery world. We shall wait and see, with the promise of a report of that monitoring early next year.

Lord Brooke of Sutton Mandeville: When I had the privilege of moving the Second Reading of the National Lottery etc. Bill in 1993, I gave way 28 times in the hour it took me to complete my speech. It was perfectly clear at that time that scrutiny of the lottery was being carried out extremely effectively by Parliament. I hope that the amount of time that we need to scrutinise this new development will be shorter rather than longer.

Baroness Garden of Frognal: I bow to my noble friend's expertise over many years in this area. I share his hopes that the scrutiny will be shorter rather than longer.

Lord Faulkner of Worcester: If the Minister reads the prospectus of the Health Lottery, she will see that in order for it to meet its targets of paying money to the 51 community companies it will need to raise something in the order of £250 million a year from the British public. Where does she think that money is going to come from? Surely it will be from existing charity giving, existing society lotteries and the National Lottery.



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Baroness Garden of Frognal: My Lords, this is one of the things that we shall need to look at. At the moment, the Health Lottery is raising £2 million to £3 million a week compared with the National Lottery which is raising somewhere between £150 million and £190 million a week. So the latter is still far and away the major source of public money in this area but, to pick up an earlier question, it is very important that the public are made aware of just how much of their money is going to good causes from the Health Lottery compared with how much goes to good causes from society lotteries and indeed the National Lottery.

Export Controls

Question

2.50 pm

Asked By Lord Alton of Liverpool

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): My Lords, the Government have set out their position on the issue of re-export controls on a number of occasions. The Government do not believe that statutory extra-territorial controls on the re-export of UK-origin goods would add to the effectiveness of UK export licensing. On the second part of the Question, the Government take their export control responsibilities very seriously and do not license the export of controlled equipment where there is a clear risk that it could be used for internal repression or human rights abuses. We take any reports of exports being misused overseas very seriously, and the extent to which export controls should apply to surveillance equipment is something that the Government are considering actively, particularly in relation to Syria and Iran.

Lord Alton of Liverpool: My Lords, I thank the noble Baroness for that reply. Has she had the chance to read the testimony of the Iranian journalist Saeid Pourheyder, who was tortured and subjected to a mock execution? He had been identified by British surveillance technology allegedly sold to Iran by a company called Creativity Software. Will the Minister say what discussions her department had with officials from that company in 2009, and what was discussed during those meetings? Why was the 2010 European Union prohibition on all,

in Iran not implemented in this case?

Baroness Wilcox: My Lords, 2009 was in the previous Government's time, but I will look back to see if there is anything that I have missed. However, I can tell the noble Lord that at the moment, alongside our EU counterparts, we are supporting the progress of EU restrictions on surveillance software to Syria. All member states have agreed in principle to the prohibition on selling, supplying, transferring or exporting equipment to monitor the internet and telephone communications

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on mobile or fixed networks. However, surveillance technology is not controlled under our current export-licensing system as it has legitimate applications. For example, it allows companies operating in dangerous locations to monitor the location of staff, and parents to locate their children's telephone if they are missing. So there are many legitimate uses for this technology. However, we are most certainly looking at it and will report back.

Baroness Falkner of Margravine: My Lords, is the Minister aware of the Foreign Secretary's statement of 13 October, when he announced a proposal to introduce a mechanism to allow immediate licensing suspension of software and other export items to countries that are experiencing a sharp deterioration? In light of her answer about Creativity Software, have the Government had any discussions with the company since the Foreign Secretary's statement on 13 October, with a view to suspending its ability to export these items?

Baroness Wilcox: I am afraid that, at the moment, all I know is that the company referred to is exporting quite legitimately, as far as we know. We do not know of any re-exporting involving that company, but certainly we are considering most actively the extent to which export controls should apply to surveillance equipment, particularly in relation to Syria and Iran.

Lord Teverson: My Lords, I think that most of us would agree with trying to stop arms exports that can be used for internal repression in countries that do not benefit from democracy. However, can the Minister explain which body, in this new technological world, actually decides which items can be used for internal repression and which cannot? This is surely a difficult area. How do the Government cope with that, and how do they decide on which side of the border a particular product lies?

Baroness Wilcox: My noble friend is quite right: this is very complicated. We live in a technological age that moves at enormously fast speed. We also do not wish to cause suffering to the innocent people of another country by restricting goods unless we absolutely have to and feel that it is right to do so. That is what we are doing at the moment. I wondered whether anybody would ask me where they could find out what is restricted and what is not. It is always very helpful to have this information. Trade data are available online at www.uktradeinfo.com if anybody would like to look that up. Information on export restrictions is available on the BIS website. It is the ministry of business that deals with this, which is why I am answering the Question.

Lord Dubs: What the Minister has said is welcome as far as it goes, and I fully understand the difficulties with surveillance technology, but I should like to ask her this. First, when does she think the Government will arrive at a firm decision on being more restrictive on the export of surveillance technology? Secondly, what about exporting to other countries which might then re-export to oppressive regimes? What can the Government do about that?



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Baroness Wilcox: The Government do not want goods of UK origin to be re-exported for undesirable uses-of course not. However, the introduction of a statutory re-export control does not make our current export-licensing system more robust. We have talked this through with the European Union. The difficulty is that our law cannot be applied to another country to which something has been passed on. However, we make the questioning of anybody who is looking for an export licence from us very robust, particularly if it is for export to difficult countries, to make absolutely sure that we are clear about why they are doing it and where the goods are going. If, when they come back the next time, we discover that something has happened-that there has been a re-export-we will have an opportunity. However, it is most frustrating that we cannot do more. If anybody can come up with any other suggestion for us or the other members of the European Union, we will be only too happy to listen.

Lord Stevenson of Balmacara: My Lords, the tension that occurs between promoting commercial interests and seeking the improvement of human rights overseas is highlighted by the UK's role as a major arms-exporting country. We also need to consider the role of government agencies in the support and promotion of arms sales. In its role as a supporter of UK growth, does BIS regularly analyse the industrial and economic benefits of MoD procurement decisions so that a proper cost-benefit analysis can take place? If not, why not? Can we expect to see such analyses being published?

Baroness Wilcox: I think that the answer is yes, it does-I am sure that it does. I will check to make absolutely sure, as I am sure that the noble Lord will ask me about this again otherwise. I will return to this with the information that he has asked for, if I may.

Lord Phillips of Sudbury: May I ask my noble friend what approach the Government adopt towards the export or re-export of arms or software to the Israeli army for potential use in Palestine?

Baroness Wilcox: The same rules apply as to any other country.

Unemployment: Young People

Question

2.58 pm

Asked By Lord Roberts of Llandudno

To ask Her Majesty's Government whether they will appoint a Minister to deal specifically with youth unemployment.

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, the Government have no intention of doing this. We already have a Minister for Employment who has a clear strategy and robust policies to support young people into work.

Lord Roberts of Llandudno: My Lords, I am sure we are grateful for the youth compact that was announced a few days ago and, wherever we sit in the House, wish it well in denting somewhat the 1 million young people

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who are looking for jobs. However, would it not be better to have one person with an overall view to look at the short-term and long-term problems of youth unemployment, and to co-ordinate the various departments and strands of policy that are affected by them?

Lord Freud: My Lords, youth unemployment, specifically, falls within the context of overall unemployment or employment. In practice, it is more important to have integrated support for people to get back into the employment market than across government for youth. In that area, we have the Social Justice Cabinet Committee, which looks at supporting society right across the piece, including youth.

Baroness Armstrong of Hill Top: My Lords, is the Minister aware how much the Government are failing many young people in the north-east? We have the highest rate of unemployment and of youth unemployment in the country. That part of the country is struggling to keep going. Given that the Government scrapped the Future Jobs Fund and the regional development agency, which was much engaged in these things, will the Minister give his personal commitment to look at what is going wrong in the north-east and to come up with specific answer for that region and those young people?

Lord Freud: My Lords, without just saying yes, I will give that commitment, I want to point out that despite a growing economy some real structural problems have existed in different regions over decades, and certainly over the past decade. There are no easy solutions, but I will follow up the request personally and look at some of these regional issues. We are spending a great deal of time worrying about this.

Lord Northbourne: Will the Minister indicate what proportion of the 1 million or so unemployed young people have families where neither the father nor the mother is in employment?

Lord Freud: My Lords, I have actually forgotten that particular number, though I did know it. I will commit to writing with the precise number, which has fallen out of my head. I am sorry.

The Lord Bishop of Liverpool: My Lords, the Bishops very much welcome the development of apprenticeship schemes. However, is the Minister aware that small businesses very often lose out on the major apprenticeship schemes? Is he aware of the Apprenticeship Training Agency in Liverpool that brings together the Chambers of Commerce, the city council and the colleges in providing apprenticeships for small and medium-sized enterprises? If so, would he like to replicate that model elsewhere?

Lord Freud: My Lords, the point about the involvement of small and medium-sized enterprises is a very good one. Last week, we announced a subsidy to enable small and medium-sized enterprises to take on an extra 20,000 apprenticeships with an incentive of £1,500 a time. One of the issues with SMEs is that they need

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to have comfort that they can go on employing an apprentice for a long time. That is the key issue to get SMEs back into this particular support.

Lord Cormack: My Lords, as there is a real danger of a generation growing up without hope, would my noble friend discuss with his ministerial colleagues the desirability of having some form of national social service which all young people can undertake when they leave school?

Lord Freud: My Lords, we are, as a priority, looking at how to help youngsters back into the workplace. That is what our youth contract, which was announced on Friday, is about. It is about trying to do the important things, which are work experience, apprenticeships and getting people work through a subsidy to employers.

Lord Walton of Detchant: My Lords-

Lord Davies of Coity: My Lords-

Lord Strathclyde: My Lords, there will be time for both Peers if we have the noble Lord, Lord Davies, and then the noble Lord, Lord Walton.

Lord Davies of Coity: My Lords, more than 50 years ago, when I was serving my apprenticeship, the industrial training boards had a levy and grant system that ensured that all small and medium-sized businesses produced apprentices or paid the levy if those businesses poached skilled men from the big companies. Why should we not reintroduce that system?

Lord Freud: My Lords, we clearly need to rebuild the apprentice structure in this country-or at least build it, as was never particularly strong compared with countries such as Germany. We are very actively looking at how best to do that.

Lord Walton of Detchant: My Lords, to follow up the question of the noble Baroness, Lady Armstrong, is the Minister aware that the newspapers in the north-east reported over the weekend that properties to a value of £130 million owned by One North East, the regional development agency that is being abolished, are being sold and that the money derived from those sales will revert to the Treasury? Would not this money be better spent on doing something about youth unemployment in the north-east?

Lord Freud: My Lords, we have just announced putting in an extra £1 billion boost to youth unemployment and that money has to be found from somewhere. The Autumn Statement may be examined with great interest as regards how the money has been shuffled to get that support for youngsters, within an overall spending envelope that it is vital to maintain in order for us to keep low interest rates in this country.

Baroness Farrington of Ribbleton: My Lords, will the Minister go back to his Government and look at the question of education maintenance allowances? In the 1980s, under a Conservative Government and amid high youth unemployment, Lancashire County

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Council was one of the first areas to bring in education maintenance allowances. In high youth unemployment areas such as Skelmersdale, the staying-on rate for further education and training increased by more than 30 per cent. We in Lancashire were complimented by a predecessor Secretary of State, Sir Keith Joseph, who allowed us to create more tertiary colleges to do this. Why are the Government ignoring tried and tested policy?

Lord Freud: My Lords, there was about 90 per cent dead weight in EMA, and we replaced it with a bursary system on which we are spending £180 million. That started this September.

UK Border Security: 30 November

Private Notice Question

3.07 pm

Asked By Lord Dholakia

Lord Dholakia: My Lords, I beg leave to ask a Question of which I have given private notice.

The Minister of State, Home Office (Lord Henley): My Lords, the security of the UK border remains our top priority. Contingency plans are in place and we are satisfied that security will be maintained. We started training additional staff for contingency arrangements in April and adequate resources are now available. Any staff deployed to the front line will have received the training required to operate effectively. Arriving passengers will remain subject to checks at the border by appropriately trained staff.

Lord Dholakia: My Lords, will the Minister confirm that none of the checks highlighted in the recent controversy surrounding the UK Border Agency will be relaxed for the purpose of reducing queues at the point of entry? Given that the UK Border Force has many powers, as defined under the Police and Criminal Evidence Act, would a no-strike agreement with the force be appropriate on future occasions?

Lord Henley: My Lords, as regards the second part of my noble friend's question, that is obviously something we would have to consider after 30 November and after we have seen how we manage on that day. But I can give my noble friend an assurance that none of the checks he mentioned will be relaxed.

Baroness Royall of Blaisdon: My Lords, the Government have sponsored speculation about what they will, may or might do to maintain UK security, especially at the borders, on 30 November-everything from bringing in the Army to the idea of staff from the Prime Minister's Office manning passport control points. However, people need and deserve stability. If they have booked a holiday that day, they need to

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know whether they can get away. If businesses have important customers coming to the UK, they need to know that their businesses will not be damaged. I should therefore be grateful if the Government would publish, clearly and fully, for the benefit of the country as a whole, what in detail they intend to do on Wednesday in relation to border security.

Lord Henley: My Lords, I am very sorry that the noble Baroness the Leader of the Opposition did not take the opportunity to condemn the strikes that are taking place on Wednesday, which would have been helpful. If all parties agreed that those strikes should not happen we would not have this problem. We shall be operating the appropriate checks with the appropriate people, appropriately trained to make sure that visitors-whether they are coming here as tourists, whether they are coming here for business or whether they are returning UK citizens-can get in without any disruption or with disruption minimised as much as possible. The noble Baroness will also be aware that this is an operational matter and for security reasons it would not be appropriate to comment in detail, as she wishes, on the arrangements.

Lord Tomlinson: Will the Minister comment on reports in today's press that part of the police force is being drafted in to take over the role of the UK Border Agency at our borders and that their training is alleged to be merely 90 minutes? Is that adequate?

Lord Henley: My Lords, I would not believe-and I would recommend that the noble Lord should not believe-everything I read in the press. I can assure him and the House that everyone assisting on this matter will have the appropriate training necessary to do the job. Yes, some police will be involved but they will have the appropriate training to do the job that they need to do.

Lord Campbell-Savours: My Lords, the Minister said that staff started training in April. What were they training for in April?

Lord Henley: My Lords, any sensible organisation, knowing there was a risk of such things happening-something which has still not been condemned by noble Lords opposite and I am waiting for that condemnation to occur-would make the appropriate arrangements. The border agency started that last April.

Lord Alderdice: My Lords, given that the security of our country is not just dependent on border security but that unfortunately there are risks internally within our United Kingdom, can the Minister reassure us there will be no diversion of security resources to the border checks that will in any way diminish the other security measures that are necessary internally?

Lord Henley: My Lords, I can give my noble friend that assurance and he is right to point out that it is not just the borders we need to look at. No concerns have been expressed by the police and others that any diversion to the borders will impair our security arrangements in other matters.



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Lord Grocott: Given that the Minister has repeatedly asked people on this side of the House to talk in terms of condemnation, can we take it as read that the Government condemn the cleaners, the dinner ladies, the low-paid workers and those threatened with a weakening of their pension entitlements and an increase in their contributions? Is the Government's position that they condemn these people for trying in any way to defend their position?

Lord Henley: My Lords, I condemn the strike as it affects our security and the arrangements we are having to make. That is the condemnation I am still waiting to hear from the party opposite.

Baroness Williams of Crosby: My Lords, can the Minister tell the House what assurances, if any, we have from schools about the protection of the safety of children, particularly when their parents are at work or may find it difficult to return from work because of the effects of the demonstration? Can he say whether there have been consultations with the Department for Education on this point?

Lord Henley: My Lords, I am not aware of any consultations with the Department for Education. I will certainly make inquiries and get back to my noble friend later this afternoon. I am sure there will have been discussions for the very reasons my noble friend raises.

Lord Davies of Coity: My Lords, the Minister has repeatedly referred to this side of the House not condemning the strike. What I want to ask him is this-can he give a categorical assurance that the motivation of the coalition Government is security and not strike breaking?

Lord Henley: My Lords, as I made clear in my original Answer, our first priority, our highest priority, our top priority is the security of the United Kingdom. If the noble Lord thinks that we are involved in strike breaking he should think again. We want to make sure that our borders are kept secure. We think that the unions are endangering that security by the actions they are taking. The offer is still open to talk to the Government and others and we wish they would take that up.

Lord Harris of Haringey: My Lords, of course our borders should be kept secure, but are the Government doing enough to negotiate with the unions on this point? Are the Government in fact making every effort to try to resolve this dispute rather than, as the Minister has told us, having been preparing since April for just this eventuality? Is it not that they actually wanted to provoke a strike, for whatever political reasons they may have?

Lord Henley: Come on, my Lords. The noble Lord knows perfectly well that the Government's doors remain open and that the Government are prepared to negotiate. It is the unions who are being intransigent and it is the party opposite which is refusing to condemn an action that will possibly endanger our security.

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Because of the actions we have taken, and have been taking since April of this year, we think that we will be able to keep security at the appropriate level at the borders on Wednesday.

Lord Cormack: My Lords, is my noble friend not aware that most people in this country will be glad that the Government attach the highest priority to our national security?

Lord Henley: I am very grateful for the support of my noble friend. I wish I could get similar support from noble Lords opposite.

Baroness McIntosh of Hudnall: My Lords, given that the Minister is so fixated on the possibility of getting the kind of statement that he would like to hear from these Benches, does he imagine that the people out there who are contemplating going on strike are mostly or even to a small extent members of the party I support? I submit that not only are they not, they are members of all parties and none, and what is preoccupying them is not the question of whether the Labour Party supports them but their concern for their future pension rights.

Lord Henley:My Lords, the noble Baroness accuses me of being fixated on this issue and perhaps I am somewhat naive to be so fixated on this issue. I do not know in which way the members of the unions involved happen to vote. I happen to know that those unions support the party opposite. That is why we are still waiting for that condemnation from the party opposite.

Baroness Royall of Blaisdon: My Lords, does the Minister agree that any strike is a demonstration of failure? Does he further agree that the Government themselves have failed to resolve this strike?

Lord Henley: My Lords, I totally and utterly reject what the noble Baroness has said and again invite her, as the Leader of the Opposition in this House, to condemn this strike.

Procedure of the House

Motion to Agree

3.17 pm

Moved By The Chairman of Committees

That the 9th Report from the Select Committee (HL Paper 226) be agreed to.

Motion agreed.

Parliamentary Constituencies and Assembly Electoral Regions (Wales) (Amendment) Order 2011

Motion to Approve

3.17 pm

Moved by Lord Wallace of Tankerness

That the draft order laid before the House on 24 October be approved.

Relevant documents: 31st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 22 November

Motion agreed.



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Health and Social Care Bill

Committee (8th Day)

Moved by Earl Howe

That the House do now resolve itself into Committee.

3.18 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, before the House goes into Committee on the Health and Social Care Bill, I should like to take the opportunity to update noble Lords on the latest position with regard to the Department of Health risk registers. The House will recall that my department received a specific request under the Freedom of Information Act to release the transition risk register, which covers risks relating to the development and implementation of our health reforms. There was also a separate request to release the strategic risk register, which covers the most important risks the department faces.

We have taken the view that the information in both registers should be treated as exempt from disclosure under Section 35 of the Act on the grounds that the information contained in the risk registers is integral to government policy-making. Risk registers of this sort are a tool by which information about potential risks-both actual and theoretical-can be recorded in worst-case terms to enable them to be mitigated and managed. The Information Commissioner accepts that the information falls within this category of exemption. Following our decision not to release the registers, the two individuals who made the FOI requests lodged appeals with the Information Commissioner.

In early November, the Information Commissioner published his decision notices in both cases, deciding that the public interest lay, on balance, in full disclosure of both registers. Since then, as is allowed for under the rules, we have been considering whether we should appeal the Information Commissioner's decisions. As I explained to the House previously, this was not a decision that the Department of Health could make on its own, as the issues which bear upon the decision have significant implications for every government department.

While the principle of openness is one to which we have adhered to the maximum extent through evidence given to the Health Select Committee in another place and the publication of impact assessments, it has been our firm view, and that of other departments, that for risk registers of this type to fulfil their function, civil servants must be free to think the unthinkable and record potential risks and mitigations fully, frankly and with absolute candour, confident in the knowledge that this information will not be publicly disclosed.

The logic of the Information Commissioner's decision to order the release of information of this nature would entirely undermine the concept of safe space for these sorts of circumstances. The matter has accordingly been the subject of much careful consultation across Government, and a very clear and firm view

28 Nov 2011 : Column 16

has emerged that the publication of information in risk registers of this type would be likely, in the future, to undermine the very purpose for which a risk register of this sort is produced, and thus directly threaten the successful implementation of government policy. I can, therefore, tell the House that my department has decided to appeal both decisions by the Information Commissioner.

I would, however, like to respond to the request made on 16 November by the noble Baroness, Lady Thornton, by sharing with the House as much further information as I can about what my department's transition risk register contains. On that occasion I undertook to examine whether there were any risks covered in the Department of Health transition risk register that are not already in the public domain and on which information could be provided without further ado.

While I cannot share the detailed breakdown of the information recorded in the risk register, or the wording, I am happy to set out for the record the broad issues covered by the transition risk register. They are as follows: how best to manage the parliamentary passage of the Bill and the potential impact of Royal Assent being delayed on the transition in the NHS; how to co-ordinate planning so that changes happen in a co-ordinated fashion while maintaining financial control; how to ensure that the NHS takes appropriate steps during organisational change to maintain and improve quality; how to ensure that lines of accountability are clear in the new system and that different bodies work together effectively, including the risk of replicating what we already have; how to minimise disruption for staff and maintain morale during transition; how best to ensure financial control during transition, to minimise the costs of moving to a new system, and to ensure that the new system delivers future efficiencies; how to ensure that future commissioning plans are robust, and to maximise the capability of the future NHS Commissioning Board; how stakeholders should be engaged in developing and implementing the reforms; and finally, how to properly resource the teams responsible for implementing the changes. I hope that this information will prove useful to noble Lords as the Bill continues its passage in Committee.

Baroness Thornton: I thank the Minister for that statement, of which I did not have more than two minutes' notice. It is very disappointing indeed. Basically, the noble Earl is saying that the Government are choosing what they do and do not disclose to the Committee on this matter. It is an issue of trust-whether or not we can trust that we will know what we need to know to make judgments about whether this Bill will work.

I thank the noble Earl for the issues that he has decided that the Government can let us know about, but of course I am therefore concerned about what the issues are that the Government have decided that we should not know about. What are the risks that we cannot know about? That is a matter of grave concern to the Committee.

I shall be looking in detail at the Minister's statement to the House and I reserve the right to return to this matter if I feel that we need to. For example, during

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the last two days in Committee I put two direct questions to the Minister about whether certain matters-one concerning children-were on the risk register and what the register said about them. I have not received answers to either of those questions. I shall continue to put my questions in that context and I suggest that other noble Lords do the same.

I am very grateful for the Statement as far as it goes but I do not think that this is an end to the matter. I can see why the Government might think that there is a cross-government issue here. However, no other department is in the position in which we find ourselves here-that of discussing a Bill that is going through the House right now. We need full information on this matter in order to be able to make proper decisions but I believe that we still do not have that. Therefore, I thank the noble Earl so far as this goes but I reserve the right to return to the issue in due course.

Lord Campbell-Savours: Perhaps I may ask the Minister a question. He gave us a list of all the areas which he thought it was not possible for Parliament to scrutinise in some detail. Did the Information Commissioner have access to all the document headings to which the Minister has referred, and did he have the opportunity to read all the documentation under those headings? If the Information Commissioner did have access to information on, for example, the handling of the legislation as it goes through Parliament, why did he, throughout the whole report, repeatedly say that these matters should be placed in the public domain? Again, is it not clear that the Government are trying to hide something from Parliament? The Minister's first reference was to the handling of the legislation by Parliament. Why should not Parliament see what considerations took place within the department concerning how legislation should be handled as it goes through this House?

Earl Howe: My Lords, my clear understanding is that the Information Commissioner had full access to the risk register so that he would be able to see for himself what it contained. I do not believe that anything material was withheld from him. The whole purpose of risk registers of this type is to record all risks, even the unthinkable and the highly unlikely actual risks, as well as potential risks-in other words, risks that may not arise in the future but which could be mitigated with action today. Such risk registers record mitigating actions so that the risks identified do not become a reality. In our clear view, exposing that kind of information could cause needless concern, set hares running and seriously undermine confidence in the programme of work. No Government of any persuasion have routinely made risk registers of this type public for the very reason that to do so would undermine open and frank discussion among policy-makers for fear that the policy would be made public before it was fully developed.

The department has published and discussed its proposals for reform at every stage of this process. It has debated them at length in both Houses. It has even released some detail about the associated risks and what it is doing to address these in impact assessments. Therefore, I firmly believe that the Committee has all the information that it needs to discuss the proposals in detail.



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Baroness Williams of Crosby: My Lords, the Department of Health will be aware that with a freedom of information request there are always considerable burdens on those who argue that the information should not be conceded. Has the Minister given any thought to the possibility of a limited redaction of the report rather than not making it available at all, or alternatively whether there are parts of it that he feels could be made available so that the House can consider more deeply the issues that are coming up? I share the view of the noble Lord, Lord Campbell-Savours, that on the issue of how Parliament handles the legislation and the implications for the transition, certain things from the register might be useful, although I recognise that some extreme cases might be picked up by the tabloids and be changed into sensational reporting. Could the Minister possibly consider that qualification more seriously than we have been able to do so far?

Baroness Finlay of Llandaff: My Lords, I would be grateful if the Minister could let us know whether the department considered the BMA resolution in council at the end of last week to now oppose the Bill and campaign against it, when the BMA was coming to its decision to appeal against the release of the information. If not, will it be considered in the next steps the Government take, given that it signals a major loss of confidence in the Bill by the BMA?

Lord Stoddart of Swindon: How long is it likely to take for the appeal and the decision? If the decision disallows the appeal, will the Government accept that?

Lord Butler of Brockwell: My Lords, the problem is not what may be contained in a particular risk register, as the Minister has said, but the precedent that it sets for all other risk registers. There may be nothing in this register that is particularly sensational or has not been released. However, once this case is conceded it will nullify the effect of all risk registers across government. If people think these risk registers are valuable it must be the case, as the Minister has said, that people look at the worst risks and do so frankly, and if they make them anodyne then the purpose of the registers is entirely lost.

Lord Elton: My Lords, I hope that the noble Baroness, Lady Thornton, will remember those words when she is considering her next intervention on this matter. Bear in mind that what she says then will be taken as the yardstick of what any Government of her colour are expected to do when they eventually-one hopes at a great distance of time-take our place.

Lord Campbell-Savours: My Lords, I understand there is a precedent-a Department of Transport one. Therefore, there is a discretion and the Government are in a position on this occasion and not on a further one. I do not really see that that case is relevant.

Earl Howe: My Lords, I am very grateful to the noble Lord, Lord Butler, whose understanding of these matters is one that noble Lords will respect greatly. He is absolutely right-this is not an issue that solely affects the Department of Health: it affects all government departments. That is why the stance taken

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by the BMA to this Bill was not material in our decision. We regret that stance but it did not come into our thinking in any way.

On the question of precedent, I am aware that during the course of the last Government three separate recent requests were made to the Department of Health to release risk registers. All three requests were declined. I have the letter here that was sent when the right honourable Andy Burnham was Secretary of State, citing exactly the same kinds of reasons I have given.

I was asked how long the appeal would take. I do not know but my understanding is that the process should come to a conclusion reasonably early in the new year. I cannot be more definite than that because it is not up to us-it will be up to the tribunal to order its business as it sees fit. Will the Government accept the result? Clearly, we will have to take a view whatever the result; I cannot pre-empt the decision today. My noble friend Lady Williams asked whether we had considered releasing a redacted version-the decision before us was whether to comply with the Information Commissioner's decision in full, or not to and appeal. We did not have the option of redaction but I am grateful to my noble friend for her suggestion, which I will take away and consider.

Motion agreed.

Clause 20 : The NHS Commissioning Board: further provision

Amendment 106 had been withdrawn from the Marshalled List.

Amendments 107 to 109 not moved.

Amendment 109A

Moved by Lord Butler of Brockwell

109A: Clause 20, page 17, leave out lines 33 and 34 and insert-

"(5) In discharging its duty under subsection (1), the Board must publish guidance for clinical commissioning groups that includes the option to opt out and explains the extent of compliance with-

(a) the quality standards prepared by NICE under section 231 of the Health and Social Care Act 2011;

(b) indicators included within the NHS Outcomes Framework; and

(c) minimum standards set by the Board on patient related outcomes measures."

The Lord Speaker (Baroness D'Souza): My Lords, I advise the Committee that if the amendment is agreed to, Amendments 110 and 110ZA cannot be moved by reason of pre-emption.

Lord Butler of Brockwell: My Lords, with the agreement of the noble Lord, Lord Newton, I move Amendment 109A, which stands in my name and his. I can do so briefly, although the amendment is important and, I hope, helpful. I declare an interest as the chair of King's Health Partners, an academic health science centre. Part of the centre's mission is to accelerate the translation of research into patient care-getting a faster process from bench to bedside. It is in that capacity that I move the amendment.



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The focus in the Bill on outcomes for patients is very welcome. It is also welcome that Clause 20 gives the Commissioning Board a duty to promote compliance with the quality standards prepared by NICE, as well as guidance published by the Secretary of State. There may be circumstances in which there are good local reasons why NHS providers should not comply with NICE guidelines. One such circumstance may be where there are innovative treatments that have been approved but with which NICE guidance has not yet caught up. We do not want the clause to stifle the introduction of such initiatives, which the creation of AHSCs is designed to promote and which are greatly in the interests of both British industry and patients. For this reason, Amendment 109A introduces an element of flexibility through a comply-or-explain regime. It will give providers the opportunity, in cases where there are good reasons why they should not comply with the NICE guidelines, to depart from them provided they can explain their non-compliance satisfactorily. That is all I need to say about the amendment. I beg to move.

Lord Newton of Braintree: My Lords, I chip in briefly in support of the amendment. I hasten to assure my noble friends on the Front Bench that this is a probing amendment and that I have no intention of pushing my luck. I have been so open and transparent as to share with the Minister every word of the briefing that I received and that led to the amendment. He knows what it is about. Therefore, I am looking for a measured, constructive and well informed response. I have no interests to declare except the public interest. The healthcare industry-the interests of which underlie the amendment-is important. It contains a lot of small and medium-sized enterprises of a potentially and actually very successful kind. We ought to encourage them, and I hope that the Minister will do his best.

Baroness Royall of Blaisdon: My Lords, I speak to Amendment 110ZA. In tabling the amendment and Amendment 343A, I was mindful of information from the Prostate Cancer Charity, which I strongly support, and from members of the Epilepsy Society. Of course I am aware that many other people with different chronic diseases, and those who care for them, are concerned about these issues.

As noble Lords are aware, prostate cancer is the most common cancer in men in the UK. In England, 30,000 men are diagnosed with it every year, and there are 215,000 men living with and beyond the disease. Ten thousand men die from prostate cancer every year. Currently, clinical nurse specialists for men with prostate cancer have to care for a worryingly high number of new patients compared to nurses for people with other common cancers. I am therefore worried that the financial pressures on the NHS and the cost of reform will threaten those already overstretched specialist nurses, who are so vital in driving up the quality of care for people with cancer.

Access to a clinical nurse specialist improves the experience of people with cancer at every stage of their journey and ensures that they have access to the vital support and information they need. This has been evidenced by the results of the 2010 National Cancer Patient Experience Survey. If patients are to have more control over decisions related to their care

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and report a good experience of care, they need the clinical and emotional support, information and expertise that a clinical nurse specialist can provide.

As the noble Earl will be aware from his association with the epilepsy organisations, NICE guidelines state that epilepsy specialist nurses should be an integral part of the medical team providing care to people with epilepsy. Even with investment made under my Government, 60 per cent of acute trusts and 64 per cent of primary care trusts did not have an epilepsy specialist nurse in 2009. SIGN guideline 70 states that,

There are around 150 epilepsy specialist nurse posts, with a further 250 to 300 nurses who have undertaken training but are not in a role due to the shortage of posts.

As all noble Lords will be aware, specialist nurses save the NHS money by releasing consultants' time, reducing A&E admissions, enhancing patients' adherence to treatment and reducing the use of hospital beds. Therefore, I am proposing two amendments that would place duties on the NHS Commissioning Board to have regard to the continued access of patients to clinical specialist nurses. The first would support the board's existing duty as to the improvement in quality of services and the second would create a new standalone duty. I trust the Minister will be able to accept my amendments.

Lord Walton of Detchant: My Lords, I rise to support Amendment 109A. There is no doubt at all that for many years now the work of the National Institute for Health and Clinical Excellence, NICE, has made a major contribution to the National Health Service. There is a widespread feeling in the public at large that NICE deals with nothing other than whether or not to recommend the approval of certain drugs for the treatment of disease within the NHS. However, NICE's commitment spreads much more widely than that. It examines procedures; it examines complicated interventions of all kinds; it examines the introduction of new and innovative techniques, new instruments and other procedures in the NHS. Its remit is exceptionally wide.

I know full well that the noble Lord, Lord Newton, says he is not going to pursue this amendment to a vote, but it is important that we have some assurances from the Minister. As my noble friend Lord Butler says, it is clear that, although NICE guidance in general terms is something with which health authorities and health bodies of all kinds will be expected to comply, there are clearly circumstances, particularly at a local level, where, for the reasons he gave, such compliance would be inappropriate. The amendment takes full note of that as being an important issue.

However, we must be sure, in implementing the recommendations of NICE, that we do not overlook the crucial importance of ensuring that the national Commissioning Board will have a duty to promote innovation in its annual report. It is also crucially important, when we come to look at innovation tariffs much later, in Amendment 288H, to see that the tariffs system will not act as a counterincentive to the adoption

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of innovation and of new technologies. These are issues upon which it is important to seek assurances from the Minister.

Perhaps I may also add to what the noble Baroness, Lady Royall, said. The work of specialist nurses is extraordinarily important to the NHS, and not least in my own field of neurology, where nurses who are specialised in multiple sclerosis, Parkinsonism, epilepsy and many other conditions have made an outstanding contribution to the clinical care of patients. In many instances, their work and advice have prevented unnecessary admissions to acute wards of patients suffering from these conditions. They are invaluable. Unfortunately, over the past five or six years, we have identified instances where cash-strapped health bodies of various kinds have diverted some of these specialist nurses into standard nursing care. I hope that the Minister can give us an assurance that the role of specialist nurses in the NHS is going to be enshrined in the Bill and that the Government will recognise that such nurses are there for a special purpose, not to provide general nursing care in hospital wards and out-patient departments.

3.45 pm

Baroness Cumberlege: My Lords, I have tabled three amendments in this grouping: Amendments 110C, 131A and 190C. I am grateful to the noble Lord, Lord Patel, for supporting the amendments because they concern maternity services, and I do not think I could have anyone more distinguished than the past president of the Royal College of Obstetricians and Gynaecologists, although of course the noble Lord is also involved in many other things, not least this Bill. These are probing amendments, the first of which seeks a commitment from my noble friend the Minister that the Government, through commissioning at the national and the local level, will give women and their partners real and informed choice in maternity services. The second amendment would ensure that there is less variation in the quality of services provided, and the third concerns maternity networks, including independent midwives.

The variation in maternity services across the country is quite startling. Sometimes the poor performance is a reflection of a lack of resources or priorities, but one of the reasons for this is that maternity services have been overwhelmed by the rising number of births, including more complex cases. This is partly due to the increase in the number of older women giving birth. Last year the number of women giving birth aged over 40 was the highest since 1948, the post-war period, and we can surmise about that. In the past 10 years in England, the number of births overall has risen by 22 per cent, which means that more than 10,000 extra babies are born every month. There has been a modest increase in midwives, and we should be grateful for that, but they are being run ragged by this record-breaking baby boom.

The Bill seeks to ensure that the quality of NHS services will improve by using new and increasingly much more sophisticated commissioning systems. If this key objective is to be realised, it will require commissioning of a very high quality. Pathfinder clinical commissioning groups are beginning to get a grip and to understand the health needs of their local populations,

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but inevitably others will lag behind and we will see variations in commissioning. One of the ways to address this is through a NICE quality standard, as already discussed by the noble Lord, Lord Butler, and my noble friend Lord Newton. But as the noble Lord, Lord Walton, said, even when these standards are produced, advice from NICE is not always adhered to, and I understand that the queue for these quality standards to be produced is very long, with maternity services some way down the line.

On quality, proposed new Clause 13E(1) states that the NHS Commissioning Board should improve the quality of services in three areas: prevention, diagnosis and the treatment of illness. On prevention, however powerful the board is, it is going to find it a real task to prevent wanted pregnancies-even Solomon in all his glory failed to do that, and he knew quite a bit about babies. On diagnosis, I do not think there is much problem in diagnosing pregnancy, as it is usually pretty obvious to those concerned. On the treatment of illness, certainly most women who are pregnant are not ill; on the contrary, many take enormous care of themselves and are extremely fit and so will not need treatment for illness.

Looking at those three criteria in that subsection, I think that they do not fit with maternity services. Therefore, we have a lacuna, which I am trying to fill with my first amendment. I suggest that the Commissioning Board keep a watchful eye on the situation in England and use a means-possibly a specification or some other mechanism-which would act as a guide to enable commissioners to buy services from NHS trusts at a set quality, until NICE has produced its quality standards.

My second amendment concerns choice. I apologise because I think it has been positioned rather wrongly in the Bill, but it is another probing amendment.

"Pregnancy is a long and very special journey for a woman. It is a journey of dramatic physical, psychological and social change; of becoming a mother, of redefining family relationships and taking on the long-term responsibility for caring and cherishing a new-born child. Generations of women have travelled the same route, but each journey is unique".

I wrote that in the foreword for Changing Childbirth, which was a government policy document that I produced many years ago. It is because each journey is unique that women and their partners should have as much choice as possible, because we know choice is empowering. Giving birth can be wonderful, but it is also very traumatic and the start to a new life can have long-term consequences for the baby as it enters childhood and later adult life.

New Clause 13I, places a duty on the board to enable patients to make choices in the services they receive. Pregnant women and their partners have four main choices when considering where to give birth: at home, in a free-standing midwifery unit, in a midwife-led unit situated alongside a hospital or in a hospital led by a team of obstetricians. This is the theory, but it does not actually work in practice. Delivered with Care, a national survey of women's experiences of maternity care in 2010, undertaken by two very respected researchers in the field, found:

"Many women (80 %) were not aware of the four possible options for ... birth".



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Therefore, how can potential parents choose when they are not even aware of the options? Why do health workers, especially GPs, seeing a woman at the first booking, not tell them what is available? The majority only tell them where to go, and that is hospital.

In a joint statement the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives, in their introduction to a paper on home births state:

"The rate of home births within the UK remains low at approximately 2%, but it is believed that if women had true choice the rate would be around 8-10%".

It is part of government policy to give choice, including birth at home, to every pregnant woman. In Somerset 11.4 per cent of births are at home, whereas in Wansbeck the figure is just 0.1 per cent. Of course there may be a range of factors affecting this-I suspect housing and other conditions also play a part-but this discrepancy is so great that I am sure it is partly due to the fact that mothers were not even told what was available. I would like to ask the Minister how he sees the NHS Commissioning Board addressing its duty in new Clause 13I as to patient choice in maternity services. I appreciate this is quite a minority sport so the Minister may like to write to me on this issue.

My third amendment concerns maternity networks. Neonatal and cancer networks, where they work well, have proved to be highly effective. It is a model that those in maternity services wish to adopt. They believe that effective, inclusive and supported maternity networks have the potential to ensure that all women, within the network locality, are able to access the full range of services from pre-conception to early years. The networks would be able to promote choice within these services and work with all providers to ensure that women are offered and are able to exercise informed choice. The existing networks have received funding for their infrastructure, which has enabled them to be effective. Will my noble friend consider a similar commitment from the Government to support the development and sustainability of maternity provider networks and ensure that they are properly resourced?

Part of the network should be the care offered by independent midwives, who give a highly specialised and personalised service, accompanying the family through this wonderful but often stressful time in their lives. There are around 130 independent midwives in the country, but there are about 800 who would choose to work in this way if they could get professional indemnity insurance. Currently that is not the case because of market failure to provide for it.

The EU Council of Ministers has issued a directive on patients' rights on cross-border healthcare that requires member states to ensure that systems of professional liability insurance are in place for treatment provided on their territory. The Government ratified this directive on 28 February this year, which means that all midwives in independent practice in the UK will need to be able to access this insurance from September 2013 in order to be registered with their regulatory body, the NMC. Without registration, they will not be able to practise midwifery legally; independent midwifery will disappear, unless a solution to the insurance conundrum is found. Can we really afford to let this happen when the maternity services are in such desperate need of experienced, skilled midwives?



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The clock is ticking and the issue is urgent. I ask my noble friend, who is well aware of this difficult issue-we have met in the past to discuss it-to tell me when the Government are planning to publish their proposals and when independent midwives and other non-NHS bodies will be able to take up the NHS clinical indemnity arrangements planned for by the Government.

Lord Mawson: My Lords, I rise to support Amendment 131A proposed by the noble Baroness, Lady Cumberlege. My wife and I have three children and have experienced some choice as to whether they were born at home or in hospital. I must admit that this was not a matter to which my wife and I had given a great deal of thought when we had our first child 31 years ago. Then we naively assumed that having a child in hospital was fine and the normal practice. The doctor would look after us. However, the truth is that it was far from normal for a young married couple. We discovered later that everything that was done seemed to be focused not on the well-being of the patient-my wife and child; some would say the customers-but on the interests and timetable of the consultant. Medication was given that was not really needed to ensure that the child was born to fit some preordained hospital schedule, a timetable that I think had more to do with the consultant's golfing schedule, I discovered later, than the interests of the mother and child. The experience left some scars.

Our second child was born at home in Tower Hamlets, under a new home birth scheme that was quite radical at the time and which was set up by Dr Wendy Savage. I must say that this experience was completely different. We all felt so much more relaxed and in charge of events, as best you can be on such occasions. It all happened rather quickly and in a relaxed atmosphere and was an experience of great joy for us all. The effects of this experience on mother and child, with a competent midwife present, were quite different. I must say that even I felt quite competent in making the tea. The first experience in hospital had all been about a culture of illness at the most important moment of parents' lives; the latter was about health and well-being.

4 pm

My wife was 46 years of age when we had our third child, who is now 11. There were concerns about the patient's age, so she was called in early for a caesarean section. On this occasion, we arrived in the maternity ward in Hackney to be greeted by a man sitting in front of a locked door with two keys for two locks. This felt more like an establishment concerned with the security of nuclear weapons than one responsible for childbirth. Eventually, we gained access and were left in a room with a broken cupboard and rubbish on the floor for two hours, before my wife was eventually shown to her bed. The next morning-the day of the operation-an unknown doctor appeared, hours before the delivery. He came to the bedside and asked: "What did Doctor So-and-so say was going to happen to you today". No previous records from the usual consultant who my wife had seen were apparently available. Initially, the experience felt as though no one was actually in charge of either the case or the facts. I sat there as an

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entrepreneur who was quite used to intervening in events, but in this case I was quite out of my depth. Eventually, an external midwife arrived who was apparently on the list for that day. She immediately took charge of events and there was quickly a sense of confidence and well-being. She was fantastic.

Our family's three experiences of childbirth are sadly not unique; what is on offer in our hospitals' maternity services is quite varied. It is really important that the interests of the mother and child are paramount and centre stage at this important moment of life, and that they have real choice in the provision of maternity services. My colleagues and I created one of the first LIFT companies in the United Kingdom, in east London. It has now built 10 health centres in the East End. One of those new health centres, on the Isle of Dogs, has a birthing suite in it and the quality of care that the midwives give to mothers is excellent. Indeed, the then chairman of the LIFT company reminded me recently that one local East End mum had described the birthing suite, based in a local East End community, as being like a "bleeding hotel". This is the quality and choice of services that patients deserve and for this reason, I support the amendment.

Baroness Thornton: My Lords, perhaps I may speak to the amendments in this group which are in my name. First, Amendment 110A concerns NICE guidelines and is very much like that tabled by the noble Lords, Lord Newton and Lord Butler. In fact, theirs may be even better than mine so I intend to say no more than that we are interested in the Minister exploring this issue, because those noble Lords both more than adequately covered the points that need to be made in that regard. I am also very pleased to support the amendments in the name of my noble friend Lady Royall and to put my name to those, because the role of specialist nurses is extremely important.

Amendments 118, 119 and 120 concern the duty of the board to reduce inequalities. Proposed new Section 13G of the 2006 Act states that the board must,

"have regard to the need to-

(a) reduce inequalities between patients with respect to their ability to access health services;

(b) reduce inequalities between patients with respect to the outcomes achieved for them by the

provision of health services".

This seems a rather narrow definition concerned solely with health services, which I assume flows from the continual and overriding responsibility of the Secretary of State for tackling health inequalities. I would be grateful if the noble Earl could confirm to the Committee how the Secretary of State intends to tackle health inequalities-what information he will need, where he will get it from and how those decisions will then be moved through the proposed structures of the National Health Service Commissioning Board, the CCGs and so on.

Surely, the health and well-being boards would want to have some involvement from the NHS on health inequalities, so Amendment 118 seeks to ensure that the board has health inequalities in its remit. I particularly refer the Minister to the letter from the NHS Future Forum to the Secretary of State on

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17 November where it devoted much attention to the NHS role in improving public health and made its claim that the NHS must design its services in a way that both promotes good health and prevents poor outcomes. It is thus important that the legislation provides sufficient leeway to allow the NHS Commissioning Board to do this and that legislation relating to health inequalities is not confined solely to the provision and commissioning of services.

What is also important, in coming to my Amendment 119, is that funding to the clinical commissioning group reflects the deprivation levels within its area. Can the Minister tell the Committee whether there has been a risk assessment on the issues of funding? What risks has the department found that go with the levels of funding that might be made available on the basis of deprivation levels within areas?

Of course, the decision of the Secretary of State not to make clinical commissioning groups area-based is a serious problem in ensuring a population base for commissioning, but it will be doubly important to ensure that clinical commissioning groups with large numbers of deprived patients receive financial support. I would be grateful if the Minister could spell out the intended principles behind the funding associated with clinical commissioning groups.

On Amendments 110B, 127ZA and 190AA, which concern maternity services, the noble Baroness, Lady Cumberlege, has adequately covered the major concerns about those services and we would be keen to support her amendments. I am grateful to the Royal College of Midwives for its briefing on these amendments. My only questions are about maternity networks and the recognition of their potential contribution to the type of maternity care and providing clinical commissioners with expert guidance and advice on driving up standards.

The Committee will be very pleased to hear that I do not intend to share any birthing stories. On the other hand, I am concerned. Without a national standard for maternity services, how will the new commissioning arrangements avoid significant variations? We know, for example, that there is a significant variation between trusts in the number of home births that take place. We can explore the reasons for that, but I would like to know how the new structures would deal with such variations and how that would be reflected in the work of the National Health Service Commissioning Board.

Baroness Williams of Crosby: My Lords, I have Amendment 112 and 113 in this group. I have a comment regarding the excellent speech of the noble Baroness, Lady Cumberlege, and would like the Minister to reply to it. NICE has suggested that all women expecting babies could have the right to consider the possibility of a caesarean birth. Before the choice is finally made, will that be associated with advice from doctors indicating that caesarean births are certainly not as straightforward as some people believe them to be, and for cosmetic reasons may be deeply regretted afterwards? I was a little worried that NICE had given this green light, as it were, to caesarean births without associating it with any form of counselling to the mothers concerned, not least because, as many people

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in this House will know, the outcomes in terms of morbidity and infant mortality are not as good as people imagine them to be in comparison with a normal birth. Perhaps the Minister could say something about that. Perhaps the noble Baroness, Lady Cumberlege, could also say something about it when she responds on her useful and important amendments, to which I hope the House will give an extremely warm welcome.

Amendments 112 and 113 are about strengthening the language about health inequalities. On that issue, we have had a helpful letter from the noble Earl, Lord Howe, dated 24 November, in which he sets out in detail some of the steps that will be taken, not least the creation of the Institute of Health Equity, to deal with health inequalities. My question is rather a big one but it boils down to the old problem of how one ensures that these worthy and excellent intentions are actually carried out.

The House will remember that new Section 13F of the 2006 Act proposed in Clause 20, which deals with the autonomy of clinical commissioning groups from the Commissioning Board and restricts the board's actions in terms of having to bear that autonomy in mind, was put into a different set of considerations-the consideration of the whole of the responsibility of the Secretary of State and the responsibilities of the boards-under the headings of Clauses 4 and 10.

All of this means that we are still debating these issues without being clear about where responsibility for them ultimately lies. I do not propose to go over that ground again, but it is appropriate for this debate to notice that the whole set of duties that are laid out in detail-and to which this debate will undoubtedly add as it lays down further duties for clinical commissioning groups and the board as a whole-in a sense therefore depends upon the outcome of those discussions about the constitutional structure. That matters because we need to bear it in mind all the way through our consideration of the duties that are laid upon clinical commissioning groups.

What makes me, to be honest, even more concerned is that I recently read the discussion paper The NHS: Developing Commissioning Support, which was quite improperly, no doubt, leaked on the internet. My attention was drawn to it by a couple of doctors who had access to the internet. The paper sets out in detail the ultimate objective of moving towards a commercial market in the health service and sets it out under a considerable number of different headings. For example, there is a specific mention in this report that,

"Clinical commissioning groups will have a statutory freedom to secure the commissioning support from wherever they want".

It goes on to say that the commissioning support should be given in a vibrant, commercial market. What worries me about all this is that I am not at all clear-and never have been in our long debate on health-about what the ultimate goal is. I suspect that we are discussing two things at the same time. One is the attempt to keep improving the existing NHS, sometimes by an extraordinary degree of micromanagement-from this House, I have to say. The other is the determination of many people in this House to ensure the safety and continuation of the NHS which is free at the point of need and which is

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available to people regardless of their ability to pay. Somewhere along the line and at some point, we really have to be clear what we are talking about. I do not know whether others taking part in this debate share my sense that we are walking in without knowing the constitutional responsibilities and quite where we are going.

I commend my two amendments. They both strengthen the words on equality of health outcomes. I congratulate the Government very much on establishing the Institute of Health Equity and carrying forward the detailed research we are now doing on lifestyles and many other things, which are important and which I am sure the whole House will applaud. However, I have to raise the big question about destinations. I hope that at some point before we abandon the Committee stage, we will have a clearer view about the Government's ultimate destination: whether it is to retain an NHS; whether it is to make it more open to innovation and other contributions from the private sector, with which many of us would certainly not disagree; or whether the ultimate outcome is to move towards a commercial market system, this being essentially a transitional stage.

Lord Turnberg: My Lords, this is a disparate group of amendments. I support a number of them. Some seem to be counter to others, but I hope that they will come together at some point. Amendment 110A seeks to strengthen the need to take into account the guidance from NICE. From time to time, NICE faces someone complaining about the way it goes about its business. Sometimes patient groups suggest that it is taking its time or is working against their best interests. The pharmaceutical industry complains from time to time that it takes too long and maybe gets things wrong-perhaps that is a good thing on behalf of NICE. Others complain about the methodology that NICE uses, using QALYs-quality-adjusted life years-as its measure of whether a drug or treatment is effective. Despite all that, I believe that NICE does a marvellous job, as do many who know what it does. It makes sure that the suggestion of treatments is based on clear, independent evidence of their effectiveness. Its approval is something of a kitemark for the standards that GPs and PCTs should follow and the system is envied across the world. There are others trying to emulate NICE.

4.15 pm

This amendment makes it clear that the boards must work in accordance with NICE guidance. My question to the noble Earl is: why have the Government seen fit seemingly to weaken the role of NICE by making its advice be just that-advice-without any of the teeth that it previously had? There is a subtle difference between what its guidance means now and what it will mean in the future. It would be good to have that clarified.

I support Amendment 109A, in the name of the noble Lords, Lord Butler and Lord Newton, because it provides a little get-out clause. It definitely provides NICE guidance but it also provides the possibility for a new treatment, which has not been tried or looked at by NICE, still to have an opportunity to be used and looked at under very specific and controlled conditions. Therefore, the two amendments can be looked at together.



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Amendment 110ZA refers to specialist nurses, who of course do a marvellous job. I owe them some personal gratitude, although I will not enlarge on that to noble Lords. The specialist nurses who are threatened are those in the community, who work across the community-NHS divide. They include specialist diabetes nurses, stoma care nurses, psychiatric nurses and a range of others. They do a fantastic job but, unfortunately, they are threatened. I hope we can see our way to making them unthreatened by ensuring that their joint funding, which comes partly from the local authority and partly from the NHS, is encouraged by the board and takes place. Will the noble Earl try to ensure that the board can promote this idea?

Baroness Finlay of Llandaff: My Lords, I have put my name to several of the amendments in this group-namely, Amendments 112, 113, 115, 186, 187 and 189-all of which are aimed at reducing inequalities. The noble Baroness, Lady Williams, has spoken about this. I will not repeat her arguments, other than simply to say that my reason for adding my name to these amendments was that it struck me that the words "act with a view to reducing inequalities" were not strong enough. Unless commissioning must have regard to the need to reduce inequalities, we will not improve the health of the nation.

Perhaps I may make a comment on Amendment 109A, which is a probing amendment and refers to NICE. I just want to place on record other areas of standard-establishment, such as the National Prescribing Centre and the audits and independent service reviews that are undertaken by the medical royal colleges. These are available and can be very informative. The service accreditation standards that they have produced are aimed at driving the equality improvement agenda and draw to the attention of the Commissioning Board and clinical commissioning groups the role of audits and the information that they can receive from audits, which are intended to drive up equality and reduce inequalities in service provision.

I also have in my name Amendment 299C, which seems to be almost an orphan amendment in this group but is there. It relates to private work. My reason for tabling it is that for a long time there has been confusion over what is private and what is NHS. The Bill also highlights a complexity about what is private and what is third-sector provision. Until now, third-sector services outside the NHS have generally tended to be lumped together in regulation. We will be facing different models in the non-NHS sector ranging from for-profit, through not-for-profit, to the voluntary sector as we know it today. One of the difficulties is making sure that patients are not recruited into the private practice of an individual who sees them during an NHS consultation. The fine balance between information-giving and recruiting should be clarified in guidance. Patients may ask what the waiting time is and whether they could have their intervention, investigation or whatever done more quickly if they went privately. I am concerned that the way the information is given may skew the patient's perception of it and the patient can then feel they actually ought to go privately. This may be for the profit of that individual practitioner but not necessarily make a great deal of difference to the clinical outcome of the patient.



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It is, therefore, a very difficult and fine line, but unless we begin to address it now, we will run into the same problems as we have had, for example, with top-up payments, where we had a lot of debates leading to the establishment of the Cancer Drugs Fund across the UK. We will be facing the same situation, but more so, with many other drugs that come along for non-cancer diseases. The new biologics are very powerful drugs which can be extremely effective but are extremely expensive. I am concerned that a commissioning group might decide that one of these new biologic drugs, even though it goes through all the benchmarking standards required, is something they are just not going to pay for locally. Private sector provision will, therefore, be driving patients who cannot afford to access these treatments, who are not privately insured, and whose quality of life is so severely undermined by their illness-because it is only for severe disease that these drugs are indicated-that they will not be able to work or earn without accessing them. They could therefore find themselves in a double bind.

My amendment is, of course, a probing amendment and I would not intend it to be anything more. If the Minister does not want to respond to these points today, I would nevertheless urge him at least to consider them in the guidance produced for the Commissioning Board and providers on the interface between the public and private sectors.

Lord Newton of Braintree: As this is Committee stage, I hope my noble friends will forgive me if I play Oliver Twist and seek a small second bite. I promise to be brief and make only three points. The first picks up on maternity and the remarks of the noble Lord, Lord Mawson, about consultants versus patients, if I may put it that way. I remember, in the far-off days when I used to sign 18th birthday cards to prospective or actual constituents, noticing a remarkable bunching. If you checked back 18 years you would find a correlation with Fridays and particularly the period in the run-up to a bank holiday. Secondly, nobody else has followed up the amendment of the noble Baroness, Lady Royall, about specialist nurses. I have an interest to declare here as-there are probably other things as well-president of the Braintree Parkinson's Disease Society and the Braintree Multiple Sclerosis Society. The importance of specialist nurses in some of these areas is both extremely great and underestimated. I hope that we will therefore not lose sight of the point made by the noble Baroness, Lady Royall, in her amendment, supported by the noble Baroness, Lady Thornton.

Thirdly, to assure the noble Lord, Lord Walton-who I thought was at one stage going to accuse me of being a wimp for not pressing this to a vote-I do not rule out returning to the matter on Report, unless the Minister is really nice to me.

Lord Patel: My Lords, I shall speak to several amendments to which I have put my name, but I shall start with the amendment of the noble Baroness, Lady Cumberlege, to which I have also put my name. The noble Baroness is well placed to talk about maternity services. She has championed their cause, particularly regarding choice, for nearly two decades. It is she who

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should be credited for getting us to where we are now, whereby choice of where to have their babies is available to all would-be mothers.

The noble Baroness covered most points, and I support them all. The one on which I should like to expand relates to maternity networks. It appears that both the Prime Minister and the Department of Health have accepted that maternity networks are the way to improve maternity services, and I agree. Maternity networks have the potential to increase clinician involvement and service-user engagement in the planning, delivery and, where necessary, reorganisation of services. They also have the advantage of being able to scrutinise the performance and outcomes of all maternity providers within the network, thereby helping to drive up standards and reduce unwarranted variations in outcomes. This will help to develop shared services across the network. Thus a home birth service provided by a modern maternity unit could be made available to maternity units in areas where the home birth rate is very low.

I know that a current review of clinical networks is being undertaken for the Commissioning Board, and is due to report soon. Perhaps the noble Earl can tell us more about it. I hope that the review recommends that maternity networks be established to cover all maternity services in England. The concern is that if providers are expected to self-fund networks, there is a risk that some providers, especially foundation trusts, will not engage in networks, thereby reducing their effectiveness. For this reason, I hope that the Government will accept the case for providing some funding and support for maternity networks in the same way as neonatal networks and cancer networks have been able to access central funding and support.

One other issue that will improve the quality of maternity services, no matter where that care is delivered, is the establishment of maternity dashboards. They are a good way of auditing the outcomes on a daily basis and establishing whether the clinical guidelines have been achieved. I therefore strongly support the noble Baroness's amendment.

The amendment in the name of the noble Lords, Lord Newton of Braintree and Lord Butler of Brockwell, is saying "comply or explain", whereby if you do not comply with NICE guidelines you must explain why. I agree. Not all standards should be complied with, because there may be reasons why they are not. If you do not comply, you have to explain why. However, you also have to explain why the outcome for patients will be the same or better, because if the outcomes through not complying are not the same or better, you should not be allowed to fail to comply.

I understand that there might be good reasons why certain NHS bodies do not comply. Another way could be the establishment of an alternative compliance system in which organisations and clinicians are required to justify why they have not complied with the standards or, for that matter, innovations that will aid delivery of the best clinical practice. The Commissioning Board, in conjunction with senates and by way of patient pathways, could develop a compliance regime that measures, monitors and incentivises the use of innovation or compliance where these will improve standards of care. So I support the proposal, and I know that we might return later to the issue that my noble friend

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Lord Walton raised about innovation, tariffs and the innovation tariff. That is the other side of the coin regarding non-compliance and going beyond the standard of care laid down by NICE.

4.30 pm

I also support Amendment 110A, tabled by the noble Baroness, Lady Thornton, which states that in discharging its duty,

This amendment is related to that tabled by the noble Lord, Lord Newton, and I would cite in relation to it the specific example of rare diseases. The amendment seeks to ensure the adoption of clinical guidelines developed at a national level, a point which applies particularly to rare diseases. I would cite the example of treatment for brain tumours and other cancers of the central nervous system, which is commissioned nationally through specialised commissioning, which is due to become part of the NHS Commissioning Board. Rare diseases are currently defined by the specialised services national definition set-which is commonly known as SSNDS. In the case of brain and CNS tumours, the specialised cancer services definition explicitly cites NICE's brain and CNS improving outcomes guidance as its reference.

I am concerned that some elements of the current framework for the treatment of rare diseases will be jettisoned in the name of streamlining. The danger then is that the link between NICE guidance and commissioning formulas used by the board will be broken. This could undermine the quality of services provided by the board to take care of people with rare diseases unless we insist that the national Commissioning Board must adopt NICE standards and that the choice of "comply or not comply" is not available for rare diseases. It is a completely different argument from the generic one put forward by the noble Lord, Lord Newton. We could have a discussion about that but my view is that a different kind of compliance is required for rare diseases.

I come to my Amendments 144 and 145, which relate to information provided by the health service on the safety of services, which is dealt with in proposed new Section 13Q on page 20 of the Bill. I wish to talk about how learning from information related to patient safety should be available to all NHS organisations; forgive me if I take a couple of moments on this.

Before I start, I should like to pay tribute to two remarkable ladies who established and for two years ran Patient Safety First in England: Vin McLoughlin, who died at the age of 55 of pancreatic cancer; and Karen Woo, a young doctor qualified at University College, London, and fellow of the Royal College of Surgeons, who was in charge of safety procedures and developing surgical safety. Karen was killed on one of her visits to Badakhshan in Afghanistan with nine other members of her medical team. I pay tribute to these two remarkable ladies who promoted patient safety in England. Many of the successes, particularly in surgical safety, are due to them.

Patient safety is a global problem. On average, around 10 per cent of admissions to hospitals worldwide are associated with some sort of unintended harm to

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patients. The World Health Organisation set a global challenge for member organisations to improve their patient safety. In the past the Minister has said that the Government give patient safety high priority and wish to see it embedded in all aspects of NHS care, and I believe it.

Over the past decade, our understanding has grown. It is now seen as a core focus for many in healthcare, but there are barriers. The barriers are: variable leadership at board level and among clinicians and managers; a blame culture that drives problems underground; defensive communication; limited patient safety education; not enough emphasis on building high-performing front-line teams; and a superficial approach to incident investigation which often fails to identify the underlying causes and system weaknesses.

Most of these errors are system weaknesses. Even today there are up to 3,000 reports daily to the NPSA in England and Wales. Most of the incidents do not result in any harm, but 1 per cent are reported as causing severe harm, which is often permanent, and less than 1 per cent are reported as causing death. The reporting and learning system, which I know that the Government intend to set up as part of the national Commissioning Board, uses national data to detect and understand sources of risk by spotting clusters of incidents arising from individual reports that are not often identified until data are analysed at a national level; identifying the most urgent risks by reviewing all serious incidents and deaths and providing extra points; alerting the NHS to potential for harm quickly by providing recommendations, advice and guidance to ensure that the right information gets to the right person; extracting learning by identifying key trends and patterns in incident reports and providing analysed feedback.

The work of the patient safety division of the NHS Commissioning Board, as it would be, relating to reporting and learning from serious patient safety incidents will be crucial, but as the Bill states:

"The Board must make information collected by virtue of subsection (1), and any other information obtained by analysing it"-

in relation to safety-

My amendment states that it should be available not as the board considers appropriate but available to all NHS bodies and the public. That is the only way that we can embed learning that might come from one part of the NHS into all parts of the NHS and reduce the harm.

I could give examples, such as the establishment of surgical checklists, which has reduced damage and errors relating to surgery many times over; the incidence of intravenous-related infection and central venous line infections; infection rates in neonatal care; and many others.

The key messages are that both senior managers and senior clinicians need to demonstrate that patient safety is their top priority. They will do so if they are obliged to report all incidents and take note of the learning that comes from the national learning and reporting system. I hope that the Minister will accept

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that the amendment is apt. If he can convince me that without it in the Bill, we can achieve the same, I would be grateful.

Lord Marks of Henley-on-Thames: My Lords, I start by adding my support for the amendments that change the duty to reduce inequalities by strengthening the wording from having "regard to the need" to reduce such inequalities to "acting with a view" to reducing such inequalities. Those are Amendments 112 and 113, in relation to the board, and Amendments 186 and 187 in relation to clinical commissioning groups. I do not want to add a great deal to what the noble Baroness, Lady Finlay, said in that regard, except merely to observe that the commitment to reducing health inequalities in the Bill is one of its great advantages and will be one of the great advantages and achievements of the legislation, if it is passed. I suggest that saying it loud and clear and imposing the stronger duty on the board and the Secretary of State would be the better way to achieve it.

I want to address the other amendments to which I have put my name, Amendments 153ZZA and 153ZZB, which concern the permitted disclosures of information by the board in proposed new Section 13Z2 on page 24 of the Bill. It is important to observe that the starting point for this clause is proposed new subsection (2):

"This provision has effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure".

This proposed new subsection is about permitting disclosures by the board of information whose disclosure would otherwise be unlawful, which from the wording I take to include any disclosures that would be actionable either in tort or in contract. My concern is about how far this provision would sanction a breach of confidentiality owed to patients or others.

Most of the examples or circumstances outlined in proposed new subsection (1) are anodyne or obviously called for. The first, for instance, is that the information is already in the public domain; the second is where the disclosure has to be made pursuant to regulations, and so forth. However, the amendments are concerned with two sets of circumstances that are, I would suggest, entirely too wide. The first is under paragraph (d), where the suggestion is that disclosure should be permitted where,

As drafted, paragraph (d) is without regard to the wishes of the individual concerned or, in the case of an individual suffering from incapacity, to that individual's care. I would suggest that that smacks of a certain arrogance that ignores the rights of the individual to choose whether information about him or her is released by the board. It is for that reason that our amendment suggests that the words,

should be placed as a qualification to the unfettered right to disclose based on the board's view of what is,

that individual.



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The second area where we say that the disclosure provision is far too wide is under paragraph (f), which suggests that disclosure should be permitted where,

That permissive subsection would give the board an overall right to disclose any information it chose, notwithstanding that it was otherwise unlawful, on the basis that it was,

It does not even go so far as to say that it would have to be necessary for the exercise of those functions. In the view of those of us who have put our names to this amendment, those lines should go. They are an unwarranted intrusion into the confidentiality of the individual, and they give far too wide a discretion to disclose information whose disclosure would otherwise be unlawful.

Lord Harris of Haringey: This is an extraordinarily wide group of amendments-I think there are 27 in this group. I sympathise-well, almost sympathise-with the Minister in terms of how he will respond to them.

I wish to comment on just three of the amendments. The first is Amendment 144, which the noble Lord, Lord Patel, has just spoken to, about the importance of sharing information collected on the safety of services provided by the health service. Particularly in the context of what I think we will see as a fragmentation of the service, where a pattern becomes apparent that suggests that particular practices or processes challenge patient safety, it is important that that information is disseminated.

4.45 pm

To save the noble Earl time, no doubt his brief-should he be able to find it in the mass of papers that he has in front of him-will suggest that Amendment 144 is unnecessary because the present form of words in the Bill talks about sharing information with persons with whom it is appropriate to do so. The advantage of the wording of the noble Lord, Lord Patel, is that it spells out some of those with whom this information should be shared-the CQC, Monitor, all commissioning groups, Healthwatch England and health and well-being boards. That is important because these bodies may well be aware of practices that are taking place in local facilities or they may need to be aware of what is considered to be less than safe practice. That is why it is important that the information is disseminated widely and that the organisations listed are included. Otherwise, there will be a danger that, for example, the matter might be seen as entirely technical and not worthy of distribution or as something that is circulated only to those who have an immediate requirement to know, rather than to a wider group of organisations, some of which will be locally based and may be monitoring the situation. For example, providing the information to Healthwatch England may well mean that local healthwatch organisations will be able to pick up a particular issue and advise the board on its importance.

The second issue on which I want to speak is Amendment 153ZZA. I am pleased that I gave way to the noble Lord, Lord Marks of Henley-on-Thames,

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because I thought that this amendment was not going to be spoken to by any of those who had put their names to it. It concerns the disclosure of information for the purposes of protecting the welfare of any individual and says that this disclosure should take place only with the agreement of that individual. I think that the amendment might be misguided because the health service has a particular duty regarding the welfare of individuals and there may well be circumstances in which the disclosure of information is necessary as a matter of urgency to safeguard the right to life of that individual. For example-this is informed by the work that I do as chair of the Independent Advisory Panel on Deaths in Custody-the board will, I think, have responsibility for commissioning medical services for prisons and custody services. Where an individual may be transferred from one entity to another, repeatedly and at short notice, it will be potentially unwise to expect that individual to have given prior approval of the disclosure of information which may be important for their safety, either because of their medical condition or because they are at risk of suicide.

Lord Marks of Henley-on-Thames: If the Minister were inclined to concede our amendment, subject to a proviso dealing with emergencies of the sort that the noble Lord has suggested might be important, would that meet his objection to the amendment?

Lord Harris of Haringey: No, the reason being that it may not be an emergency situation; it may be that an individual is being passed from one agency to another. The point at issue is a risk and the mitigation of that risk. The risk may be that an assessment has been done suggesting that a person is at risk of suicide. They may well not commit suicide; there may well not be an emergency; or there may well be things that the receiving agency can do which will reduce that risk. However, there is no emergency so there would not be circumstances in which you could say it is in response to a particular situation; it is to avoid a situation arising. I am sure that there could be a form of words which would both deal with the concerns the noble Lord has highlighted and permit the sensible passing on of information to safeguard the right to life of that individual. I do not think Amendment 153ZZA quite deals with that point, and the Minister may want to respond to that when we get to that stage.

The final amendment I wish to speak to, very briefly, is Amendment 299C in the name of the noble Baroness, Lady Finlay of Llandaff. I, too, think it is extremely important that NHS services explicitly in the Bill must not use NHS business to recruit private patient business. In a context where again we will see the fragmentation of services, the arrival of all sorts of new providers and the possible blurring of distinctions between NHS provision and that provided privately by NHS practitioners, this needs to be made explicit. It is already an issue. I will cite my personal experience. The last but one time I visited my general practitioner-I think it was the first time for some five years-he declined to make the referral for secondary care I wished to have, saying that I probably had not looked after myself as well as I should have done, but then he pushed across the table a card advertising his Chinese medicine service. I thought that was extremely

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inappropriate-disregarding whether it was an appropriate treatment; as far as I am concerned it is non-evidence-based medicine.

Under any circumstances for there to be a blurring of the NHS responsibility of a practitioner and their private concerns seems extremely dubious. It is important it is made explicit that this is not permitted. In a previous series of exchanges the noble Earl has said it is quite clear what should happen under those circumstances. However, it does happen and what is permitted becomes increasingly confused. Even if medical practitioners are not abusing their position, or there is no blurring of those lines and everyone has been quite proper, it is perfectly feasible that patients will be confused and will not be clear as to what is happening, and that will colour future relationships they have with people providing medical services to them. It certainly coloured my relationship with that GP because on the last occasion I saw him I was extremely dubious about receiving any advice from him. I confess I referred to him as being patronising. This was perhaps inappropriate; it was certainly unwise as he was about to perform a rectal examination. None the less, it certainly coloured the relationship we had. In the interests of both patients and medical practitioners the amendment of the noble Baroness, Lady Finlay of Llandaff, should be in the Bill.

Lord Warner: My Lords, I do not intend to follow that in a similar style. I support Amendment 144 in the name of the noble Lord, Lord Patel, to which I have added my name. I do not want to go over the ground covered by the noble Lord, Lord Patel, but I just wish to share with the Minister in particular and the House in general my own experience from introducing near-miss reporting in the NHS when the National Patient Safety Agency was established. In those good old days the figure was around 800,000 a year. The current figure, as my noble friend Lord Patel said, is of the order of 3,000 a day; it is on an upward incline.

The issue at stake in those days was not the principle of trying in effect to copy the airline industry and improve safety by having people come clean about near misses-some very serious, some less serious. No one disputed the merits of trying to learn from those experiences. Where everybody got a little concerned was around the making public of the information. I will not delight the House with some of the discussions that took place in Richmond House about whether the first lot of information should be made available, because who knew what the Daily Mail would do with it? Noble Lords will be pleased to know that the Daily Mail behaved in a predictable manner and ran screaming banner headlines about how near to death 800,000 people came each year.

The important point was that one was beginning to change the culture of the NHS, which knew that the information was being put in the public arena. The problem with the Bill is that it leaves to the board the decision about how to disseminate information. We as citizens would be better off putting in the Bill the specific organisations to which the information should be disseminated-which is what the amendment of the noble Lord, Lord Patel, does. I strongly support it and hope that the Minister will give

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it very careful consideration, and will carry on the publication and dissemination of the information on an agreed basis.

I will make a couple of remarks in response to the concerns expressed by the noble Baroness, Lady Williams, about a market in commissioning skills. I have no particular wish to promote a market in commissioning skills. However, as a former Minister responsible for the performance of primary care trusts, I say that many trusts seriously lacked commissioning skills. These were lacking particularly in areas such as collecting information, analysing it and using it to establish need and to procure services to meet those needs. We should not in the Bill do anything to limit the ability of the new clinical commissioning groups to receive and acquire the skills to enable them to do their job effectively, wherever the skills may be located. That is a very important part of introducing successful new arrangements for clinical commissioning.

I pray in aid of that approach the history of Dr Foster. The dear old NHS had been collecting data for decades but was unable to use them effectively to improve performance. It took an outsider coming in-Dr Foster-to use the information and turn it into something that was useful to the NHS in terms of improving its performance. We should not be too hung up on precisely where clinical commissioning groups get their skills from to do their job.

Baroness Thornton: My Lords, I forgot to speak to my Amendment 137A. I will make three points. The first is not about my amendment. I say how much I agree with the noble Baroness, Lady Williams, on the issues that are the subject of all the amendments to Clause 20, and of the debate and discussions that we are having in the Chamber and outside it about the mandate. I also say to the noble Lord, Lord Marks, and my noble friend Lord Harris that there is clearly an issue about information and confidentiality that must be addressed before the Bill leaves the House.

I will also say how much I agreed with the orphan amendment of the noble Baroness, Lady Finlay. Mine, too, is something of an orphan amendment but is rather important. Amendment 137A states:

"The Board must ensure that in relation to its duties under sections 13C to 13N, those persons in the private sector contracted to provide health services must contribute in the same way as public providers towards the achievements of those duties".

Those duties are to do with the NHS constitution, effectiveness, quality, reducing inequalities, patient involvement, patient choice, innovation, research, integration, and the impact of those services. It is very important that we have clarification that all providers have a duty to promote those.

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Earl Howe: My Lords, I am grateful to the noble Lord, Lord Butler, and my noble friend Lord Newton for prompting this debate, which brings us back to a key theme in this Bill: namely, the extent to which we can reconcile central prescription with local flexibility.

Our White Paper, Liberating the NHS, set out the case for change, and with the help of this Bill we will put patients at the heart of everything the NHS does,

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focus continuously on improving patient outcomes and empower and liberate clinicians to improve the quality of healthcare services. In doing so, we will build on the successful quality framework pioneered by the noble Lord, Lord Darzi, including the quality standards programme that plays such a central role in providing robust evidence for quality improvement under this Bill.

I am naturally sympathetic to the spirit behind the amendments in the name of my noble friend and the noble Lord, Lord Butler. First, I can reassure them, and indeed the noble Lord, Lord Walton, that the Bill does not impose blanket requirements to implement NICE quality standards or any other NICE guidance, or to comply with indicators in the outcomes framework-nor should it. The board will have to have regard to NICE quality standards, including in relation to those services it will be responsible for commissioning. CCGs will similarly be required to have regard to the board's commissioning guidance, which will be based on NICE quality standards and other accredited evidence. That is a strong duty. It means that they must consider that guidance and if they do not follow it they have to have a good reason why not. I will be coming on to an explanation of the duty to have regard in a moment. The guidance will explain rather than dictate how to improve quality, efficiency and fairness.

I will just say to the noble Lord, Lord Turnberg, that when it comes to NICE technology appraisals, the Government have undertaken to ensure that the NHS continues to fund drugs that have been recommended in NICE technology appraisal guidance and to maintain the effect of the funding direction in the new arrangements for value-based pricing. So there will be no weakening of NICE's role here, as the noble Lord suggested.

In this way, the Bill gives us a framework to improve outcomes through recognising and rewarding high-quality care based on evidence of what works best. That comes from encouraging innovation and balancing the independence that is desirable for achieving good outcomes with the responsibility to improve, which I think is the intention behind my noble friend's amendment.

On this occasion, I am afraid I cannot agree with the noble Lord, Lord Patel, that quality standards should be mandatory for rare diseases. We strongly believe that it should be local areas that lead in setting priorities for their own patient population. Making all quality standards for rare diseases mandatory would essentially cut across that approach. We feel that a more effective way to improve quality is to provide commissioners with all the necessary support and evidence that they need to plan how best to meet the needs of their local population.

I can sympathise with the intention behind Amendments 110ZA and 137B. The Government absolutely acknowledge the important contribution that nurse specialists make to patient care, and the value that patients, their families and indeed other members of the clinical team place on having their specialist expertise and support. I am of course well aware of the value of specialist nurses to people with

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epilepsy and I also completely understand the close interest of the noble Baroness, Lady Royall, in prostate cancer specialist nurses.

Under our proposals, commissioners will have the freedom to commission pathways of care designed around the patient and delivered by a multiprofessional workforce that includes specialist nurses. Of course, they will have the benefit of commissioning guidance on best practice, but in the end we are committed to empowering clinicians and giving them the freedom to determine how best to meet the needs of their patients. This will include decisions about which member of the healthcare team should deliver which aspects of care. These decisions are complex and we believe that they are best made by local clinicians and commissioners working in partnership, so although I have sympathy with much that the noble Baroness, Lady Royall, said, I do not agree that the board should have the sort of role envisaged in her Amendments 110ZA and 137B. We think that they are too prescriptive.

Turning to Amendments 144 and 145, I would say to the noble Lord, Lord Patel, that safety is a key domain of quality, and I have outlined before our intention to embed a culture of patient safety in the NHS by giving the board responsibility for managing the systems for reporting and learning from patient safety incidents that are currently operated by the National Patient Safety Agency. However, I agree that it is important that information which can inform and enhance patient safety in the NHS should be made available to all those who would benefit from it, as he suggests. The NPSA currently shares information with a number of bodies with a particular role in relation to patient safety, such as the MHRA and the CQC, and this will continue to be the case. Indeed, if it did not make important information available to those who it thought could reasonably benefit from it, the board would be in breach of its duty.

In addition to NHS bodies, the information is currently also used to develop products for use by non-NHS organisations, by the devolved Administrations and by international organisations, for which the board may determine it appropriate to charge a fee. It is for these reasons that we have framed the duty to share information in broad terms, and we would not want it to be more prescriptive or restrictive than that. This is the perennial problem of trying to insert a list in a piece of legislation.

Where the board does disclose information that relates to an individual, it is essential that their confidentiality is respected whenever possible and that information is disclosed only where there are compelling reasons to do so. I can reassure my noble friend Lord Marks that disclosures would be subject to the provisions of the Data Protection Act 1998 and the Human Rights Act 1998, so any disclosures of personal information would need to involve the minimum amount of information necessary to serve the purpose. To ensure that this is clear, it may be helpful to my noble friend to know that we are working with the BMA on issues to do with confidentiality and the application of the common law in relation to the board and other bodies. We intend to bring forward any necessary changes to the Bill on Report.



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Lord Walton of Detchant: My Lords, I thank the noble Earl for confirming that the Government are working with the BMA. Is it not also very important, in relation to confidentiality, that they should also work with the General Medical Council which, after all, has provided very detailed advice to doctors about confidentiality issues?

Earl Howe: My Lords, the noble Lord is quite right, and my understanding is that we are doing that as well. Meanwhile, I can tell my noble friend Lord Marks that we will consider the provisions highlighted by Amendments 153ZZA and 153ZZB as part of this process.

My noble friend also raised the issue of inequalities. In earlier debates I highlighted the very significant departure made in the Bill that, for the first time ever in this country, the Secretary of State will be legally obliged to have regard to the specific need to reduce health inequalities, whatever their root cause. The board and the CCGs will also have this duty, which clearly emphasises our commitment to equity and fairness across the health service. We believe that the phrase "have regard to" completely captures the intention of the legislation; that is, that the board and the CCGs must consider the need to reduce inequalities in every decision they take. That, I hope, addresses the essence of Amendment 118. This is consistent, as I think it should be, with the public sector equality duty, which is phrased in exactly the same way. As the board already has a responsibility for all patients in the population, its general duty on inequalities also applies this widely.

Under Amendment 119, the board would have to have regard to the duty on inequalities in allocating resources to CCGs. We recognise fully the importance of ensuring that allocations give CCGs the resources to meet the distinctive needs of their local population. Again, our preference is not to place particular weight on one factor or set of factors in legislation. In fulfilling this duty, the board will also need to work in collaboration with health and well-being boards and local authorities. We have already debated the various duties on the board to participate in certain activities of health and well-being boards.

On Amendment 137A, of course it will be important to ensure that all providers contribute to the fulfilment of these duties. Some public sector duties, such as the duties under the Equality Act, already apply to anyone exercising a public function, which includes private providers who supply NHS services. The specific duties in the Bill are placed on the board and CCGs, and they remain responsible for exercising them even when they contract with another body to provide services. It is, therefore, incumbent on them to ensure that these commissioning arrangements, and the ongoing monitoring of services provided under them, support the fulfilment of their duties.

I am not sure whether the noble Baroness, Lady Royall, spoke to her Amendment 343A, but if I cover it briefly, it may be helpful to her. The amendment probes how long it will take NICE to produce the full range of quality standards. As the noble Baroness probably knows, the ambition is to create a core library of NICE quality standards that covers the

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majority of NHS activity, and supports the NHS delivering against the outcomes in the outcomes framework. The programme is ideally placed to deliver a steady stream of quality standards over the agreed timescales and this will lead to a comprehensive library of quality standards within, we hope, about five years. Therefore, I am afraid the timescale envisaged in her amendment is too short.

I turn now to the group of amendments introduced by my noble friend Lady Cumberlege on maternity services. I am grateful to her and, indeed, the noble Baroness, Lady Thornton, for giving us the opportunity to consider this question. I hope I can provide some reassurance that the new commissioning arrangements will provide a very secure basis for quality improvement in these services. Women should always expect-and always receive-excellent maternity services that focus on the best outcomes for them and their babies, and which optimise women's experience of care. Getting maternity care right from the start can help tackle the negative impact of health inequalities and begin to improve the health and well-being of mother and baby.

We are committed to improving outcomes for women and babies, and for women's experience of care. Three of the improvement areas in the NHS Outcomes Framework for 2011-12 focus on improving maternity services, by reducing perinatal mortality, by reducing admissions of full-term babies to neonatal units and by improving the experience of women and families of maternity services. My noble friend spoke of variation in services and that was the theme of the very powerful speech by the noble Lord, Lord Mawson. We are committed to ensuring consistency in the quality of maternity services. From April 2012, a maternity experience indicator will be introduced as part of the NHS outcomes framework. It will allow us to chart a woman's experience of care through antenatal care, labour, delivery and postnatal care.

To support the NHS in improving outcomes in pregnancy, labour and immediately after birth, the National Institute for Health and Clinical Excellence is developing new quality standards based on the best available evidence on antenatal care, intrapartum care and postnatal care. It is outcomes and quality that matter, and the NHS Commissioning Board will be publishing a commissioning outcomes framework for clinical commissioning groups. The commissioning outcomes framework will rely on the national outcomes framework set for the board and NICE quality standards. On top of that, the NHS Commissioning Board could decide to include guidance on the matter in the commissioning guidance that it must publish for CCGs and to which CCGs must have regard.

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Women tell us that being able to make informed choices that enable them to personalise their maternity care is important and that the choice of where to give birth is most important. The birthplace in England study published last week provides evidence for the first time that women with straightforward pregnancies can choose whether they would like to give birth in a hospital obstetric unit, a midwifery unit or at home,

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knowing that giving birth is generally very safe. But there are some important differences between these birth settings in benefits and risks for mother and baby. This study will help NHS organisations around the country to design excellent maternity services based on what women want and need.

We made extending choice of maternity services a key priority for the NHS, as reflected in the operating framework, so that women have access to a full range of services close to home. As recommended by the NHS Future Forum, the Secretary of State's mandate to the NHS Commissioning Board will set clear expectations about offering patients choice-a choice mandate. This could include expectations relating specifically to choice in maternity services.

Finally on maternity networks, we heartily endorse the important role that clinical advice will play in supporting the board to fulfil its duties and carry out its functions effectively. We will explore with the NHS Commissioning Board over the coming weeks how to ensure that maternity networks can provide the expert clinical advice that commissioners will need in a flexible way, responsive to local arrangements. I would, of course, be happy to write to my noble friend with further detail on that subject.

My noble friend asked about indemnity in relation to independent midwives. Current membership of the NHSLA schemes is open only to NHS bodies. We are currently looking at reforming NHS indemnity arrangements in the context of this Bill. We remain committed to ensuring that all providers of NHS care have access to NHS indemnity arrangements in future and are pleased that One To One (North West) Ltd has secured indemnity for independent midwives. We hope that this solution will work for other groups of independent midwives as well.

On the question of maternal request for caesarean section, NICE guidance makes it clear that caesarean section is a major operation and that women who request it should consider all risks with the healthcare professionals, including midwives, obstetricians, anaesthetists and others, if appropriate. If, after having advice, a woman still wants a caesarean, her request should be honoured.

I turn to Amendment 299C, in the name of the noble Baroness, Lady Finlay. I shall of course consider the points that she made, as I always do. However, for elective services, patients already choose their NHS services-or NHS care in a private provider, if that is what they want-before they even attend as out-patients. It is a little hard for me to see how they could be poached by foundation trust staff for private work; there would be no incentive for patients to pay for something which they are already in line to receive on the NHS. Using NHS business to recruit private patient business would be against accepted professional practice; it could lead to a charge of misconduct, handled by the profession's regulator, which would put professional practice in jeopardy. Foundation trusts could also view such practice as a breach of contract, since poaching their patients would lose them money.

On the issue of conflict of interest in referrals by GPs, we will not allow a situation to arise where profits can be made at the expense of patient care or

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choice. Clinical commissioning groups will not be directly responsible for commissioning services that GPs themselves provide-that will be the responsibility of the board. CCGs will be commissioning organisations; they will not be able to provide services in their own right. The NHS Commissioning Board will be responsible for commissioning primary medical care and holding contracts with individual GP practices in their role as providers. Through GMC guidance doctors will be, as they are now, under a duty that any commercial interest that a GP may have in a company must not affect the way that they refer or prescribe for a patient. The proposed reforms to NHS commissioning arrangements do not in any way alter the existing duties of GPs, as clinicians, to provide high-quality primary medical care to meet the needs of their patients, as required under their contracts.

My noble friend Lady Williams asked what the destination was for these reforms. I reassure her that the destination for our modernisation of the NHS is to safeguard the values and principles that the NHS is based on. That is the case now; it has always been the case and will remain so. On my noble friend's specific point about commissioning support, clinical commissioning groups will not be able to delegate their commissioning function but they will need support. Commissioning support is the assistance which commissioners, both CCGs and the board, can draw on to help them deliver their functions. Good commissioning support will help CCGs and the board to concentrate better on the clinical and locally sensitive aspects of commissioning to make the best use of resources available to the NHS. That support could come from the talents of their own employed staff or, if they choose, from outside bodies. We are talking here about things such as data analysis, back-office functions and other areas.

It is important to recognise that PCTs can and do currently hire independent sector support for their commissioning functions. That is not commercialisation or privatisation of commissioning but using the available resources to get the best support. It will be for GPs and their colleagues to decide which commissioning activities they do for themselves and which, if any, they choose to buy in from external organisations. It is entirely up to them. I hope that what I have said provides additional clarity and, indeed, reassures the two noble Lords, and that it will enable the noble Lord, Lord Butler, and my noble friend Lord Newton, in particular, to withdraw their amendments.

Lord Warner: My Lords, can I ask the noble Earl a couple of questions, on which I would be grateful if he could write to me and to any other noble Lords who are interested? I found two of his answers a bit unconvincing. The first was on Amendment 144, tabled by the noble Lord, Lord Patel. I would really like to know how the Minister will ensure that the board will disseminate this information on patient safety and put it in the public arena to a wide group of people. At the moment, as the Bill is, it is left totally to the discretion of the board as to how it will behave. Secondly, I did not find the Minister's answer on rare diseases and mandatory guidance very convincing. I would really like to know what discussions have taken place with

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those such as the Royal College of General Practitioners and clinical commissioning groups, about their appetite for making local decisions on these very rarefied diseases without the kind of mandatory guidance that the noble Lord, Lord Patel, spoke about. I do not expect an answer now but I would like some more written guidance on that.

Baroness Cumberlege: My Lords, I was heartened by a lot of what my noble friend said about maternity services, but it seems that the variations will be reduced through NICE quality standards. I understand that NICE has a very long queue of services to be considered for quality standards and I wonder whether my noble friend and the Government have any influence over which services have priority to have their standards set early and which will have to wait. As maternity involves a tremendous number of women who are giving birth, it is really important to get it in the front of the queue, as far as possible.

Baroness Barker: My Lords, can my noble friend tell me where in the legislation it is made clear, if a CCG were to have a conflict-that is, a disagreement-with the commissioning support organisation, where and how that conflict would be resolved?

Earl Howe: My Lords, in the interests of time I suggest that I write to noble Lords on those questions, and I am happy to do so. However, I say to my noble friend Lady Cumberlege that I recognise the particular importance of the maternity quality standard. I will try to find out for her what stage NICE has reached or is likely to reach within a certain timescale, and if I can provide her with any further information I will be happy to do so.

Lord Butler of Brockwell: My Lords, I am grateful to the Minister for his comments in response to Amendment 109A and I thank the other noble Lords who have supported it. The noble Lord, Lord Newton, said that this is a probing amendment. As the Minister has said, there is a question of balance here: we want the Commissioning Board to be an effective promoter of standards, but on the other hand we do not want the arrangements to put an unnecessary brake on innovation. I am sure that the noble Lord will consider carefully what the Minister has said. In the mean time, I beg leave to withdraw the amendment.

Amendment 109A withdrawn.

Amendments 110 to 120B not moved.

Lord Patel: My Lords, the amendments in my name are about patient and public involvement, and accountability to patients and the public. They would amend new Sections 13H, "Duty to promote involvement of each patient"; 13I, "Duty as to patient choice"; and 13J, "Duty to obtain appropriate advice" by the Commissioning Board, in the 2006 Act. I shall also speak to Amendments 141A and 206A. The latter is in the name of the noble Baroness, Lady Hollins, who unfortunately had to leave for another engagement but will return later.

All these amendments are about the requirement for the NHS Commissioning Board and all clinical commissioning groups to engage in meaningful and

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substantial consultation with users of services, particularly with regard to ensuring that commissioners commission services and pathways that are navigable and coherent.

The current requirement to be placed on the board and the clinical commissioning groups is that they must make arrangements to secure that individuals to whom the services are being provided are involved. It is not enough for the suggested means of doing this to be quite as open-ended as the Bill suggests. The Bill implies that this consultation is really aimed at representatives of patient groups, and I would like clarification from the Minister that both individuals and groups of patients should be able to make representation. It is quite easy to conceive of a situation in which a patient is consulted or provided with information and yet is none the wiser and no more involved in the services that they receive.

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Within this amendment is the implicit recognition that different patient groups may need to be treated differently when it comes to getting advice or consultational services. Providing a consultational service that adopts a "one size fits all" approach would be cheaper than one which took the needs of individual groups into account. I use the example of my noble friend Lady Hollins and the Royal College of Psychiatrists about adequate consultations with users of mental health and learning disability services, where individual patient consultation would not be appropriate. The crux of this group of amendments is therefore a proper definition of what it means to involve service users in the design and commissioning of the services they receive. An understanding of involvement which limits the patient's role merely to being the recipient of a service, would be one that renders the current wording of "requirement" useless.

The inclusion of the word "involve" necessitates an active role for the patient in the commissioning processes. Different patient groups will require different levels of consultation involving different clinical and social networks in order for them to be considered to be actively participating. The board and clinical commissioning groups will be responsible for ensuring that the procedures are in place to make this happen. By explicitly stating in the Bill the requirement to arrange for patients to be involved, the necessary assurance will be provided. My Amendment 128 therefore requires the board to publish in its annual report a paragraph on what advice it received and what it did with it. I beg to move.

Baroness Finlay of Llandaff: My Lords, I have put my name to several amendments in this group, some of which are in my name only. Initially, I will speak to Amendments 125A, 125B, 195A and 195B. These are designed to ensure that the Commissioning Board considers the potentially destabilising effect of new providers choosing to deliver only simple or profitable services, and the effect on existing providers who provide a wider range of services. Clause 101 includes provision for providers,


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