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House of Lords

Wednesday, 21 December 2011.

11 am

Prayers-read by the Lord Bishop of Birmingham.

House of Lords: Reform

Question

11.05 am

Asked By Lord Kakkar

Lord Strathclyde: My Lords, the draft House of Lords Reform Bill specifically provides that nothing in the provisions affects the status, powers or jurisdiction of either House of Parliament. We therefore do not believe that it is necessary to define the powers of this House in primary legislation.

Lord Kakkar: My Lords, how can Her Majesty's Government so readily dismiss the wisdom of a truly great Liberal leader, Asquith, whose 1911 Parliament Act states with absolute clarity that Parliament would need to take measures to limit and define the powers of a new second Chamber elected on a popular basis? Is the Deputy Prime Minister's single-minded obsession with the abolition of your Lordships' House not only deeply irresponsible but fraught with constitutional hazard?

Lord Strathclyde: My Lords, I can tell that the House is in a good Christmas mood this morning, and it looks as if I am the turkey. The noble Lord, Lord Kakkar, has done some good research into the preamble to the 1911 Act. To some extent, that demonstrates how wise they were in 1911, but even then they could not possibly have predicted that it would take another 100 years to get to the first draft Bill ever published. Today we have a very different House to the one that we had in 1911. The Parliament Act 1911 itself was amended in 1949, and since then the conventions between the Houses have developed over the years. We therefore believe that we should not be bound by the view set out in the preamble to the 1911 Act.

Lord Peston: My Lords, is the position of the Leader of the House not somewhat illogical? If we have an elected second Chamber, the Parliament Acts no longer make any logical sense, nor does the primacy of the other place. Indeed, if there were an elected second Chamber, there would be no reason why the Prime Minister should be chosen from Members of the other place, which would certainly please the more ambitious Members of this House.



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Lord Strathclyde: My Lords, what the noble Lord says is not without its attractions. I think that his position is illogical, though. Like him, many Members of this House wish to preserve the primacy of another place. That is why the existence of the Parliament Act is very important, and that will continue under the provisions of the draft Bill.

Lord Howe of Aberavon: My Lords, is it not possible that including such provisions in the Bill would make lucid and clear the increased risk of conflict between the two Houses and the disastrous consequences of the creation of a new structure? Will my noble friend tell the House whether that is the explanation, and is it the consequence of idle carelessness or deliberate deceit?

Lord Strathclyde: My Lords, it is neither. There is an expectation that there would be a risk of greater conflict between the two Houses because elected Members of this Chamber would, I believe, use their powers more assertively and, perhaps, more effectively. That is an undeniable conclusion of the process that we are going to undergo.

Lord Butler of Brockwell: My Lords, when on Monday the Prime Minister announced that the legislative programme for the next Session would include a Bill on the reform of your Lordships' House, was he announcing a collective decision of the Cabinet?

Lord Strathclyde: My Lords, during the past 10 years, I have been told by the noble and learned Lords, Lord Irvine of Lairg and Lord Falconer of Thoroton, and Jack Straw in another place, that in the next Session there would be a House of Lords reform Bill. So, for the definitive answer, we shall have to wait for the appearance of Her Majesty at the State Opening of Parliament.

Lord Cormack: My Lords, in the spirit of Christmas and the season of good will to all men, will my noble friend arrange for the Deputy Prime Minister to imbibe some of the love and respect for this House that I have imbibed in the year that I have been here, and therefore arrange as a Christmas gift for the Deputy Prime Minister a tutorial with the noble Lord, Lord Hennessy of Nympsfield, so that he can put away his childish things and stop regurgitating sixth-form essays?

Lord Strathclyde: My Lords, I really do not think that that is the way to impress either the Prime Minister or his Deputy.

Lord Grocott: My Lords, what in the estimation of the noble Lord the Leader of the House adds greater value to our political system: the House of Lords in its present form or the Deputy Prime Minister?

Lord Strathclyde: My Lords, both.

Lord Tyler: My Lords, does my noble friend agree that, unless it is the intention to amend the Parliament Acts before any change is made to the composition of this House, it would be preferable to review the Parliament Acts and, indeed, the conventions when that takes place, which was, of course, what was recommended

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by the Cunningham committee? Does he also accept that once a convention is codified it ceases to be a convention, as indeed that committee also recommended?

Lord Strathclyde: My Lords, I agree with both points that my noble friend makes. However, the fact is that if we end up with a wholly elected House or a partially elected House, and if the relationship between the two Houses becomes strained, it is up to parliamentarians in both Houses to find the best way of sorting that out.

Lord Hunt of Kings Heath: My Lords, the noble Lord referred to this as a Christmas question, but I do not detect too many turkeys in your Lordships' House this morning. He cannot get away with that. When he quoted from the draft Bill, he omitted the second part of Clause 2(1)(c), which states that nothing in the proposed Act affects the,

The noble Lord should go back to the 1911 Act's preamble, which makes it clear that those conventions were developed to allow for a relationship between an elected and an unelected House. They cannot apply to two elected Houses. This draft Bill and previous draft Bills are defective because they do not get to the crunch of the issue, which is the relationship between the two Houses.

Lord Strathclyde: My Lords, the conventions can apply but they may well evolve in the years after we have an elected senate.

Disabled People: Access to School Examination System

Question

11.14 am

Asked By Lord Addington

The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford): My Lords, qualifications need to be designed and delivered so that disabled candidates can demonstrate their full knowledge, skills and understanding. That is why the Equality Act 2010 imposes duties on awarding bodies to make reasonable adjustments to qualifications such as GCSEs. We and the regulator Ofqual seek to ensure that the qualifications system provides for appropriate reasonable adjustments to be made for disabled candidates wherever this can be done without weakening the qualification.

Lord Addington:I thank my noble friend for that reply. Does he agree that the impression given in an article in the Sunday Times last month that a lot of schools were effectively trying to get around the system and get an advantage for their candidates by going for 25 per cent extra time was untrue? Will he take the opportunity to explain exactly what advantage 25 per cent extra time is to a candidate who does not know the answer?



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Lord Hill of Oareford: My Lords, the point about the Sunday Times article, which my noble friend has discussed with me, is that it created the impression that there have been big changes to the system of reasonable adjustments to allow pupils with disabilities to have extra time. In fact, the article was misleading in that regard, in that what the JCQ has been changing is the need for evidence that pupils satisfy the requirement. The reason for that is to make sure that the extra time made available and other reasonable adjustments help those who most need it and to make sure that the system has integrity.

Baroness Butler-Sloss: My Lords, is the Minister aware that there are genuinely disabled students who have great difficulties with the examination boards, which will not take account of medical evidence? I know of an example of a girl who cannot see properly but the exam board is not providing the exam papers in such a way that she can read them and will not accept her very distinguished medical evidence. It is an extremely serious situation.

Lord Hill of Oareford: My Lords, if the noble and learned Baroness would like to speak or write to me about that example, I shall see if there is anything that we can do to follow it up with the individual examination board. These are matters for the individual boards but I should be happy to pursue them.

Lord Pearson of Rannoch: My Lords, do the Government agree that special schools can be very important in encouraging pupils with a number of disabilities to reach their full ability? What are the Government doing to encourage special schools, where appropriate?

Lord Hill of Oareford: My Lords, I think that the point underlying the noble Lord's question is the extent to which the Government have a view as to whether they are trying to lean, as it were, on parents regarding whether their children should be educated in mainstream or special schools. Our general view on that is that one should seek to leave those decisions as much as possible with parents. There are some cases where parents are keen on their children being in mainstream schools, because they benefit from that; there are other cases where special provision is clearly the sensible way. We want to have both. We are trying to increase the establishment of new special schools as part of our free schools policy, and we will continue to do that.

Baroness Walmsley: Could I ask my noble friend whether there are any sanctions available against schools that might be found to have been behaving wrongly in this matter? Do the Government intend to follow up and scrutinise the workings of this new guidance over a period of time to ensure that students with genuine disabilities are not penalised by the new wording of the guidance, and that they continue to get the help they need with their exams?

Lord Hill of Oareford: My Lords, as my noble friend says, it is extremely important that children with genuine disabilities get the extra leeway that they need. I do not believe that there are sanctions against schools that might be trying to push the rules of the

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system, but I will check that point. The responsibility for the overall integrity of the system rests with Ofqual, but I agree with her that we all need to make sure that this new guidance operates properly in the way that is intended. I am sure that my honourable friend Sarah Teather will be keeping such an eye on it.

Baroness Farrington of Ribbleton: My Lords, in taking the Education Bill through your Lordships' House, the Minister stressed that free schools could employ teachers without qualifications. Can he give a categorical assurance that, were the Government to allow special schools to be free schools, they would not be free to employ people who are unqualified in special educational needs but could employ only properly qualified teachers?

Lord Hill of Oareford: When we were having our debates, I am not sure that I said that I was in favour of free schools being able to employ teachers without qualifications-it was a point about qualified teacher status, which is a slightly different thing. I would not want teachers to be employed without qualifications. On the noble Baroness's main point about special free schools, we intend that in special free schools teachers would have to have qualified teacher status.

Lord Lucas: My Lords, can my noble friend arrange for the information about how many concessions are made to each school to be made publicly available rather than being locked up in the exam boards, so that we can all see whether particular schools are taking excessive advantage?

Lord Hill of Oareford: My Lords, I am not sure whether the Government can require that information of the examination boards. I understand the point that lies behind my noble friend's question; I myself asked to see evidence of whether there was disparity in practice between independent and maintained schools, for example. I am told that we do not collect the information and I am not certain that the qualification boards collect it either, but I will make inquiries.

Universal Credit

Question

11.21 am

Asked By Lord Touhig

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): Following the recent review of the universal credit programme, the Major Projects Authority made a number of recommendations, which are being taken forward, with a further review to take place in spring 2012.

The Major Projects Authority will publish information on the progress of the Government's high-risk and high-value projects, referred to collectively as the government major projects portfolio, alongside the first annual report at the end of this financial year.



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Lord Touhig: After a conversation I had with the Minister yesterday, I thought he might be painting a much rosier picture. Can the Minister confirm that work on the IT project for universal credit is so far behind schedule that it will not be possible to use it when the credits are piloted in April, and that an interim solution will have to be used that will put a burden on business and industry? How much will that cost companies the length and breadth of Britain?

Lord Freud: My Lords, I am pleased to confirm that the project is on time and on budget. The second paragraph of the MPRG letter states:

"Let me congratulate you on the significant progress that has been made".

I think that the noble Lord is referring to a particular aspect of the RTI HMRC project where we have gone with what we call an interim solution to providing information on people's earnings per month in a way that will allow companies to have a stepping stone into what we call the strategic solution, which we plan to introduce in 2016. The gains to companies of that process are estimated at £300 million a year.

Lord Maclennan of Rogart: Can my noble friend indicate what up-to-date information the Government have received on the feasibility of full implementation by their target date of October 2013, when all employers are expected by the Government to be on the real-time information system, coinciding with the start of universal credit?

Lord Freud: Yes, my Lords, simplifying the process, the RTI pilots will start in April next year with a group of 300 volunteer software developers, employers and pension providers. In the autumn of next year, we will have integration testing, with a view to having the full migration of everyone from April 2013 to October 2013.

Lord McFall of Alcluith: My Lords, can I bring to the Minister's attention the Cabinet Office document, Major Project Approval and Assurance Guidance? Paragraph C.15 says that the assessors designate projects as either "noteworthy and positive" or "noteworthy and cause for concern". Under which category does universal credit come? Can the Minister place copies of these designations in the House of Lords Library so that we can trace these issues and save the taxpayer many billions of pounds, as we could have done in the case of HMRC over the past few days?

Lord Freud: My Lords, basically our categorisation in the latest plan is that urgent actions are still required. We are tending towards the problems appearing to be manageable with the actions in hand. That is the position that we are in, which will probably be no surprise at this stage in the project.

Lord McKenzie of Luton: My Lords, can the Minister confirm that the major projects review to which he has referred encompasses not only the universal credit component but the HMRC RTI component, which is a vital part, as the noble Lord has explained? What further assurances can he give us that continuing HMRC job cuts will not deflect progress, especially given this week's news from the Public Accounts

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Committee about the need to deploy resources for urgent action to resolve uncollected tax of £25 billion from large companies?

Lord Freud: My Lords, there are two processes: the assurance of the RTI programme and that of the universal credit programme. The RTI programme went through its latest assurance rather earlier than the UC assurance process, which was reviewed between 9 and 11 November. The review said that the engagement between the DWP and HMRC represented an exemplar of how these things should be done. I am looking through this project very closely, as noble Lords can imagine, and one area that I am pretty confident about is that the relationship between these two departments is right and working well.

Lord Knight of Weymouth: My Lords, for the universal credit system to work, the tax and benefit systems need to be successfully merged, as do the IT systems at the DWP and HMRC. The Minister talks about a good relationship, and he is very happy with his relationship with HMRC. However, can he really give us confidence that HMRC, as an unaccountable ministerial body capable of writing off £25 billion of taxpayers' money, is going to be able to produce a real-time information system that talks seamlessly to the DWP IT system so that universal credit can work?

Lord Freud: My Lords, an extremely thorough process of review and assurance is taking place on a rolling six-month basis, and it is clearly a process that we rely on to monitor from the outside whether we are doing the right things. Currently, as I said, both these programmes are on time and on budget. You cannot predict the future but that is a very good, solid base on which to look into the matter.

Taxation: Inheritance Tax

Question

11.28 am

Asked By Baroness Gardner of Parkes

The Commercial Secretary to the Treasury (Lord Sassoon): My Lords, there are no plans to review inheritance tax law in the light of the Law Commission's report. The first £325,000 of every estate is exempt from inheritance tax. Inheritance tax is not usually paid on transfers of assets between spouses or civil partners. Only 3 per cent of estates are expected to have an inheritance tax liability in 2010-11.

Baroness Gardner of Parkes: The Answer does not surprise me but does disappoint me. Perhaps we do not need to look as far as the whole inheritance tax law situation. My concern is about people who live together long-term as carers or sisters-there is the famous case of the Burden sisters-and yet on the death of one, they are often forced to sell their home. Would it not be possible, even for the Chancellor in his Budget, to agree that under such circumstances there

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should be no obligation to sell the family home? To make people homeless at the present time, when things are pretty desperate for many people, would perhaps cost the Treasury more in the social benefits that they will require than exempting the home in which they have lived for so many years.

Lord Sassoon: My Lords, it would be nice to come to the House bearing gifts in answer to the final Question before the Christmas Recess. However, I think noble Lords would be surprised if a Treasury Minister, of all people, came here to give some good news on this or much else. I say to my noble friend that I hear-

Noble Lords: Oh!

Lord Sassoon: If we want good news, the borrowing figures announced today for November are ahead of market expectations. I can bring good news, but not gifts. Seriously, I hear very loudly what my noble friend says. Indeed, the Law Commission report, which has just come out and to which the Government will reply within 12 months, addresses the question of co-habitants. I see that the report at paragraph 8.52, which my noble friend may have seen, notes that concerns were raised about the use of the word "couple" in our provisional proposal in that it was too broad and ambiguous a term and might not be sufficiently precise to exclude, as we intended, those who share a home but do not have an intimate relationship. Indeed, this is not an area that is covered in the Law Commission's work.

Lord Campbell-Savours: My Lords, does the Minister not accept that an inheritance can completely undermine incentives in recipient generations? Is that not an argument for increasing the take from inheritance taxes?

Lord Sassoon: My Lords, the Government keep all tax matters under review, but we have no plans, as I have said, to change the law on inheritance tax.

Baroness Trumpington: Although there is to be no review, in the old days I simply signed a piece of paper and gave it to my son to give him power of attorney but now I am told that I have to do it through a lawyer, which will cost me a lot of money. Is that relevant to the review that has just taken place?

Lord Sassoon: My Lords, I do not believe it is relevant to this review, but my noble friend Lord McNally is sitting alongside me and is no doubt listening very hard to the point that my noble friend makes.

Lord Borrie: My Lords, the Minister said that it will take up to six months for the Government to reply to the Law Commission's report. Why should it be necessary to take so much time? As the noble Lord knows only too well from recent events, there is a new procedure for getting Law Commission reports through this House if legislation is required. Will not the Government's delay make that so much more difficult?

Lord Sassoon: My Lords, I understand that there is a protocol between the Government and the Law Commission that says that the Government have up to 12 months to give a provisional response to a Law Commission report.



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Lord Newby: The proposals in the Law Commission report, which is the subject of my noble friend's Question, relate to intestacy, the most difficult period in people's lives. In those circumstances, may I urge on the Minister and his colleagues to move more quickly than 12 months as this is a very technical and straightforward matter, not just in terms of giving a response, but also in terms of putting pressure on the Government collectively to legislate on this matter in the next Session?

Lord Sassoon: My Lords, I hear clearly what my noble friend says and I am sure that the Ministry of Justice will want to move faster, but I am just giving what the backstop date is.

Lord Eatwell: I think that everyone is in agreement that the structure of inheritance tax at the moment is unsatisfactory, as illustrated by the data that the Minister presented in his Answer. It has stimulated a large avoidance industry and it contains perverse incentives. In the spirit of the season, may I offer the Minister the gift of a constructive proposal? We should cease to levy inheritance tax on estates and instead should levy it on recipients. That would significantly reduce avoidance and would incentivise the wider distribution of wealth.

Lord Sassoon: My Lords, as I said, we have no plans to review the law, but we are always interested in constructive suggestions, wherever they come from.

Lord Pearson of Rannoch: My Lords, perhaps I may rely on noble Lords' generosity at Christmas and dare ask what the latest position is with the proposal from Brussels to harmonise inheritance tax across the whole European Union. Does that prospect not make this debate somewhat superfluous, and what will the position be under the proposal? Will there be majority voting or will we be able to veto it if we do not like it?

Lord Sassoon: My Lords, tax proposals from the European Commission require unanimity.

Bank of Ireland (UK) plc Bill

Bank of Ireland (UK) plc Bill

Third Reading

11.36 am

Bill passed.

Procedure of the House

Membership Motion

11.36 am

Moved By The Chairman of Committees

Motion agreed.

Standing Orders (Public Business)

Motion

11.36 am

Moved By Lord Strathclyde



21 Dec 2011 : Column 1782

Motion agreed.

European Union (Definition of Treaties) (Republic of Korea Framework Agreement) Order 2012

Local Authorities (Conduct of Referendums) (England) Regulations 2012

City of Wakefield (Mayoral Referendum) Order 2012

City of Newcastle-upon-Tyne (Mayoral Referendum) Order 2012

City of Bristol (Mayoral Referendum) Order 2012

City of Bradford (Mayoral Referendum) Order 2012

City of Manchester (Mayoral Referendum) Order 2012

City of Sheffield (Mayoral Referendum) Order 2012

City of Nottingham (Mayoral Referendum) Order 2012

City of Leeds (Mayoral Referendum) Order 2012

City of Birmingham (Mayoral Referendum) Order 2012

City of Liverpool (Mayoral Referendum) Order 2012

City of Coventry (Mayoral Referendum) Order 2012

Motion to Refer to Grand Committee

11.37 am

Moved By Lord Strathclyde



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Lord Grocott: My Lords, we are being asked to approve en bloc 11 Motions relating to individual cities in the United Kingdom and to agree that they should be sent to Grand Committee. I will certainly not go into the merits of directly elected mayors. Although I am opposed to them, obviously I acknowledge that they were introduced under the previous Government. Surely the fact that it is the Leader who is proposing that the orders should go to Grand Committee-that is relatively unusual; it would normally come from the departmental Minister-is an acknowledgement of what I believe to be the case: namely, that this is a fairly significant constitutional change affecting the way in which our country is run. Eleven major cities are to hold referenda on the future structure of their local government. That alone ought to justify my request that the usual channels consider whether it is proper that this should be debated in Grand Committee or whether constitutional issues of this sort should be debated on the Floor of the House.

Individually, the orders may not be of tremendous interest to all noble Lords across the House; but collectively, all the cities represent a big proportion of the population of the country. In terms of public expenditure at this time, I would imagine that if I knocked on 100 doors in the West Midlands, where I live, and asked people whether it was a good idea to spend a fair bit of money on a referendum on the structure of their local government, the answer would probably be a universal no. We should air these issues on the Floor of the House and not in Grand Committee, and I appeal to the noble Lord to reconsider this. I am not asking noble Lords to vote on it, but perhaps the noble Lord would reconsider it in the spirit of Christmas that we keep referring to. Could he just once say yes to me?

Lord Pearson of Rannoch: My Lords, why are the Government so keen on all these referendums on the comparatively minor matter of who becomes the mayor in these cities while they refuse a referendum on the far greater issue of whether we stay in the clutches of the corrupt octopus in Brussels or leave them?

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, in reply to the noble Lord, Lord Grocott, it is entirely in keeping with normal practice that I as Leader of the House should move these Motions. Secondly, I would not have put them on the Order Paper unless they had been agreed with the usual channels with their wholehearted support. Thirdly-this is perhaps a point for the whole House to remember-although these Motions are debated in the Grand Committee, they come back to the House for agreement and they do not come into law until that time.

As for the noble Lord, Lord Pearson, in the spirit of Christmas, it is always good to hear him. I hope he has a very quiet and restful time over the next two or three weeks, and if he wishes to have an even longer restful and quiet time, I am sure that would be appreciated by most of us, particularly those who work on European business.

Motions agreed.



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European Union Membership (Economic Implications) Bill [HL]

European Union Membership (Economic Implications) Bill [HL]

Third Reading

11.41 am

Bill passed and sent to the Commons.

Health and Social Care Bill

Main Bill page

Committee (15th Day)

11.41 am

Baroness Thornton: My Lords, I return for the last time in 2011 to the issue of the risk register in the Health and Social Care Bill-a sort of Secret Santa for the Minister. During the course of the debate on the Motion to Regret on 7 December, several noble Lords referred to the start point of Report being timed so that the appeal on the Information Commissioner's report would be complete and the House would know the result. The Minister himself-

Baroness Anelay of St Johns: My Lords, may I first ask Members to leave quietly so that we may hear from the noble Baroness, Lady Thornton. May we establish on what basis, on what Motion, the noble Baroness is making her point? She has not interrupted the House going into Committee. I believe that perhaps the most appropriate way forward would be for the first amendment to be called. The noble Baroness may then speak as part of her contribution to that amendment, but I believe she would be out of order to continue at this stage.

Clause 247 : Powers to publish information standards

Amendment 345 not moved.

Amendment 346

Moved by Lord Warner

346: Clause 247, page 240, line 7, leave out "may prepare and" and insert "shall"

Lord Warner: My Lords, owing to a slight miscommunication, my noble friend Lord Patel and I intended not to move Amendment 345, so we will move to Amendment 346, which is very similar in purpose to Amendment 345. As I informed the Government Whips' Office earlier this morning, I shall move into this group Amendment 348, which has some similarity to the amendments in this group. I hope that the noble Earl will be able to find his briefing and order it accordingly.

We now reach Part 9, which is concerned with information standards and the Health and Social Care Information Centre. I should declare an interest because, as a Minister, I was a kind of male midwife at the birth of the information centre some years ago. It is an

21 Dec 2011 : Column 1785

organisation that has had its ups and downs, but it has grown in stature and I support the Government's wish to put it on to a statutory basis. There is nothing between us on that issue.

I also welcome the idea of an information standard specified in legislation, but I wish to strengthen the provision on this set out in Clause 247(1). Amendment 346 would replace the word "may" with "shall" in Clause 247(1) so that the Secretary of State had to prepare and publish an information standard. Amendment 347 would extend the subsection to define that the standard covers the collection, processing and dissemination of information rather than just processing.

11.45 am

I have not chosen these three terms by accident. It is important that collection is covered so that an eye is kept on avoiding unnecessary data collection requests being imposed on people at the local level. One of the problems that the NHS has faced over the years is a very significant number of-perhaps I may put it this way-slightly random demands for information to be provided and not always even on a comparable basis. The purpose of adding collection is to make sure that we do not go back on some of the progress that has been made in this area.

We also need to ensure that we are clear that the standard covers dissemination. We want to ensure that the information that is collected and processed is disseminated in as useful a way as possible to the NHS and to other users of those data as well as to the public. Again, I think that this has been an issue. One of the more bizarre things that has happened in recent years is that a very effective commercial organisation-I make no criticism of it because I am a great fan-Dr Foster, has had to convert much of the NHS's data into a format that is useful. That is a significant issue about the way in which, often, public services collect information but do not put it into a useful format for the public and other users of that information. I would hope that the information standard could tackle some of these historical problems. That is why the standard is made a requirement and why, in my view, it should go wider than just processing and cover collection and the dissemination of information.

Amendment 347A goes further by bringing this all together and specifying the purposes to be achieved by the information standard requirement on collection processing and the dissemination of information, and the benefits that the standard is meant to produce in commissioning public health, service provision and public information and choice. It is important that we strengthen the Bill in this way. I am full of admiration for the Government's good intentions in this area and I hope that we can strengthen it a bit further.

I wonder whether I might also speak to Amendment 348 as part of this group-I had certainly intended to group it with these amendments-rather than in the next group. This amendment is a kind of belt and braces approach based on my own experience of public data collection organisations. Like many quangos, they can have a life of their own and need to be kept under review to ensure that they stick to their purpose, keep their costs under control and remember the demands that they make on those who supply the raw data, at

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some cost to the providers of those data. The amendment would require an independent audit of the centre's processes every three years to ensure that they are kept in good working order. I am not too fussed about the period; what is important is the principle that every so often there should be an independent review of those processes.

Finally, perhaps I may make an observation to the Minister. With good reason, the Government have put quite a lot of detail about the workings of the information centre into the Bill. I for one have no quarrel with that and have proposed a bit more detail myself. However, in this Committee, I and others have tried to have more detailed requirements on financial management and performance information put into the Bill, which are areas in which the NHS has often proved to be weak. The Government have resisted putting more detailed requirements of that kind into the Bill. I find that puzzling. Why is it so important to be more prescriptive about the workings of the information centre but not about the weak financial management systems of the NHS, which have contributed so much to previous NHS financial crises and will do so again as the NHS lurches towards the next one? I would welcome the Minister's observations on this before I prepare amendments on financial management information for Report. I beg to move Amendment 346.

Lord Low of Dalston: My Lords, I want to speak to Amendment 347B to Clause 247. It teases out the kind of argument made by the noble Lord, Lord Warner, in a more specific form. This probing amendment has the aim of finding out more about the Government's approach to information provided to patients in accessible forms. Perhaps I have missed something, but I could not find much in the Bill about the provision of information to patients, but given the importance of the principle of "Nothing about me without me", this would seem to be a serious omission. The provision of information in a form that people can use is a sine qua non of patient empowerment. It allows patients to take control of their situation. Without it, you can hardly get to first base. Maybe the Bill could do with some fleshing out in this regard, and I would certainly welcome the Minister's views on that.

In the rest of my remarks I want to concentrate on the question of providing information in a form in which people can use it. My particular angle on this is that it should be published in an accessible form so that people with a print disability can handle it, which is what my amendment deals with. It would enable the Secretary of State or the NHS Commissioning Board to publish information standards containing a requirement to record patients' preferred reading format, whether standard print, large print, audio or Braille. This is an essential precursor to communicating effectively with patients who have print disabilities and giving them proper access to vital information about their health. It will immediately be clear that I have a direct personal interest in this, but I should also declare my interest as a vice-president of the RNIB, the leading charity representing the interests of blind and partially sighted people, for which improving access to information is a major objective of policy and campaigning.



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I have raised this issue regularly in the House with cross-party support in debates on local democracy, local transport and other issues, and the matter was dealt with generically in the Equality Act 2010. Ministers have invariably been sympathetic, but I am sorry to say that we still have some way to go in making the provisions of that Act a reality in practice. Article 21 of the recently adopted UN Convention on the Rights of Persons with Disabilities on freedom of expression of opinion and access to information, which the UK has ratified, says that states parties should be,

Yet in the area of health services it is not so long since a survey of blind and partially sighted people in the UK showed that 95 per cent of respondents had never received health advice leaflets or information from their local surgery in their preferred format; 96 per cent had never received letters from their GP, the results of tests or other correspondence in their preferred format; 95 per cent had never received medicines labelled in large print; and the NHS was apparently unable to send out appointment letters in an accessible format.

Research for the RNIB carried out by Dr Foster in 2010 showed that things had improved a bit in recent years but that there was still a considerable way to go. In the Dr Foster survey, 72 per cent of those questioned were given information by their GP in a form in which they could not read it. Similar, even higher figures were uncovered in relation to the rest of the NHS. This included information ranging from appointment letters to confidential test results, which is not the sort of thing that you would necessarily want someone else to read to you.

I recently moved house and joined a new GP practice. I was pleased to be asked on the form that I was required to complete in order to register whether I would like information in Braille. This was as novel as it was gratifying. I do not delude myself that this amendment would be a panacea, but it would take us a long way further forward than the guidance that we have at the moment, which clearly is not working.

Lord Owen: My Lords, I shall speak to Amendment 347A, particularly the phrase,

The House may remember that, at an earlier stage, I raised European Community law and the need to have a great deal more information about this issue. It is all very well for the Government to initiate this rather broad guidance about publishing information and information standards; it gives the impression that they are interested in having a wider debate on transparency. However, I got a letter from the Department of Health only late yesterday telling me that an application that I made under the Freedom of Information Act was being challenged. I started a request on 26 April 2011. I went through all the procedures of internal review on 1 June. I was eventually given a judgment in November, at which point I immediately re-requested

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the same information. One cannot read this correspondence without getting a sense of obfuscation, of a deliberate refusal to tackle the issues that I have been raising with the department and of a spinning-out of a process during the passage of legislation of the utmost importance to the department.

It is necessary to ask the Minister whether he knows that this letter has come to me following my request on the Floor of the House and his courteous reply that he would look at the question. I am now told that I would normally have to go through another internal review procedure, which would take, no doubt, another month or more, by which time this Bill will have gone through all its stages and probably left the House of Lords. So underneath this is a deeper question.

I also find it slightly objectionable to have received in reply to the request a more definitive statement of the ministry's attitude. I shall read out one paragraph in particular:

"Furthermore, we agree that information relating to competition in the NHS and the delivery of healthcare services attracts the public interest".

We can all agree on that. It goes on to say:

"However, there is much information already in the public domain about how competition law does and does not apply".

But that is open to serious question. Professors on competition law have been writing to me from university departments saying that this is a very cloudy area and that it is difficult to get a lot of the information. The letter goes on to say:

"This includes recently published guidance by the Office of Fair Trading on the application of competition law to public bodies and comment on the case law relating to public purchases, which suggest that these are unlikely to be considered as undertakings and therefore could not be considered under competition law".

Noon

The implication is that the public bodies that have been created in this Bill are unlikely to be considered. That reflects fairly accurately what in broad spirit the Minister has already been saying to the House. This is the problem. This word "unlikely" is not satisfactory when the Bill is in the last stages of its examination and when a perfectly reasonable request has been put through that, under the Freedom of Information Act, the legal advice given to a previous Government-a Labour Government-in 2006 on the application of EU competition law during the process of establishing the co-operation and competition panel should now be released.

I have spoken to the Secretary of State in the previous Government, Andy Burnham, on this question and he is wholly in favour of the release of the documentation. I cannot see any logical case, in the central circumstances of this Bill, for using the word "unlikely" in the rejection of the freedom of information. Therefore there is considerable doubt that we can have this information published as I requested before the House meets on the Bill again, which I gather is likely to be in the last few days of January. The House's business has been announced and I see that the Bill will not come before it until at least 27 January, although it is reasonable to assume that it will come

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soon after that. That gives a full month even allowing for Christmas and new year for the matter to be reconsidered.

I ask the Minister yet again. I will not go through internal review procedures after this length of time, and I have written to the Freedom of Information Commissioner again this morning to say that I will not use that avenue. I do not believe that I should be asked to do so since there has also been some evidence of maladministration in the actual definition of what documents we are looking for. I urge the Minister to make sure that there is publication.

I notice that the Minister has called a debate during dinner on 10 January on this very issue. Of course, it would be helpful to the House if that document could be published before the debate takes place. I hope that the Minister will look at this again and reconsider this question and will try to ensure that the department, when there is a matter under consideration and discussion on a Bill, does not close the door without his being able to be consulted. I am quite sure that he has not been consulted because his courtesy is well known to us all. A fresh look must be given to this subject and the document published in early January.

Baroness Wheeler: My Lords, in responding to this group I should like first to raise on behalf of my noble friend Lady Thornton the issue of the register of risks on the Health and Social Care Bill. I also apologise on her behalf for not raising the matter at the appropriate time.

In the debate on the Motion of Regret on 7 December several noble Lords referred to the starting point of Report being timed so that the appeal on the Information Commissioner's report will have been completed and the House will know the result. The Minister himself said:

"I am as keen as anyone to see the matter speedily resolved".-[Official Report, 7/12/11; col. 736.]

The usual channels are, of course, discussing the next stage of the Bill. We agree with the noble Baroness, Lady Williams, about the risk of this issue not being resolved in time for the next stage. On 7 December, she said:

"I fear that it may hang like a dark shadow over the whole of the Report stage".-[Official Report, 7/12/11; col. 726.]

In the same debate the noble and learned Lord, Lord Mackay of Clashfern, said:

"I believe the solution proposed by my noble friend"-

the noble Baroness, Lady Williams-

I have asked my noble friend the opposition Chief Whip, and appeal to the usual channels, not to finalise the arrangements for Report and the timetable until the House has an answer to the question. Our understanding is that a normal timescale, if we are lucky, might mean that we will have a tribunal decision in late February. The Government will then have the option of appealing to the Upper Tribunal. Does the Secretary of State intend to seek expedition of this process? What steps have Ministers taken to ensure that the appeal is heard as early as possible? The

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Minister can, if he wishes, respond in writing to my noble friend, though obviously he will need to do it as soon as possible.

I shall also speak briefly to this group of amendments generally. I support the amendments tabled by my noble friend Lord Warner and the noble Lord, Lord Patel, all of which seek to strengthen the Secretary of State's duty to prepare and publish information standards governing the collection, processing and dissemination of information on the provision of NHS health and adult social care. I know that the Minister is in favour of having light-touch definitions in the Bill, but we strongly support being more specific about what the information standard is to be, what it is for and what it should include.

The definition proposed in Amendment 347A underlines that it must include,

most importantly-

It is equally important to specify that the standard includes the provision of information that will help improve public health and well-being and assist the public's ability to make informed choices about care and treatment. We also support Amendment 347B, from the noble Lord, Lord Low, which seeks to ensure that the,

We support the general aim of this part of the Bill: to place the current health and social care information centre on a firmer statutory footing, replacing the current special health authority. We have a number of issues to raise, and will do so in the next group.

Baroness Williams of Crosby: In view of the reference to me by the noble Baroness, Lady Wheeler, perhaps I may say a few words before the debate proceeds and the Minister replies. The Committee showed good sense-and the noble Baroness, Lady Thornton, was good enough not to press the matter to a vote-over the information tribunal's decision on the risk register. At the time, it was sensible to undertake to withhold our judgment until there had been an opportunity for the tribunal to consider the Department of Health's appeal. However, the intervention by the noble and learned Lord, Lord Mackay-as the noble Baroness, Lady Wheeler, indicated-clearly suggests that it would be possible, by a mutual approach from the Government and the Opposition, to speed up the processes under which the appeal was held.

Given that the government Chief Whip agreed that the matter should not come before the House on Report before the end of January, that provided an additional three weeks-a reasonable period of time-to try to persuade the tribunal to act reasonably rapidly. The noble and learned Lord, Lord Mackay of Clashfern, was good enough to say that in some cases which he knew of, the tribunal had been able to deal with an issue in as little as three or four days. That seems very apposite, since it is hard to think of anything much more constitutionally important than the Report stage

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of a Bill of this kind, and there should be no question of the debate on Report taking place before there is an outcome to the tribunal appeal.

This House recognised that it was proper that the law should take its normal course. We therefore withheld any attempt to try to press it by, for example, insisting on a vote. I think that that was to the credit of the Official Opposition. However, it is quite clear that the decision is very germane to the Report stage. It is highly relevant. All of us accept that if the appeal is upheld then we will be bound by it in a proper course of law, appropriate to all people who come before the tribunal. However, we also all recognise that it lies upon the Government to endeavour to reach a decision as quickly as possible. I am sure that the Opposition, and certainly we on these Benches, would strongly support an approach of that kind.

I would simply plead with the Minister, who has been so reasonable to the House on so many matters, to recognise that there is a real difficulty if the appeal, not having been heard, hangs over Report, and as a result leaves people able to say, "But if the appeal had gone the other way, X and Y would follow". If the Department of Health-whose record is patchy, to say the least, as the noble Lord, Lord Owen, has rather sharply pointed out-really cares about information being made available, or at the least upholding the law that makes the tribunal make a final decision, it really is crucial that, at the end of this Committee stage, we hear from the Minister whether steps are being taken to accelerate the process as much as possible to enable Report to start properly at the end of January. I would simply urge that attention might also be paid to the further evidence provided by the noble Lord, Lord Owen, which, to say the least, is somewhat disturbing.

Lord Owen: May I just make a slight correction? I said that the debate on the impact of the European Union on healthcare in the United Kingdom in the name of the noble Lord, Lord Kakkar, will be held on 10 January. It will actually be held on 11 January, as the dinner-break business. I want to be quite clear about the timing of that important debate, which at the moment is limited to a maximum of one hour.

While I am on my feet, I want to stress that every word that the noble Baroness, Lady Williams, has said is wholly appropriate. This question of risk assessment is central to the judgments which will have to be made at Report. I hope very much that we do not proceed to Report until the tribunal's judgment has been heard.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, perhaps I could begin by addressing briefly the matter of the risk register. Arising from earlier debates on this subject, I have discussed the timetable for the appeal with my officials, and I say again that I recognise fully the strength of feeling on this issue and the desire for speedy resolution. As noble Lords are aware, the timetable for matters of this kind is a matter for the Information Commissioner and the legal process. In view of the noble Baroness's very courteous suggestion that I should write to her and to the noble Baroness, Lady Thornton,

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about this, I undertake to do so straightaway. I will copy in my noble friend at the same time. In that letter, I undertake to give as much information as I can at the moment about what we see as the likely timetable for the process.

Lord Mawhinney: Before my noble friend leaves that, can he tell the Committee whether the Government have already made representations about speeding up this process?

Earl Howe: Yes, my Lords; I have personally done so, as I undertook to the Committee that I would do. Perhaps I may include my noble friend in the letter that I send out so that he is fully aware of what I have done and what my department has done.

I turn next to the matter raised by the noble Lord, Lord Owen. To answer his direct question: yes, I was aware that the department was writing to the noble Lord in the terms that he outlined. I would not wish him to think me guilty of discourtesy or bad faith, because after he asked me to look into this matter I did so. I received very firm and clear legal advice that the information he has asked for falls into the category of professional, legally privileged advice given to the Government. It has not been the practice of successive Governments, including the previous Government, to waive privilege on information of this kind. However, as this matter is ongoing, I hope the noble Lord will forgive me if I limit what I say at this point. He has asked me to look at this further, and of course I shall do so.

12.15 pm

Lord Warner: I was the Minister of State responsible for competition policy in the NHS in 2006, when this legal advice was sought by me and, I think, by Patricia Hewitt as the Secretary of State. As I recall, it was at the point when we were considering the whole issue of regulation reform and Monitor becoming an economic regulator. For my part-I cannot speak for Patricia Hewitt-I would be only too happy for that information to be made available to the noble Lord, Lord Owen. If, in a sense, I am the client, I waive my client's responsibilities in this area, and I am very happy for that information to be shared.

Earl Howe: I note the noble Lord's liberality of spirit in this Christmas season. The problem is that it is not up to him, or indeed me as an individual, to cut across the practice which has been laid down across government. However, I have undertaken to look further into this question and I shall indeed do so.

Lord Hunt of Kings Heath: My Lords, it is of course open to my noble friend to simply seek access to papers that he was given advice on as a Minister. I suggest to my noble friend that perhaps he should ask to see those papers. Having done this myself, I know that you have to see them within the department. Usually you get a cup of coffee from the Permanent Secretary's office, and you cannot take the papers away, but you can summarise and make notes. If the department is not going to make the papers available, perhaps my noble friend would care to do that.



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Lord Warner: In the spirit of Christmas, I make myself available to attend the Permanent Secretary's office. I hope that the coffee in the Department of Health is a bit better than it was when I was there. I would like to take up that offer, which is a very good and constructive suggestion by my noble friend. I hereby deliver the request to the Minister.

Earl Howe: I shall be glad to attend to the noble Lord's request.

Lord Willis of Knaresborough: Perhaps not quite in the spirit of Christmas, with regard to the important issue which the noble Baroness, Lady Thornton, raised and the noble Baroness, Lady Williams referred to, it is frankly not good enough to say that there will be a letter, which none of us will actually see apart from those particular people over the Christmas period. The major question which hangs over this House is whether the tribunal's decision will be made available before the Report stage. Could the Minister give a real Christmas present to this House by saying that, whatever happens, the Report stage will not take place until that decision is available?

Earl Howe: I cannot give that undertaking, for the reasons that I will set out in the letter. The position-which I shall elaborate on when I write-is that the Information Commissioner has requested more time, and in light of that we have made representations to expedite the process as far as possible. However, the advice I have at the moment is that it is highly unlikely, if not impossible, that the judgment will be delivered before we are due to go into the Report stage of the Bill. This is something that we are dealing with at present, and if I can update my noble friend, as well as other noble Lords, when I write, I shall be happy to do that. I do not wish this to be a closed process. All noble Lords in this Committee who have taken part in these debates are very welcome to be copied in.

Lord Newton of Braintree: My Lords, I intervene briefly and in a way that my noble friend may find somewhat unexpected. Can I just express some concern-although I have a lot of sympathy with many of the things that they say-about the number of ex-Ministers who seek to throw overboard, in a very short space of time and in a particularly short-term context, the policies that have been maintained by successive Governments throughout the whole of my political lifetime? That needs careful thought. On the risk register, for example, it seems entirely possible that the Government collectively may take the view that this is so important that they should appeal onwards, up to the Supreme Court. If so, that would be the proper thing to do if it is thought to be in the best interests of public policy. We need to take care.

Earl Howe: I am grateful to my noble friend. I cannot predict what the collective view of the Government would be in a situation in which the decision on appeal went against my department. We have not reached that stage yet but it is potentially the case that the Government as a whole would wish to pursue the matter further in that eventuality.



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Perhaps I should now revert to the amendments before us, beginning with Amendment 346. The noble Lord, Lord Warner, is absolutely correct: information standards are important. However, we need to remember, too, that standards have to be appropriate. There can be burdens associated with them as well as benefits. There are a number of different types of information standard that could help to support the health and social care system-for example, standards to ensure the comparability of data or information governance standards to protect patient information. We intend to consider the detail of which standards we would require following the publication of the information strategy. As a result, we think that it is better to create an enabling provision that does not tie the Secretary of State or the Commissioning Board to an obligation to prepare a standard, and gives us an opportunity to consider where we can adopt standards that already exist.

The amendment also seeks to remove the authority for the Secretary of State or the Commissioning Board to prepare an information standard. This means that the Secretary of State or Commissioning Board would have the power to adopt only an information standard designed or prepared by another body. However, in some cases they may need to design a new information standard themselves, rather than rely on one prepared by another organisation. We believe that the Secretary of State and the NHS Commissioning Board would be best placed to develop or commission an information standard if, for example, it became apparent that one had not been prepared by another body or needed to be modified to be appropriate.

Turning to Amendment 347, I should like to reassure the noble Lord that, under the current drafting of the Bill, the collection and dissemination of information would also be subject to information standards. This is because the "processing" of information, as the term is used in this clause, has the same meaning as in the Data Protection Act 1998, which includes collecting and disseminating information. Therefore, the additional wording is unnecessary.

I am sympathetic to the sentiment in Amendment 347A. There are many intended benefits to using information standards, which include those highlighted in the amendment. However, prescribing the anticipated benefits or beneficiaries of the policy in the Bill is not necessary. In fact, it could prevent the development of information standards that do not fit into those categories. I hope that those comments will reassure the noble Lord.

The noble Lord, Lord Warner, asked me why we put so much about information standards in this part of the Bill, compared to what we put in the Bill about accounting standards. Our view is that it is essential that information standards are set at a national level to allow different systems to talk to each other. That is an approach that the noble Lord shares. With accounting standards, the arguments are slightly different. I do not agree that it is appropriate to put accounting standards on the face of the Bill. We need to ensure that the management information collected by local organisations is of use to those organisations; that is, the organisations have the flexibility to determine

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their management information needs. However, I will write to the noble Lord on this matter before Christmas, and no doubt he and I can have a further conversation about it. I look forward to that.

On Amendment 347B in the name of the noble Lord, Lord Low, we agree that it is vital that people receive information in an appropriate format. This point was clearly made in the responses to our consultation on an information revolution. For example, the RNIB, of which the noble Lord is vice-president, highlighted the importance for health professionals to be made aware of, and respond to, people's need for information in alternative formats.

We fully recognise the need for people's communication and information requirements to be recorded-for example, in their care records-and for that information to be shared with professionals along care pathways. I reassure the noble Lord that the department is currently working with stakeholders on the best way to achieve this, which could be through an information standard or through other mechanisms. Further detail will be included in the information strategy, which we plan to publish in April next year.

I realise that I have not covered Amendment 348 in the name of the noble Lord, Lord Warner. This amendment would require the information centre to arrange for and publish an independent audit of its processes every three years. I completely accept that effective oversight and scrutiny of our arm's-length bodies is important so that the department and the public can be assured that they are performing their functions effectively and are providing value for money. However, we do not believe that this amendment is necessary. I shall briefly explain why. First, as a department, we plan to undertake formal performance and capability reviews of each of our arm's-length bodies at least every three years, including the re-established information centre. This would consist of reviewing its performance, financial controls and internal governance, and what one might term its "organisational health", including the centre's relationships with its key partners in the system.

In addition, the information centre, as a non-departmental public body, would be required to establish an audit committee that would provide independent and objective oversight and assurance of the centre's systems of internal control, including risk and financial processes. The Bill also requires the information centre to prepare annual accounts each financial year. These would be examined and certified by the Comptroller and Auditor-General and laid before Parliament.

Finally, the Bill makes provision for the re-established information centre to be subject to the Parliamentary Commissioner Act 1967. This means that the Parliamentary and Health Service Ombudsman would be able to investigate complaints that the information centre had not acted properly or fairly or had provided a poor service in the exercise of its functions. With those assurances, I hope that the noble Lord, Lord Warner, will feel able to withdraw the amendment.

Lord Warner: My Lords, I am grateful to the Minister for his full reply to my amendments. I will certainly study it very carefully. I think that he and I probably

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differ on the issue of information standards and accounting standards. I still think that there is an issue in that area given how significant it is for the NHS. Therefore, I will probably return to it.

Before I sit down, I should also mention that in recent days the King's Fund has produced a report on the very serious situation in London, which is extremely relevant to the consideration of the risk register as it shows that more than 50 per cent of the NHS's historic deficit is held in London. London is in serious financial difficulty as regards converting many of its trusts, if any, to foundation trust status. The Minister might like to look at that report when considering this whole issue of access to the risk register. In the spirit of Christmas, I say to the noble Earl and to the noble Lord, Lord Low, that I recently bought a case of Chapoutier wine, the labels of which are also printed in Braille. Therefore, I say to the noble Lord that if a French winemaker can do that, the Department of Health ought to be able to do it. I beg leave to withdraw the amendment.

12.30 pm

Amendment 346 withdrawn.

Amendments 347 to 347B not moved.

Debate on whether Clause 247 should stand part of the Bill.

Lord Mawhinney: My Lords, at the risk of irritating my noble friend, I should like to make a brief comment about this matter. I assure him that it does not fall into the category of wishing to irritate him. If there is any virtue, it is a virtue of consistency on my part.

Clause 247 again deals with the interplay between the Secretary of State and the NHS board. We have already clearly established in this Committee that the Government wish to give the board a freedom from the overall influence of the Secretary of State that would mark a fundamental change in the way that the NHS has been conducting its business over many years.

Subsection (1) of the clause gives powers to both the Secretary of State and the board, and either can exercise them. I look down to subsections (3) and (4) and see that both the Secretary of State and the board can exercise powers in relation to the provision of health services. I wondered whether this was a belated recognition regarding the board for those of us who have been encouraging our noble friend to give primacy to the Secretary of State and maybe a stepping stone towards returning to the traditional position. On the other hand, if it is a stepping stone, and given the fact that until we hear from my noble friend there is not a lot of clarity as to what is intended here, these provisions may simply confuse the matter, not clarify it.

I am old-fashioned, as my noble friend knows, and I think that the Minister is ultimately responsible for the area for which Her Majesty has called him or her to be responsible. The Secretary of State could delegate powers to the board, but that is not the way that the Government have chosen to interpret this.

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All of us are grateful to my noble friend for the fact that he has been so willing to review this whole issue and to come back with new proposals on Report. I cannot be the only Member of your Lordships' House who looks forward to seeing what those proposals contain and measure them against the views that have been expressed on this subject over some months now.

However, since we moved away from the first few clauses, there have been examples of this ambiguity and potential conflict between the Secretary of State and the board running right through the Bill. I have tested my noble friend's patience on a number of occasions by drawing his attention to various examples of that as we have gone through the Bill. I draw his attention to what is but another example of the importance of getting this relationship right-and my noble friend knows what I believe is right and I know what he believes is right. We are both grateful for the opportunity to review that before Report. I should therefore be interested to hear what my noble friend thinks is actually meant, or intended to be meant, by this clause.

Finally, because we have already established that the risk register is legitimate to discuss under Clause 247, I share the view that it would be very helpful to the Committee to have a definitive decision before Report gets under way. In keeping with what my noble friend Lord Newton of Braintree just said, were the Government to lose and to decide to pursue the matter to the next stage, I hope that the Minister will not think that such a decision would be without friends in this House. I cannot be the only former Minister who has conducted examination of potential legislation on the basis of "What if?".

Baroness Williams of Crosby: I underline the point made by the noble Lord, Lord Mawhinney, because the whole area of information is a crucial aspect of the constitutional issues about accountability. In particular, the clauses we are discussing are expressed in complicated ways that are difficult to understand. For example, I find it hard to be clear that personal and identifiable data will not fall within the terms of the clauses, because the phrases "other persons", "other bodies", and so forth are scattered throughout the clauses. That disturbs me. Perhaps the Minister could add a little on data protection legislation and address the important point raised by the noble Lord, Lord Mawhinney, about this aspect of the Bill, which of course relates to several others besides.

Earl Howe: My Lords, I hope that I can satisfy my noble friends on these issues. If my noble friend Lord Mawhinney is old-fashioned, we are all the more fortunate for that. I feel a little old-fashioned myself, so I understand where he is coming from. He will appreciate that the clause provides powers for the Secretary of State and the NHS Commissioning Board to prepare and publish information standards. As we have debated, standards are important for a number of reasons. They can help ensure that information is of high quality, that it is comparable and that confidential information can be stored and transferred safely and securely.



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Our aim is for the Secretary of State to set information standards in respect of public health and adult social care services and the board to set standards in respect of NHS services. Indeed, any organisation providing publicly funded health or social care services in England would be required to have regard to those information standards. When the standard is published, there would be accompanying guidance on how to implement it.

As I said, the Bill makes clear that responsibility for preparing and publishing information standards will sit with the Secretary of State or the Commissioning Board. The process that will be followed when the need for a standard is identified is currently being worked through, but we envisage that, in practice, the NHS Commissioning Board will set the standards for the NHS. We are mindful, however, that the Secretary of State is responsible for the health and social care system as a whole. Therefore, it is right that he has the overarching power for both. It could well be that, within the mandate that he sets the board, information standards will feature as something it is tasked to expedite. Of course there is a need to ensure that standards are consistent across the sectors to which they apply.

We are about to move to a group of amendments where I would be happy to address the questions of my noble friend Lady Williams on confidentiality. If she will allow me to do that, I would be happy to follow that course.

Clause 247 agreed.

Clauses 248 and 249 agreed.

Schedule 19 agreed.

Clause 250 : General duties

Amendment 348 not moved.

Clause 250 agreed.

Clause 251 : Powers to direct Information Centre to establish information systems

Amendment 348ZA

Moved by Earl Howe

348ZA: Clause 251, page 242, line 38, at end insert-

"( ) The Information Centre may charge the Board a reasonable fee in respect of the cost of complying with a direction given by the Board under subsection (1)."

Earl Howe: My Lords, I shall speak also to the other government amendments in this group, Amendments 348BA, 348BB, 348BC, 348BD, 348BE and 348BF.

The first of these amendments enables the Information Centre to charge the Commissioning Board where the board has directed it to collect information. The next four amendments are drafting amendments to improve and clarify the drafting in Part 9 of the Bill. Government Amendment 348BE is a consequential amendment

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to ensure that the CQC can continue to be able to require information from the Information Centre to support the CQC's regulatory functions. Government Amendment 348BF removes a consequential provision from Schedule 20 following a request from the Welsh Assembly Government. I hope that that brief explanation will be enough to persuade noble Lords that these amendments should be accepted and I beg to move.

Baroness Finlay of Llandaff: My Lords, I have Amendment 348C in this group, which relates to the National Information Governance Board being disbanded and a national information governance committee being formed and being part of the CQC. There is concern over the way that that will happen.

The National Information Governance Board currently advises the Secretary of State on access to confidential patient information without patient consent when it is for medical purposes, under the Health Service (Control of Patient Information) Regulations. These are made under Section 251 of the National Health Service Act 2006 and give rise to applications from researchers for access to confidential patient information. The Patient Information Advisory Group, or PIAG, was established and later became the Ethics and Confidentiality Committee of the National Information Governance Board. This provides advice when people who are not the doctors or professionals involved in the care of a patient wish to access information from medical records that are potentially identifiable without the knowledge or consent of those people. It is permitted legally through the exercise of discretionary powers of the Secretary of State. The Ethics and Confidentiality Committee of the National Information Governance Board has an advisory function. It is not a regulator and has no powers to stop disclosure. It helps disclosers of information to know the risks and whether to seek statutory protection. If they are given that protection, they are protected from liability under the common law duty of confidentiality.

Clause 274 abolishes the National Information Governance Board but also omits Sections 250A to 250D of the 2006 Act. In those sections, one of the functions established for the National Information Governance Board is to advise the Secretary of State on particular matters relating to the processing of patient information by any person. This advisory function will not transfer to the Care Quality Commission under Clause 274(3). The Care Quality Commission might be regarded as not being the ideal home for the governance board for reasons concerning its own expertise and current performance.

12.45 pm

This is important because there is a need to reconcile two conflicting public goods. The first public good concerns medical purposes and is described in Section 251 of the 2006 Act, which allows access for the purposes of preventive medicine, medical diagnosis, medical research and general care and treatment and also allows the health service to access information to inform individuals, if necessary, about their physical or mental health condition. That conflicts with the other public good, which is maintaining confidentiality.

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It is in the balancing of those two public goods that the current Ethics and Confidentiality Committee has established expertise. I know that the current chairman, Andrew Harris, has written to the Secretary of State expressing concerns about the transfer. The functions of that committee which involve research will transfer to the Health Research Authority, which seems to be appropriate as we have all been very concerned about the need to process research applications more quickly and to have a streamlined process.

The difficulty is that there are many other times when information is sought. The research decision is in concert with the recommendation of the Academy of Medical Sciences, but there is concern about the remainder of the patient information. That concern relates to applications from the NHS, from the Department of Health and, in particular, from commercial contractors and how the information gained will then be handled, what will happen to it and what will happen to patient confidentiality.

One of the other difficulties is that the process of pseudo-anonymisation, or making data not identifiable in relation to someone, is technologically moving so fast that it becomes quite easy to unscramble pseudo-anonymised data. The gold standard for interpretation of the advice and the processes involved rests with the Information Commissioner's office. There is not a residue of expertise in the Care Quality Commission, which is why there is a suggestion in the wording of the amendment that there should be answerability to the Information Commissioner's office rather than to the CQC. The fragmentation of the current committee's function carries risks which would be reconciled by having answerability to the Information Commissioner's office where the Information Commissioner would then liaise with the research ethics committee functions of the Health Research Authority. Therefore, you would get a read across in the quality of decisions and you would maintain speed for research applications, but you would draw on the expertise of the Information Commissioner's office.

The Government have a transparency agenda and it is assumed that that will concern only non-identifiable data. The difficulty is that, without investment in the appropriate pseudo-anonymisation technologies, data are potentially identifiable. An independent oversight of the use of disclosures is needed when we do not have consent from individuals for their data to be used. There are extensive provisions in relation to making patient information freely available throughout the NHS and central Department of Health bodies. Those are laid out in Clauses 230 and 253, which provide protection for NICE and for information centre staff from personal liability. I just draw the attention of the House to the contrast between that and the 2006 Act, in respect of the NHS Counter Fraud and Security Management Services, whereby heavy penalties were introduced not only for failure to provide information but also for misuse of the information by their staff.

I return to the need to assess the risks of this change and to balance the two goods that I outlined. I note that the noble Baroness, Lady Williams, expressed some concern over the boundaries of patient confidentiality in her previous intervention. The abolition

21 Dec 2011 : Column 1801

of the National Information Governance Board is a given, but one has to consider data protection both through the common law duty of confidentiality and the need to be able to access information, and through our responsibilities under EU Directive 95/46/EC, which are currently met through the Data Protection Act. It is through that Act that decisions on research access to confidential patient information must be seen to be consistent.

The new committee could find a natural home in the Information Commissioner's office and could co-ordinate clearly with the National Research Ethics Service. I ask the Government to consider whether the Bill and the current plans are correct or whether there are better ways both to safeguard patient confidentiality and to encourage and foster the very important research agenda that the Government have given an enormous commitment to and that has been universally welcomed.

Baroness Wheeler: My Lords, I broadly welcome these provisions, which deal with the new Health and Social Care Information Centre and put the existing special health authority on a statutory footing. The centre was established in 2005 by the Labour Government to improve information quality, data standards and access to information, to deliver the information required by front-line services and to support commissioning and clinical audit. The centre has had a large measure of success since its establishment, particularly in developing bedrock quality-improvement initiatives in the NHS-for example, indicators for quality improvement and patient-reported outcomes measures. NHS clinical teams have access to more than 200 indicators that are generally accepted as effective measures of high-quality care.

However, while welcoming the broad intent and purpose of this Section, I note that the provisions increase the directions given to the information centre about when it should and should not publish data and how data should be used. It is clear in this context that there are serious concerns that the Government needs to address among noble Lords, patients and doctors' organisations about patient confidentiality, and about whether the Government's proposals go far enough to protect patient data. These concerns were also voiced in response to the Government's statement on UK life sciences industries in the House on 6 December, in which they announced their intention to share much more patient information with the private and independent sectors in anonymised form to aid medical research and development. As we know, under that initiative from December onwards data regarding 250,000 patients will be released online.

I hope that the Minister will recognise these concerns and the need for what the chief executive of Cancer Research UK called,

Clause 256 details when information should and should not be published by the information centre, and in particular that it should not publish data that could reveal a person's identity. Amendment 348B, tabled by the noble Lord, Lord Walton, would be the ultimate safeguard, but we recognise the need to find a way through that addresses concerns that doctor and GP-patient confidentiality could be harmed and provides

21 Dec 2011 : Column 1802

safeguards that are strong enough to protect patients. It is certainly worth acknowledging that, if we are able to get the confidentiality issues right, the UK has a huge opportunity to lead the world in health research.

We support Amendment 348A, tabled by my noble friend Lord Kennedy and other noble Lords. It would create an additional duty that would allow the information centre to request the information required to conduct clinical audits. This requirement would make it explicit that the centre can collect information from organisations identified in the Bill as required to undertake national clinical audits, thereby strengthening its current role of collating such information into a duty to collect clinical audit data from a variety of providers. We welcome this.

Finally, in the debate on the UK life sciences industry Statement, my noble friend Lady Thornton underlined the difficulties with using anonymised data and sought reassurances from the Minister on how confidential patient data will be handled, stored and processed. I think it is right that the Minister repeats those assurances in the context of the provisions in the Bill for the information standards and the centre, and I will be grateful if he will do so.

Earl Howe: My Lords, the provisions in Chapter 2 of Part 9 will enable the information centre to become a focal point for health and social care information, linking data together, publishing them anonymously and helping to make information more accessible. I note what the noble Baroness, Lady Wheeler, had to say on Amendment 348, which we dealt with in the previous group of amendments, but I am grateful to her for her comments.

Amendment 348A seeks to provide a specific power in the Bill for the information centre to be able to require information needed for national clinical audits. Clinical audit is an essential mechanism for improving the quality of care patients receive. However, we do not believe that the amendment is necessary. We have mandated participation in national clinical audits within the National Clinical Audit and Patient Outcomes Programme through the NHS standard contract for acute services. This is reinforced in the operating framework for the NHS in England for 2012-13. In addition, there are already sufficient powers in the Bill for the information centre to be able to require information, where appropriate.

Amendment 348B seeks to prevent the information centre being able to collect information that identifies an individual. I am the first to recognise what a sensitive topic this is. Although my noble friend Lady Williams is not in her place, I hope she will allow me to address the question that she put to me earlier on in this connection.

Patients as a whole expect information about their care to flow between the professionals providing their health and social care to ensure that care is safe and effective as well as for other purposes, such as protecting the health of the general public. For example, PCTs currently use information, including patient-identifiable information, for commissioning. Some national clinical audits, such as the National Joint Registry, use patient-identifiable information to improve the quality and safety of patient care.



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The noble Baroness, Lady Finlay, asked some extremely important questions about the functions of the information centre. The Bill sets out clear provisions controlling how the information centre can publish information. It would publish aggregated information, which is anonymised, and no information that identifies or could identify individual patients would be disclosed by the information centre, other than by dissemination or pursuant to further legal authority. Since its inception, the information centre has introduced strong security controls, published and implemented security policies and published information about its processing as required for compliance with the Department of Health's information governance framework. It must at all times comply with the Human Rights Act, the Data Protection Act and any other applicable law. The centre would collect identifiable information within a secure environment but, as I have stressed, it would publish it only in anonymised form. This approach has been strongly recommended by several recent reviews, including the 2008 data-sharing review authored by the then Information Commissioner Richard Thomas and Mark Walport from the Wellcome Trust. That recommendation was reiterated in the Academy of Medical Sciences' review published in January this year.

I agree with the noble Baroness that it is very important to protect identifiable information appropriately. However, as I hope she will accept, it is also critical that we are able to realise the enormous benefits of securely collecting and linking such information and publishing it in a de-identified form, as we intend the information centre should do. This will help professionals and the public better understand the quality and efficiency of services, enhance accountability, help enable people to exercise choice about the services they use and improve those services. In addition, I would like to highlight the safeguard in Clause 256(2)(b), which prohibits the centre from publishing any information it has collected which identifies or could identify an individual.

As I have said, while we do not believe that this amendment is appropriate, we recognise that there have been some concerns around ensuring that confidential information is appropriately protected. We have had, and continue to have, productive discussions with the BMA on this issue and we plan to bring forward amendments on Report that deal with confidential information in a way that balances patient confidentiality with the need effectively to share information across the system. I hope that those assurances will satisfy the noble Baroness.

Amendment 348C would require the appointment of a chair to the National Information Governance Committee, who would report to the Information Commissioner. The purpose of this committee would be to provide advice and assistance to the CQC in discharging its function to monitor information processing practice of health and social care bodies registered by the CQC from April 2013. The National Information Governance Committee is an advisory committee of the CQC, so it would not be appropriate for the chair of the committee to be accountable to an external body, such as the Information Commissioner. In addition,

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a reporting arrangement of that kind would be inconsistent with the Information Commissioner's role as the independent and impartial authority responsible for promoting and enforcing the provisions of the Data Protection Act, the Freedom of Information Act and other legislation.

However, I would like to reassure the noble Baroness that the CQC can involve the Information Commissioner where appropriate and close collaboration between the Information Commissioner and the CQC will be important to support relevant organisations fully to comply with the requirements. I hope that those assurances will enable the noble Baroness to feel able comfortably not to press her amendment.

The noble Baroness asked about the Ethics and Confidentiality Committee of the NIGB, which provides essential support for research and other activities by advising the Secretary of State on whether to approve proposals to process confidential information without the need for patient consent, pursuant to the Health Service (Control of Patient Information) Regulations 2002 under Section 251 of the National Health Service Act 2006. We intend that the approval function will in future move to the following bodies: first, a new health research regulator, the HRA, for research approvals; secondly, the NHS Commissioning Board for service management approvals; and, thirdly, the Secretary of State for public health and social care approvals. Each of those bodies will need to put in place arrangements to secure the advice that they need to exercise their approval functions effectively. These arrangements are still being discussed but it seems likely that a body like the Ethics and Confidentiality Committee will continue to be required and officials are discussing future options with the NIGB. I hope that those comments are informative to noble Lords and that they will not press their amendments.

Amendment 348ZA agreed.

Clause 251, as amended, agreed.

Clauses 252 to 254 agreed.

Clause 255 : Powers to require and request provision of information

Amendments 348A and 348B not moved.

Clause 255 agreed.

Clause 256 : Publication of information

Amendment 348BA

Moved by Earl Howe

348BA: Clause 256, page 245, line 18, leave out "the following provisions of this section" and insert "subsection (3)"

Amendment 348BA agreed.

Clause 256, as amended, agreed.

Clauses 257 and 258 agreed.



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Clause 259 : Advice or guidance

Amendments 348BB and 348BC

Moved by Earl Howe

348BB: Clause 259, page 247, line 31, leave out "other"

348BC: Clause 259, page 247, line 32, leave out "other"

Amendments 348BB and 348BC agreed.

Clause 259, as amended, agreed.

Clauses 260 to 263 agreed.

Clause 264 : Additional functions

Amendment 348BD

Moved by Earl Howe

348BD: Clause 264, page 249, line 37, leave out "its functions" and insert "any function it has under or by virtue of any other provision of this or any other Act"

Amendment 348BD agreed.

Clause 264, as amended, agreed.

Clauses 265 to 271 agreed.

Schedule 20 : Part 9: consequential amendments

Amendments 348BE and 348BF

Moved by Earl Howe

348BE: Schedule 20, page 427, line 16, at end insert-

"Health and Social Care Act 2008 (c.14)

In section 64 of the Health and Social Care Act 2008 (power of the Care Quality Commission to require documents and information etc. from certain persons) in subsection (2)-

(a) omit the "or" after paragraph (d), and

(b) after paragraph (e) insert ", or

(f) the Health and Social Care Information Centre.""

348BF: Schedule 20, page 427, leave out lines 27 to 31

Amendments 348BE and 348BF agreed.

Schedule 20, as amended, agreed.

Clauses 272 and 273 agreed.

Clause 274 : The National Information Governance Board for Health and Social Care

Amendment 348C not moved.

Clause 274 agreed.

Schedule 21 agreed.

Clauses 275 to 277 agreed.

Amendment 349

Moved by Baroness Murphy

349: Before Clause 278, insert the following new Clause-

"Mental Health Act: members of Parliament

Repeal of section 141 of the Mental Health Act 1983

Section 141 of the Mental Health Act 1983 (members of Parliament suffering from mental illness) is repealed."

Baroness Murphy: My Lords, Section 141 of the Mental Health Act 1983 provides that where a Member of Parliament is detained under the Act, the Speaker

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must arrange for two registered medical practitioners-psychiatrists appointed by the president of the Royal College of Psychiatrists-to examine the Member of Parliament and report. Six months later, the Speaker must arrange for a second assessment by psychiatrists, and if in their opinion the Member is still suffering from mental disorder, the Speaker lays a report before the House of Commons and thereupon the seat of that Member shall become vacant. There is no appeal mechanism. This provision also applies to Members of the Scottish Parliament and the Welsh Assembly, but not to the House of Lords. There have been times in this Committee when I have wondered about that.

This clause has never been invoked. In fact, the last use of the preceding section was for the removal of Reverend Charles Leach MP in 1916. It was very interesting to read about his case. He was clearly suffering from what we would call multi-infarct dementia and was not actually refusing to give up his seat, although it is clear to me that he would not now be detained in the way he was in those days. The Victorian legislation was introduced by the Lunacy (Vacating of Seats) Act 1886, a Private Member's Bill to deal with one particular issue, although it was too late for that and therefore post hoc. The legislation was transferred, word for word and process by process, substituting lunacy commissioners with two psychiatrists in 1959 and again in the 1983 Act, and here we have it still.

We know from a survey conducted by an all-party parliamentary group in 2008 that one in five Members of Parliament admits privately to having had personal experience of mental ill health. That is not significantly different from the general population. The majority of those would be mild forms of mental distress, but some of us are aware of serious breakdowns where Members of Parliament have recovered fully and returned to work with few people being much the wiser. Surprisingly, there is a very inclusive, supportive environment in the Commons for people who have suffered periods of mental ill-health.

There is widespread agreement that this stigmatising and discriminatory legislation is not fit for purpose. None of us would tolerate such discrimination against people with physical ill-health who were away from the Chamber of the Commons for six months or more-for example, with a cancer or following a stroke. I am sure that the Minister will remember his own words along these lines in our debates on the Mental Health Bill in 2007, when the noble Baroness, Lady Wilkins, tabled an amendment similar to this one. Unfortunately, we did not have an opportunity in those 2007 debates to pursue the matter at great length because the previous Government reached the end of their term.

The repeal of this section was recommended by the Speaker's Conference in January 2010-I think that 68 per cent of those who voted were in favour. In February this year, Deputy Prime Minister Nick Clegg announced that it would be repealed when a suitable vehicle could be found. I pay tribute to him and to the Cabinet Office Minister, Mark Harper, for their continuing commitment to this cause. This Bill is a suitable vehicle. I thank the clerks in the Public Bill Office for finding the right place to include it.



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We should get this measure off the statute book and demonstrate the House's commitment to the continuing campaign to reduce the stigma to which the voluntary organisations and the Royal College of Psychiatrists have given so much time and energy to make a success. It is time for change and I hope that the Government will respond positively.

The noble Lord, Lord Stevenson of Coddenham, has introduced in this Chamber an important Bill to repeal four pieces of legislation that discriminate against people with mental health problems, of which this was one. The others refer to jury service, governors of schools and directors of businesses. I am totally supportive of that Bill and hope that it is successful. I understand, however, that it is unlikely to be able to proceed through the Commons this Session and will therefore have to be reintroduced in the new Session. If this amendment were accepted today, it would require a simple revision to that Bill, but the major practical provisions are of much more widespread significance and would, I believe, continue to attract government support.

I had considered withdrawing the amendment and waiting for next Session to get that whole Bill through, but my anxiety is, as Harold Macmillan said, "Events, dear boy, events". We have an opportunity now to get this right and we do not know for sure whether the opportunity will appear again soon. I would very much like to see the repeal of this section enacted this Session. What a Christmas present for the mental health world that would be. I beg to move.

Lord Deben: My Lords, the parallel is that things amazingly go on in this country until they are stopped. The Girls' Friendly Society long ago lost any reason for existing because the girls with whom it was friendly no longer existed in the situations and houses in which they were, yet it took a good 40 years to decide that it was time for it to go. I remember sitting next to a person who explained to me that the trains from Ipswich did not go to Manchester direct but went down to London because there was a row in about 1850 between the Great Eastern Railway and the Grand Central Railway. No one knew that that was the reason, so the trains still went along that route. It was only on privatisation that people started to look again and discovered why that was.

1.15 pm

I really do feel that this is exactly the same kind of situation. We have something that has a murky past anyway. The original history is not one that most of us would like to be associated with. It then proceeds, one Bill after another, even unto devolution, which is an amazing achievement. It really is like the famous story from the Army book. The authors found when they looked carefully that when the gun was being fired one man of the four did nothing at all. They sought the reason for that and discovered from a very old sergeant major that he was the man who held the horses.

This is exactly the same kind of situation. Having someone who does nothing at all because at one time he would have held the horses is not such a terrible

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thing except that it ties up an extra soldier, but having something on the statute book that makes the distinction between physical and mental illness is deeply unacceptable. It is unacceptable for two reasons. There is already too much unkind, thoughtless and ignorant treatment of the mentally ill nationally and we need to stand against it. It is also another example of unnecessary discrimination.

Of course, your Lordships' House would not like me to point to the fact that no Catholic may ring a bell, still, because those discriminations still exist under our laws. Every time you try to change them, someone produces a frightfully good reason why Catholics would be ill-advised to ring bells. We must all stand very strongly against these hangovers from a less attractive attitude, both in the religious case and in the case with which the amendment is concerned-mental illness. It is a small thing. I am a great supporter of the Bill of the noble Lord, Lord Stevenson, and we should get rid of this discrimination now.

Baroness Masham of Ilton: What sort of bells are we not allowed to ring?

Lord Deben: No bells to summon Catholics to worship are allowed, because it was illegal at that time.

Baroness Masham of Ilton: My Lords, I, too, support the amendment. Having supported the Bill of the noble Lord, Lord Stevenson, it would seem wrong not to do so. I hope that the Government can speed up this legislation.

Lord Hunt of Kings Heath: My Lords, this is a bit like Lords reform. If you deal with the bells question, you then have the Bishops. Is this part of a process of disestablishing the Church of England? I hope not.

We debated this in 2007 during the passage of the Mental Health (Amendment) Act. At the time, on behalf of the Government, I said that it was a matter for the House of Commons and that it was best that the Commons dealt with it. The fact is that the House of Commons has not dealt with it in four years. I hope that the Minister will say that the Government will accept this amendment. I am sure that the noble Baroness will find support on Report if not.

I have been looking at the draft House of Lords Reform Bill and I have quickly skimmed Part 7, which covers the whole range of disqualification of Members. I might have misread it, but I cannot find any reference to disqualification on the grounds of mental illness. Quite clearly, the Government do not think that it is relevant to an elected second Chamber. It certainly should not be relevant to the House of Commons.

Baroness Northover: My Lords, I remind the Committee that the Government are publicly committed to the repeal of Section 141 of the Mental Health Act 1983. On 3 February 2011, the Government announced that it would be repealed when a suitable legislative vehicle became available. Section 141 sets out a process by which an MP's seat is vacated if they are authorised to be detained under mental health legislation for a period

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of six months or more. There is, however, no parallel provision for the automatic disqualification of those who might be hospitalised or on sick leave with physical ailments for six months or more, as the noble Baroness has indicated, even if those people might be equally incapable of fulfilling their duties. The noble Baroness is absolutely right in that regard.

Even those who are imprisoned are not automatically disqualified unless their sentence is more than 12 months. This is an unwarranted discrimination against those with mental illness. With the repeal of Section 141, being detained in hospital for mental health reasons would no longer lead to the automatic loss of a MP's seat.

However, the Government believe that the most suitable vehicle for this reform would be a stand-alone Bill, allowing both Houses the chance to debate this important issue. There are some outstanding questions on the extent and effect of repealing this provision, which we are still discussing with the devolved legislatures. The Government do not feel it is appropriate to accept this amendment while these questions remain unanswered.

The Private Member's Bill of the noble Lord, Lord Stevenson, the Mental Health (Discrimination) Bill, had its Second Reading on 25 November 2011. The Bill aims to repeal various pieces of legislation that discriminate against the participation of those with mental health conditions in public life, including Section 141. At its Second Reading, the Government indicated their support for this Bill and we continue to support the Bill as an appropriate means for removing several pieces of discriminatory legislation.

We have already announced our intention to repeal, setting out the Government's position that this sort of discrimination is not acceptable. While I applaud the noble Baroness's intention, this important reform should be part of a stand-alone Bill, not inserted here at Committee stage. I am sure that noble Lords will agree that the issue should be given the parliamentary attention it deserves, and I hope that the noble Baroness will be prepared to withdraw her amendment.

Baroness Murphy: My Lords, I am profoundly disappointed but beg leave to withdraw the amendment.

Amendment 349 withdrawn.

Clauses 278 to 284 agreed.

Clause 285 : Breaches of duties to co-operate

Amendments 350 and 351 not moved.

Debate on whether Clause 285 should stand part of the Bill.

Baroness Finlay of Llandaff: My Lords, I am grateful to the Committee for allowing this question of whether Clause 285 should stand part of the Bill to be taken today. Previous commitments from the Minister have outlined that the Secretary of State's annual report is an important mechanism through which he will account for the system, and the Bill sets out extensive powers

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of intervention in the case of failure, which are essential if Ministers are able to retain ultimate accountability for the health service. However, the Secretary of State's duty of keeping performance under review applies only to national arm's-length bodies, although we are also debating-and will be, I am sure, on Report-how it might also refer to the clinical commissioning groups.

The aim of this debate is to explore what will happen if Monitor and the CQC do not co-operate. I am simply seeking some clarification from the Minister in response to certain questions. The Bill sets out a formal duty of co-operation between these two bodies-but what practical actions will be taken if this does not happen? On 7 December, the noble Earl, Lord Howe, stated at the Dispatch Box that the Secretary of State would be able to write formally and publicly to organisations if the duty to co-operate is being breached. How will the Secretary of State monitor how effectively Monitor and the CQC are working together? Will they report on how well they have worked together and where they seek to improve their working relationships in the future? What will trigger the Secretary of State to intervene? Can the Secretary of State take responsibility for any services that have been responsible for triggering a dispute?

The Minister also stated that:

"If the breach is significant, sustained and having a detrimental effect on the NHS, the Secretary of State will have a further ability to lay an order specifying that the organisation should take certain actions only with the approval of another specified body, other than the Secretary of State himself".-[Official Report, 7/12/11; col. 747.]

Will the Government please give a definition of the meaning of,

and explain what this will mean in practice? In subsection (7) there is mention of arbitration, but who will the arbitrator be in the event of a dispute? Is that the Secretary of State?

There may be examples of work between CQC and Monitor that may not be considered significant breaches of their duty to co-operate but may not be best practice in integrated working. This is a particular risk for complex work such as setting the tariff, especially for care pathways for complex conditions that take into account multiple providers. How will the Government ensure that these two bodies do not meet just bare minimum standards but continue to improve the quality of their integrated working, innovate to find new ways of co-operating and share good practice throughout their organisations, so that integrated working is strategically built in at their every level?

There is a particular concern about the effect on long-term conditions if Monitor and the CQC do not work seamlessly together. We have had debates already about the importance of care being integrated to treat patients with long-term conditions. The Secretary of State must be proactive in ensuring that both Monitor and the CQC themselves work proactively to facilitate such integrated working. I would be grateful for some further elaboration on how this will be achieved. I hope that the Minister will be able to assure the Committee that Monitor and the CQC will be required to report to the Secretary of State on how they have

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collaborated, including an evaluation of how they have co-operated, and that they will be given goals by the Department of Health on how to improve continuously in such working.

When considering potential failure that is recognised by one party but not the other, who will have the power to intervene? This becomes particularly important as Monitor has powers to intervene in failure but not, as I understand it, at the point when an organisation is at risk of working in a way that may result in failure-in other words, in a pre-failure state. At that point, Monitor does not have powers to intervene. I would be grateful if the Minister were able to answer at least some of my questions today. I realise that I have posed a lot of questions, and that some may come better in writing later.

Baroness Williams of Crosby: My Lords, I follow the noble Baroness, Lady Finlay, and very much share her questions-not least about who will be the arbiter in a situation where co-operation cannot be reached between two of the major bodies involved in responsibilities for the health service. I would add just a couple of things. I very much apologise to the Committee for the fact that, when Amendments 350 and 351 were reached-we were already going through at a rattling pace-I was out of the Chamber so did not move those two amendments. I will not refer back to them or move them now; it would obviously be inappropriate to do so. However, I stress the concern that I have about Clause 285.

The trouble is that there is a very long and elaborate procedure under which, if co-operation fails between the board and Monitor, they have then to exchange views with one another and tell each other what their opinions are, and so forth. They and the Secretary of State then have to make statements of their opinions. This seems most unfortunate, because co-operation and integration are at the very heart of what all of us have been saying in Committee are absolutely crucial elements in the attempt to deal with the problems that confront the NHS, and the health service more generally, at the moment. Therefore, to have a procedure which is as elaborate and which has as many stages in it as this one-with, in many ways, the chances to fuel rather than heal any difference between them-seems not to be a sensible clause at all.

Our amendments simply suggested that it would be much better, at a certain point when we were in what the noble Baroness, Lady Finlay, described as the pre-failure period, to allow the Secretary of State to come into the picture. This goes back to what the noble Lord, Lord Mawhinney, was talking about earlier. We are not talking about an immediate intervention. We understand the need to try to get agreement and to decentralise decision-making but in the end, if they cannot agree on how to co-operate and resolve that, either there has to be an arbiter whose voice is such that he or she carries real authority or, since we do not know who that arbiter is, in our view the proper arbiter is indeed the Secretary of State, responsible as he is to Parliament and to the public. Therefore I strongly support the noble Baroness, Lady Finlay. I am very grateful for what she has said. I hope we can

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hear from the Minister who will be the arbiter, and whether there might be a more rapid and effective way of dealing with a failure of co-operation. I put on record that I think this is absolutely crucial to what this is all about. We need to be able to deal with it reasonably urgently and quickly.

1.30 pm

Baroness Thornton: My Lords, I agree with the noble Baroness, Lady Williams. This question brings us right back to the Secretary of State's powers. I also agree that the procedure in the Bill is complex and I am not sure that it will work. It is not clear at all who will be the arbiter. It seems strange that Monitor has powers to intervene on failure but there does not seem to be the same structure around co-operation and when co-operation fails. This part of the Bill feels like it does not work properly. It is too complex and probably needs another look.

Earl Howe: My Lords, I have listened with great interest to the points that have been made. I feel it would be useful if I first set out how this clause would work and the series of events that it would allow. Then I will try to explain why we believe that the powers it provides are an appropriate and constructive lever within the new system.

The method of intervention set out in Clause 285 needs to be considered as one of a range of intervention powers and levers available to the Secretary of State in order to ensure that the system operates in the best interests of patients and that he complies with his duties in relation to the health service. These include the proactive setting of objectives for the health service through the annual mandate to the board and setting requirements through the standing rules. The Secretary of State also will have a duty to keep the effectiveness of arm's-length bodies under review.

In addition, the Secretary of State will have more extreme intervention powers such as the ability to remove the chair of an organisation, where they have failed adequately to perform their functions, and the ability, under specified circumstances, to give directions to an arm's-length body where the Secretary of State considers it has failed to discharge those functions, or has failed to discharge them properly. Clause 285 should be viewed as an additional power alongside the others conferred on the Secretary of State by the NHS Act and this Bill. Of course, should the Secretary of State employ his powers as set out in Clause 285 and the problem persists, then where he considers that one of the bodies is failing to discharge its functions properly, he would be able to exercise his powers of direction.

The Bill places new duties to co-operate, in addition to modifying existing duties, so as to ensure that all of the arm's-length bodies in the system, such as the Commissioning Board and Monitor, are required to co-operate with one another. We wanted to do more to encourage co-operation in the new system, partly out of recognition that the current system would benefit significantly from greater co-operation, but also because the new arrangements will create an even greater need for co-operation given the strongly autonomous and interdependent arm's-length bodies that will be created.



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The clause sets out powers for the Secretary of State to take action in response to a breach of the relevant duties of co-operation. It provides a mechanism for pressing organisations to resolve disputes in the unlikely event-we hope and trust that it will be unlikely-that two or more organisations covered by the clause fail to co-operate. If the Secretary of State believes that the duties of co-operation listed in this clause have been or are being breached, or are at significant risk of being breached, he will have a new ability to write formally and publicly to the organisation in question. If the bodies continue to breach the duty following the notice and the breach is having a detrimental effect on the performance of the health service, as the noble Baroness, Lady Finlay, pointed out, then the Secretary of State will have a further ability to lay an order, specifying that each body could take certain actions only with the approval of the other body. This measure would be subject to affirmative approval by both Houses of Parliament and could last for up to a year. That means that organisations in dispute would be strongly reminded of their interdependence as part of a national system. As a matter of last resort, if agreement could not be reached, either party would be able to invoke independent arbitration under Arbitration Act arrangements. In this way, the organisations in question will be pressed to resolve their difference without recourse to the Secretary of State and the Department of Health.

This is an important element of our policy. We want arm's-length bodies to focus on the functions conferred on them by Parliament, the objectives set for them by Government and the relationships with other organisations that will help them to achieve their goals. We do not want them placed in a position where they are trying to secure relative advantage in the system by using the Secretary of State as a means of determining the outcome of disputes. The existence of the order-making power will both help to preserve the autonomy of organisations and encourage them to work constructively with one another.

I emphasise that this is a precautionary power and we expect it to be used only in very exceptional circumstances. It is also important to note that the powers and duties described in this clause are about co-operative behaviours. They do not in any way undermine the independence of Monitor or the CQC to make specific regulatory decisions in relation to another arm's-length body. For example, the Secretary of State could not use the provisions to constrain Monitor from taking action against anticompetitive purchasing by the NHS Commissioning Board.

Baroness Thornton: My Lords, if these bodies are strongly autonomous, as the Minister has said, can they not just tell the Secretary of State to get lost?

Earl Howe: My Lords, that is the whole point of this clause. The Secretary of State must have levers at his disposal. Even if he does not use them, the fact that he has them will be a clear signal to bodies that they must co-operate in the way that Parliament-if the Bill is approved by Parliament-intends. As I said, we have identified gaps in the current system that need

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to be resolved because it is important that arm's-length bodies that have functions directly conferred upon them take those functions seriously and do not resort constantly to arbitration by the Secretary of State or the department.

We expect that the vast majority of differences between organisations will be resolved by the organisations themselves and that this power will be used rarely, if at all. Nevertheless, it is important that the power exists. The fact that failure to co-operate could have public and highly embarrassing consequences will strengthen the incentive for organisations to co-operate effectively in the interests of patients.

We believe that this approach strikes the right balance between the need for the Secretary of State to fulfil his stewardship role within the system, being able to intervene to ensure that disputes are resolved, with the need to ensure that organisations are responsible and accountable for their own decisions and actions. These powers allow the Secretary of State to ensure that solutions to problems are found in a timely manner, without him or her stepping in to specify and micromanage what those solutions should look like.

The noble Baroness, Lady Finlay, asked me a number of specific and detailed questions. I will take up her invitation to write to her on those and copy other noble Lords in. With those assurances, I hope that she will feel able to allow the clause to stand part of the Bill.

Clause 285 agreed.

Clauses 286 to 291 agreed.

Schedule 22 agreed.

Clauses 292 and 293 agreed.

Clause 294 : Transfer schemes

Amendment 351A

Moved by Baroness Finlay of Llandaff

351A: Clause 294, page 264, line 43, leave out "transfer" and insert "occupation"

Baroness Finlay of Llandaff: My Lords, I really am not trying to prevent Christmas starting for Members of this Committee. I feel as though most of today's amendments have concerned me. These are probing amendments, which relate to NHS capital assets. They are designed to explore what happens to the current offices and clinical premises of an NHS body at the time of transition and afterwards. If these premises are occupied by a clinical commissioning group or a company that is advising a clinical commissioning group on its commissioning, who will become the owner of the property?

This is important because GPs are themselves independent contractors, not NHS employees. For many-not all but a significant number-the premises from which they work are owned by their practice. They, not the NHS, jointly own them, even though the

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building will usually have been subject to a range of capital improvement schemes from the NHS over many years. Such schemes allow a GP to purchase a practice and invest in it over the years. The capital gained then forms a significant additional pension pot for that GP.

My question for the Government concerns whether the deeds of the property will be transferred to the general practitioners of the clinical commissioning group. Will they be able to sell it for profit that would then be their personal profit? Will the profit revert to the NHS and, if so, to which pot? If property is transferred, will the new owner be liable to put capital gained into the capital part of the commissioning pot to develop service premises and equipment for the health service itself, rather than be able to take whatever capital gain there is on that property? I beg to move.

Baroness Thornton: My Lords, I just wish to add two questions of my own to the list that the noble Baroness asked. Has the Department of Health now resolved the issues around future asset ownership in respect of PCT and SHA estates? Within that, does that include LIFT schemes and PFI?

Earl Howe: My Lords, I hope I can answer the question of the noble Baroness very quickly. Clinical commissioning groups will be statutory bodies. They will be legally and operationally separate from GP practices. As such, if a clinical commissioning group occupies property that is under the ownership of that group, it will be under statutory ownership. It will not be open to GPs to sell such property at a cut price, or at any other price, to GP practices to enable such practices to pocket the profits. What the noble Baroness outlined sounded to me very much like embezzlement from the state. It will be no more possible for what she envisages to happen than for a primary care trust to sell a property and have its officers pocket the proceeds. I am a little mystified by the scenario that she has painted.

Baroness Finlay of Llandaff: May I make it clear that I am not suggesting that general practitioners will embezzle funds from the NHS? I am just concerned about who will hold the deeds of such property at the time of transfer. Once the ownership is transferred, the disposal of those assets rests with the new owner. We have seen foundation trusts that have, in rationalising their services, quite rightly sold off sometimes large pieces of estate that have been very valuable and become housing land and so on. That money has then gone back into NHS services. I wanted clarification that the same thing would occur.

1.45 pm

Earl Howe: My Lords, first of all, the Bill does not provide for PCT property to be transferred to GP practices. The policy on where property may be transferred is still under development but we have powers in the Bill to transfer property to the appropriate body in the new architecture. The noble Baroness will realise that

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many decisions around this have to be taken locally on a case-by-case basis. We have powers in the Bill to create schemes with enough flexibility to allow this.

If, for the sake of argument, a clinical commissioning group owns property which is surplus to requirements, it will have to go through all the proper processes overseen by its own audit committee and its governing body to ensure that public assets are disposed of for value and in a proper and arm's-length way. Where a conflict of interest rears its head, the provisions governing conflicts of interest will cut in. It will not be open to the clinicians who have authority within the clinical commissioning group, or, indeed, practices which are members of the clinical commissioning group, to benefit in an improper way. It will have to be done openly. If a GP practice were to wish to acquire property that is owned by the CCG, there will be transparent processes to make sure that this is done in the correct fashion. In these circumstances, the property deeds are transferred to the clinical commissioning group as a corporate entity. They are not transferred to the individual GP members, and once transferred to CCGs, if the governing body wished to dispose of property, that, as I say, has to be done in accordance with the same safeguards that currently apply to PCTs. I hope that that reassures the noble Baroness.

Lord Mawson: I encourage the Minister to look very carefully at the practicalities of this because I can think of at least two or three examples of health centres in which I have been involved where it did come down to the property, the ownership and the GP-I can think of one now-where one brought together all the practitioners and key community groups to secure development. The person who stopped that development was the GP because of their interests and pension arrangements in the building. Therefore, in my view, it is important to be very careful about these practical arrangements if we want integration to occur.

Earl Howe: I suspect that the example the noble Lord has in mind involved GP practice premises rather than property owned by an NHS body such as a primary care trust. I suggest that the two cases are rather different. However, I take the noble Lord's point that integration of services at a delivery level can often be very advantageous to patient communities. Some of the most successful examples that I have seen are of practices where many facilities are available on site for the patient. We are seeing more and more of these being created around the country. We should encourage that.

Baroness Finlay of Llandaff: I am most grateful to the Minister for that response. This has been a short but very useful debate. I have an anxiety that we may need to refer back to it in the future, although I hope that I am proved wrong. On that note, I beg leave to withdraw the amendment.

Amendment 351A withdrawn.

Amendments 351B to 351E not moved.



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Amendments 352 and 353

Moved by Earl Howe

352: Clause 294, page 265, line 28, after "means" insert "-

(a) "

353: Clause 294, page 265, line 30, at end insert ", or

(b) a subsidiary of a company which is formed under that section and wholly owned by the Secretary of State."

Amendments 352 and 353 agreed.

Clause 294, as amended, agreed.

Schedules 23 and 24 agreed.

Clauses 295 to 299 agreed.

Clause 300 : Commencement

Amendments 353ZZA and 353ZA not moved.

Clause 300 agreed.

Clause 301 : Commencement: consultation with Scottish Ministers

Amendments 353A and 353B not moved.

Clause 301 agreed.

Amendment 354

Moved by Lord Kakkar

354: After Clause 301, insert the following new Clause-

"Review of the operation of the Act

(1) Annually, the Secretary of State shall review the operation of this Act, publish a report on the review and lay the report before Parliament.

(2) If required by a Committee of either House, the Secretary of State must make available to both Houses of Parliament information necessary for the operation of this Act to be scrutinised."

Lord Kakkar: My Lords, I rise to move the amendment in my name and that of my noble friend Lord Patel, who sends his apologies to the Committee. He is strongly enthusiastic about the amendment but regrettably cannot be here. The amendment would introduce a new clause to provide for a review and scrutiny of the operation of the Act.

The noble Earl, in responding to the Second Reading debate, was kind enough to deal with the matter I had raised regarding post-legislative scrutiny. Your Lordships' House has determined that careful post-legislative scrutiny should be considered because it is of value and importance for all complex Bills. The detailed Committee stage which has attended the passage of this Bill in your Lordships' House has clearly shown that there has been considerable anxiety about the potential implications and operation of what will eventually be the Health and Social Care Act. It is only right that a Bill of this complexity should be subjected to post-legislative scrutiny. This can be undertaken only if appropriate information is made available to both Houses of Parliament.

The purpose of exploring the opportunity for the Government to consider the issue at this stage is to determine whether the noble Earl-in addition to

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confirming the Government's commitment to scrutiny of the Act, if Parliament decides to pass it-would consider initiating post-legislative scrutiny earlier than the three years which he kindly indicated when answering the Second Reading debate. A range of between three to five years is the normal period in which scrutiny might be considered for an Act once Royal Assent had been received. However, in view of many of the issues that have been raised, it would seem appropriate to attend to the matter of scrutiny earlier.

It might be argued that having scrutiny one or two years after enactment would be a little too early, but many of the new mechanisms and arm's-length bodies being established to deliver the purpose of the Bill are already available in shadow form. For example, the chief executive-designate of the NHS Commissioning Board has already been appointed. The chairman has been appointed and the board is starting to make other important appointments and to deal with its structure so that when the Act comes into operation the board will be in a position to start its work. It means that, after a year, we should all be able to perform reasonable scrutiny.

With regard to clinical commissioning groups, pathfinder commissioning groups have already been established. They are starting to develop the alliances and relationships in their areas and localities that will allow them to become fully operational at the time that the Bill proposes. Therefore, the period of finding their feet has already been established.

A commitment to both rigorous scrutiny after enactment and early, formal post-legislative scrutiny will allay a lot of anxieties and provide your Lordships and the other place with reassurance that if there were to be unintended consequences associated with the Bill, they may be identified earlier. If other elements of legislation were required to ensure that the Bill's objectives could be fully achieved, given that the Government are considering a further Bill to deal with matters such as education, research and social care in the next Session, scrutiny of the Bill could inform what legislation might be added to that Bill. I beg to move.

Lord Hunt of Kings Heath: I rise to support the noble Lord. Earlier today, he made a very pertinent point on Lords reform, and this one seems equally pertinent. Before I do so, perhaps I may take this opportunity to say that my noble friend Lady Gould has just vacated the Deputy Speaker's seat. That was her last session, and I wanted to say to her-I am sure on behalf of the whole House-what a wonderful job she has done. She has accompanied us through many pieces of legislation, often very late at night, always with tolerance and very efficiently, as befitting a former fearsome organiser of the Labour Party, if I may say so.

Earl Howe: And never more smoothly or efficiently than in today's Sitting.

Lord Hunt of Kings Heath: It would be churlish, then, to spoil the atmosphere by commenting overall on the Bill because, as the noble Lord suggested, it is

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open to us to have a kind of Second Reading speech, but I will resist-to the benefit of noble Lords opposite, if not my noble friends.


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