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House of Lords

Wednesday, 30 November 2011.

3 pm

Prayers-read by the Lord Bishop of Liverpool.

Jobseeker's Allowance: Interns


3.06 pm

Asked By Lord Lucas

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Wilcox): My Lords, the Government have no such plans. Internships and work experience, paid or unpaid, offer an excellent opportunity in helping to bridge the gap between education and the workplace. It is important that we do not close down these opportunities.

We are asking businesses to offer internships openly and transparently and provide financial support to ensure fair access. This financial support could consist of either payment of at least the appropriate national minimum wage rate or alternatively payment of reasonable out-of-pocket expenses in compliance with national minimum wage law.

Lord Lucas: My Lords, I am grateful for half a loaf. Will the Government encourage all employers-and notably Parliament-to take on more interns at a time when that would be a service to the nation, particularly those children and young people who cannot afford to go without income? Will she, in the spirit of the youth contract announced yesterday, ask my right honourable friend the Chancellor of the Exchequer to make sure that there are no prosecutions or fines for those employers who choose to make up for hard-up interns the jobseeker's allowance which they lose by becoming interns?

Baroness Wilcox: In answering this Question, I find it interesting to discover that there is no such thing as an intern; there is no legal definition of an intern at all. One is either a worker or a volunteer. Therefore, I can agree with pretty well everything my noble friend has said, because some people will be paid and some will not be paid. In the Chancellor's Autumn Statement yesterday, my right honourable friend said:

"In order to make the education and skills system more responsive to employer needs",

the Government would, among other things,

I hope he finds that answer helpful.

Lord Lea of Crondall: My Lords, I congratulate the noble Baroness on her high-class piece of sophistry a moment ago about there being no such thing as an intern, when we have been debating it off and on in

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this House for many months. The issue must be that, if people are doing what anyone else would call work, it is biased in favour of the people who can afford to have mummy and daddy give them enough to live on, as opposed to those people who are not in that position. Therefore, there should be a minimum that people get paid.

Baroness Wilcox: Internships can be paid or they can be worked on as volunteers, where we would encourage travel expenses to be paid. We are committed to improving social mobility; we are clear that job opportunities should be based on what you know and not just who you know. We are encouraging businesses to provide internships with financial support to ensure fair access. I am sure that is what the noble Lord wanted me to say.

Lord Razzall: Bearing in mind the noble Baroness's statement that there is no such thing as an intern, why was the Prime Minister auctioning an internship at a Tory fundraising event? Does she not agree-and it is implicit in her answer to the previous questions-that the question of payment for internships is an issue of social mobility? Will she confirm that the Government firmly believe that interns should not be just from the wealthy middle class, but also people who cannot afford to work?

Baroness Wilcox: We are concerned that requiring all interns to be paid would actually reduce the number of available internships. With so many of our young people not able to get jobs at this time, we think that anything that will give them experience of the workplace and help them is a very good thing. We want to strike a balance between reducing exploitation and maintaining the maximum number of internship opportunities. As I have said, we are committed to improving social mobility and that what matters is what you know, not who you know. As the Chancellor made clear yesterday, we will work hard wherever we can to support youngsters trying to get into work and get the experience that they so badly need.

Lord Brooke of Alverthorpe: The Chancellor announced yesterday that he is asking the public service independent pay review bodies to examine by next July the possibility of introducing regional or local pay. Could the Minister please confirm that the Government have no plans to follow the logic of that and in turn to examine the possibility of paying allowances and benefits, such as the jobseeker's allowance, on a regional or local basis?

Baroness Wilcox: As far as I know, we are sticking with the minimum wage as the basis of what we are doing. Internships are paid based on the minimum wage. Anything which is paid above that is purely a voluntary arrangement. Arrangements made between employers and employees are based upon that.

Baroness Wheatcroft: My Lords, we should never condone exploitation masquerading as internships. I am sure many of us have come across those, not least in the media industry. However, does the Minister agree with me that one of the most effective ways of fostering workplace experience is to get schools and universities to have ever closer links with employers?

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Baroness Wilcox: Yes, I agree with my noble friend Lady Wheatcroft about closer links with employers, schools and colleges, and explaining the opportunities available. Often people miss out on opportunities because they do not know about them. Maybe their home backgrounds have made it impossible for them to know, so it is absolutely essential that we get closer links. I do so agree with her.

Lord Young of Norwood Green: My Lords, following the point of the noble Lord, Lord Razzall, will the Minister say how she will ensure fair and equal access to internships, regardless of parental income?

Baroness Wilcox: There is fair and equal access to internships. We will watch to make sure that we continue it. We have made it clear through updated guidance what internships must provide to comply with the law. As the noble Lord knows, guidance for employers is at businesslink.gov.uk; and guidance for individuals is at direct.gov.uk. There are plenty of places where people can go to make sure that they have got the right information.

Baroness O'Cathain: My Lords, will my noble friend consider a proposition that my noble friend Lord Lucas and I have discussed in our office? We propose that if people were brought into an internship, the payment they would get would be equivalent to the benefits that they would receive if they were not working. That would probably be an answer to everybody. If, for example, the benefits were about £40 a week and if that could be transferred to pay them as an intern, there would be a win-win situation for everybody.

Baroness Wilcox: I am interested in what my noble friend says. I am sure that if she writes to me, I will be able to have a proper exchange with her on this.



3.14 pm

Asked By Lord Harries of Pentregarth

The Minister of State, Home Office (Lord Henley): My Lords, Interpol facilitates international police co-operation. It does not have executive powers and its agents do not make arrests. Interpol is held to account by its member countries, through processes including the annual general assembly and the Commission for the Control of Interpol's Files.

Lord Harries of Pentregarth: I thank the Minister for his answer. Is he aware that the Interpol red notice system is being abused by some Governments for political reasons? In particular, I have in mind Benny Wenda, the West Papuan independence leader, who was granted asylum in this country. As a UK citizen, he has suddenly been served with a red notice. Will the Minister agree to take up with Interpol the question of whether this notice violates Article 3 of the Interpol constitution, which expressly forbids such notices being served for political reasons?

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Lord Henley: My Lords, the first point I ought to make is that the United Kingdom will not arrest or extradite any person solely on the basis of a red notice. I cannot confirm or deny, in the particular case the noble and right reverend Lord referred to, whether Mr Benny Wenda has or has not received a red notice from theIndonesian Government through Interpol. I can confirm that there are arrangements in place whereby objections can be made to what Interpol have done. I referred in my opening answer to the Commission for the Control of Interpol's Files. I would hope that those who are interested in this will take up those measures as is appropriate.

Lord Hunt of Kings Heath: My Lords, will the Minister answer the more general point raised by the noble and right reverend Lord, of whether the Government will institute discussions with Interpol about whether, at the Interpol level, they can mitigate the use of red notices for political reasons? He has given some assurance to the House in regard to the specific case mentioned by the noble and right reverend Lord, but there is a much more general issue at stake here.

Lord Henley: I accept what the noble Lord says, and I will take note of that. He will know that Interpol's constitution enshrines neutrality, and its Article 3 forbids Interpol's involvement in political, military, religious and racial matters. The noble Lord will also know that all notices that are issued should be-I stress "should be"-checked by Interpol's secretariat to ensure that they meet Interpol's criteria for neutrality. Any that do not should not then be published. The wider point of whether the United Kingdom Government should take this up, or whether it should be taken up by Mr Benny Wenda or his friends, is another matter. However, there are two ways this can be done. First, member Governments can intercede with Interpol, and secondly, there is the procedure by which complaints can be made through the CCF, the Commission for Control of Interpol Files.

Lord Mackay of Clashfern: My Lords, I wonder if my noble friend can say whether there is jurisdiction in courts in the United Kingdom to set aside a red notice on the application of a person on whom it has been served?

Lord Henley: My Lords, I am not aware that there is. I want to make it clear that the United Kingdom Government will not either arrest or extradite a person solely on the basis of a red notice. If we are going to extradite someone, it will go through the usual and proper procedures under the Extradition Act 2003.

Lord Blair of Boughton: My Lords, Interpol has suffered for some years, or perhaps for 100 years, from two structural problems. First, it is an organisation that every country in the world, including some very unpleasant ones, can become members of and share intelligence, and secondly, cases like this one arise from time to time.

At the moment both Interpol and Europol work out of the Serious and Organised Crime Agency, which is to be abolished. Will Her Majesty's Government,

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and the Minister, be able to reassure the House that when this function moves to the National Crime Agency, a little more attention will be given to both Interpol and Europol as their powers gradually expand?

Lord Henley: My Lords, I am very grateful for the remarks from the noble Lord, who brings enormous experience to these matters, and I can assure him that we will be taking particular notice of this as SOCA moves into the NCA, over the coming months and years, and will make sure that these points are taken up.

I also note what he said about Interpol covering a very large number of countries, some of which we would recognise as having systems similar to our own, while some have systems that are somewhat dubious. Nevertheless, as I made clear earlier, its constitution does enshrine its neutrality. That is very important and we will continue to try to get that across. The United Kingdom Government will make their views clear in the appropriate manner, through the annual general assembly.

Lord Judd: My Lords, while completely associating myself with the concern about this particular case, would the Minister not agree that when we talk about the need for the international rule of law in international justice, we need to be very certain that when action involving individuals is taken, we do not lose sight of holding to account the Governments and people who were responsible for the events which led this man to make his stand?

Lord Henley: My Lords, I repeat that I do not want to comment on this particular case but I think we all know which case it is, because the noble and right reverend Lord has already referred to it. As I said, it is very important to recognise that no one can be extradited solely on the basis of a red notice that has been issued by the Indonesian Government through Interpol. I repeat everything that I said earlier about it being important to keep under review how we work with Interpol, and as an Interpol member the United Kingdom Government will continue to do that.

Baroness Hamwee: My Lords, as an extension to the question put by the noble Lord, Lord Blair, are the Government satisfied that our own structures are such as to make the best use of the resources available through Interpol, and will be so when we have the reorganisation? I am thinking in particular of missing persons. The cross-matching with unidentified bodies is a very important activity, and currently the Missing Persons Bureau is in the NPIA which will be subject to changes.

Lord Henley: My Lords, Interpol is largely about exchanging information between the member countries, and that is virtually all countries in the world. However, my noble friend makes a very valuable point about the changes that are coming about through the removal of SOCA and its replacement by the NCA. I take on board what she said; it is very important that we ensure that with those changes, we still have the appropriate relationship with Interpol.

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Community Justice Centre: North Liverpool


3.22 pm

Asked By Lord Storey

The Minister of State, Ministry of Justice (Lord McNally): My Lords, we are evaluating the impact of the centre on reoffending, and on the efficiency of court processes and use of resources. The result will be published by the Ministry of Justice. The centre is continuing to operate and we continue to share its learning across the criminal justice system and court estate.

Lord Storey: I am grateful for my noble friend's reply. He will know that there is little real hard evidence of this pioneering community court's work, particularly its involvement in the community itself. What criteria will be used and will those criteria involve the community court itself?

Lord McNally: My Lords, the inquiry is looking at the impact on reoffending and the efficiency of process. Its findings are not yet available for release because that work is not yet completed, but I would find it inconceivable that the court itself and those who work in it had not fed into that inquiry.

The Lord Bishop of Liverpool: My Lords, could the Minister could tell the House whether the Ministry of Justice has done an assessment of areas of deprivation in other cities where a community justice centre would be appropriate?

Lord McNally: No, my Lords, we will look at the impact of this centre before we would contemplate doing this in any other cities, but I take the point made by the right reverend Prelate the Lord Bishop of Liverpool that this is operating in an area of very high deprivation, which I hope will be part of the assessment which the inquiry is making, taking note that it is in a particular area.

Lord Bach: My Lords, in answering a question by the right reverend Prelate on 21 June, the Minister told the House that the evaluation that the Ministry of Justice, I think, is doing internally, would be completed later in the summer. We have had very clement weather for the last few months, but no one could say that it was still summer. Has the evaluation been completed yet? If it has not, when will it be completed, and will the results be published?

Lord McNally: My Lords, it is always dangerous to give even vague dates, like "summer", in making commitments. The study is still going on. I am confident

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of the integrity of the research, which is being carried out by Ministry of Justice analysts under the Government social research code. The research will be published by the Ministry of Justice. I think the safest commitment I could make now would be "as soon as possible"

Lord Alton of Liverpool: My Lords, before that research is published, will the noble Lord be wary of comparing oranges with apples? What this North Liverpool Community Justice Centre does is very different from other existing systems elsewhere in the country. This is a pioneering scheme. It was introduced on the advice of my noble and learned friend, Lord Woolf, and was opened by the noble and learned Baroness, Lady Scotland. Will the noble Lord ensure that their advice is taken into account and that a genuinely independent assessment is made, and that it will be not be abandoned simply for cost-cutting reasons, which may appear prudent at the time, but in the long term might not save anything at all?

Lord McNally: I hear the "hear, hears", but of course cost does have to come into all these things. I do genuinely believe that this is being looked at. It is a freestanding experiment, as the noble Lord said, based upon the Red Hook Community Justice Center in New York. The truth is that we are looking at various experiments across the piece, some of which were started by the previous Administration, to find out about the effective administration of justice. I can promise that we are looking for legislative time for a justice reform Bill and that we are also looking at justice delivery in the north-west. The inquiry that the noble Lord, Lord Storey, asked about will be seen as a freestanding contribution without prejudice to the decisions that we have to make in that area.

Lord Greaves: My Lords, this is a unique and very innovative scheme. Can my noble friend, who has given quite positive answers so far, tell us whether the valuation is basically a statistical evaluation based upon reoffending rates, the cost per case and so on, or will the evaluation also involve discussions and interviews with offenders who have gone through the system and hopefully benefited from it, and with other people living in the community who have been affected by it?

Lord McNally: I would hope that it is the kind of more holistic inquiry that my noble friend suggests. That is what we are trying to do, obviously within budgetary constraints. We are examining various ideas and experiments in the United Kingdom, the United States and around the world, to see how best practice and best efficiency can be achieved. That is what we hope will be the outcome of this inquiry and future development of policy.

Baroness Scotland of Asthal: My Lords, I wonder whether the noble Lord will be able to tell us whether the learning from the North Liverpool Community Justice Centre that was spread to places like Salford has been and is going to be continued.

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Lord McNally: As I understand it, it is continued. As I said in my opening remarks, it is spread across the estate and will continue to do so. I had better not say that it will continue as long as the centre is open, because then you will think of something dubious about that, but it will continue to be spread across the estate.

Education: Music


3.30 pm

Asked By The Earl of Clancarty

The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): My Lords, the National Plan for Music Education will ensure that all pupils in English schools have the opportunity to learn to play a musical instrument, to make music with others, to learn to sing and to progress to the next level of excellence. We will also continue to fund national youth music organisations, to continue our support for In Harmony and for the internationally recognised Music and Dance Scheme.

The Earl of Clancarty: My Lords, there are big questions about this plan, despite the broad welcome that it has received within the music world. What is the thinking behind the disappointingly massive cuts, of over 30 per cent, to music education as a whole up to 2014? If costs are going to be parked with parents, charities and the private companies who could become music education hub leaders, then this plan will surely not deliver a comprehensive service. Would the Minister agree that if music is dropped from the national curriculum as a guaranteed subject for five to 14 year-olds, then all the fine words in this plan will come to mean very little?

Lord Hill of Oareford: My Lords, as to the second question on whether music will continue to remain a part of the National Curriculum, the noble Earl will know that that is part of what we are looking at in the review of the National Curriculum, and we will make further announcements on that in the next year. I am not able to go further than that.

On his more general point, clearly we are having to work in an environment in which there is less money than we would like. Given that context, the funding that we have managed to retain for these new education hubs is £82.5 million this year, the same as last year, and, I think, £79 million next year. There are further reductions to come; the noble Lord is absolutely right about that. Clearly, our hope is that, through the education hubs that are going to bid for the money and bring together a range of other organisations, they will be able to make sure that there is funding. Other sources of funding-for example, through the pupil premium-could also play a part, but we need to look at that.

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Baroness Walmsley: Does my noble friend the Minister agree that to implement the national music plan at the speed at which the Government propose requires a large cadre of very hard-working music teachers? In the light of that, will he try to persuade his right honourable friend the Minister for Schools that the EBacc requires a sixth pillar that includes cultural and vocational subjects, including music? As things stand at the moment, we are losing a lot of music teachers across the country.

Lord Hill of Oareford: My Lords, I think one of the reasons why we are losing a number of teachers at secondary school and, in particular, the number of music teachers is dropping is that the number of pupils at secondary schools is dropping. I agree with my noble friend entirely about the importance of making sure that we have really good teachers able to teach music particularly at primary level, and we have plans to improve initial training for music teachers. As far as the EBacc is concerned, my noble friend knows well the Government's position, which is to concentrate on a small number of subjects that give children the greatest chance of going to strong universities. The Russell Group supports the choice of subjects. However, I know how strongly she feels and that there are pressures from all sides of the House for us to extend the number of subjects in the EBacc.

Baroness McIntosh of Hudnall: My Lords, I know that the noble Lord's department no longer has responsibility for higher education, but, following on from the question asked by the noble Baroness, Lady Walmsley, would the Minister agree that music teachers have to be trained, that the places where they are mostly trained is in small specialist institutions, such as music conservatoires, and that those conservatoires are currently very anxious about the effect on them of the changes to higher education funding? Will the Minister ask his colleagues in the relevant department to give us an assurance that those institutions will be protected, thus guaranteeing a supply of high-quality music teaching in the future?

Lord Hill of Oareford: I will take up that point, as the noble Baroness asks. As far as my department is concerned, she will know, through the Music and Dance Scheme, that we will continue to make funding available in order to get talented young children going into those conservatoires, which is part of the solution. I will take up her point.

The Lord Bishop of Exeter: My Lords, is the Minister aware of the very considerable body of evidence that attests to the value of music and indeed dance to the personal development of those with special needs, whether it be physical, learning or emotional? Can he give assurances about the continued levels of support and resourcing for music in the special needs sector of our national education system?

Lord Hill of Oareford: Yes, my Lords, I agree with the right reverend Prelate about the important role that music and dance can play. In our national plan there is quite a lot about the role that music technology can play, particularly for those who might have special

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educational needs. In terms of monitoring how the plan works, we would obviously want to look at and hold to account providers for the way in which they provide services for children of all abilities.

Baroness Warnock: Does the Minister agree that one of the cheapest and most effective forms of music education is choral singing? I know that is mentioned in the pronouncements that he has referred to. Can the Minister confirm whether it might be worth considering having people who are not qualified teachers coming in to schools to set up choirs and get choral singing off the ground? We all know that there are very talented choir masters who have not necessarily qualified as teachers.

Lord Hill of Oareford: I agree very strongly with the noble Baroness about the important role that choral singing and being part of a choir can play. I hope that one of the ways that these new hubs will work is to draw in a much wider range of providers. They will be covering a broader area so that one can get that kind of specialism that one could then extend to a range of schools in an area.

Baroness Jones of Whitchurch: My Lords, there is a great deal to welcome in the national music plan. We particularly welcome the fact that funding-although it involves significant cuts-will be ring-fenced for music education. Does this mean that the Government have now been converted back to the idea of ring-fencing? What does that mean for other children's services such as Sure Start?

Lord Hill of Oareford: I am grateful to the noble Baroness for her welcome overall for the shape of the plan and what we are trying to do with it. We are distributing the funding in the way that we are-which relates to the point that I was just making to the noble Baroness, Lady Warnock-because the kind of services that we will provide go across areas where an individual school could not be expected to have that degree of specialism or that range of services or instruments. We think it makes more sense to deliver that through a bigger area.

Business of the House

Timing of Debates

3.37 pm

Moved By Lord Strathclyde

Motion agreed.

Renewable Transport Fuel Obligations (Amendment) Order 2011

Motion to Refer to Grand Committee

3.38 pm

Moved By Lord Strathclyde

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Lord Palmer: My Lords, these obligations are covered by no less than four different government departments. Which of the noble Lord the Leader of the House's ministerial colleagues will be taking this through Grand Committee? I ought to declare an interest as a member of the gang of four who originally persuaded the last Administration to accept the original renewable transport fuel obligation.

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, it is good to hear the noble Lord's interest in the subject. The lead department is the Department for Transport. The departmental spokesman in this House will be speaking to this particular Motion. My noble friend Lord Attlee on the Front Bench will be briefed by other government departments and will speak for the whole Government. Therefore, other government departments who have an interest in this subject will answer any questions that the noble Lord or anybody else will have.

Motion agreed.

Legal Aid, Sentencing and Punishment of Offenders Bill

Order of Consideration Motion

3.39 pm

Moved By Lord McNally

Motion agreed.

Charities Bill [HL]

Bill Main Page

Third Reading

3.39 pm

Bill passed and sent to the Commons.

Health and Social Care Bill

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

Committee (9th Day)

3.40 pm

Amendment 138

Moved by Baroness Emerton

138: Clause 20, page 20, line 2, at end insert-

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"13O1 Duty as to staffing ratios of registered and non-registered staff

(1) The Board must, in the exercise of its functions, establish for health services, and may subject to regulations establish for other services, the ratio of registered to non-registered workers required at any given time by reference to any appropriate register established for workers in those areas.

(2) In the discharge of this duty the Board must publish a list of appropriate registers for the purpose of subsection (1).

(3) The Board must produce guidance to health services to assist in the maintenance of ratios for the purpose of subsection (1).

(4) The Board must also issue guidance on the maximum and minimum numbers of patients per registered nurse."

Baroness Emerton: My Lords, while workforce planning is to be a devolved activity at local commissioning level, this Bill states that the overall duty of the national Commissioning Board is to arrange the provision of services for the purposes of the health service in England. Therefore, it would seem appropriate that the national board undertakes to give guidance on a range of issues, as some have already stated, and I would like to see this amendment added. I declare an interest as recorded in the register, speaking as a retired nurse, not named, on the NMC effective register.

The commissioning of the nurses, midwives and health visitors workforce is complex. It covers the community and hospitals; projecting numbers to meet the training requirements; commissioning university places with the right numbers for the services to be provided; and establishing the right number in the right place at the right time. In practice, this requires skilled planners who understand 24-hour service and the different levels of dependency in each speciality, to effect holistic care in hospitals and the community. The economic situation we find ourselves in is already having an effect on workforce numbers. Only a week ago the Royal College of Nursing reported on the effects that the Nicholson £20 billion cut is currently having on services. The detailed analysis by the RCN of 41 trusts revealed that clinical posts were affected, or were planned to be affected. An analysis of the trusts in England showed that the reductions are not only contained within administration, management and other back-room offices, but also affect nursing. Registered nurses are being affected by the freezing of their posts, leading to lower staffing levels, the down-banding of high-grade nursing posts, the loss of specialist skills and those working in preventive services, and cuts in the mental health field, where demand for nursing is rising.

This spells disaster for patients and their families. We know that in Mid-Staffordshire the nurse staffing ratios were changed from 60 per cent registered and 40 per cent support workers, to 40 per cent registered and 60 per cent support workers, in order to make financial cuts, but at what expense? It does not need much intelligence to see that nursing care suffered and the effect was dire.

International research evidence clearly demonstrates that low nurse staffing levels correlate with higher patient mortality and morbidity. We know from evidence in the UK, the United States and Australia that the quality of patient care is affected by the ratios of registered nurses to support workers. The higher the ratio of registered nurses to support workers, the higher the

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quality of clinical outcome, providing faster throughput and reduced infection rates that in turn reduce readmissions. In addition, the patients receive safe care, and they favour it by way of experience.

To give an example, in a US study, every one patient added to the average hospital-wide nurse workload increased the risk of death following common surgical procedures by 7 per cent. There was a 31 per cent difference in mortality between hospitals in which registered nurses cared for eight patients each and those in which nurses cared for four patients each, taking into account the severity of the patients' illness, comorbidity conditions and the level of technology and teaching status in the teaching hospitals.

A study in the UK in 2007 found that patients in NHS hospitals in the upper quartile, where nurses had the heaviest patient workload, were 26 per cent more likely to die overall and 29 per cent more likely to die following a complicated stay in hospital. The nurses in the hospitals with the heaviest workload were between 71 per cent and 92 per cent more likely to show negative job outcomes, burnout and job dissatisfaction, and to rate the quality of care on their wards as low and the quality of care in their hospitals as deteriorating. Similar evidence was produced in Australia.

The Bill works towards high-quality, integrated holistic care. Equally important as plans for the hospital workforce in nursing and midwifery are those for the community workforce: community nurses, midwives and health visitors. Last week, the Queen's Nursing Institute published a report entitled Nursing People at Home, which demonstrated worrying trends in community nursing that could be remedied if more nurses were specifically trained, year on year, to work in the community. It recommended that there should be support for the newly qualified through preceptorship; that healthcare assistants should be regulated; and that commissioners of services should set standards for the qualifications of community team leaders. Likewise, the Royal College of Midwives launched a report last week into the state of maternity services in 2011, recommending that more births take place in midwife-led units and at home, that properly trained and supervised midwife support workers should be appropriately deployed and calling for a guarantee not to cut midwife training places.

There is a common thread running through the recommendations of all three professional bodies that, in essence, supports the amendment. There is widespread concern across the professions that, unless the national Commissioning Board issues guidance on staffing ratios, local commissioning of the workforce could lead to unsafe ratios of trained to untrained staff, resulting in unsafe care and increased cost to the NHS. It is a false economy to meddle with safe ratios. It would be more effective to move quickly towards a totally registered nursing workforce in hospitals, knowing that patients were receiving holistic, high-quality care, leading to shorter stays and reduced readmissions to hospital, resulting in bed closures and real savings.

There is no need for me to go in to more detail. The current situation is very bleak and we are in the midst of amending a Bill that aims to improve the health of the nation and provide high-quality care in hospitals and the community. The latest report and front-line

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survey by the Royal College of Nursing expresses concern, especially on the urgent issues that face the nursing profession if growing demand is to be met, with the demographic figures showing an urgent need for care of the elderly, the vulnerable, those suffering from long-term conditions and those requiring end-of-life care. We continue to trot out, at every opportunity, that evidence-based clinical care is essential. Will the Minister consider the inclusion of guidance concerning the issues raised by this amendment as a duty of the national Commissioning Board? I beg to move.

Lord Alderdice: My Lords, I have a good deal of sympathy with the thoughts behind the amendment in the name of the noble Baroness, which she has put forward in her usual forceful but thoughtful way. However, there is difficulty in some areas.

The amendment does not state so clearly but it appears to assume that registered and non-registered are the same as trained and untrained. I also draw your Lordships' attention to something to which I have returned fairly regularly for more than 10 years, the fact that psychotherapists and counsellors are not registered. There is no statutory registration, and yet there are areas of care-for example, in alcoholism and drug addiction, child and adolescent psychiatry and psychotherapy, the care of some very disturbed patients-where psychotherapists, particularly trained ones, and counsellors are extremely important.

Many of these are people with very long trainings, much longer than would be the case, for example, for a nurse. They are well trained people and they are well supervised but there is no register and therefore they would fall foul of a proposal like this. Were it the case that all the appropriate people were not only trained but registered and that therefore one knew that those who were not registered were not fully trained and supervised, I would have a great deal more sympathy with the detail of it.

I have difficulty not with the thought behind this amendment but with the fact that it seems to some extent to ignore some quite important groups. My fear is that if we move down this road, in the new world the pressure will be further against the employment of people who have had substantial psychological training. It has been made clear to me-this is one of the reasons why I use this opportunity-that some of those with a high level of training and a substantial length of experience are already feeling themselves marginalised because the larger professional groups that have registers are using that to strengthen up the stance of their members, which is entirely justifiable and entirely reasonable.

I would be much more reassured and much more able to support the amendment if either it was very clearly and simply referring to trained and registered nurses or unregistered people who are working in nursing, rather than the more general statement which is in the amendment, or-perhaps even better-if my noble friend the Minister was able to indicate that the Government were going to make progress on the registration on those other groups that need to be registered; that involves in particular, from my point of view, psychotherapists and counsellors. However, I do have a good deal of sympathy with what the noble Baroness says.

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Baroness Murphy: We have been urged to hurry up today; we have all heard of speed dating so this is going to be speed debating.

When I first read the amendment of the noble Baroness, Lady Emerton, I did not agree with it on the basis that if you legislate for a minimum number of registered people or nurses, there is a tendency for people to adopt the lower level. I have looked at international evidence and I know that 10 years ago in California they mandated by specific legislation a minimum qualified nurse staffing level in surgical wards in intensive care. It has had a dramatic effect not only on the wards in those hospitals but on other hospitals in California where the standards have risen, mortality rates have fallen. There has been a very large study of 8,000 patients in California, and the other two comparative sites were in Pennsylvania and New Jersey; there is no doubt whatever that there has been a dramatic change and a very positive change, and most hospitals staff above the minimum. Those fears have not been founded.

The Dr Foster document that came out this week clearly showed the relationship that we know about internationally between poor staffing levels on wards for older people and mortality rates and care levels, and its relation to the morale of staff who work on those wards. I am, almost reluctantly, driven to accept the wisdom of the amendment of the noble Baroness, Lady Emerton, which I support.

Lord Walton of Detchant: My Lords, I, too, wish to support the principles underlying the amendment proposed by my noble friend Lady Emerton. However, one concern I have particularly relates to paragraph (4) of Amendment 139. Concerns have been expressed in many quarters over the past two years about the variable quality of the health care assistants employed in many of our hospitals. Some of them are absolutely excellent, but some of them-particularly in certain care homes-have had very little training and there is no process at the moment by which such care assistants can be registered; nor is there any formal requirement of a specific training or educational programme for these individuals. The time is approaching when there must be minimum standards of education and training laid down for such people. I trust that, in relation to what is said in paragraph (4), we can have an assurance from the Minister that this is an issue that the Government will consider.

As the noble Lord, Lord Alderdice, said, the same problems arise in relation to psychologists. Clinical psychologists have a formal training programme but not all psychotherapists, who do not hold a medical qualification-they do not have any such programme, although many of them make an outstanding contribution. The regulation of psychologists has been discussed for several years but little progress has been made. Can the Minister tell us whether that is still under consideration?

My final point relates to the fact that the regulation and registration of many of the other professions working in the NHS, in hospitals and the community-occupational therapists, physiotherapists and others-of course comes under the Health Professions Council. This is a Health and Social Care Bill. Only two years ago, a statutory authority for the registration and

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regulation of social workers was created, the General Social Care Council, and that body is in existence. I want to ask the Minister: is it proposed, as I believe is the case, that the Government are going to bring that body within the ambit of the Health Professions Council, or are they going to make it subject to the oversight of the council for regulatory excellence? That is a matter upon which the Committee needs to be reassured.

Lord MacKenzie of Culkein: My Lords, my name is down on this group of amendments. I very much agree with what the noble Baroness, Lady Murphy, said about the situation in California, because the importance of being attached to the mandated levels of staff is self-evident from that.

This issue has been around for as long as I can remember. It was around when I was practising a long time ago. It was around when as a leader of a predominantly nursing trade union I had discussions with health departments in the days when there was perhaps more famine than feast in nursing levels. However, Ministers and Secretaries of State never seem to want to make a real effort to engage with stakeholders on this difficult issue.

There have been a number of efforts over the years, a number of tools used to measure patient dependency to staffing levels and to skill mix ratios as an adjunct to professional judgment. Some of these were useful, some-particularly imports from abroad-were much less so. I can remember one of them, an import from the USA, probably at some considerable expense, which was known by the particularly ugly acronym of GRASP. That stood for, if I remember correctly, "the Grace Reynolds Application and Study of PETO"-I am never quite sure who or what "PETO" was. It sought to measure direct care activities and interventions, so that the correct nursing staff levels were always available. In reality, that tool caused uproar, because far too often it managed to show that wards were overstaffed when the reality was that staff were struggling.

There have been other, more useful, tools and systems, but some of them used up a lot of nursing time on paperwork, and more often than not, nurse managers had to retreat in the face of financial pressures. They have to retreat in the face of financial pressures because there is no mandate to defend a professional judgment in the face of these financial pressures. There is no agreed ratio of nurses to numbers of patients, and no agreed ratio of trained nurses to healthcare assistants.

That is the issue addressed in these amendments, and if the wording is defective, as the noble Lord, Lord Alderdice, is suggesting, I really want to concentrate on nursing here, and if need be we can bring that back at Report. We cannot escape the fact that the correct levels of staffing, with the correct skill mix ratios, are vital for the proper level of care, whether that is in acute wards, in primary care or in care homes.

Healthcare is complex, and I am not suggesting for one moment that the correct staffing level will in itself always guarantee good technical and good compassionate nursing care. However, it is a sine qua non that getting staffing and skill-mix ratios wrong means that it is difficult, if not impossible, for nurses and midwives to deliver anything like the high quality care that they

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want to deliver. We know that outcomes and mortality are affected, and I associate myself with the figures given by the noble Baroness, Lady Emerton.

Given the fears about financial pressures relating to future reductions in clinical posts-and certainly in relation to frontline nursing posts-it is no good for the Government to express expectations that quality is going to be improved or maintained without taking steps to ensure that their expectations are translated into reality and into practice. There will be more problems to come, as in the recent CQC report, as evidenced in the inquiries into the Mid Staffordshire NHS Foundation Trust, unless the steps proposed in these two amendments, or something like them, are taken on board.

We all want the best for patients and these amendments will go some of the way to ensuring that that will be the reality for the future. A mandated guarantee of safe staffing levels and ratios is essential for one principal reason and one principal reason only-patient safety and outcomes. These amendments have my wholehearted support and I look forward to the Minister's response.

4 pm

Baroness Finlay of Llandaff: My Lords, I added my name to these amendments, so eloquently introduced, with the evidence behind them informed by my noble friend Lady Emerton. It is important to state that these amendments may not be perfectly worded, as the noble Lord, Lord Alderdice, has pointed out, but the principle behind them has a lot of evidence to it. This is not about protection of a certain number of jobs; this is about the fact that you cannot substitute without having skills, competencies and attitudinal evaluation within a particular area.

There may be staff at different grades who will work in a complementary way and there is complementarity, but you cannot substitute. Physio assistants cannot be used to do what physiotherapists do. The same applies right across the piece. It is not just baseline qualifications, however; it is all the other layers as well. You do not want to be in an intensive care unit nursed by trained nurses who are not fully trained in those ventilators that are in use on that unit, who do not have all the additional skills as well and cannot communicate with patients in that situation and with their families.

As the noble Baroness, Lady Murphy, said, the evidence is overwhelming when you look at intensive care units but it goes right across the piece. I would like to cite briefly what we tried to do in Wales in my own discipline. We set minimum levels for the level of staff and the competencies for palliative care across the whole of Wales. It was not easy to do but it has worked and it has been a lever to drive up standards and drive up quality and to get some people to increase their training and go back to doing more training, without it incurring additional cost.

I recommend to the Minister that the Government look carefully at this amendment and think about some way of ensuring that patients across the whole of the UK will know that they will be looked after by people with the appropriate competencies and that, in times of financial stringency, we do not find that

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people revert to substitution as a misguided way of saving money which will be at the expense of quality if not at the expense of more than that.

Lord Newton of Braintree: My Lords, I wonder if I might come in on the side of the "sympathy but" brigade, which makes me a member of the same club as all those who have spoken before me. I have a lot of sympathy with the purpose of the amendment of the noble Baroness, Lady Emerton, but I worry about the rigidity of their terms in relation to specifying ratios and a maximum number of people that any nurse can deal with. It seems to me that this is a prescription for a degree of inflexibility that could end up closing wards for reasons that would not be sensible.

I am scarred by something that happened at Birmingham Children's Hospital in my period as Minister for Health; it arose from a shortage of paediatric intensive care nurses. I do not know whether they are still in short supply but that is the kind of problem that would be exaggerated by this kind of rigidity. Nevertheless, the basic thrust of the amendment must be right.

There is only one other point I really want to make. As I understand it, my noble friend is likely to say that this is not something for the health Commissioning Board, but for the Care Quality Commission. I do not accept that. The Care Quality Commission will be doing snapshots, perhaps a bit more vigorously than it has done in the past, sometimes unannounced and so forth, but nevertheless more often than not there will be a snapshot of the situation at a particular time. I cannot see that the Commissioning Board can commission services without specifying something about the standard at which it expects that service to be provided, and that is relevant to this question of staffing levels in a general sense. So while I believe that it would be wrong to say this is all a matter for the Care Quality Commission, equally I do not believe it would be right to be as rigid as some parts of the amendments are at present.

Lord Patel: My Lords, I have my name to this amendment and I support it. I agree with all the comments that the noble Baroness, Lady Emerton, has made. I have only two brief comments. One is based on the evidence and the strength of that evidence. The noble Baroness, Lady Murphy, mentioned California, which passed a law based on the evidence. So what is the strength of this evidence? I have looked at the literature, particularly at meta-analysis of all the literature that is produced relating to staffing levels and patient outcomes, including mortality. Meta-analysis involves looking at all the published literature and its methodology, and only those publications with a methodology that is felt to be good are included in the meta-analysis. The meta-analysis clearly shows that if you look at mortality, infection rates, response to arrest and serious episodes, the staffing ratios of registered, trained nurses to patients-I agree with the noble Lord, Lord Alderdice, that training is important-are important in delivering good outcomes.

The second issue is related to whose responsibility it might be to produce the guidance. If it is not the national Commissioning Board, then it ought to be the commissioners of services-the commissioning

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groups-that should be asked to consider the staffing ratios of each and every department in the provider's unit before making contracts with them.

Baroness Pitkeathley: My Lords, we shall have extensive debates about regulation at a later stage of the Bill, but it is important to remind the Committee that the ability to regulate healthcare assistants and quality assure them already exists for employers without the need for further statutory regulation. Perhaps in my role as chair of the Council for Healthcare Regulatory Excellence it might be convenient for the Committee and perhaps save the Minister a little time if I respond to the points made by the noble Lords, Lord Alderdice and Lord Walton of Detchant.

The Council for Healthcare Regulatory Excellence, in its new guise as the Professional Standards Authority, will be given the role of quality-assuring voluntary registers. Talks with psychotherapists are already under way and are going very well. The General Social Care Council is going to become part of the HPC, which will in turn change its name and be overseen by what will then become the Professional Standards Authority. That is just for the clarification of the Committee.

Baroness Howe of Idlicote: My Lords, I have listened to what has been said by all these expert professionals and I am very much persuaded in favour of something along the lines of this amendment. I think that one of the most worrying things from the public viewpoint has been the sheer number of concerns about nursing that we have had in the press-not least, I may say, about the mortality rates et cetera going up during weekend staffing. Quite clearly there is a need for better reorganisation.

I go back quite a long way, to the time when I sat on the Briggs committee on the future of the nursing profession, and will never forget one of the nurses saying to me at the time: "I've been nursing for"-however long it was; she had just got her qualification-"and now I'm going to have a rest", which was roughly what she was up to. I had a great deal of sympathy with her from that viewpoint.

I hope the Minister will bear in mind-I am sure that he must be more than aware of it-that the number of cuts in nursing staff are considerable in the present plan. Something like 8.3 per cent of qualified nursing jobs are to be lost. As the Royal College of Nursing pointed out in its briefing, that is on top of something that was done no less than about 18 months ago and is more than 10 times the original figure. Axing up to a quarter or a third of nursing posts will undoubtedly have a deep and potentially dangerous impact on patient care. Of course the training of the nurses-the experts in the really expert places-is essential. The training and up-skilling of those nurses on the real needs of patients is vitally important, but so are the numbers.

Baroness Thornton: My Lords, I thank the noble Baroness, Lady Emerton, the noble Lord, Lord Patel, and my noble friend Lord MacKenzie and other noble Lords for bringing these important amendments into Committee. Amendments 138 and 139 make provision

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for the NHS Commissioning Board to mandate safe nursing staffing levels and the number of patients a registered nurse is designated to care for. At the risk of stating the absolutely obvious about safe and effective staffing levels and patient ratios, where there are insufficient nurses and too many patients allocated to care for, then the level of care that can be administered will be affected. These amendments are about patient safety and well-being and the noble Baroness, Lady Murphy, hit the nail on the head. In response to her remark about speeches and the length of speeches, my observation, which is shared on these Benches, is that the Cross-Benchers are not the problem. They have been making admirably short and speedy comments. I hope that mine will be also. Other noble Lords might think about that.

This is a current problem as well as a long-term problem. As my noble friend Lord MacKenzie said, it has been with us for a long time, but it is current at the moment. The Royal College of Nursing tells us that some NHS trusts are diluting the skill mix on wards and in other care environments. This dilution is when non-registered healthcare support workers are employed in the place of a registered nurse. Healthcare support workers are paid-as one might guess-significantly less than registered nurses due to their comparative lack of vocational qualifications, so are seen by employers as a cheaper option. We think that that potentially puts patient safety at risk. Recent research by the Nursing Timeshas highlighted a significant variation in skill mixes between different hospitals in different regions. It seems to us that when cost becomes the overriding factor at the expense of the quality of service, patient outcomes and even patient safety become endangered. The most high-profile recent example of this was the care failings of the Mid-Staffordshire NHS Trust. Sadly, due to a range of factors-including financial pressures-costs were cut, nursing staffing levels were reduced and patient safety declined. It is vital, therefore, that stakeholders, including the RCN, work together with the national Commissioning Board to set the appropriate staffing levels and standards. There is some evidence from the NHS Information Centre that there is an accumulating problem here. Between January and August, the decline in terms of full-time equivalents in nursing, midwifery and health visiting staff in England fell by 1.6 per cent, from 310,989 to 306,028. There is evidence of a growing problem.

I would like to ask the Minister about an exchange in October when the Secretary of State gave evidence to a Select Committee. He stated that he was not aware of the down-banding, which is the issue at stake here, relating to the ratio. He was not aware that this was a problem or that the Royal College of Nursing had raised it with him. The Director of Nursing at the Royal College of Nursing then gave evidence to the same Select Committee the following day. She claimed that the Secretary of State was aware of down-banding practices; that the Royal College of Nursing, among others, had drawn it to his attention; and that it was a matter of some concern. I ask the Minister whether the department is aware that this is a problem and what it is intending to do about it.

These Benches support the amendments, and we are keen that this issue should be addressed robustly.

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4.15 pm

Earl Howe: My Lords, these amendments from the noble Baroness, Lady Emerton, clearly reflect an important issue: that there should always be appropriately skilled staff available to meet a patient's healthcare needs. I appreciate the concern behind the amendments and recognise the central point of principle; nor am I in a position to contest the evidence that has been cited by various noble Lords. I do not wish to do that. Where I am afraid I part company with the noble Baroness is in her argument that it would be appropriate for the board to mandate staffing levels or skills mix within local services. Although she would probably expect me to say this, these decisions really are best made by local clinicians and managers on the ground.

As the noble Baroness will know, determining staff requirements is not an exact science. The number of staff on wards and ratios between nurses and patients, and between nurses and healthcare assistants, will vary according to such things as the individual needs of patients, their levels of acuity and dependency, the nature of the clinical care they require and the layout of the clinical area. It is right that nurse leaders, doctors and managers have the freedom to agree their own staff profiles. This gives them the flexibility to respond swiftly to changes in patient demand to ensure safety and quality. Rigid ratios really are not the way to do this.

In being responsive to different situations, providers of NHS services are expected to meet their obligations under the NHS constitution-which, incidentally, they do not have in California. This states that patients have the right to be treated with a professional standard of care by appropriately qualified and experienced staff. Suggested nursing staff ratios and the proportions of registered to unregistered staff are, of course, available from, for example, the Royal College of Nursing. But it would itself say that these should be used only as a guide and as the basis from which to ask questions about staffing if there are wide variations from the suggested norms. The amendments say the board's duty is to establish or mandate "the ratio" as a legal requirement. That is simply not appropriate.

The other reason why I resist these amendments is that there is already a regulator overseeing these kinds of safety issues. All providers of regulated activities, including NHS providers, must be registered with the Care Quality Commission and meet the essential requirements around safety and quality. These include a requirement to take appropriate steps to ensure that, at all times, there are sufficient numbers of suitably qualified, skilled and experienced persons employed for the purpose of carrying on the regulated activity. That is an essential standard. Compliance with it is assessed as part of the registration process as well as ongoing monitoring. So it is not, as my noble friend Lord Newton suggested, just a question of a snapshot.

What follows from this is that it is unacceptable for organisations to persistently fail to ensure that there are enough skilled and competent staff to deliver the care required; and the Care Quality Commission can take independent action where an organisation is not taking appropriate steps to ensure that there are sufficient numbers of suitable staff at all times. If the CQC judges that an organisation has failed to comply with

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any of the requirements for registration, then that organisation has committed an offence. That is a very powerful sanction. So while I completely agree that it is important to monitor these issues carefully, I do not agree that it is necessary to create a role for the board in this regard. A role for the board would prevent the necessary flexibility in local decision-making, and interfere with the role of the Care Quality Commission, and indeed the future role of Health Education England. That would not be desirable.

Various questions were asked of me about other professional groups besides nurses. I happen to know that, in answer to the noble Lord, Lord Walton, clinical psychologists are already subject to mandatory registration with the Health Professions Council under the title of practitioner psychologists. As regards other groups, a number of points were raised about non-registered workers, including their education and training, and the Government's position with regard to those matters. I suggest that we will come to those matters when we reach Part 7, and it is perhaps more appropriate that we tackle them at that point.

The noble Baroness, Lady Thornton, asked me whether the Department of Health was aware of the problem of down-banding. We are aware of concerns in this area from the Royal College of Nursing and others. We are of course committed to ensuring that safety is a priority across the NHS, and we are looking at the concerns within that context.

That is essentially the Government's position. It is not that we are unsympathetic to the point of principle to which the noble Baroness has drawn attention, but we think that there are mechanisms already in place to address those issues, and that it is essentially a matter of local and clinical and managerial judgment.

Baroness Emerton: My Lords, I thank the noble Lords who have taken part in this debate, which has opened up many questions. I thank the Minister for his answer. There is one point that I would take issue with, which is the Care Quality Commission, because it is almost too late if the Care Quality Commission comes in when there is a failing. We are trying to prevent failings, and move forward. There is an issue there, in determining the ratios.

I agree that it is for the local commissioners to be involved in the planning, but it is such a complex issue that, as we move into the care quality groups, there is an issue in terms of their expertise in being able to do this. This is why I raise the issue, supported by the Royal College of Nursing, which is very close to the scene. I appreciate that that is where it should be, and perhaps the way forward is to make sure that there is training in the workforce planning issues. It is complex. As has already been said, it concerns not just nursing but also the other disciplines. The evidence that has been shown ought to be followed up, and I ask that the Minister take that away, so that we can look at the evidence. There is an article today in the nursing press demonstrating quite clearly that morbidity and mortality is reduced by a higher level of trained staff. On that basis, I beg leave to withdraw the amendment.

Amendment 138 withdrawn.

Amendments 139 to 145A not moved.

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Amendment 146

Moved by Lord Warner

146: Clause 20, page 21, line 19, at end insert "including its annual operating costs as defined in subsection (6)"

Lord Warner: My Lords, I rise to speak to Amendments 146, 148 and 149 in my name, and in support of Amendment 151, which the noble Lord, Lord Patel will speak to. These amendments are about keeping in check the cost of running the biggest quango in the country and holding it to account, through published information on its financial and service performance in the main part of its job, which is commissioning NHS services either directly or through clinical commissioning groups. My Lords, I fully accept that it is not common to put budgetary control of new bodies in the Bill that creates them. However, it is not that common to create a new huge quango that will be spending in excess of £80 billion pounds a year. As someone with long experience of quangos, I am only too aware of their capacity to grow their management budgets and roles, often through mission creep and always with plausible reasons for doing so.

When these bodies have regional and local arms, as seems increasingly likely to be the case with the national Commissioning Board, their scope for consuming more taxpayers' money is only increased. These bodies are notoriously difficult to control in terms of their running costs and their activities over time. The history of British public administration is littered with examples of Parliament setting up bodies and then finding a decade later that they have grown in size and cost much more to run than was originally intended. That is why every so often, under successive Governments, we have culls, mergers and budget cuts to these bodies, as we have seen recently, and it particularly occurs when their running costs clearly become disproportionate to what they are actually delivering.

I do not usually do prediction, but I can predict with absolute certainty that the national Commissioning Board will follow the trajectory I have outlined, whatever well-meaning assurances the Minister gives us and whatever honeyed words are uttered by its chairman and chief executive. Our job in Parliament is to frame the Bill so that they are more likely to deliver those assurances in practice. I suggest that from the outset the Bill should impose constraints on the board's running costs, not only to ensure that the maximum amount of NHS budget goes on delivery of front-line services but also to thwart the growth of bureaucratic procedures and curb the temptation for the board to become excessively controlling of local initiatives. We are already hearing concerns from clinicians who will be undertaking commissioning about the board becoming too controlling and, some would say, too big for its boots.

It is to these ends that I have framed Amendments 146, 148 and 149. Amendment 146 makes it clear that the board's annual business plan must clearly state its proposed operating costs. This will enable everyone to see what they are as a proportion of total expenditure and to make comparisons over time. Amendment 148 is the really meaty amendment in this trio because it tries to make clear that from the outset the board's

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operating costs are going to be controlled. It proposes that its base operating costs should be 30 per cent lower than those incurred by the predecessor bodies whose functions will be transferred to the board.

The Government say they want to cut bureaucracy-here is an opportunity to show what they are made of. Figures would be audited under this amendment by the National Audit Office but the Secretary of State could change the discount rate of 30 per cent shown in this amendment if he published reasons for doing so. In subsequent years the board's operating costs could not go up by more than a price increase in line with the consumer price index, unless authorised by the Secretary of State. I am sure there will be lots of arguments about these kinds of amendments being inappropriate in primary legislation and the inflexibility they will cause-well, they are intended to cause a bit of inflexibility-but if the board's operating costs increased by just 1 per cent of the total expenditure over a number of years, that would be another £1 billion spent on administration rather than service delivery.

In the tight financial climate that all public services face, it is incumbent upon us as parliamentarians to reduce from the outset the risk of the board's operating costs getting out of control, given the size and scale of its expenditure. Amendment 149 tries to complete the controls by requiring the board's annual report to include a statement on the financial and service performance of its own commissioning and that of clinical commissioning groups collectively. We need to know on a regular basis what the board is delivering for a given amount of money. If my wording can be improved, I would be delighted, but this is too important and potentially expensive an issue to be brushed aside by vague assurances. I promise the Minister I shall be terrier-like on this particular issue.

4.30 pm

Lord Beecham: My Lords, these amendments deal specifically with the national Commissioning Board, but of course the issue of costs and bureaucracy extends well beyond this particular creation of the Bill. In fact, the Bill establishes something like a new health solar system, at the centre of which of course will be the Secretary of State, a perhaps rather dimmer sun than we would like to see-some of us, at any rate-but nevertheless at the centre of a system in which he will circled by a veritable constellation of boards and bodies. Along with the national Commissioning Board and its wonderfully euphemistically named "field offices", which, as we understand it, will effectively be local commissioning boards of some kind, there will be Monitor, the clinical commissioning groups, clinical senates, clinical networks, directors of public health embedded in local government, Public Health England with perhaps four regional hubs, and 25 local units of the Health Protection Agency. There will still be some special health authorities and of course NICE. All of this is a formidable complex of organisations and the risks to which my noble friend has referred of the escalating costs of bureaucracy are self-evident.

There are particular examples of that, and the noble Lord, Lord Warner, touched on the question of support for commissioning. The recent draft recommendations that the Government have produced

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about that raise concerns about how that will function and about the costs involved. My noble friend referred to the National Audit Office looking particularly at the national Commissioning Board, but it seems to me that the abolition of the Audit Commission is something that the Government and the public generally may come to regret. Its rather more extensive and comparative work in looking at the way the health service operates, and indeed the way local government operates, will not be entirely replicated by the National Audit Office, perhaps ultimately to the detriment of the service.

I want to look not just at the long-term future but at the immediate costs of the reorganisation envisaged by the Bill, because this week saw the publication of the aptly named Operating Framework for the NHS in England 2012-13, which contains a reference to a requirement for all primary care trusts to set aside 2 per cent of their recurrent funding for non-recurrent expenditure purposes. That has been the case for the last couple of years and that non-recurrent expenditure has been effectively devoted to the service itself. The current framework suggests that:

"The non-recurrent cost of organisational and system change ... will need to be met from the 2 per cent"-

in effect, the cost of this Bill and its implementation. Is the Minister in a position to say how much of that 2 per cent, which is estimated to amount to some £3.4 billion, will be devoted to these non-recurrent costs of the system change? Can he also give an indication of the costs of working through the structures of the national Commissioning Board and other bodies that the amendments directly address?

I have sympathy with the aspirations of my noble friend in moving these amendments although, as he acknowledged, it would be somewhat unusual to place restrictions of this kind on the face of the Bill. It will be important to hear the Minister's views about how the future finances can be managed.

Baroness Tonge: Before the noble Lord sits down, I would like to remind him and the House that several Committee sessions ago, I asked the Minister to find out how much it is going to cost to disband the primary care trusts and how much it will cost to set up the clinical commissioning groups. I think this is all very relevant in this question-that we have absolutely no idea at all how much the change in bureaucracy is going to cost.

Lord Beecham: The noble Baroness encapsulates in about two minutes the thrust of what I said in five; she is precisely right. There are clearly going to be costs-redundancy costs, relocation costs and property costs-which we have not yet seen clarified in the case of the Audit Commission which I mentioned despite the fact that the proposal has been around for 18 months. It would be enlightening if the Minister responded to my question and that of the noble Baroness.

Lord Mawhinney: I share the view expressed by the noble Lord, Lord Beecham, of extending appreciation to the noble Lord, Lord Warner, for raising this issue because it seems to me to be one of some significance. Those of us who strongly support my noble friend and what the Government are doing in establishing

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commissioning-led services do so because, first, we think patients are likely to get a better deal out of it than they get under the present bureaucratic system and, secondly, because we have concerns about the efficiencies of SHAs and PCTs; in my case, that relates particularly to the activities of the East of England Strategic Health Authority.

I hope my noble friend will not deem a probing amendment about cost to be antagonistic or inappropriate. My reaction to the amendment of the noble Lord, Lord Warner, in its present form is much the same as the reaction of the noble Lord, Lord Beecham. I like the idea, I think it is helpful to this Committee to have more information although I am not sure that this form is actually the way in which that should be done. I hope my noble friend will be as generous as he instinctively and normally is in giving us as much information about costs as he can. If 30 per cent seems very high to him, as it does to me given the realities of setting up a new system, perhaps he would indicate what savings he thinks might be achievable if there was a sufficiently stringent regime in place to control costs.

Earl Howe: My Lords, I recognise from everything the noble Lord, Lord Warner, said that these amendments have been proposed with the best of intentions. I start by making it clear that an independent, accountable, transparent and efficient NHS Commissioning Board is a key component of our proposals, so I hope I can reassure the Committee on these issues. In doing so, I hope my Lords will forgive me if I touch on similar ground to that covered during the debate on Schedule 1.

Let me first assure the Committee that we want to reduce the amount of NHS funding spent on back-office bureaucracy. Indeed, as we stated in last year's White Paper, the NHS simply cannot continue to afford to support the costs of the existing administrative structure. Management costs in PCTs and SHAs more than doubled in the decade up to 2009-10, to £1.85 billion, increasing by more than £220 million in 2009-10 alone.

The noble Lord, Lord Warner, posed the question: what is different this time? Well, I believe a great deal will be different, and that is exactly why Clause 21 provides the Secretary of State with the power to set a limit on the use of resources by the board itself and by the board and CCGs together in relation to administrative matters. The meaning of what is to be considered as administrative matters will be defined through parliamentary regulations for the first time. The board has the power to set similar limits for individual CCGs. The changes that we are making will cut the overall cost of administration by one-third, and Clause 21 gives us the legislative basis to do that.

The Bill includes clear procedures around the publication of the board's annual accounts, annual reports and performance assessments of CCGs; and I hope that I can provide reassurance in this area as well. The requirement to publish an annual report applies to all of the board's functions, including its commissioning and financial functions and its performance assessments of clinical commissioning groups. The board is also under a separate duty to publish a report each year containing a summary of

30 Nov 2011 : Column 259

the results of each performance assessment. So I do think that the provisions in the Bill already address the concerns embodied in Amendments 146, 148 and 149.

On Amendment 151, which is grouped here, the board's power in new Section 13X(b),

is necessary for the board to acquire any premises that it needs to accommodate itself for the purpose of carrying out its functions. Likewise, should it find itself with property surplus to its requirements, it would need to be able to divest itself of that property. The power simply replicates the power that PCTs currently have.

My noble friend Lady Tonge asked about the costs of transition. The modernisation programme will have one-off costs of between £1.2 billion and £1.3 billion, spread over the lifetime of this Parliament. It will reduce expenditure on administration by £1.5 billion a year from 2014-15 onwards. That is reducing the administrative spending across the system by one-third, and over this Parliament the modernisation will save £4.5 billion gross, or £3.2 billion to £3.3 billion net. So the up-front costs are expected to be more than recouped by the end of 2012-13. With those explanations, I hope that the noble Lord, Lord Warner, will be somewhat reassured. I am sure that I have not completely reassured him, but I hope that I have done so sufficiently for him to withdraw his amendment.

Lord Warner: Can the noble Earl explain to us, in writing, the comparison between the current costs of the bodies carrying out functions that are going to be transferred to the board, and what the Government's current estimate is of the first year's fully fledged activities of the board in discharging those functions? It would be very helpful and certainly more convincing to me and, I suspect, other Members of this House if we could see the comparative figures just for the board. I am not asking him to go into Monitor or CQC; I am asking for the figures just for the board taking on the functions that it will be taking on.

Secondly, his response did not really deal with the issue of how you keep these costs under control as the years go by. Is he relying only on the Secretary of State being eagle-eyed and briefed by his civil servants to do it, or do the Government have in mind an uprating mechanism that would curb unnecessary growth in this area?

Earl Howe: This is one area where the Secretary of State has a direct interest to ensure that administrative costs are kept low. In answer to the noble Lord's first question, of course I would be happy to write. There is already a great deal in the impact assessment, to which I would direct noble Lords' attention. However, I shall be happy to write an individual letter to him and copy it to noble Lords in answer to the questions that he posed.

Lord Beecham: When the Minister writes to us about the risk register, would he indicate whether this topic of the cost will be referred to?

Earl Howe: My Lords, I am not sure what question the noble Lord is asking me.

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Lord Beecham: Does the list of issues that are covered in the risk register include the question of the costs of transition and reorganisation?

Earl Howe: My Lords, the cost of transition was certainly very much an issue that was thought about when the risk register was put together.

Amendment 146 withdrawn.

Amendments 146A to 150A not moved.

4.45 pm

Amendment 150B

Moved by Baroness Bakewell

150B: Clause 20, page 21, line 39, at end insert-

"( ) how effectively the NHS services meet the needs of the older population"

Baroness Bakewell: My Lords, I rise to speak to Amendment 150B and 320ZB. As with the others that I have proposed to this Bill, my amendments are all associated with one running theme: meeting the needs of older people. First, I propose that the annual report of the NHS Commissioning Board should be measured by how effectively it meets the needs of older people. Thus, I am separating out a particular cohort of people for whom particular attention needs to be made. Why do I do that? It must surely be obvious every day that we read the papers and every occasion when stories run in the media of inappropriate treatment of older people in hospitals, care homes and nursing homes. They are not getting the treatment that they should and the public know this and care about it.

My major amendment stands aside from the many other amendments to this Bill so far that have dealt with new structures, responsibilities, commissioning and safeguards. The purpose of this amendment is to test views on the creation of a role of commissioner for older people. There are many reasons why such a post becomes increasingly pressing. You may well be familiar with them. First, there are the demographics. The statistics are familiar and frightening. There are 10 million people now over 65 in the UK. By 2034, 23 per cent of the population will be over 65. Of them, 3.5 million will be over 85. Such proportions of the population will constitute by far the highest percentage of users of healthcare and specifically of social care in this country. Old age is not a condition you cure. We are not hoping that old people will get better. Scientific advances will not find miracle cures that reduce the incidence of old age. Medical science will paradoxically be increasing the numbers in this cohort. This change constitutes one of the largest challenges that developed societies have to face. The situation is the same in Japan, America and Canada. This is where the human race is going. I feel that there is little appreciation of the scale of what it is to meet those needs.

All the detail and complexity of this Bill and the debates that we are having about it concern the replacement of one complex structure of the NHS

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with another. We have been debating in detail the network of relationships between the NHS Commissioning Board, the CCGs, HealthWatch England, the CQC, the local HealthWatch organisations and the role of Monitor. All this abundance of well intended organisational ways of meeting the needs of patients does not take on the bigger picture facing the future.

The old are a different cohort. We will all one day be patients. Before that, as people age they become needful of different provisions of social care. Social care is in the title of this Bill. They will need meals on wheels, transport provision, adapted housing and all the things that provide for a living that, while not being an illness, is not as independent as it once was.

Such a commissioner for the old already exists. Such an independent statutory body with an overview of all people aged 60 and over was created in Wales in 2006. It exists to promote the interests of older people and improve their lives. Among the crucial things its first commissioner, Ruth Marks, does is to promote awareness and challenge age discrimination. She also offers ongoing assistance for older people who contact her with problems. She is often dealing with complex issues that involve all the various public bodies and that individuals cannot cope with. In the commissioner, they have one person that they can turn to to help them through this web of public bodies. This unique help, individual to individual, through the complex world of health and social care provision, seems to me to be of overriding merit and appropriate in the discussion of this Bill. Northern Ireland also has such a figure, known as the Older People's Advocate, currently in the person of Dame Joan Harbison. We already have a Children's Commissioner, created by the Children Act 2004. This could act as a template for a commissioner for the old-to hear and then promote the views and concerns of individuals and to involve them in the discharge of the health service function.

In 2008, I was invited by the Government Equalities Office initially to be a champion, which I thought was bit aggressive; then I was invited to be an ambassador, which sounded rather diplomatic; and I volunteered to be a voice. Not only because I am a broadcaster, I thought that people want a voice and they know what it means. When Harriet Harman asked me to do this, she nodded in my direction and said that of course it was uncharted waters. Indeed it was. Neither of us realised what the reaction would be. I was inundated with complaints of every conceivable kind. Health sometimes, hospitals often, pensions frequently, but also things like the closing of public loos or ex-pats in Spain worrying about their heating allowance.

Some of them were very strange requests indeed-how would I get people's savings out of the Icelandic financial system? I had to respond by sorting out the networks of support that exist-Citizens Advice Bureaux, Age UK, MPs and local authorities. It was a rigmarole of roundabout ways in which people could have a satisfactory answer to their personal problem.

Time has moved on. My role was a part-time, amateur job. We are now into the serious matter of considering the old. Old age now has a high profile. The newspapers are on board. The media follow such stories. We owe to them the revelation of the many

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scandals that exist. Architects are concerned and interested in designing lifelong homes. The co-housing movement is on the go. Martha Lane Fox is campaigning to get the old on the internet. There is a multiplicity of age-related websites. You can adopt a granny. You can adopt an old person's garden. There are thousands of such websites but none of them answer the single requirement to have one person who is on your side. The Liberal Democrat conference in September debated such a policy motion, calling for a commissioner for the old. This is an idea whose time has come. I beg to move.

Baroness Finlay of Llandaff: My Lords, I apologise to the House for missing the noble Baroness, Lady Bakewell's opening remarks. I simply point out that we have an Older People's Commissioner for Wales, Ruth Marks. In March 2010 she led an inquiry into care in hospitals, called Dignified Care? By November this year, she was satisfied that the 12 recommendations from its in-depth and hard-hitting report had been met. She is now using her powers to drive forward additional adult protection legislation and a nursing home review. It is only with legal powers and leadership that we can really turn care round. I believe that such a post is more than cost-effective. I really recommend that the Government look hard at having an older people's commissioner for England because we know that there is a big problem there. Such a post will more than save its cost.

Baroness Jolly: My Lords, I support the noble Baroness, Lady Bakewell, in her plea for a commissioner for older people. As she indicated, it has been a long-standing commitment of our party, which was put into party policy last September. Prior to the general election, we had a spokesman in the other place on older people's issues, and there was a general election manifesto commitment. So we were right there and, as the noble Baroness has indicated, she has form in this regard too.

The Welsh commissioner for older people actually started life in your Lordships' House before going to the other place, and the appointment was made in 2008. I have talked to Welsh colleagues over the last week and they have been really enthusiastic about the work that has been done and the progress made in Wales. So if it can happen in Wales, maybe we need to think about England too. The Welsh ambassador has similar responsibilities to those in the noble Baroness's amendment. The role also has powers of investigation, entry and interview. I wish that we could be more ambitious with this older persons' commissioner and extend the scope. As the noble Baroness said, there are so many issues that worry old people. Health and social care are clearly at the top of the list, but there are also pensions, housing, transport, leisure, even banking. Clearly there is a need for some sort of signposting centre for old people which somebody has to grasp and make it work.

The Government start a consultation on social care in the new year, and I know that my honourable friend Paul Burstow, the Minister for social care, is also keen on this particular issue, so I am really pleased to support this. Could my noble friend the Minister

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clarify whether an older person's commissioner, or something similar, would be on the list of possibles, probables or definites for the next Bill?

5 pm

Lord Walton of Detchant: My Lords, it will not surprise your Lordships to learn that this is an issue in which I take an increasing personal interest. Having said that, I should add that there are islands of great excellence in relation to studies of the care of the elderly in the UK. Professor Linda Partridge is doing wonderful work in University College Hospital, and I have an avuncular interest in the important Institute for Ageing and Health, chaired by Professor Tom Kirkwood, in Newcastle. These are islands in which the care of the elderly and the research into ageing processes is being carried forward. The problem is far wider. The problem is with standards of care in the community, in care homes and in our hospitals, where it is perfectly clear that standards have become very uneven. We have heard all too many stories in the press about inadequate care. For this reason, I believe that it is absolutely right to follow up the proposal made by the noble Baroness, Lady Bakewell. I think that England needs a commissioner. There is even a possible case to be made out for establishing a clinical network relating to the care of the elderly. Basically, most clinical networks have been disease-orientated, related to specific diseases, but this problem is now one of such increasing importance in the country at large that the Government ought to support establishing a commissioner and a clinical network for the care of the elderly.

Baroness Pitkeathley: My Lords, in rising to speak in strong support of the amendments moved by my noble friend, I want to remind the Committee of the large number of older people who are not in receipt of health and social care services but are actually providing them. Of course, I refer to the increasing numbers of very elderly carers. Although the peak age for caring is still 45 to about 60, we are increasingly looking at elderly spouses looking after their elderly spouse, or much older parents looking after a child with special needs who is living very much longer than anyone would have expected hitherto. So the services that we think about-housing, transport, care services-must be tailored to the needs of these older carers too.

Of course we also have economic reasons for doing so, because many people have become poor in their old age by virtue of the fact that they provided care, and they are often in poor health as a direct result of their caring responsibilities. I remind your Lordships that these are the people who are most affected at the moment by cuts in local authority services and the voluntary sector. I hope that the Minister will be able to give an assurance that the needs of older carers will also be included in government priorities.

Lord Owen: My Lords, I had not expected to speak but I thought that the case put forward by the noble Baroness, Lady Bakewell, was extremely convincing, particularly this issue that age is not an illness but a reality, and above all a numerical reality.

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Listening to the arguments, I would put just one other thought. Commissioners can sometimes be listened to and effective in government. This largely depends on the structure of government, and in particular probably either the personality of the Prime Minister or the person who is leading on health. We used to have Health and Social Security under one Secretary of State, which the noble Lord will remember very well, since he was Barbara Castle's private secretary. He may remember too that a decision was taken in 1974 to make a Minister for the Disabled. It was scoffed at by many people within government, but there is very little doubt, looking back at the record of having successive junior Ministers responsible for disablement, that there has been a formidable achievement both in legislative activity and in activity across the board. The former Prime Minister, John Major, was at one time a junior Minister for disablement, and in fact in many ways he won his political spurs in that position.

It is a constant reminder to the Cabinet sub-committees that deal with issues like this that there is a voice there that speaks up and represents it and that is close to the source of power and decision-making. A commissioner often does not have either that access or that power. There is very little doubt that we hear and see all these problems of the aged, or that these problems are increasing. Incidentally, I think that the amendment is well worth while on its merits in relation to a National Health Service commission, but that is, as everybody has admitted, only one, relatively small issue.

There is a much deeper political issue which the present politicians are not able to grapple with. If we look at the response to the old people's heating allowance, there is a growing feeling among a substantial number of people who do not need this money that, if we are going to be serious about grappling with the problem of the aged, we have to be serious about the whole question of the now very considerable cumulative sum that is pushed to elderly people purely and simply because of their age. I enjoy my free travel pass greatly and am wholly in favour of it, but I do not need it. In fact, I ought to be walking more frequently rather than taking the Underground or the bus. I think that we need to have a fresh look at this. The initiative on these issues will probably come from the body politic. It would be much easier to persuade people that the time has come to be more selective on some of these issues if it were ensured that the money saved was earmarked, for a while, specifically for projects for the elderly.

I would not want to endorse the proposition of a commissioner at this stage. I would be more attracted to the idea of a junior Minister for the elderly who is in government and can attend the housing, welfare, health, social care and all the other Cabinet sub-committees where the really crucial decisions are taken in terms of legislation and, often, finance.

Baroness Wall of New Barnet: My Lords, I, too, support Amendment 327ZB, tabled by the noble Baroness, Lady Bakewell, and her earlier amendment. However, I want to make this point. I would not want the people at the sharp end-the nurses and healthcare assistants dealing with patients-to feel that this in some way exonerates them from taking the care that they should.

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We need to be sure that Amendment 327ZB, which describes the activities that the commissioner for older people should cover, is not an escape route for anybody who is face to face with patients, suggesting that they do not need to take responsibility. I hope that the amendment reinforces this point, but we need to be sure that this is not an opportunity for these people to claim that there is someone else who will look after their patients.

Baroness Wheeler: My Lords, I am pleased to speak in support of Amendment 150B from my noble friend Lady Bakewell, requiring the annual report of the NHS Commissioning Board to include an assessment of how effectively it meets the needs of the older population. We know that nearly two-thirds of NHS patients receiving consultant-led care and 60 per cent of people admitted to hospital are aged 65 and over, so it is highly appropriate that this requirement be added in the Bill to the specific items that the board must report on to Parliament and the Secretary of State.

Under the umbrella of this amendment on the needs of older people, I would like reassurances from the Government on how they intend to improve commissioning for essential community and prevention services for older people. It is widely recognised that these are currently undercommissioned, specifically falls prevention, audiology and continence. In terms of community services, I stress the inclusion of older people in residential care. Age UK research shows that nearly 400,000 people living in care homes currently face real difficulty in accessing GP and primary care services.

We know that undercommissioning of community and prevention services is widespread and that the healthcare system needs to be much more effective in commissioning primary health and preventive services. For example, Age UK estimates that falls prevention services could save the NHS £2.3 billion per year in preventing hip fractures alone. Falls represent the most frequent and serious type of accident in the over-65s and are a serious cause of morbidity and mortality. A recent national clinical audit to investigate the organisation of services for patients who have fallen and fractured their hip, wrist, arm, pelvis or spine showed how variable commissioning of falls services is, rarely providing a co-ordinated falls and fractures strategy. Few GPs assess the risk of falling among older patients, and arrangements in hospitals for case finding and secondary prevention are inadequate. Half of all patients suffering a hip fracture never regain their former level of function and mobility. How is this situation to be addressed in future commissioning arrangements?

On hearing, the estimates are that up to 6 million people in the UK would benefit from a hearing aid but that only 2 million have one. Waiting times for hearing aids continue to be a major problem. In some areas people can wait up to one to two years between their GP referral and having their first hearing aid fitted or for a digital upgrade of their hearing aid. Audiology is excluded from the general 18-week NHS waiting time target. How will the current shortcomings in commissioning for audiology services be addressed?

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Finally, effective and dignified continence care for older people is an essential service, particularly for those whose long-term conditions, such as cancer, stroke, spinal cord injury, spina bifida, Parkinson's and other neurological conditions, require continence management to be integrated into their care and treatment pathways. Commissioning for managing these conditions in the home, in residential care and in hospitals, and for general continence services, requires specialist knowledge and understanding of the different needs of continence care in primary and secondary care settings. The system is so often geared towards containment through pads and catheters rather than assessments or treatments of incontinence, or recognition, for example, that patients in hospital using catheters or other products over a short term will need reassessment and probably different products and support to cope with day-to-day life at home or in residential care. As a trustee of our local carers' support organisation in Elmbridge, I know that effective support for carers who are managing a person's continence issues can often make the difference between whether that person can be supported and cared for at home or has to go into residential care. Is the Minister confident that clinical commissioning consortia will have the expertise and the will to prioritise much-needed improvements in effective continence care?

My noble friend Lady Bakewell's separate amendment calls for a commissioner for older people, and I hope the Minister will take this away and give the proposal serious consideration. In particular, we need to see what we can learn from similar posts in Wales and Northern Ireland, and the observations of the noble Baroness, Lady Finlay, are very helpful on this. The intention behind the proposal is to provide a cross-government overview and strategy on the needs of older people. It is why my own party has appointed a shadow Minister for care of older people. We also know that making progress on improving NHS care and treatment of older people, addressing the future funding of social care through Dilnot and other key measures all require champions and leadership at the highest level of government, and I look forward to the Minister's-we hope sympathetic-response.

Earl Howe: My Lords, let me begin by saying that I am sympathetic to these amendments, moved with customary persuasiveness by the noble Baroness, Lady Bakewell. I completely understand what has prompted them. The improvement of services for older people is vitally important and I can reassure the noble Baroness that this will continue to be a priority for the Government.

I have written to the noble Baroness following the debate in Committee on 7 November on her Amendment 18B, explaining how the NHS outcomes framework will hold the NHS to account for improving the effectiveness of care for older people. It will act as a catalyst for driving quality improvement and outcome measurement throughout the NHS by encouraging a change in culture and in behaviour, including a renewed focus on tackling inequalities in outcomes. There may well also be specific objectives in the Secretary of State's mandate to the board in relation to services to be provided to older people.

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Now, the real question posed by the noble Baroness's amendments is how can we improve older people's care and how can we ensure that services are joined up? The UK Advisory Forum on Ageing, co-chaired by my honourable friend the Minister of State for Care Services, Paul Burstow, and the Minister of State for Pensions, Steve Webb, already provides advice across government on the additional steps that the Government and their partners need to take to improve well-being and independence in later life. We already have a champion for older people's health, and that is Professor David Oliver, the national clinical director for older people. In order to ensure quality outcomes for older people during the transition to the board and CCGs, Professor Oliver and relevant bodies and partners will function as a motor for change to encourage best practice locally and to promote the messages around QIPP-Quality, Innovation, Productivity and Prevention -and long-term conditions.

Professor Oliver's overall remit is to promote better care of older people across the NHS and social services, and to provide clinical leadership for cross-government work on older people. He is doing good work. Nor, as I say, is he working in isolation. Regular meetings take place between officials, Professor Oliver and organisations including Age UK and WRVS. Recent examples of co-operation include Age UK's active participation in reference groups chaired by the national clinical director and the director of social care leadership and performance on the draft social care and public health outcomes frameworks.

5.15 pm

If we look at the wording of the noble Baroness's amendment, some of the functions that it lists are also those currently carried out by existing bodies, namely the CQC, the Parliamentary and Health Service Ombudsmen and the Equality and Human Rights Commission. However, let us take a look at what the Bill says.

The Bill in fact does a great deal to support collaborative working across the care services, which, as the noble Baroness knows, is vital to the effective care of the elderly. The existing duties on the board and CCGs to involve patients in their care, involve and consult the public in commissioning decisions, improve quality, obtain appropriate advice, reduce inequalities and promote integration, innovation and research, are as applicable to older people as they are to any other age group. Surely that is as it should be. Of course older people are an important group; I am the first to recognise that. But what I think the Bill should avoid is any suggestion that a person is less of a patient or less of a service user if they do not fall into this or that category. That, I think, is a danger with part of the noble Baroness's approach.

That said, clinical leadership will always be important. It is worth noting that Sir David Nicholson has said in terms, in the document entitled Developing the NHS Commissioning Board, that the board will include clear arrangements for key service areas which would gain particular benefit from dedicated professional and clinical leadership. These might include children's services, mental health, older people's services, dementia, learning disabilities, maternity and primary care.

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I understand that the noble Baroness will be meeting my honourable friend the Minister for Care Services in the near future to discuss this important issue. He is indeed, as my noble friend said, passionate on these issues. I will certainly share with him her thoughts from this debate, and those of other noble Lords, and of course I look forward to hearing the results. I am sure that the discussions will very usefully inform our further thinking in this area.

My noble friend Lady Jolly asked whether an older person's commissioner is going to be in the next health Bill. We certainly do not have a closed mind on this issue. While at this time we are not in a position to make any commitment about future legislation, I can confirm that this issue is certainly not on any "definitely not" list. The noble Baroness, Lady Bakewell, as I said, puts across a strong case for a specific commissioner for older people. It is an issue that ministerial colleagues are looking at. I will discuss the issue further with them, as I have said, and I am the first to agree leadership in this area is vital.

Turning to Amendment 150B, I do not think that it would be sensible to include a specific reference in primary legislation requiring the board's annual report to contain an assessment of how effectively NHS services met the needs of the older population. I say that because, again, it would be hard to justify why one group or service was listed rather than another and it might, by implication, suggest that other groups and services are less important. I genuinely think that the best approach is the one taken by the Bill already, which recognises the essential principle that the NHS is meant to be a comprehensive service, available to all, whatever their age.

In fact, the existing duty to produce an annual report includes all of the board's functions, including the exercise of the duty to reduce inequalities, and this is in addition to the duty to publish information to demonstrate compliance with the public sector equality duty at least annually, starting by 31 January 2012, and to prepare and publish equality objectives at least every four years starting by 6 April 2012.

The noble Baroness, Lady Wheeler, asked me a number of questions about audiology, falls prevention and so on. I will happily write to her. However, I would just say to her, as I am sure she knows, that the key to this is in primary care. Making clinical commissioners directly responsible for the financial consequences of their clinical commissioning decisions will be a powerful driver. It is a direct incentive on them to focus on prevention, first because the cost of unplanned hospital admissions is huge, and secondly because they will be held to account under the commissioning outcomes framework for the outcomes that they achieve for their patients.

I think that the Bill already contains the mechanisms necessary to protect the interests of older people. I think that there are already arrangements working very successfully on the ground to champion the needs of elderly people in terms of clinical guidance and clinical leadership. On a point of principle, I think that it would be wrong to give explicit emphasis in the Bill to one group of the population at the inevitable expense

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of other groups. On that basis, I hope the noble Baroness will feel it appropriate not to press her amendment.

Baroness Bakewell: I thank the Minister for that detailed response to the amendment. I also thank my noble friends for drawing attention to what is going on in Wales and in Newcastle, for mentioning the issue of older carers, and for discussing the nature of this particular group. Everyone in the population, we hope, will one day belong to that group. It is not an exclusive cohort.

I think that there is a small point of philosophical difference here. This forest of a Bill bristles with well-meaning organisations that are listening, speaking, consulting each other and offering clinical leadership. It is dense with such things. What it does not have is the single sapling of a commissioner standing alone in the desert and speaking for us, not us talking about them. To that extent, I think that the debate has been particularly fruitful. I hope to continue discussions with noble Lords, and with that in mind, I beg leave to withdraw the amendment.

Amendment 150B withdrawn.

Amendments 150C and 151 not moved.

The Deputy Chairman of Committees (The Countess of Mar): Before I call Amendment 152, I have to tell noble Lords that if Amendment 152 is agreed to, I cannot call Amendment 153, in the name of the noble Baroness, Lady Williams of Crosby.

Amendment 152

Tabled by Lord Hunt of Kings Heath

152: Clause 20, page 23, line 29, leave out from beginning to end of line 5 on page 24 and insert-

"(1) The Secretary of State may give directions to any of the bodies mentioned in subsection (2) about the exercise of any functions.

(2) For the purpose of subsection (1) the bodies are-

(a) NHS Commissioning Board

(b) clinical Commissioning Groups"

Lord Hunt of Kings Heath: My Lords, that is exactly the point I was going to raise. Originally my Amendment 152 was grouped with Amendment 153 and other groups. For some reason I have been divorced by the Liberal Democrats, who are going to have a second debate on the same issue. This is a complete waste of time. I think that the best thing is for me not to move my amendment now, but I will speak to it in the next group.

Amendment 152 not moved.

Amendment 153

Moved by Baroness Williams of Crosby

153: Clause 20, page 23, line 34, leave out from "failing" to ", and" in line 35 and insert "to exercise its functions in a way that the Secretary of State considers to be in the best interest of the National Health Service"

Baroness Williams of Crosby: My Lords, may I offer a quick explanation to the noble Lord, Lord Hunt, and the Members of the Committee, as to why we have asked for these amendments to be separated?

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I am very conscious, as I sit in the Committee, of what is often said on the "Today" programme, when somebody is asked the question "How would you improve the health of the entire population", and the interlocutor says "Please answer briefly", which means "You have four seconds". I shall be as quick as possible.

This amendment, along with Amendment 152-which we are not debating at present, as I am merely explaining why we have separated them-is deeply significant. This will emerge much more clearly when my noble friend Lord Marks of Henley-on-Thames speaks in a few moments' time, but it is important because it deals with the fact that the earlier Amendment 152-I have to refer to it to make any sense of my current remarks-would actually remove all powers of intervention in the current Bill. The powers of intervention associated with the Secretary of State are directly related to the failure of the board or of the CCGs.

The deletion that the noble Lord, Lord Hunt, and the noble Baroness, Lady Thornton, have moved, would take the whole of the failure regime out of this Bill. It would therefore be directly in conflict with one of the principles of the Bill, which is the principle of decentralisation. It moves back to the Secretary of State only the direct intervention with the board and the CCGs. It is well known now, from the long and explanatory speeches around this whole debate, that the Secretary of State passionately believes that decentralisation is one of the major principles of the Bill.

Therefore, my noble friend will explain why Amendment 153 is not on the same lines at all as Amendment 152. It is a different argument: there should be the right of intervention by the Secretary of State, but it should be limited in a way that saves the decentralisation principle. Why does it do that? It does that by referring back to the Secretary of State's overall responsibilities for the health service as a whole-which we all accept as a crucial element of the constitutional discussions now going on-as distinct from a direct intervention at the level of the board and the clinical commissioning groups, which would be to restore the very central principle that the Bill has rejected. This is not a deceptive amendment simply about some powers; it is in fact to make it clear that there is a distinction between decentralised responsibilities by the board and the CCGs and the essential, ultimate right-expressed, for example, in the amendment of the noble and learned Lord, Lord Mackay of Clashfern, at an earlier stage-of the Secretary of State to have responsibility for a comprehensive health service while not intervening in a detailed way in the clinical commissioning groups or the Commissioning Board. I will now pass the further part of the argument on to my noble friend Lord Marks of Henley-on-Thames. I beg to move.

Lord Marks of Henley-on-Thames: My Lords, this is a most significant area of the Bill, as my noble friend Lady Williams of Crosby has said. This group concerns the regime whereby, in the event of a significant failure, the Secretary of State can intervene in the board's exercise of its functions. That is in Amendment 153. The board in its turn can intervene in the exercise by a clinical commissioning group of its functions. That is

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the purpose of Amendments 220ZAA and 220ZAB. I would add Amendment 220ZA, which is not currently in the list of the group, which simply amends the title of the proposed new Section 14Z19. Also in the group is Amendment 277, which removes the restriction on the Secretary of State's intervening where there has been a significant failure by Monitor to act in relation to a particular case.

May I first address the question of the Secretary of State's intervention in the board's exercise of its functions? When we debated at some length Clauses 1 and 4 and the proposed new Section 13F, noble Lords were clear that whatever may be the outcome of those discussions and debates on those clauses, this House must ensure that the Secretary of State will have powers and functions that are up to the job of enabling him or her to carry out those overarching duties. Those duties involve him or her in carrying ultimate responsibility and accountability to Parliament and in the courts for the NHS. We should remind ourselves that my noble friend the Minister and my honourable friend Mr Paul Burstow have repeatedly assured Parliament that the Government are determined to make it clear that the Secretary of State will remain responsible and accountable for the NHS in Parliament and at law.

5.30 pm

In considering how far the proposed intervention powers meet those objectives, two features of the Bill are central. The first is the devolution of the commissioning arrangements to the CCGs, which is, as my noble friend mentioned, at the heart of the Bill. The second is the supervisory role of the board over commissioning. The board is to act on the mandate of the Secretary of State and will implement regulations laid by the Secretary of State and approved by Parliament. That certainly gives the Secretary of State considerable responsibility. However, the Secretary of State cannot exercise that responsibility effectively unless he is able to intervene appropriately when the board does not act in accordance with the best interests of the NHS. Under the arrangements presently proposed, the continuing responsibility of the Secretary of State for the functioning of the board and, hence, for the whole system, is disconcertingly weak.

The problem is not that the powers given to the Secretary of State are inadequate, if he is in a position to intervene. They are adequate and admirably drafted. He may give a direction to the board to exercise its functions and say how it should do so. If the board fails to comply, the Secretary of State can take over. The problem lies in the threshold, because the bar for intervention is set far too high and it is only in very limited circumstances that the Secretary of State is to be permitted to intervene by the Bill. He may give a direction to the board only if it is failing or has failed to discharge any of its functions or has failed to do so properly, and the failure is significant. The board could therefore say, if challenged, that it was carrying out its functions properly, even if it was acting entirely contrary to the views of the Secretary of State, as to what the best interests of the NHS required. The reason for that is that failing to exercise its functions properly would almost certainly be interpreted by the

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courts as acting in a way in which no reasonable board, having the duties of the NHS Commissioning Board to perform, could rationally act. It would not matter to that argument if the board decided to act, or declined to act, in a way that the Secretary of State considered to be entirely contrary to the best interests of the health service.

The situation is made much worse by the duty to promote autonomy that has been adjourned for further discussion. Even independently of the autonomy clause, the high threshold for intervention is offensive to the notion that the Secretary of State remains responsible for the health service. There is no accountability in a Secretary of State who is debarred from intervening when his own views can be so comprehensively traversed by a body whose supervision is supposed to be in his charge.

At first blush, the requirement that a failure be significant to justify intervention might appear to raise the bar still further. I am, however, satisfied that, provided the word "significant" is given its usual interpretation of "not insignificant" or "more than trivial", that limitation is sensible. It would, though, be helpful to have a Statement from the Minister-in Parliament-saying that the use of the word "significant" is intended to eliminate the unimportant or inconsequential rather than to import into the Bill some test of higher seriousness.

The same considerations apply to the board's right to intervene in the clinical commissioning group's exercise of its functions. The Secretary of State sets the board the mandate, the board is obliged to comply with it, and if a CCG is acting in a way that is inconsistent with the mandate and inconsistent with the strategy the mandate represents, the board must, I suggest, be able to intervene. Yet the limitation, as currently drafted, does not meet that objective. It is far from clear that a departure by a CCG from the objectives set by the Secretary of State for the board, in the mandate, would justify the board in saying that the CCG was not acting properly, given the way in which I believe that term would be interpreted. So the whole structure of accountability is at risk of being found impotent, because there could be a significant failure by a CCG and no means of redress by the board. Our amendment would enable the board to intervene if it considered that the CCG was failing to act in a way the board considered to be in the interests of the health service.

I turn finally to Amendment 277, which is concerned with the prohibition in Clause 67(3) on the Secretary of State intervening in Monitor's operation in relation to a particular case. Monitor's regulatory functions involve regulation of all NHS foundation trusts, some of which are very substantial. Things can go wrong, as the Mid-Staffs inquiry demonstrates, and they can go wrong with Monitor. Monitor has a plethora of functions that are directed to individual cases, not least the entire licensing procedure for NHS foundation trusts. Each trust must apply for a licence, and it is Monitor that determines the application and then sets the conditions. I appreciate that there is an appeal against refusal or revocation of a licence. However there is no appeal against a grant. In those circumstances it is simply illogical that the Secretary of State has a general

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power of intervention where there has been a significant failure by Monitor in relation to the exercise of its functions, but that that power cannot be exercised in a particular case because of Clause 67(3). Our amendment would remove that illogical distinction.

Lord Owen: My Lords, I have followed with great interest the career of the noble Lord who has just spoken. He has now reached great eminence in his profession, and he has succinctly explained exactly what this Bill needs. This is by far the most important amendment that we have had before us. I welcome both of its parameters. It would be a terrible failure if we did not pass such a Bill. It is inconceivable that a person could even call himself Secretary of State for Health and not have this power. It would be impossible for him to stand before the House of Commons, where he is most likely to be holding that great office, and be unable to say if he felt that there had been a failure to carry out the responsibilities with which he is charged. How could he hold the office? It would effectively be a resignation issue on an important matter if he did not have that power and was not able to exercise it, and not to give him that power is effectively to strip the Secretary of State of his substance and his standing. This amendment is therefore utterly crucial. I personally think the wording is correct.

I would just like to deal with this word "significant". Until a few weeks ago I would have queried whether or not the word "significant" would be adequate. However, if you look at the legislation that this House has already examined in great detail and which has now been passed into law, namely the European Union Act 2011, which was given very close scrutiny, there is an issue-I think it is in Article 48-that I suspect we will be debating quite soon. This allows the Government, in circumstances in which they think a change has been made to the EU legislation that is not significant, to give up having a referendum. It has already been indicated to the rest of the eurozone countries that there are some circumstances under which the British Government would consider a eurozone amendment predominantly the concern of the eurozone and not significant, and therefore it would be able to be passed with unanimity and not need a referendum in the UK. So this word "significant" has already been crawled over with a great deal of care by a large number of people, not least the Eurosceptic element within the Conservative Party.

It has also been made clear that that would be subject to judicial review, which might be another safeguard that you would have to see. I think it is implicit in the wording-the noble Lord would know the legal consequences better than I-but I personally could live with the "significant" because there is an important issue here that if decentralisation is to be effective, there must not be micromanagement. I looked at putting down an amendment using the word "micromanagement" and then I came to the conclusion that micromanagement is in the eye of the beholder; it is not really a word that we could carry through in legislation. I think the combination of wording that the noble Baroness has used is the correct one: you have got the right to intervene but it is qualified by the fact it has to be significant, and it might be that that

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significance could be challenged. I very much hope that, having given it due thought, the Government will rise today to tell us that it is going to be accepted. If they do not do so, I hope it is pushed to a Division, whether that is now in Committee or on Report is up to the noble Baroness, Lady Williams, whose judgment I always accept-almost always.

Lord Hunt of Kings Heath: My Lords, I remain very puzzled by what the noble Baroness, Lady Williams, said. There is no disagreement at all, it seems to me. My original amendment and the amendments of the noble Lords on the Liberal Democrat Benches are entirely about the whole question of what is an appropriate intervention by the Secretary of State. Perhaps the noble Earl is going to accept this amendment and the Liberal Democrats want the glory of having it accepted-who knows? I agree entirely with the analysis of the noble Lord, Lord Marks, that the powers of the Secretary of State have to be sufficient to enable the Secretary of State to discharge his or her accountability to Parliament and to be responsible for the overall performance of the National Health Service. I agree with him that the current intervention powers are too weak in terms of the threshold and I agree that they are set too high. I also agree with his analysis about the relationship between the board and clinical commissioning groups.

It is very interesting as this Bill has progressed-somewhat slowly but none the less some progress has been made-that we have seen a number of interventions by the Secretary of State into the affairs of the National Health Service during that time. They have included coming down very hard on primary care trusts that were making people wait longer on the waiting list, although within the 18-week target period in order to save money, and on NHS trusts that, once a patient missed the 18-week target, let them wait many more months. I make no complaint about those interventions. I believe the Secretary of State was entirely justified. One of the questions is, how would that happen under this legislation?

When we debated this last week, the noble Earl, Lord Howe, essentially said that provision could be made in the mandate set for the board by the Secretary of State. That in itself risks the mandate becoming prescriptive and potentially another way to micromanage the National Health Service as one thing after another is added on. He was not very keen on my noble friend Lord Warner's suggestion that the mandate be restricted to, I think, five objectives and five desirable objectives. I suspect that when we see the mandate it is going to be very detailed because the Secretary of State will seek to cover himself so that when blame comes it will fall entirely on the NHS Commissioning Board.

It may be that in writing the mandate there are some events or issues that could not be anticipated in advance. However, in the circumstances that I have mentioned, the noble Earl, Lord Howe, could say, "Well, you have the intervention powers contained in Section 13Z1 on page 23". As the noble Lords, Lord Owen and Lord Marks, have suggested, the problem is that the intervention has to be based on a failure,

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The intervention is based on the consideration of the Secretary of State. The Secretary of State will be properly advised by his officials and possibly by the Government's law officers. However, what if the NHS Commissioning Board rejects the Secretary of State's view? What if clinical commissioning groups which had contained costs took the view that, in the case of non-urgent treatments, it was legitimate to make patients wait a few weeks if they were none the less treated within the overall 18-week target? Looking at the robust evidence given by the chair of the NHS Commissioning Board to the Health Select Committee, which scrutinised his appointment, it is just possible that the NHS Commissioning Board might tell the Secretary of State to back off. I do not think that is right. I am firmly on the side of Mr Lansley, since he is the Secretary of State and firmly answerable to Parliament. In the way that the Bill is currently constructed, I worry that the Secretary of State will be inhibited from necessary interventions.

5.45 pm

I listened with great interest to the remarks of the noble Lord, Lord Marks. I can see the logic of his amendments. The only point that I would raise is this: is it really necessary to add,

I do so in two regards. First, it adds words in a way that is potentially open to challenge and might lead us to the problem of judicial reviews, et cetera, which will certainly arise in the case of the Bill as it is currently drafted. Secondly, in my Amendment 152-which I invite noble Lords to give some consideration to-I have used the kind of wording that has been used ever since the NHS was established. Surely by definition the Secretary of State could only give directions if he thought it was in the best interests of the NHS because a Secretary of State must be bound to act in the best interests of the NHS. Perhaps the noble Lord, Lord Marks, will accept that perhaps my wording is rather more straightforward and less challengeable.

Overall, however, I would say to the noble Baroness, Lady Williams, that I do not think that there is any real disagreement of substance. What is clear is that the Secretary of State is, in the end, the boss and accountable to Parliament. He or she must have intervention powers. They should not be qualified.

Lord Newton of Braintree: My Lords, I wonder whether I could chip in, starting with an apology. As a result of the apparent abandonment of the previous set of amendments, I did not realise that this one had started and, therefore, have not followed everything that has been said. My remarks will be correspondingly brief. However, I have heard enough to know that I want to declare my general broad sympathy with the thrust of what the noble Baroness, Lady Williams, proposes and to link myself with the remarks that have just been made by the noble Lord, Lord Hunt, and not least those that were made while I was in the Chamber by the noble Lord, Lord Owen. They all echo something that I, and my noble friend Lord Mawhinney, have tried to say on a number of previous

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occasions-that there is beginning to be an absence of realism in the Government's attitude to some of these matters. As I have said several times-and as has been said in other ways by other Peers during this debate-at the end of the day the House of Commons will not accept a Secretary of State who says, "Nothing to do with me, guv", when something has clearly gone seriously wrong.

If the Secretary of State judges that something is happening that is not in the best interests of the health service, I do not see how he can fail to do something about it; and if he does not have a clear power to do something, I can tell you what will happen. The Government will scratch around in every corner of the Act until they find something that enables them to do something, because the Secretary of State will not be able to tell the House of Commons that he can do nothing. There is a real danger that the Government will immolate themselves, in this House at least, on the basis of an absurd proposition that the Secretary of State can somehow stand back and wash his hands of things when they are going wrong. I hope that this amendment will not be pressed to a Division tonight, because I do not think it would be sensible. We need to reflect on what the Minister says, but he needs to reflect on what is being said to him and to be prepared to come back with something different on Report.

Lord Warner: My Lords, I am beginning to feel sorry for the Minister. He is getting a kicking from both sides of him, left and right, and in front. I am puzzled by this amendment and the arguments being put forward, both the one by my noble friend Lord Hunt, and the one in the names of the noble Baroness, Lady Williams, and the noble Lord, Lord Marks. The reason why I am puzzled is because I keep coming back and looking at this Bill, particularly at Clauses 17 and 20. I know that the Minister did not think much of my restrictions on the number of items in the Secretary of State's mandate under Clause 20, but let us set that aside for the moment. Let us assume that the Secretary of State does exactly what my noble friend Lord Hunt does and lays out a very large number of items, and not what David Nicholson does, listing them on one side of A4.

The beauty of the mandate is that it has to be related to money and the Secretary of State can, in certain circumstances, change the mandate. He also has considerable powers to make standing rules changes under Clause 17. So I am slightly puzzled about the set of circumstances that my noble friend and the noble Lord, Lord Marks, are making for this additional provision. I am interested to hear what the Minister says about why this additional requirement may be necessary, because of the inadequacies of the combined effects and powers of Clause 20 and Clause 17.

Lord Hunt of Kings Heath: Perhaps I could try to answer my noble friend. There are two reasons why this is important. First, there is a real risk that the mandate will become so large and extensive to cover the Secretary of State-who wishes to transfer responsibility to the national Commissioning Board-that we will end up with a real fudge about who is actually responsible. Secondly, there are circumstances. Until last week,

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I do not think that many people knew that once a trust had allowed its waiting times to go beyond 18 weeks, there was a problem with some of them taking their eye off the ball. If a patient missed the target, often he might have to wait for weeks. It is quite possible that even if the mandate is as extensive as I suggest it might be, there will be circumstances in which the Secretary of State may need to intervene. It is not the case of having time to rewrite or edit the mandate, or look at the standing rules. The Secretary of State may need to intervene on the day that an issue arises. All that I want to do-and I suspect the noble Lord, Lord Marks, also wants this-is to make sure that the Secretary of State is able to intervene in circumstances that we cannot necessarily anticipate but, knowing the health service, we suspect will arise from time to time.

Lord Mawhinney: My Lords, the contributions of the noble Lords, Lord Marks and Lord Owen, demonstrate again why this Chamber is frequently held in the highest regard for the strength, clarity and coherence of the arguments that are advanced within it. I am not going to repeat what they said because I agreed with both of them. My noble friend Lord Newton and I are in danger of becoming Tweedledum and Tweedledee when it comes to trying to persuade the Government that there is a real world out there with around £130 billion worth of responsibility. Lots and lots of people are doing their best, but human beings have the inescapable ability of getting things wrong from time to time, no matter how good their intentions.

I have to say to the noble Lord, Lord Warner, that one of the interesting things about this Bill is that it talks about a mandate. I think of my time in Richmond House when something had gone seriously wrong and civil servants came in to say, "Well, there's a mandate, Minister," and I would say, "Isn't that fantastic?".

Let us get down to the reality of what we are going to do about this latest mishap. That is not an argument for not having a mandate, it is an argument for not putting all your eggs in one basket, even if this particular basket is as widely constructed as the noble Lord, Lord Warner, thinks. I have not resiled from what I have previously said in this Committee in that the Secretary of State is responsible. He has to be responsible to Parliament, he has to be responsible in law, and in reality he has to be responsible in the health service. I am relaxed about the Government putting in place arrangements which they believe-it will all have to be tested over the next few years-will provide a more coherent way of delivering a better and more efficient service than we currently enjoy. I do not resile from the fact that when push comes to shove-and it will, because that is one of the characteristics of the Department of Health, more than any other single department in Her Majesty's Government in my 30-odd years in this building, one end or the other-it must be clear that the Secretary of State can act, and in a way where the people of this country believe he is acting for them and on their behalf.

Lord Marks of Henley-on-Thames: My Lords, if the noble Lords, Lord Mawhinney and Lord Newton, are Tweedledum and Tweedledee, they make a splendid

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double act in this Chamber. It has been heartening to hear the support for these amendments from all sides of the House. Adding to what the noble Lord, Lord Hunt, said about the observation made by the noble Lord, Lord Warner, the simple distinction is that the mandate and the regulations are intended to be and should be-if they are not to be entirely unwieldy and inappropriately used-prospective. They should set objectives and requirements as to how the strategy of the health service is to be implemented. The intervention powers are intended to be, and must be, reactive. It is the power to react effectively that is important, and as the noble Lord, Lord Hunt, pointed out, it has been used on a number of recent occasions.

May I make one observation to explain our position on Amendment 152, and the difference as we see it? It is not over what is included so much as in what is left out. What is left out is effectively the whole of the intervention regime and what is substituted is a general power to give directions which would take us back to Section 8 of the 2006 Act, which I know that the Government believe is undesirable. I also suggest it is undesirable because it reverts to an unacceptable kind of micromanagement, even though I quite accept the point made by the noble Lord, Lord Owen, about that term being difficult to use in legislation.

Finally, the noble Lord, Lord Hunt, suggested that I might explain why we used the words,

It is right, I suggest, that there should be a criterion for the intervention by the Secretary of State. The criterion that we have chosen is the interest of the health service. It is, of course, what the Secretary of State considers to be in the interest of the health service. That phrase finds repetition in the Bill, so amendments are consonant with the wording of the Bill elsewhere. I am bound to say that if I was called upon in a court of law to challenge the Secretary of State on what he or she considers the interest of the health service to be, on judicial review I would be very cautious about advising my clients of any prospect of success.

6 pm

Lord Hunt of Kings Heath: My Lords, does not the noble Lord make my point for me, apart from believing that the 2006 Act is perfectly formed in every way? Surely the point is that it should not be open to any doubt whatever. In the end, if a Secretary of State intervenes, it must be because he considers it in the best interest of the National Health Service. Why should we complicate matters by potentially giving at least an argument for judicial review when, in the cases mentioned, the Secretary of State simply will need to, or be required to, intervene?

Lord Marks of Henley-on-Thames: The answer is that we are not at one about the vulnerability of my amendment to judicial review. I rather hope that that is never tested; nevertheless, I hope that the amendments are accepted.

Earl Howe: My Lords, the policy of the Government and the vision that we have consistently set out is that Ministers will be responsible for overseeing and holding

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to account the national bodies, backed by extensive powers of intervention in the event of significant failure. I say to my noble friend Lord Newton that that is what the Bill provides for. These powers are essential if Ministers are to be able to retain ultimate accountability for the health service, for the very reasons that he stated. I have to say that some of his phraseology was, in my view, unnecessarily extravagant, if I may use that phrase. The Secretary of State will not stand back; nor will he wash his hands of what is going on, as my noble friend put it. The Bill enables the Secretary of State to intervene where he believes that Monitor, the board, the Care Quality Commission, NICE, HealthWatch or the Information Centre are failing or have failed to exercise their functions, and that failure is significant. In the event that Ministers use these intervention powers, they will be required to publish the reasons for doing so, including an explanation of why they consider the failure to be significant. These requirements will provide transparency to the decision-making process.

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