Previous Section Back to Table of Contents Lords Hansard Home Page

5: Clause 1, page 2, line 9, at end insert-

8 Feb 2012 : Column 298

"( ) The Secretary of State retains ministerial responsibility to Parliament for the provision of the health service in England."

Earl Howe: My Lords, I beg to move Amendment 5. As noble Lords will be aware, and as I stated during our discussion on the previous group of amendments, a number of concerns were raised in Committee over the clauses relating to the Secretary of State's accountability for the health service. Since our collective discussion in November to withdraw amendments on this issue, pending a period of discussion and reflection, I have been meeting noble Lords to understand their concerns. Alongside the conversations that I have had with Peers, both individually and in groups, we have held two all-Peers seminars to try to reach consensus on what changes might be made to bring clarity. I am very grateful to all those who invested time and effort in this matter, which I know so many are passionate about.

I would particularly like to thank the noble Baroness, Lady Jay, and her colleagues on the Constitution Committee, who articulated their concerns about ministerial accountability so coherently in their two reports and proposed amendments. I believe, as had been suggested already, that the process that we have gone through has revealed the House of Lords at its best-working together to improve the Bill and achieve common ground. This amendment deals with the overarching accountability of Ministers for the health service, as set out in Clause 1. At this stage, we are taking this amendment on its own, but there are further amendments on related themes to follow. We should perhaps look at this amendment in that context.

However, I think I am right in saying that Clause 1 has attracted the most attention from Peers, and quite rightly so. It gives the Secretary of State a duty to,

wording that can be traced back to the original 1946 NHS Act. Amendment 5 makes it clear that the Secretary of State will retain ministerial responsibility to Parliament for the health service. It has been this question of ministerial responsibility that has been such a cause of concern, and I am sincerely grateful to the noble Baroness and the Constitution Committee for drafting this amendment which, I hope, should serve to put everyone's minds at rest on this issue.

Noble Lords will recall the original suggestion made by my noble and learned friend Lord Mackay, which used "ultimate responsibility to Parliament". I should explain that we have gone with the formulation "ministerial responsibility to Parliament" because it more clearly refers to the constitutional principle of ministerial responsibility. That is to say: Ministers are responsible, accountable and answerable to Parliament for their policies, decisions and actions-and, indeed, those of their departments. The principle is recognised by Parliament and the courts, and, as the Constitution Committee notes, in the Ministerial Code. The amendment reflects the position that as a result of the principle and the duties and powers imposed by NHS legislation, the Secretary of State for Health is responsible and accountable to Parliament for the health service in England, even if he or his department do not directly provide or manage NHS services. It has never in fact

8 Feb 2012 : Column 299

been the Government's intention to diminish ministerial responsibility to Parliament, so I can offer my wholehearted endorsement of and support for this amendment. I hope that your Lordships will feel able to do so as well.

Baroness Jay of Paddington: My Lords, I am grateful to the Minister for the way in which he introduced this amendment because, as he graciously expressed, this is not really a government amendment but an amendment by the Constitution Committee, which it invites your Lordships to agree. Of course, with a government Minister at the head of those supporting the amendment, I hope that will in itself be unarguable. It is right that the Constitution Committee's position should be explained a little more in the context of this first amendment in relation to the Secretary of State's responsibilities, and I am glad that it has been put in a group on its own. It is a very significant amendment, and not just because it alters fundamentally the expression of the Secretary of State's responsibilities from the original Bill. It is also significant because of the process by which it has been reached-the Minister has already alluded to this, and I certainly express my enthusiasm for the process-and in which the House has undertaken this work.

The terms of the amendment are simple but very powerful:

"The Secretary of State retains ministerial responsibility to Parliament for the provision"-

that is always the difficult word-

It is simple but powerful because, frankly, so is the concept of ministerial responsibility, although we argue about it all the time. It is a basic concept which, as the Minister has said, has been expressed in all NHS legislation, and quite rightly in my view, since the first Act 60 years ago. Without wishing to appear to give a civics lesson to the House, it is worth saying that the Constitution Committee has agreed that, in its terms, individual ministerial responsibility means that Ministers must be accountable and answerable to Parliament for their-and their departments' and agencies'-policies, decisions and actions. I think that is widely accepted. There is no constitutional distinction between ministerial responsibility, accountability and answerability; they are all aspects of the same constitutional fact.

This Bill was worrying, because it was the first in which there was not an explicit provision on political and legal accountability. The Constitution Committee, as the noble Earl said, raised serious concerns about this in the initial report that we gave to the House before Second Reading. There we said that the Bill, if enacted in its present form, risks,

for the NHS. It is worth reminding your Lordships that those responsibilities which the Minister should retain embrace the accountability to Parliament for the vast public expenditure that the NHS undertakes, and the provision of its multitude of services.

6.15 pm

At that stage, the Constitution Committee suggested that an easy solution was simply to retain the unambiguous wording which exists in the present 2006 Act. The

8 Feb 2012 : Column 300

Government rejected that proposal and on that occasion the noble Earl-rather differently from what he has said today, but I entirely understand his change of position-echoed the Secretary of State, Mr Lansley, in insisting that although the Bill changed the forms and systems of accountability he, the Secretary of State, would continue to have overall responsibility. Those were, in a sense, the terms of the amendment proposed in Committee by the noble and learned Lord, Lord Mackay of Clashfern.

The Government also wanted to make it clear that Ministers should not try to micromanage the health service and that primary responsibility for service provision under their changes would be devolved to independent organisations. Again, the Minister has referred to that this afternoon. However, as we know, it became very clear during Second Reading and the subsequent Committee that many noble Lords, in every part of the House, stood with the Constitution Committee in its anxieties. Although they may not have shared them exactly, they did have their concerns. As the noble Earl, Lord Howe, has rightly said, he very helpfully suggested that this should be taken off the Floor of the House, and has tried very strongly to try to reach the consensus which we have, I hope, come to before this next stage of the Bill. I pay tribute to him for that.

The Constitution Committee, as the noble Earl said, was invited formally to look at the issues again. We duly did so, and our second report was published just before Christmas. In it, we continued to argue the constitutional necessity for an explicit reference to ministerial accountability to be in the Bill. We therefore propose the wording and concept of Amendment 5, which is before your Lordships. I hope that those in the House who have had the time to read it have found it useful to look at Appendix 1 of the December report, which sets out our understanding of ministerial responsibility as it applies to the duties of Secretaries of State. Although I hope it will not take long, perhaps I might quote somewhat extensively from that appendix because it covers some of the points which have been raised by noble Lords in debate, and which the Government relied on until they decided to accept this amendment.

The appendix says:

"It is essential to bear in mind that (i) what ministers are constitutionally responsible to Parliament for and (ii) what ministers themselves do may not be the same. The distinction matters in the context of the Health and Social Care Bill for the following reason: removing from the Secretary of State the duty to provide health services does not mean that the Secretary of State no longer remains constitutionally responsible to Parliament for the provision of health services. Likewise, a provision to the effect that the Secretary of State remains constitutionally responsible to Parliament for the provision of health services does not mean that the Secretary of State must himself provide the services. It is because of a failure to bear this distinction in mind that much of the confusion about this matter has arisen".

One other important point in the appendix is worth repeating. In addition,

as it will be-

8 Feb 2012 : Column 301

that is, the new independent bodies-

that is, the responsibility to Parliament-because in the latter case the body in question does not have any accountability or reference to Parliament.

That clearly sets out the problems which the Constitution Committee felt expressed an answer to the problems that have arisen all around the House. The noble Earl, Lord Howe, has already explained why the Government have decided to support Amendment 5. Again, I must pay very warm tribute to his flexibility and availability during all the meetings and exchanges of letters that have taken place since the Committee stage. The noble Earl has been enormously generous with his time, both to the Constitution Committee and to individual Members. Most importantly, he also made it possible for the Bill team officials from the Department of Health and parliamentary counsel to hold discussions with the legal advisers to the Constitution Committee. I thank those legal advisers, Professor Richard Rawlings and Professor Adam Tomkins, for their sterling work on the constitutional detail of all this and for formulating various alternative proposals before the committee itself decided to agree Amendment 5, which is tabled today. I was delighted when on 1 February, after several iterations of the content and wording of this amendment since Christmas, the Minister wrote to all Peers saying that the Government supported not only the spirit but the letter of the Constitution Committee's recommended change to Clause 1.

I notice that the Minister used the expression "the House of Lords at its best". I am always wary of our tendency to be self-congratulatory, but the process of achieving consensus on this important amendment has been an example of House of Lords effectiveness. It demonstrates a useful extra role for Select Committees, and I hope that that can be used again in different contexts. It has also demonstrated the virtue of informal cross-party analysis, discussion and agreement.

As we all know and as my noble friend Lady Thornton has rightly drawn attention to again today, this is an extremely controversial Bill with an unhappy history and possibly an unhappy future. However, on the fundamental issue of maintaining ministerial responsibility to Parliament for our biggest public service, Amendment 5 has achieved that. To put it in shorthand terms, it has at least made it less likely that the NHS will become simply a giant quango. I will not be surprised if my noble friend Lady Thornton on the Front Bench says again that nothing can be done to make the Bill acceptable, but in the spirit of improvement I commend Amendment 5 to the House.

Lord Newton of Braintree: My Lords, I assure the House that I rise only briefly. On this occasion, unlike two amendments ago, I have three excuses for doing so, not just two. The first is that I do not always want to be a troublemaker. The second is that I and my noble friend Lord Mawhinney expressed the view at an earlier stage that resistance to an amendment of this kind would be absurd because the amendment reflects the reality of the world. The third I have already referred to: that in the absence of my noble and learned friend Lord Mackay, I feel that I need to

8 Feb 2012 : Column 302

say a word not quite on his behalf-that would be lèse-majesté-but at least in his interests, as he has been referred to a lot. I congratulate the noble Baroness and her committee on what has been a remarkably productive role since the endless debates on these matters that we had at the beginning of Committee. It is a great tribute to her. She will not have been able to do this on the whole of the Bill, as she implicitly acknowledged just now, but to have produced this degree of sweetness and light on this issue is a near-miraculous achievement for which she deserves our thanks; she certainly has mine.

Along with that go thanks to others, including my noble and learned friend and many others who have taken part in those meetings, not least-as the noble Baroness has said and as I want to say-the Minister, who has successfully shifted people, who seemed two or three months ago to be dug in a trench in which they were going to die, to accept the terms and the realism of the amendment. That is a great credit to him and ultimately to the colleagues at the other end of the corridor who allowed him to persuade them.

As the noble Baroness said, we can regard this as a real success for the collective wisdom of this House. I just hope that that will be sustained during the rest of the discussions on the Bill.

Lord Owen: My Lords, I shall not detain your Lordships, but the noble Lord, Lord Hennessy, has asked me to speak on his behalf. I find no reason to disagree with anything that has been said, particularly by the noble Baroness, Lady Jay.

The Minister and I are going to disagree on substantial parts of the Bill-and a profound disagreement it is-but right from the moment when the noble Lord, Lord Hennessy, and I negotiated with him, he always accepted that this was an important constitutional and parliamentary point. He expressed readiness to enter into a novel arrangement, which we very nearly reached, but instead it has come around by another mechanism. At all stages, he has treated all of us, Peers and the House itself, with the greatest respect, courtesy and diligence. For that, I thank him on behalf of everyone.

Lord Mawhinney: My Lords, having taken up your Lordships' time both at Second Reading and in Committee, I want to chip in at this significant point in this particularly significant clause. The noble Baroness, Lady Jay of Paddington, dealt beautifully, succinctly and with clarity with the constitutional importance and relevance of the amendment. I pay tribute to the work that she and her colleagues have done and the clarity with which she was able to persuade us in her contribution.

Colleagues will recall that I did not take the constitutional high ground in my concerns about what was originally expressed. I started from the other end of the spectrum. Whatever we may say constitutionally and whatever the professorial advice, my former constituents did not believe a word of it. They expected the Secretary of State and Ministers to be responsible. That was the argument from the grass roots that I tried to deploy to persuade the Minister to look at this again. I think that I was maybe the first-I was

8 Feb 2012 : Column 303

certainly one of the first-to suggest that all this should be taken away from Committee, we should not be tempted into a vote and we should think further about it.

I am delighted with the outcome on behalf of all my former constituents and indeed everyone else in the country, because we are now all on the same page. We are all now saying the same thing. Some of us have arrived there by high constitutional means, others from the grubby reality of the streets. The Secretary of State is the boss and is held accountable. He gets some credit for the successes and all the blame for the failures. That is how it has always been and, thanks to this amendment, it is how it will continue to be. Everyone will think that this is a great outbreak of success and common sense.

I pay tribute to the Minister. My noble friend Lord Newton has just said that the Minister's colleagues will also have had to have been persuaded to this point. I hope that I will not diminish the sense of satisfaction in the House if I say that perhaps the Minister will have had a more important part to play in that process than the debates in this House.

Whether or not this is your Lordships' House at its best, I do not care to judge. However, I will tell those of your Lordships who have not had the privilege of serving in the other place that this could never have happened there-never have happened. That is because the other place is infected with a degree of party political commitment that is frequently, though not always, spared at this end of the Corridor. Incidentally, for those who do not share my view and would like to see an elected Chamber, I gently point out that if what I am saying is true, this amendment today would never have been possible in the new, so-called "modernised" Chamber that is envisaged.

I refer to the introduction of the noble Baroness, Lady Thornton, to the previous set of amendments. I pray in aid the fact that she said that she would take responses in this debate rather than in the previous debate. She mentioned me by name and I thank her for that. She reflected accurately what I have just explained at some length. However, I will give her something else that she can quote accurately in the future. I congratulate my noble friend the Minister. He has done an excellent job, not for the benefit of the party, the Government or even the health service, but for the country. I am among those who feel indebted to him for what he has done and the spirit that he has adopted. I hope that, on reflection, the noble Baroness will realise that her introductory three minutes of an extremely party political nature were seriously out of sync with the consensus mood of the House at this time.

6.30 pm

Baroness Williams of Crosby: My Lords, may I, too, say a word or two about this brilliant process? It is important to say that at the moment we are discussing Amendment 5, for which the noble Baroness, Lady Jay, has a large and commendable share of responsibility. However, the constitutional agreement that we have reached goes a great deal further, embracing Amendment 6 and the amendments to Clauses 4 and 12, which we will discuss a little later.

8 Feb 2012 : Column 304

We are discussing much more than even Clause 5. A whole range of substantial constitutional amendments go a long way to sustaining what the noble Lord, Lord Hennessy, expressed wonderfully when he spoke about this constitutional move a long time ago. In particular, the amendments put the concept of the NHS constitution at the centre of the future of the NHS. At Second Reading, the noble Lord, Lord Hennessy, used a phrase about the 1946 Act that I thought was absolutely right. He said that it was as close to institutionalised altruism as we have ever come. "Institutionalised altruism" is a wonderful phrase. It reminded me-my memory goes back this far-of another phrase used by another great warrior for the NHS, Professor Richard Titmuss of the London School of Economics. He gave a book that he wrote about blood donation the wonderful title The Gift Relationship.

It is appropriate to say to those who talk about society that a good society must be underpinned by the concept of mutual altruism within it. Nothing represents that more clearly than the National Health Service has done. I very much hope that all those who share that view will, within their own parties, make it clear that there is a greater responsibility on us than to indulge in party back-slapping and bickering; and that is to make sure, between all of us, that the NHS thrives and looks after the health and care of the people of England, and of Britain more widely.

However, having said that, I want to say two further things. As the follow-up report of the Constitution Committee indicates, there was a distinct gap following the letter that was originally sent by the noble Earl, Lord Howe, about the constitutional changes. Subsequently, on 2 November, when we were in the early stages of Committee, there was a substantial shift by the noble Earl and the department, away from a somewhat small-scale response to this much more generous and widespread response on all the constitutional issues, some of which we have still to debate later this evening. The reason why it was so important-and the reason why the House of Lords should not sell itself short-is that in that gap between 10 October and 2 November, the very imaginative House of Lords moots were held, with all Peers invited, led by the noble Earl, Lord Howe. These shifted the whole situation further towards the concept of a constitutionally shared settlement. That was a contribution by many Members of this House of all parties and, including the Cross-Benchers, of none. It was significant. It expressed the serious attempt to reach a conclusion that was based on consensus in this House. I hope that consensus will last.

In passing, I mention that we need to look at the whole package to see just what an amazingly substantial and imaginative idea it is. Although we will no doubt go on to argue, as we should, about the issues that remain out there-such as competition, conflicts of interest and others on which we have strongly held views-we should, in sitting down this evening, be very pleased to be able to say that we have achieved this much with the great help of the Constitution Committee and others. Those who took part have every reason to feel that they have been part of a substantial experiment that I hope will be followed further in Parliament, not least in this House.

8 Feb 2012 : Column 305

Lord Laming: My Lords, may I briefly add my thanks to the Minister and the Constitution Committee? Its second report was particularly helpful. To follow the point made by the noble Baroness, Lady Williams, it is right to see Amendment 5 in the context of some coherence over how this accountability will work, not just at ministerial level but at board level. There will be further amendments. At this stage, suffice to say that the Constitution Committee looked at these matters in the broadest possible way to ensure that-whether in terms of autonomy or commissioning-there would be a coherence to the way in which accountability would continue to be established in the National Health Service; and, in particular, that those responsible for commissioning and other important work follow through their tasks in relation to ministerial accountability to Parliament.

The second report of the Constitution Committee was a model of how such matters can be dealt with coherently, succinctly and very clearly. We are indebted to the Minister for giving us the opportunity to consider that more carefully; and to the Committee for its work, which took us forward enormously and has brought us to where we are today. I am grateful and I support the amendment.

Baroness Pitkeathley: My Lords, far be it from me to cast a pall over the House of Lords at its best. I join others in being glad about the consensus and in congratulating the Constitution Committee. I also congratulate the Convenor on the part that he played in getting the consensus. It is a privilege to follow him.

I join the noble Baroness, Lady Williams, in hoping that the consensus can continue but I have to remind the House of how the Bill is viewed out there. It is deeply unpopular with many of the people who will be required to make it work. They will make it work because that is what the workforce of the health service does and always has done in the most difficult of situations. However, it is looking to us to make those difficulties as few as we possibly can. Therefore, in congratulating ourselves on reaching where we have on this issue, let us remember the task before us.

Baroness Young of Old Scone: My Lords, I am afraid that I will be even more discordant. I do not want to denigrate the congratulations that have been offered to the noble Baroness, Lady Jay, and her colleagues and the process that has been gone through to reach agreement on this amendment. However, I share the view of the noble Baroness, Lady Pitkeathley, that we must not forget not only how deeply unpopular the Bill is but that it is flawed.

I had not intended to speak on this amendment but I cannot let the moment pass as I think that the noble Baroness, Lady Jay, referred to a spirit of improvement that she was seeking in moving this amendment. However, we have to remember that the improvement is a bit like trying to paint the face of a harlot; at the end of the day, it is still the face of a harlot, no matter how improved. We are seeing real impacts on healthcare in this country as a result of the Bill, as we speak. I come from a background of having run health services for 20 years. I have also been the regulator for health and social care and am now part of a patients' organisation.

8 Feb 2012 : Column 306

Patients are telling me that we are seeing the fragmentation of responsibility for the commissioning of healthcare and that services are suffering as a result of the financial squeeze; for example, diabetic specialist nurses are disappearing and patient education is being cut. The things that are important for the quality of care are being removed.

I am experiencing a huge loss of momentum in getting any change implemented in the care for people with diabetes. Whenever I speak to the Secretary of State, he tells me that it is no longer his responsibility and that I should talk to the NHS Commissioning Board. However, when I speak to the NHS Commissioning Board, staff say, "We are still working out how we do this". When you talk to clinical commissioning groups, they are still not clear about the framework in which they are operating. Therefore, we are losing one, two or three years of headway on issues where there needs to be real improvement for patients.

Because of the preoccupation with reform, we are seeing a lack of real focus on the task in hand, which is how we make the health service more efficient. The Minister and the Secretary of State have repeatedly told me that these reforms will deliver that necessary improvement in care and efficiency. However, my experience over 40 years leads me to believe that that is not the case. In saying that, I am not making a political point; I speak from my knowledge of what is happening in healthcare. We will continue to try to improve the Bill because we are good and honest toilers in the House of Lords, but we are trying to improve something that is deeply flawed.

Baroness Thornton: My Lords, we must be thankful to my noble friend Lady Jay and the Constitution Committee for their initial work and their second report, which has enabled us to reach the point that we have. I am grateful to my noble friend Lady Pitkeathley and the noble Baroness, Lady Young, for saving us from the gloopy treacle of self-satisfaction into which we were sinking, to which my noble friend Lady Jay referred.

I, too, thank the noble Lord, Lord Laming, the Convenor of the Cross Benches, for chairing the seminars that have been referred to. We all know that chairing seminars attended by opinionated Members of this House and lawyers is not an easy task. He did an excellent job and led us gently towards the consensus that has resulted in the amendments being tabled that we are discussing. I pay tribute to the noble Baroness, Lady Williams, the noble Lords, Lord Hennessy and Lord Owen, whose wisdom brought the great importance of this issue to the attention of the House.

We support this amendment as it is clearly an improvement on what was in the Bill originally. We are still perplexed as to why we could not simply have kept the 2006 wording, but we are where we are. However, I wish to repeat the question that I have already put to the Minister. The Secretary of State has let it be known that he does not think that this measure makes a difference. That shows no respect for the work that we have undertaken and the place in which we find ourselves. Therefore, I should like clarification on that point. We need to know why that is the case. This

8 Feb 2012 : Column 307

measure constitutes a significant change because, as I think the noble Baroness, Lady Williams, said, it will have repercussions on other parts of the Bill. I welcome that and hope that it is the case. We need to look at the changes proposed in this and the following amendments as they should make easier our job of testing other parts of the Bill against them.

I say to the noble Lord, Lord Mawhinney, that this is still a very political Bill. The noble Lord's party and the Liberal Democrats pushed the original drafting on the Secretary of State's powers through the Commons. I have tried to keep my remarks about the highly politicised nature of the Bill separate from this debate because I thought it was important that we should also recognise the work that has gone on and the consensus that we have reached in this House. That is due to a combination of clarity, wisdom and our consideration of the Constitution Committee's report. I compliment noble Lords on my own Benches because we were determined not to accept the well meaning and imaginative original proposal of the noble and learned Lord, Lord Mackay of Clashfern. We had very trenchant support from noble Lords such as the noble Lord, Lord Owen. The Minister, in his wisdom, took these clauses off the Floor of the House and we are now where we are. That is a great credit to everybody concerned, including my own party. Therefore, we are very happy to welcome this amendment and hope that it bodes well for our future discussions on Report.

6.45 pm

Earl Howe: My Lords, I think that it only remains for me to thank noble Lords who have spoken in this debate. I listened with care and respect to the noble Baronesses, Lady Pitkeathley and Lady Young, as I always do. I understand their concerns. I think that some of them are misplaced but they are right that any transition brings with it uncertainty and a certain amount of disruption. That is regrettable but all I can say is that the picture painted by the noble Baroness, Lady Young, is not representative of the whole of the NHS. She is right; there are difficulties. However, we are very confident that they can be resolved in short order.

The noble Baroness, Lady Thornton, asked me whether the Secretary of State believes that this amendment makes a difference. Yes, he does because he recognised that this House perceived a lack of clarity in the Bill. He welcomes the fact that this situation has been resolved by means of consensus. Therefore, I reassure her on that point. I thank all noble Lords who have spoken so supportively in favour of this amendment, especially the noble Baroness, Lady Jay, whose work, along with that of her committee, proved so indispensable to the consensus to which I have just referred. I thank the noble Lord, Lord Owen, for all that he said. I thank the noble Lord, Lord Laming, for his contribution not just today but in his role of chairing the all-Peer seminars that brought us to this conclusion. I thank my noble friends Lord Newton and Lord Mawhinney and the noble Baroness, Lady Williams, for their wise and generous observations; and, indeed, I thank the noble Baroness, Lady Thornton, once again. I commend the amendment.

Amendment 5 agreed.

8 Feb 2012 : Column 308

Clause 2 : The Secretary of State's duty as to improvement in quality of services

Amendment 5A

Moved by Baroness Royall of Blaisdon

5A: Clause 2, page 2, line 33, at end insert, "and report annually in Parliament on the progress towards their development"

Baroness Royall of Blaisdon: My Lords, I shall speak also to Amendment 255A. Both amendments relate to quality standards.

The Government must ensure that the newly structured NHS delivers high-quality care to all patients across England. The much disputed reforms must not create a situation that amplifies the differences in quality of care that patients receive in different parts of the country-that is to say, an amplified postcode lottery would be intolerable. Clear national guidelines, such as the quality standards being produced by NICE, are urgently needed to define the quality of care that local authorities and clinical commissioning groups should achieve.

However, the delayed development of NICE quality standards for prostate cancer, as well as recent decisions not to recommend new treatments for men at the end stages of the disease, threaten to leave prostate cancer behind and increase the variation in the quality of care that men receive across the country. Historically, men with prostate cancer have suffered from a legacy of neglect. Although recent improvements have been made in the quality of care that men receive, this progress is at risk, and that is unacceptable. Patients should receive the same high-quality care regardless of where they live. I am, as ever, grateful to the excellent Prostate Cancer Charity for its help and support.

The Bill presents an opportunity for NICE to establish national quality standards that set out the quality of care that patients should receive across England. Having these standards in place for prostate cancer and other conditions will ensure that clinical commissioning groups and cancer networks will be able to benchmark the services that they commission and evaluate the quality of care that they provide. The standards will also help local authorities to scrutinise health services effectively and allow patients to check that they are receiving higher quality care. The quality standard for prostate cancer was prioritised for development in 2011 in the Government's Improving Outcomes: A Strategy for Cancer. However, this has been delayed by NICE and the quality standard for prostate cancer will now not be published until the end of 2013 at the earliest. I am extremely concerned that development of quality standards is already being delayed for priority areas, and this could be an indication of future delay and barriers to driving up the quality of care within the new NHS.

When guidelines on prostate cancer care have been delayed in the past, it has led to men with prostate cancer reporting a significantly worse experience of care than men with other common cancers. We cannot afford to repeat those mistakes, particularly in the light of the new localised approach to healthcare set out in the Bill. The Minister's response to my

8 Feb 2012 : Column 309

amendment in Committee was disappointing, given that he said it will take five years to develop the full set of quality standards. While the six months suggested in that amendment is a tight timescale, five years is too long to wait for these crucial benchmarks of quality care.

This amendment to Clause 2-which outlines the Secretary of State's duty to improve the quality of services-would require him to report annually on the progress towards the development of quality standards. This would help. It is not an onerous requirement and would help ensure that the standards are prioritised and that Parliament could scrutinise their progress. Quality standards are meant to be patient-facing documents and an amendment to Clause 233 that would require the NHS Commissioning Board and/or the Department of Health to maintain a publicly available information source of each quality standard would also help. This would allow patients and professionals to see real-time information and scrutinise the progress of these important standards. I beg to move.

Baroness Masham of Ilton: My Lords, I strongly support the amendment. Yesterday, I went to a meeting on prostate cancer, a disease that 10,000 people a year die from unnecessarily because of late diagnosis. I should like to tell noble Lords a small story about a friend of mine. He went three times to his local surgery in north Yorkshire and was sent away. His son was worried because there were symptoms, so he took him down here to London. He was diagnosed with prostate cancer straight away in a private clinic, but it had gone through to his bones because of late diagnosis. The treatment is much more expensive, so if only there was a standard throughout the country. Therefore, this is a very important amendment.

Baroness Tyler of Enfield: My Lords, I also support the amendment on prostate cancer, which is a very important area. However, I wish to support the government amendments in this group-Amendments 68, 112 and 144, to which my name is also attached. These amendments all relate to reducing health inequalities and, in a nutshell, create a new duty on the Secretary of State, the NHS Commissioning Board and the clinical commissioning groups to report annually on their progress in tackling health inequalities.

As this is Report stage I will not rehearse the stark statistics on life expectancy that we heard during earlier stages of the Bill. We also heard compelling accounts of what needs to happen to improve health outcomes for those particularly vulnerable and disadvantaged groups whose patterns of usage of the health service often take a different form from those of other sections of the population. These groups include the homeless, those with mental health problems and others whom we heard about earlier.

As I recognised in Committee, the explicit duties on health inequalities which the original version of the Bill placed for the first time on the Secretary of State, Commissioning Board and CCGs were landmark duties. They certainly represented a major shift from the current position. However, as a number of noble Lords, me included, argued in Committee, those duties did

8 Feb 2012 : Column 310

not go far enough, and we called for their strengthening, particularly so that CCGs and other parts of the structure would be required not simply to "have regard" to the need to reduce health inequalities but to act to secure real improvements in terms of access to health services as well as outcomes. It is also critical that those bodies should account publicly for their progress in so doing.

I thank very much my noble friend the Minister for listening and acting. The nub of these amendments is that they shine a clear spotlight on health inequalities by introducing real transparency and accountability at national and local levels. I very much hope that the amendments will be instrumental in changing the culture so that things such as sharing good practice in tackling health inequalities become a key part of workforce training and very much part of the currency of everyday language in the NHS.

These amendments have the potential to make a reality of the words in the public health White Paper that spoke of,

It is for those reasons that I support these amendments, and I thank the Minister for tabling them.

Lord Harris of Haringey: My Lords, I support the amendments in this group because I believe that it is important that we look at the mechanisms that will be embedded in the Bill, assuming that it eventually receives Royal Assent in some form, and that will in practice drive change in the direction that we all want. That includes improving the quality of the care offered, and it means addressing the issues of health inequality to which the noble Baroness, Lady Tyler, referred.

One of the omissions from the Bill is that, apart from placing some general duties on the various bits of the NHS, there is very little about demonstrating how those duties will then be exercised or creating a mechanism for assessing that. The amendment, which talks about reporting annually to Parliament on the progress made, seems an essential first step in making sure that that happens.

The reports on inequalities will be increasingly important in this area. However, Amendment 112, dealing with CCGs' annual reports on how they have discharged their duty to reduce inequalities, raises another question, and this comes back to the issue of what will be the catchment areas of individual CCGs. Unless there is far more central direction than I have understood-and perhaps the Minister can reassure us on that-it seems likely that there will be, to use an unpleasant term, ghettoisation in some CCGs.

7 pm

In some local authority areas, the easier bits of the patch will have one CCG and another will cover the others. That is likely to mean that the areas covered by those two different CCGs are rather more homogeneous than might otherwise be the case. If one CCG covered that area, the duty to make progress on health inequality would be clearer. If we are talking about smaller populations served, it is more likely that they will be homogeneous and that there will therefore be less inequality to address. The question will be whether

8 Feb 2012 : Column 311

there will be enough pressure within the system to ensure that the inequalities in health outcome between different CCG areas will be addressed. It is all very well to place a duty on a CCG which covers, say, the people of Tottenham in north London, where there are tremendous problems of health status, life expectancy and so on, to report on what it is doing to eliminate health inequality in its patch, but if the nature of that patch is such that it is already deprived in terms of both economic indicators and health outcomes, what will be the driver to ensure that the inequality of that area compared with others is addressed?

Who will own the strategy within regions and parts of the country to address issues such as health inequality and clinical standards? If the answer is that that this will all be done by the NHS Commissioning Board, that is a wonderful answer and tells us what an important body the NHS Commissioning Board will be. How will that be operationalised? What mechanism will drive that? Before you know it, you are talking about a regional and area infrastructure no less baroque than anything we have seen in the past. Otherwise, it cannot happen. What will be done to operationalise the drivers to make the improvements happen? It will not be sufficient to place a duty on everyone to report on what they have done, although that is valuable and worth while in itself. What will be the duty to address issues between localities? You can address all the inequality you want within those areas, but if the outcomes are already much lower in those areas, will there be enough infrastructure around the NHS Commissioning Board to address the problem of the inequalities between the different areas?

Baroness Finlay of Llandaff: I support all the amendments. I am glad to read the government amendments, which will obviously be accepted across the House, but the other amendments are also important. I draw attention to one aspect. I do not understand how we can expect GPs to do it all. We are expecting them to lead on commissioning. I have been asking about that extensively and have had conversations with the Royal College of General Practitioners but have not been able to find a clear example where general practitioners have led commissioning across a comprehensive range of services for some time and that has been demonstrated to be successful. I would be very grateful to hear that I am completely wrong; that would be reassuring to know; but I am worried.

As I said earlier, patients present completely undifferentiated to general practitioners. The diagnostic burden on GPs to get it right is huge, because they are the point of entry. They are either the gatekeeper or the gate opener. Their role should be the gate opener, and there are real conflicts if they are charged with being the gatekeeper at the same time. Unless the diagnosis is accurate, everything that follows fails. I am concerned that the inequalities and range of standards to date will not be improved by the increased workload burden on general practitioners. I wonder if that, in part, is behind some of the objections emerging from GPs who have previously been quiet about the Bill, because they are becoming frightened that they cannot fulfil their clinical duty as well as their managerial commissioning duty.

8 Feb 2012 : Column 312

Lord Hunt of Kings Heath: My Lords, the government amendments on health inequalities are welcome. I take this opportunity to ask the noble Earl about clinical commissioning groups. Has he given further consideration to the links between health and well-being boards and clinical commissioning groups? He will recall the debate in Committee, when what I thought was a persuasive argument was made that to ensure that the links between clinical commissioning groups and local authorities taking on public health responsibilities were as strong as possible, it would be a good idea if a local authority nominee from the principal local authority served on the board of the clinical commissioning group.

My noble friend Lord Harris suggests in his comments about population coverage by clinical commissioning groups that there will be a grammar school-type impact, a creaming off of patients by some clinical commissioning groups so that the remainder will be left in other clinical commissioning groups. There will be areas of a city or locality where the health inequalities and morbidity and fatality ratios will cause a great deal of concern. It would be good to hear some assessment of that from the noble Earl. We have seen mapping of clinical commissioning groups in different parts of the country and they look weird and wonderful. They are not aligned to electoral wards and it will be very difficult to plan sensible provision of services because there is no geographical alignment.

I also ask the noble Earl, Lord Howe, to follow on from the remarks of the noble Baroness, Lady Finlay. We hear very little about primary care performance in our debate, but when I think back to the original speeches made by Mr Lansley, the whole purpose of the reforms is about GP performance. The argument is that GPs are responsible for most expenditure through referrals or prescribing, and that if you give them the budget, they will therefore be much more responsible in their behaviour. We have yet to be told how a clinical commissioning group will influence the behaviour of GPs within it. I know that that is a concern among the leaders of clinical commissioning groups.

If, for example, a clinical commissioning group has reached an agreement with providers, NHS trusts and NHS foundation trusts, on a shared risk approach to demand management-which I hope will be the outcome of most of these agreements-what on earth do you do if some GPs do not exercise responsibility over their referral or prescribing performance? We know that the variation in quality among GPs is very wide. What are the levers that will bring poorly performing GPs to the table? The leverage that clinical commissioning groups have is very limited. On balance, I think it would have been better if they had had the contracts of GPs. I know that there is an issue about Chinese walls and conflicts of interest, but the fact is that the contracts of GPs will be with the branch office of the national Commissioning Board. Therefore, the levers that the clinical commissioning groups have are likely to be very limited.

Then we come to the issue of, for example, prostate cancer. I very much agree with and support my noble friend Lady Royall on the need for quality standards and I hope that NICE will get a move on in relation to

8 Feb 2012 : Column 313

this. However, as my noble friend Lord Harris said, underpinning an argument about prostate cancer is the question of how you make such a standard work at the local level. If there is to be a quality standard, I doubt very much whether it will simply be confined to what an NHS hospital, a clinical commissioning group or a GP is expected to do. The quality standard will look at an integrated approach at the local level which will straddle various features of the architecture of the NHS locally. It might even have some regional aspects too where an input needs to be made.

Therefore, the question is: who on earth at the local level is supposed to sign that off? Who is going to take the leadership role? The clinical commissioning groups will be far too small to do that within a locality, so either they will come together and agree a strategy that will cover a sufficiently large population or, as I suspect, the national Commissioning Board will have to do it itself. I think that we will come on to these debates when we deal with the role of the national Commissioning Board. We have all been highly entertained by the paper produced by Sir David Nicholson showing the less bureaucratic approach that the Government have adopted in relation to the health service with the various layers of bureaucracy that are being brought in. However, I am still left completely clueless about who at that sub-regional level, where so many critical decisions have to be made, is going to take responsibility. We know that in relation to prostate cancer much more needs to be done.

The noble Earl will remember the debates that we had on prostate cancer 10 years ago. He will remember the controversy over testing and how noble Lords were very keen to put their point of view across. That has rather gone away and I think that it has been replaced by a much more informed debate about a cancer on which we know we could do very much more and on which we know there has to be education in the public domain.

I very much support my noble friend in what she is seeking to do but it also raises the issue that the noble Earl's amendments touch on-that is, the architecture surrounding how a quality standard is implemented in the future, assuming that NICE is able to produce that standard as quickly as possible.

Earl Howe: My Lords, I am grateful to noble Lords for some very valuable contributions to this debate, which has ranged quite widely. I think that the first thing we can all do is agree on the importance of reducing health inequalities and developing NICE quality standards, which was where we began with the noble Baroness, Lady Royall. She is right that the Bill presents a major opportunity to drive up quality in the NHS, not least through the development of NICE quality standards.

The noble Baroness expressed her concern about the time that it is likely to take for this library of quality standards to be rolled out. I completely understand her desire to have NICE working quickly and effectively in producing quality standards. Against that, I simply say that we have to balance the need for speed with the need to produce standards of a high quality. We have

8 Feb 2012 : Column 314

already set NICE a challenging programme to produce the quality standards and we have to recognise that, if it is to do the job well, it cannot be done in a hurry.

However, we continue to believe that the programme is ideally placed to deliver a steady stream of quality standards over the agreed timescales. That will lead to a comprehensive library of quality standards, to which she referred, within five years. Of course, I understand that that timescale is disappointing. However, I simply say that, while the quality standard for prostate cancer, in particular, is clearly important, there are many things that we can do, and are doing, to improve the care of cancer patients in the NHS, and we have recently debated some of those in your Lordships' House.

7.15 pm

Perhaps I may turn to the amendments that the noble Baroness tabled. I appreciate that many people have an interest in the programme of developing NICE quality standards and in NICE's work generally. We have thought about this and I hope that I can provide some reassurance.

First, the Bill already states that NICE must lay before Parliament an annual report setting out how it is exercising its functions. This will provide a clear mechanism for patients, clinicians and other interested parties to see how it is taking forward its various functions, including its role in developing quality standards.

Secondly, the Secretary of State must also produce an annual report on the performance of the health service in England. We tabled amendments ahead of this Report stage to ensure that, in particular, that report will give his assessment of how effectively he has discharged his duties regarding improvement of quality and reducing health inequalities.

Thirdly, the Secretary of State will also have a duty to keep under review the effectiveness of NICE's exercise of its functions, and he can include his views on this in his annual report. This could include his views as to how well NICE has performed its functions in relation to developing quality standards.

Therefore, although I have a good deal of sympathy with the noble Baroness in what she seeks to achieve, I suggest that in fact her amendments are unnecessary.

The noble Lord, Lord Harris, asked me about clinical commissioning groups and referred to their geographic coverage. He will know that each CCG will be accountable for the outcomes that it achieves against the commissioning outcomes framework, which is under development. The CCGs will be supported in their efforts to improve quality by the NHS Commissioning Board, whose job it will be to issue commissioning guidance, informed, among other things, by NICE quality standards.

I do not agree with the noble Lord that CCGs are likely to be ghettoes. Across many clinical areas, they will collaborate to serve the needs of patients over an area wider than that of just a single CCG. What is not stated in the Bill but I hope is implicit in all that the Government have said is that there will be transparency in all this. Once you measure results, there is, ipso facto, an incentive to improve those results.

8 Feb 2012 : Column 315

The noble Lord, Lord Hunt of Kings Heath, asked me how a CCG can influence improvement in primary care when it is the board that is commissioning the primary care. I simply remind him that CCGs have a duty under the Bill to support the NHS Commissioning Board in its quality improvement functions with respect to primary care. Indeed, one of the key benefits of CCGs as we see it-and we know this from a practice-based commissioning which has been in place for a number of years-is the ability for peer review and peer pressure to drive up quality.

The noble Lords, Lord Harris and Lord Hunt, asked me who will lead the local strategies. Health and well-being boards will be the bodies that will produce a joint health and well-being strategy, and that will be designed precisely to address issues such as health inequalities, which involve different services working together. CCGs must have regard to these strategies in addition to reporting annually on health inequalities, as through the amendments in this group.

Lord Harris of Haringey: I just want to make sure that I understand the point that the Minister is making. Let us compare two localities in London. I mentioned Tottenham, so compare that with, say, the residents of Totteridge. They are very different socioeconomic groupings with very different health outcomes. What is the mechanism for addressing health inequalities between Tottenham and Totteridge? Who will be responsible for addressing inequalities between areas that are just a few miles apart but which have very different characteristics and very different social outcomes? The health and well-being boards are borough-based. Tottenham is in the London Borough of Haringey and Totteridge is in the London Borough of Barnet-neighbouring boroughs that are very different in composition. What will be the overarching structure that addresses those inequalities?

Earl Howe: Localism lies at the heart of our approach to these issues. Although I have no doubt that conversations and comparative analyses will take place between different health and well-being boards and different local authorities, in the end it is the responsibility of health and well-being boards to look to their catchments. As I said, the outcomes that are published, both in terms of the NHS performance and public health and social care, will in themselves incentivise improvement, if the local authority and the health and well-being board work together as they should. This is a joint enterprise between public health, social care and the NHS.

We shall no doubt experience the effect of comparative work between local authorities once the early implementer groups have bedded down and begun their work. Both the board, however, and the Secretary of State will have duties in relation to inequalities. They overarch everything that happens and I suggest that that will ensure that a system-wide and strategic approach is taken, for example, through setting objectives in the board's mandate in relation to inequalities. These could feed down very easily to CCGs through commissioning guidance issued by the board. I hope that that gives the noble Lord a summary, or at least a flavour, of how we envisage this working.

8 Feb 2012 : Column 316

Lord Harris of Haringey: May I just clarify? Will there be nothing between the board at national level? Will it look right across the country and say, "We will address these inequalities"? Will there be nothing, for example, at the London level, to address inequalities between different parts of London or will it simply be driven nationally? That is a recipe for not necessarily making the best decisions in particular areas.

Earl Howe: The noble Lord will know, because the NHS Commissioning Board authority has published its proposals, that the board will be represented sectorally. There will be field forces in all parts of the country. My vision of this, and that of Sir David Nicholson is that in the areas in which the board operates it will take a view across a region and look at how outcomes vary between local authority areas. The board will be very powerfully placed to influence the kinds of inequalities that the noble Lord has spoken of. It is important for noble Lords to understand that the board will not be a collection of people sitting in Leeds. The majority of its staff will be a field force. I hope that that is helpful.

Lord Rea: Does the noble Lord accept that to smooth out inequalities costs money? Therefore, the CCG in Tottenham should get more per capita than the CCG in Totteridge. At the moment allocation is made according to an index that takes deprivation into account to some extent, but not enough. How will that be administered under the new system?

Earl Howe: The advisory committee for resource allocation which exists at the moment will advise on the allocation of resources according to a very detailed formula. That applies to the NHS and public health. There will be a separate ring-fenced budget that specifically takes account of deprivation. That budget will be held by Public Health England and passed down to local authorities to use at a local level. We are very clear that deprivation and health inequalities must be reflected in terms of the budgets that CCGs and local authorities receive. I hope that I can reassure the noble Lord on that point.

Government Amendments 68, 112 and 144 set out a requirement for the Secretary of State, the board and CCGs to report annually on their work to reduce health inequalities. We had a great deal of helpful and interesting discussion on reducing health inequalities in Committee and as a result of those discussions, we felt that it was important to bring forward three amendments on the reporting requirements. Amendment 144 requires the Secretary of State to include in his annual report an assessment of how effectively he has carried out these duties, meaning that Parliament will hold him to account. I have tabled parallel government Amendments 68 and 112, which require the commissioning board and CCGs to report on how effectively they have fulfilled their inequality duties. We believe that this will ensure that our objectives to reduce health inequalities and improve quality of care are embedded throughout the system from top to bottom. I hope that noble Lords can support those amendments when I move them.

8 Feb 2012 : Column 317

Baroness Morgan of Drefelin: I wonder whether the Minister could clarify something for me. I very much support the line of argument around the amendments. However, I am interested to know whether, if the Secretary of State has a duty to report back on the exercise of these duties, does that say anything about the importance of reporting on his other duties? Is a hierarchy being created? That is a point for clarification.

Earl Howe: There is no hierarchy but the Secretary of State will be bound to report to Parliament and, in doing so, he must show that he has exercised his functions in a way that fulfil his statutory duties under the Bill. Parliament will no doubt hold him to account for having done so. He must demonstrate across the piece that he has had regard to those duties.

Baroness Royall of Blaisdon: My Lords, I am grateful to the noble Earl, Lord Howe, for his reply, and for the support for my amendments around the Chamber. I have a couple of comments. First, in terms of quality standards, like the noble Baroness, Lady Finlay, I wonder about a GP's ability to fulfil his duties both as a clinician and a commissioner. Currently GPs often find diagnosis quite difficult and I am concerned about them having to commission as well as diagnose. If they do not fulfil their tasks as both clinicians and commissioners, the patients will suffer.

My noble friends Lord Hunt and Lord Harris asked who takes the leadership and responsibility for ensuring that quality standards are adhered to when they are brought forward by NICE. The Minister said that localism is one of the answers. I find that a frightening prospect rather than a reassuring one. I think it is a recipe for chaos rather than quality, but perhaps that is a personal view.

I pay huge tribute to NICE, which I think does excellent work, but I recognise that it is very stretched. It has immense burdens and responsibilities. I hope that this very short but excellent debate will be a catalyst for swifter action in terms of quality standards, but I recognise that there is always a balance to be struck between quality and speed. However, in five years, an awful lot of people can die while waiting for quality standards. Having said that, I am grateful to the Minister for his response, and I beg leave to withdraw the amendment.

Amendment 5A withdrawn.

Consideration on Report adjourned until not before 8.35 pm.


Question for Short Debate

7.32 pm

Asked By Lord Warner

8 Feb 2012 : Column 318

Lord Wallace of Saltaire: My Lords, we have extraordinarily tight timing for the dinner-hour debate. I remind noble Lords that when the figure "2" appears on the clock, that is the end of their time for a two-minute speech. I am told that the European Parliament has entire debates where everyone makes two-minute interventions, but I am sure the House of Lords can do better than that.

7.33 pm

Lord Warner: My Lords, it gives me no pleasure this evening to be raising the issue of Israel's blockade of Gaza and its consequences for the 1.7 million Palestinians who live there, 50 per cent of whom are children. Three years ago, the Israeli military was conducting Operation Cast Lead that took the lives of over 1,000 Palestinians, razed whole neighbourhoods to the ground in East Gaza and destroyed many Palestinian factories. I have seen at first hand the devastation caused by that operation and heard locals' accounts of the military behaviour towards unarmed civilians on my two visits to Gaza. Since Cast Lead, Israel has occupied Gaza's territorial waters, leaving only three nautical miles for Palestinian fishermen, although the Oslo agreement provided for 18 nautical miles. Fishermen who approach the boundary are liable to be shot, detained or sprayed. Israel has also created a military buffer zone on Gaza's northern and eastern borders which it is estimated has confiscated 30 per cent of Gaza's arable farming land. People are regularly shot at and sometimes killed in this buffer zone. Israel has addressed its security concerns by confiscating Gaza territory rather than use its own land in order to create the buffer zone.

Israel has seriously restricted the flow of goods and people in and out of Gaza. According to UN figures, during the first two years of the blockade, 112 containers on average entered Gaza from Israel daily, compared with 583 before the siege. Even after Israel said it had eased the siege in May 2010, the daily number rose to only about 150. Apart from the Rafah crossing from Egypt, where the Egyptian military has effectively imposed its own controls, as I have experienced twice, Israel controls all other border crossings. I am informed that Kerem Shalom is now the only functioning crossing point and that the Israelis have started to demolish Kami, which previously had the largest capacity. This may encourage more materials and goods coming through the illicit and primitive tunnels between Egypt and Gaza, which I have also seen in operation. These tunnels regularly collapse and kill people. It is estimated that about 250 adults and something over 50 children have been killed or seriously injured in the tunnels.

Israel has imposed a tightening blockade on Gaza that has effectively created the largest open-air prison in the world and represents a collective punishment of Gaza's civilians. My understanding is that this is in direct violation of Article 33 of the fourth Geneva Convention, but perhaps the Minister can confirm that and say whether he disagrees with any of the facts I have given so far. I would also welcome any light he can throw on the current situation on Israel-Gaza crossings and on whether there have been any improvements in the flows through Rafah since I went through there last July.

8 Feb 2012 : Column 319

What has all this meant economically and socially? A flourishing fishing industry has been brought to its knees, and farming has been unnecessarily restricted. After destroying some 1,300 Palestinian factories, Israel now prevents the import of machinery and raw materials to enable the Palestinians to rebuild their manufacturing capability, particularly in textiles and furniture in which they specialised. Businessmen have spoken to me about the difficulties of establishing the banking services that would support an export trade. An industrial sector that used to account for 40 per cent of national income in Gaza now employs about 15,000 people.

Gaza's infrastructure is falling apart. Rebuilding the homes, schools and other public buildings destroyed by the Israeli military is seriously curtailed by Israeli restrictions on the importation of cement, steel and other building materials. Governments and private donors see their aid efforts frustrated by these restrictions. Gaza's water, sewage and healthcare systems are on the verge of collapse. Only some 5 per cent of the water coming out of Gaza's taps is fit to drink. Sea water is filling the gaps in the Gaza aquifer and could soon wreck it. Waste water projects are being delayed, so huge amounts of sewage have to be pumped into the Mediterranean Sea. Lack of fuel means that eight to 12-hour blackouts are common. Nitrate levels in water are rising dangerously and are said to be causing an increase in cancers. Gastroenteritis is now a way of life for Gaza's children, 70 per cent of whom are said to be anaemic.

A visit to Gaza's 650-bed main hospital is deeply depressing. It reveals crumbling and unfinished buildings, poor equipment and doctors who have run out of surgical sutures, gloves and disposables. Surgery, including heart operations, is interrupted by power cuts and the lack of fuel for emergency generators. Doctors have told me that about 500 patients have died unnecessarily in recent years from lack of medication, including many children. On my visit last July, I saw people to whom this would happen, including children with sickle cell anaemia. On that visit, the Gazan Minister of Health estimated that the hospital regularly lacks 150 to 200 basic drugs, including things as simple as paracetamol. The latest figures I have been given are that Gaza's hospitals are at "zero stock levels" for 178 of 480 essential drugs, with another 69 at low stocks. Not all these problems in Gaza's healthcare system can be laid at the door of differences between Ramallah and Gaza, regrettable though they are.

In 2000, only about 10 per cent of the population was dependent on humanitarian aid. Now it is about 75 per cent. Over half the households face food insecurity defined as inadequate physical, social or economic access to food. Since the blockade, the number of Palestinians living in abject poverty has tripled to 300,000, and I know from having seen some of those households, that it really is abject poverty. The unemployment estimates vary from about 25 per cent to 35 per cent for the whole population and rise to somewhere between 40 per cent and 60 per cent for young people, but the aid dependency figures that I have just given suggest that the higher estimates may be nearer the mark. UNRWA has done and continues to do a fantastic job, but it is now struggling to secure the resources needed from donor countries.

8 Feb 2012 : Column 320

I have set out these data to give a picture of what Gazans face day in, day out. Half the population are children who have done nothing to justify this treatment by Israel, whatever their genuine security concerns. As the Israeli columnist Gideon Levy said,

I carry no torch for Hamas but it did win a fair and democratic election in 2006. It also looks as though Fatah and Hamas may have reached agreement in recent discussions in Qatar on a unity Government. Does the Minister not think that the time has come for the international community to take a more robust stance with Israel over its conduct in Gaza? Its behaviour is self-defeating. Young Gazans are growing up with no hope. Why should they not turn to the extremist elements in Hamas for their role models, to match Israel's own extremism? What further action are the Government prepared to take with international partners to get the Israelis to change course and how much worse do things have to get in Gaza before the international community acts decisively?

In his speech to the European Court of Justice on 25 January, the Prime Minister said that he supports,

Gaza is part of that world, so what tangible and effective support can it expect from the UK and its EU partners while the United States seems self-preoccupied and unwilling to focus on Palestine?

7.41 pm

Lord Trimble: My Lords, I was attached as an international observer to the Israeli Turkel commission, which considered the "Mavi Marmara" flotilla incident. The House of Lords Library note on this debate omits reference to the Turkel commission, but it mentions the Palmer panel, which considered the Israeli and Turkish investigations for the UN. Palmer said:

"Israel faces a real threat to its security from militant groups in Gaza. The naval blockade was ... a legitimate security measure ... and its implementation complied with the requirements of international law".

Palmer says the flotilla "acted recklessly" and that there are,

Israel was entitled to stop the flotilla, but Palmer is right to criticise the plan. However, he is on weaker ground in criticising the use of force by the IDF. In an annexe, we examined each use of force by IDF personnel and found them prima facie justified, except for a handful of cases where there was insufficient material. Unfortunately the annexe was classified. It should be published.

The blockade was an extension of the land crossings policy to prevent military supplies entering Gaza, and wages indirect economic warfare, limiting Hamas's ability to attack Israel. This affects the civil population but is legitimate unless it causes a humanitarian crisis. We spent 40 pages examining this. I will give noble Lords a few quotes:

"The Gaza Strip Economic Committee (a representation of the Palestinian Authority) ... receives requests from private market forces and importers in Gaza ... Ordering the goods and determining priorities between the parties requesting the entry of goods is done by representatives of the Palestinian Authority".

8 Feb 2012 : Column 321

Lists of goods are then delivered to the Israeli authorities.

"Between the various requests, the order of priorities for entry is as follows: (1) medical supplies and medicine; (2) requests by international organisations ... (3) agricultural materials; (4) the balance of supply capacity for the private market ... No evidence was presented before the committee to the effect that Israel prevents the passage of medical supplies apart from those ... prohibited for security reasons ... when the relevant Israeli authorities are notified of a shortage of any medical supplies, there is an organised system for replenishing those supplies ... there is no quota limiting the amounts of foods that are allowed to enter the Gaza Strip".

Strictly speaking, there is no humanitarian crisis.

7.44 pm

Lord Parekh: My Lords, I do not think I need to argue at length that the Israeli blockade of Gaza is unlawful because it violates Israel's general obligations as an occupying power; that it is unethical because it is causing immense hardship to a large number of people, including ordinary civilians, and amounts to collective punishment; and that it is counterproductive because it only builds up hatred and animosity and damages the long-term interest of Israel. Therefore, Israel needs to be thinking more in terms of generosity and better understanding of the aspirations of the people of Gaza. There are large numbers of people in Israel who are already thinking along those lines.

We think in terms of putting pressure on Governments. My own experience of India's policy in Kashmir, to which I was strongly opposed, convinces me that no Government can put pressure on another Government. There are limits to what any Government can do. Therefore, I have more or less completely given up on our own Government, the quartet or the international community putting pressure on Israel. Even if they did-I do not think they will, but even if they did-I do not think they have much chance of success. They would simply force the Israeli Government to become more intransigent and more uncompromising.

Ultimately, the pressure has to come from within the country itself and from those of us outside who wish Israel well and whose record of standing up for it from time to time is beyond reproach. Therefore, it is the friends of Israel abroad, outside, who ought to be persuading the Government of Israel that this is not the way to go, trying to make representations, and through newspaper articles and in other ways making it clear to the public opinion here and in Israel that this is not the way to go.

Once again taking the Indian treatment of Kashmir as a guide, ultimately the pressure came from Indians settled abroad. In the same way, in the case of Israel, ultimately it is not only those of us who are well disposed to Israel but the great Jewish community, with its enormously impressive record of fighting against all forms of injustice, which will have to make its voice more loudly heard than seems to have been the case so far.

7.46 pm

Lord Bew: My Lords, first, will the Minister confirm in his reply that it is now the view of Her Majesty's Government that there is not a humanitarian crisis in

8 Feb 2012 : Column 322

Gaza? That was the view stated in the other place last summer, confirming the view expressed at a high level within the Red Cross in Gaza just a few weeks before the Statement in the House of Commons. Of course, there is a case for continuing humanitarian aid to be delivered to Gaza, which the Government support and indeed I strongly support.

This is the second time today we have discussed Israeli-Palestinian relations in this House, and we will have an opportunity to discuss them again tomorrow afternoon. As chairman of the Anglo-Israel Association, in principle I can only welcome this interest in the region. None the less, as is so often said in this House, there is an issue in the Middle East about proportionality and, quite rightly, I have heard many Members of your Lordships' House raise issues about the proportionate nature of Israel's response. However, to be proportional is also a requirement on this House. Since 2009 there have been 200 Questions asked about Israel, predominantly critical; not one in which the lead Question even mentions Hamas or displays any curiosity about Hamas, still less about the role of Iran in the region.

Those of us who support strongly a two-state solution think it is essential to engage with mainstream Israeli attitudes and opinions, not to be too focused on this or that particular personality at a high level in the Israeli state. The difficulty here is that the House is in danger of becoming essentially an echo chamber on this matter, and not doing what we need to do, which is to face up to where mainstream Israeli opinion is and to look at the dilemmas that Israel faces in the struggle to bring about a settlement in the Middle East.

7.48 pm

Lord Patten: My Lords, while I certainly do not assert that I see no blockades, I certainly see some facts. In 2011, Israel issued 3,893 medical permits for Gazan children to go to be treated in the West Bank or Israel itself, according to parental choice. On aid and trade, 2012 opened with more than 85,000 tonnes of civilian goods being delivered to Gaza through the Kerem Shalom crossing between 1 and 9 January alone. On average, about 47,000 tonnes are delivered each week, with horticultural and agricultural goods of high quality such as flowers, strawberries and tomatoes going in the other direction-and that is good.

Civilian goods do flow but they flow in parallel with a real blockade against arms, munitions and some dual-use materials that can be misused, exactly the kind of blockade we would be employing to protect the United Kingdom if we suffered persistent attack from some near neighbours-I guess.

Gaza is experiencing poverty and needs much help. However, those needs are best addressed by the international community working with Israel to better meet those ends while at the same time explicitly and publicly appreciating what seem to me at least to be Israel's somewhat understandable security needs in the region. I hope that Her Majesty's Government agree with this and I equally hope that my noble friend will make that clear at least in his response to this debate.

8 Feb 2012 : Column 323

7.49 pm

Baroness Blackstone: My Lords, I welcome the improvement in access to Gaza to provide humanitarian aid. However, the facts are clear: the people of Gaza are suffering greatly because of the blockade and have to fall back on humanitarian aid, rather than providing for themselves and their families through normal economic activity. In other words, a vicious circle is at work here. The people of Gaza are unable to obtain building materials to repair and maintain their homes, or to reconstruct the seriously damaged infrastructure. They are unable either to import or export enough goods to sustain anything like a normal economic life. As a result, unemployment is greatly increased. Around half of young people are out of work.

My noble friend Lord Warner mentioned fishing. Some 85 per cent of fishing waters, which are an important source of food in Gaza, are inaccessible as a result of the blockade. Such fishing as there is takes place in polluted waters as a result of a deteriorating waste infrastructure. In turn, that has a serious effect on health, including the health of children. Existing treatment plants are inadequate, so large amounts of sewage are discharged into the sea. Nearly one-third of houses are not connected to the sewage network and have to rely on totally inadequate cesspits.

This environment can lead only to an embittered people and, in particular, to large numbers of embittered young men who are denied some of the most basic requirements for human needs. It cannot be conducive to the long-term security of the Israeli people, which I and many others in this House of course want to see, to force these appalling conditions on the Palestinians of Gaza. I ask the Minister in his reply to say what Her Majesty's Government are doing-of course, working with Israel and the international community-to seek a change in this policy so that vital improvements to the infrastructure, which continues to deteriorate, can be secured.

7.52 pm

Baroness Morris of Bolton: My Lords, I never know quite where to start with the plight of the remarkable people of Gaza, except to say that my visit there in 2010 made a profound impact on me. I declare an interest as president of Medical Aid for Palestinians and other interests as set out in the register. I thank the noble Lord, Lord Warner, for this debate.

I well remember visiting an UNWRA food distribution centre. Queuing for their quarterly ration of basic goods were proud men, women and children. Among those to whom we spoke were graduates, skilled people and many who had run small businesses. They were not queuing because there had been a famine, a flood or an earthquake. There had been no natural disaster. They queued because they belonged to around 800,000 people in a population of some 1.7 million, of which more than half were children, who depend on the international community for food aid.

The collective punishment of the blockade means that people cannot lead the sort of economic lives, as the noble Baroness, Lady Blackstone, said, that most of us take for granted. Eight out of 10 men, women and children now rely on some form of international assistance.

8 Feb 2012 : Column 324

The powerlessness of the Palestinians in Gaza to work, manufacture, import, export and travel freely is a shocking waste of human ability. We should be spending our hard-earned tax money on human development and not on subsistence for people who are clever, well skilled and entrepreneurial, and who have so much to offer to the world. Add to that the long-term issue of critically low medicines and medical supplies, the worsening situations around power cuts and voltage fluctuations, which disrupt life-saving equipment, and you can only marvel at the amazing resilience of the Palestinians.

I do not know one person who does not wish to see a secure Israel but the effective siege and occupation of the Palestinian people is no way to achieve it. A young woman from Gaza whom I recently had the pleasure of meeting said to me, "All we want is to be able to play our part as global citizens". I hope that that day is not too far away but in the mean time I hope that we will do all that we can to ensure the decent and fair treatment of Gaza's people.

7.55 pm

Lord Ahmed: My Lords, I thank my noble friend Lord Warner for providing this opportunity, even though we have only 120 seconds. The right honourable David Miliband, the former Foreign Secretary, wrote recently that,

I do not want to mention the UNRWA figures of high unemployment and poverty. My noble friend has already mentioned the 300,000 people who live on less than $1 a day. While Israel put forward proposals to ease the blockade, it was estimated that only two trucks per day were allowed to leave Gaza between November 2010 and May 2011, which was nowhere near Israel's commitment of nearly 400 trucks per day. It was worse still between May and November 2011 when no trucks left the Gaza Strip to export any goods from the territory.

The crux of the matter is that, while we can hope for the prosperity and peace of the Palestinian people, this will remain an impossible target if the blockade continues to imprison the Gazan population. The UK Government pledged £26.8 million after Operation Cast Lead; yet three years later there has been little improvement in the lives of the Gazan people who struggle to find employment, rebuild their houses and export their goods. Simple day-to-day tasks, such as the quality of schooling, remain impossible and the population is still reliant on the UN for so many of its needs. However, these problems can be alleviated if the illegal blockade is removed and people could develop naturally into prosperous partners in the Middle East. Without its removal the blockade will continue to ensure that all life is suffocated out of the territory and its inhabitants.

7.56 pm

Lord Palmer of Childs Hill: My Lords, this Question for Short Debate, introduced by the noble Lord, Lord Warner, is like many questions and referenda. It is significant not only for what he asks

8 Feb 2012 : Column 325

but for what he does not ask and for the way in which the question is phrased-rather like the First Minister of Scotland's suggested referendum question. The question seeks to put any blame on the state of Israel. When the Minister replies, I hope that he will also address the real sufferings of the peoples of Gaza because of the policies and belligerence of Hamas and Islamic Jihad.

Israel's actions are a reaction to a real threat to Israel's security by groups in Gaza which deny Israel's right to exist and threaten the lives of Israeli citizens-Jew and non-Jew alike-on a daily basis. Since Israel withdrew from Gaza six years ago, withdrawing and removing from Gaza every single Israeli settler, terrorists have fired more than 7,000 rockets and mortars into Israel. Almost 1 million Israeli citizens are under threat from Quassam rockets, Grad rockets and mortars, which terrorise cities, schools and hospitals.

Do not get me wrong: there is suffering and deprivation in Gaza. But it is wrong to blame only Israel. The problem is not only of Israel's making, as suggested by the Question of the debate. The people of Gaza suffer-and they do suffer-because of the belligerence and extremism of Hamas and Islamic Jihad. These organisations are not only anti-Israel; up until now they have also been anti-Fatah and anti the Palestinian Authority. When Hamas took control, they murdered and injured supporters of Fatah. So we look with interest at the agreement this week of a unity government, which could not even find a prime minister as well as a president. It is against this background that a large part of the problems exist.

7.58 pm

Lord Sheikh: My Lords, after the tragic death of eight Turkish humanitarian workers in 2010 our Prime Minister David Cameron said in Ankara that the situation in Gaza has to change and that humanitarian goods and people must flow in both directions. He further commented that Gaza must not be allowed to remain a prison camp. Yet nearly two years later, there still remain crude restrictions to the flow of humanitarian goods and people. Gaza experiences chronic shortages and innocent women and children are suffering. For example, Al-Shifa hospital lacks basic medicines and essentials such as baby milk.

Last month, the United Nations submitted its annual report on the humanitarian situation in the Palestinian territories. The report describes the continuing desperation, including chronic food insecurity, isolation, and failing health and education services, all directly linked to the ongoing blockade imposed by Israel. The report states that the blockade amounts to collective punishment of the population and affects every aspect of life in the Gaza Strip. The blockade has not prevented attacks against Israel; its only success is in creating a stark reminder of the impotence of the international community.

It is time for the UK to take a lead in developing a clear and open strategy for the lifting of the blockade of Gaza. We cannot continue to believe ourselves to be a just and moral actor in the international arena until we play a role in helping to arrive at a

8 Feb 2012 : Column 326

settlement to the Palestinian issues. The rival factions Hamas and Fatah have now agreed to form a new unity government in West Bank and Gaza, which I believe will help to achieve a peaceful settlement. Israel is a mighty military power, but it must now be magnanimous and arrive at a two-state solution whereby it has a guarantee of security and nationhood, but in return it must ensure that Arabs are fairly treated and have full independence.

8.01 pm

Lord Turnberg: My Lords, I fear that this debate has too readily become polarised and has clearly depended on what sources of information you rely on to form your views. However, there is little doubt that the Palestinians in Gaza are under considerable stress and the dilemma for Israel is how it can help relieve that burden, so far as it is in its control, and at the same time prevent the terrorist activities of Hamas. Despite that background, over the past year Israel has in fact opened up its crossings to all but a limited number of items, and now over 30,000 tonnes of civilian goods are delivered every week; and while it is true that there is a shortage of drugs and medical supplies, the causes of that shortage are rather more complex.

I understand that the Ministry of Health in the West Bank has the task of distributing medical supplies to Gaza and that there is distrust and a disconnection between the two ministries of health in Ramallah and Gaza. Internal conflicts and poor communication seem to be at least part of the problem. Dr Nabil Bargouni, the director of the emergency room at Al-Nasser Hospital in Gaza City, has confirmed as much; and Tony Lawrence, head of the WHO in Jerusalem, has said:

"Israeli authorities are not blocking the entry of drugs and disposables into Gaza. They recognise these are priority items for humanitarian needs".

Of course the results are the same and these shortages are devastating, but an Israeli blockade cannot always be made the culprit, and meanwhile sick children from Gaza flood into Israeli hospitals at over 700 a month, with very few permits being refused. When I visit Israeli hospitals I see a large number of Palestinian children with their parents in the wards; it is hard to miss them.

No one doubts that the citizens of Gaza are having a terrible time, but Israel cannot be held wholly responsible for this unhappy situation.

8.03 pm

Lord Hylton: My Lords, I have visited Gaza twice in recent years and there can be no doubt that health is now the top priority. This turns on supplies of water, food, drugs and medical equipment. Also, it is essential that Israel should never delay, turn back or arrest the sick so that they die before reaching hospital outside Gaza. We can say with confidence that the blockade of Gaza is an illegal collective punishment contrary to the fourth Geneva Convention, and in fact it is now being challenged by Turkey in the International Court of Justice.

Her Majesty's Government have been pressing for an end to the closure since June 2010 under UN

8 Feb 2012 : Column 327

Security Council Resolution 1860. This is all the more necessary since the exchange of Corporal Shalit. When will the Government achieve what they are asking for? EU sanctions on Israel could surely speed up the process, and of course we recognise that a prosperous Gaza is in Israel's real national interest.

8.05 pm

Viscount Eccles: My Lords, I am sure that the key to the future lies in economic development because at the moment the level of such development in Gaza is very low. I am grateful to DfID for some statistics. In 2006, there were some 100,000 jobs in the private sector, but there are now 30,000. Exports of horticultural products have recommenced to Israel and the West Bank, but they are at a tenth of what they were in 2006. So the challenge is to redevelop the small business sector and export performance which Gaza has achieved in the past. If there is a longer-term future, perhaps it lies in a switch of development finance investment and aid investment by engaging multinational companies sympathetic to the Palestinian cause and acceptable in the region to set up subsidiaries in Gaza. That may be a dream, but it has been done many times before. The people of Gaza have the skills and the education to play their part and the finance is there. It only needs a switch from aid to development finance investment. The future could be positive, but it requires the cessation of both violence and the threat of violence from wherever it comes.

8.06 pm

Lord Janner of Braunstone: My Lords, does this House recognise that Israel is the only long-standing democracy in the whole of the Middle East? In my view, it continues to play an important role in the international community. It is a bridge between Europe and the Middle East, and the instability of the region has always been a major problem for Israel. Last year, Israel's Government continued to relax their restrictions on the Gaza Strip, and this has significantly improved the humanitarian situation there. Gaza's economy has begun to grow and Israel continues to allow Gaza a greater availability of food, medicines, consumer goods and construction materials. Humanitarian support is vital to the suffering citizens of Gaza, and in July last year, Israel's Government approved 13 new projects, including four new clinics and the restoration of five existing hospitals and clinics.

This House must remember that Egypt also has border controls on the Gaza Strip and only reopened its Rafah border crossing on 28 May last year, but there are hundreds of illegal smuggling tunnels under the Gaza-Egypt border that the Hamas regime uses to rain terror over Israeli citizens. Until Hamas denounces terrorism, it must be treated as the supporter of such actions. Israel's security must remain paramount, and it cannot and should not be expected to put its citizens at risk.

Humanitarian aid is vital, and I acknowledge what other noble Lords have said. Some Members of this House will no doubt place all the blame on Israel. Indeed, some have already done so and some who will be speaking after me probably will do so too.

8 Feb 2012 : Column 328

That is an easy, unfair and simplistic view to take. We should continue to support the work of the quartet and other international organisations, but let me make it clear to this House: Israel does not target citizens, unlike Hamas, which sadly does target citizens in many parts of Israel.

8.09 pm

Baroness Tonge: My Lords, the noble Lord, Lord Turnberg, said that this debate was becoming polarised, and indeed it is. It is dividing between those who have been to Gaza, some of us several times, and those who have not and therefore have not seen for themselves what is going on. I would say to those noble Lords who complain about rockets "raining" down on Israel-in fact, there are very few at the moment-that if they want to stop those rockets, lift the siege of Gaza, stop the blockade and recognise the legitimately elected Government of the Palestinians, which includes Hamas.

Huge damage has been done to agricultural land in Gaza. Fifty thousand acres have been laid waste and what land is left is largely polluted and without irrigation. Even the food that it manages to produce cannot be exported in many cases to Israel or the West Bank. As we have heard from the noble Lord, Lord Ahmed, two trucks a day go out to the European Union; and $50,000 a year is being lost to the Gaza economy.

We have heard about the problems created by the fishing limits. Two fishermen were killed and 12 injured recently trying to catch food. Fish within the three-mile limit are poisoned and too small. Catching them wrecks their health and future stocks.

As a consequence of these actions by Israel and other effects of the blockade, Gaza is dependent on aid from the EU and our country. This country alone spends £86 million per year in Gaza and the Occupied Territories. It is morally right to help the people of Gaza, but it is morally wrong that we should have to do it as a result of the actions of the allegedly friendly and democratic state of Israel. We are subsidising the blockade and colluding with Israel in breaking international law. I hope that our Government are aware of this.

8.11 pm

Lord Ahmad of Wimbledon: My Lords, there is a desperate need to resolve the Israeli/Palestinian conflict to ensure everlasting peace across the region.

On the plight of the civilian population in Gaza, I like other noble Lords welcome the easing of elements of the Israeli blockade in June 2010. It has resulted in some visible signs of recovery in Gaza, but is it enough? There remains a desperate need for the further easing of restrictions to movement and access for the sake of the Gazan economy but, more importantly, for its people.

However, achieving what is desired by the majority of citizens, be they Israeli or Palestinian, which is a permanent lasting and peaceful resolution, requires a courageous effort on both sides. I therefore call upon my noble friend the Minister to use his good offices to raise with President Abbas, in his new role as leader of the unity coalition across the West Bank and Gaza, the need to ask Hamas to lay down its weapons and

8 Feb 2012 : Column 329

acknowledge that peace can be achieved only if it recognises Israel's right to exist as a nation. At the same time, I ask my noble friend to raise with the Israel Government the desperate need to raise blockades and restrictions, not just on the borders of Gaza but on the West Bank, to facilitate a fluid access of materials. The freezing of settlement-building also remains an important step forward in building bridges, both literally and in terms of political dialogue.

The easing of restrictions in Gaza has paid some dividends, as I have said. We are seeing hospitals being constructed and schools appearing, as well as a 50 per cent increase in employment, albeit from a low base. I have visited the West Bank and there is hope. It is on that that we should focus. When one sees towns emerging such as Rawabi, near Ramallah, one feels hope for a new dawn. Perhaps I may end with the words of Rabbi Menachem Mendel, who said of the crisis:

"Our only way out is to learn compassion without cause. To care for each other simply because that 'other' exists".

8.13 pm

Lord Judd: My Lords, there is nothing much more fundamental to life than water. We have heard of the disastrous state of water supplies in Gaza, with only 10 per cent of the water coming from the Gaza coastal aquifer, the only source of fresh water in Gaza, being drinkable.

The Strategic Foresight Group pointed out in May 2011 that, at the current rate of depletion, the Gaza aquifer will become unusable by 2016 and damage will be irreversible by 2020. Against this, Israel has approved the entry of materials for only four water, sanitation and hygiene projects in Gaza, with a total value of $3.75 million. A further 13 projects, worth $74.5 million, which would benefit more than 1.4 million Palestinians, are still awaiting approval.

We also know of the damage being done to health, the impact on life expectancy and the disease affecting children. We also know of the stunting of education. We know of the catastrophic effects on production and on trade, and the consequences for employment.

We hear about the constant bombardments of Israel being carried out by elements in Gaza. These cannot be condoned, but every day there is ruthless aggression against the people of Gaza-that is the reality. How is that going to promote moderates in the Government of Gaza who will work constructively for peace? How does that help the people of Gaza to be self-confident? Aggression in any form is not acceptable, but we must recognise that we cannot be held to ransom by the repeated veto by the United States of anything effective which would help bring about a solution. We need to work very hard with our European partners in circumventing the intransigence of successive US Administrations.

8.16 pm

Lord Pannick: My Lords, people outside this House may be puzzled at the fact that, as the latest example of appalling state violence in the Arab world continues

8 Feb 2012 : Column 330

in Syria, noble Lords are yet again debating criticisms of Israel. We do this with astonishing regularity; we do it even though Israel is one of the few countries in the world, and certainly the only country in the Middle East, which protects freedom of expression, freedom of religion, the rule of law and democracy for all its citizens.

These criticisms are made, as we have heard today from many noble Lords, simply without any recognition that Israel is a country whose enemies are seeking to bomb its civilians into oblivion. Such a country is entitled to defend itself by seeking to prevent, as Israel does, the transport of weapons.

A more relevant Question, if I may respectfully say so, than that posed by the noble Lord, Lord Warner, would be to ask the Minister whether he will make representations not to the Government of Israel but to the leaders of the unfortunate Palestinian people living in Gaza. Will the Minister say to those leaders that it is time for them to abandon the futile attempts to secure the destruction of Israel? Will he say to those leaders that it is time for them to focus on improving the education, the health and the prosperity of their people? Will he tell them that it is not Israel which is the obstacle to improving the living conditions of the people of Gaza?

8.17 pm

Lord Triesman: My Lords, there is understandable, tangible concern about the blockade. Provision of only goods defined as,

was always too narrow to provide for a viable society and the needs of a normal life. It is difficult to build a democratic and sustainable society in those circumstances capable of fulfilling any kind of realistic role in a peace process.

The increased movement in recent months of goods and services in and out of Gaza is welcome, but I accept that it is not enough and there is a need for an accelerated programme for step change.

However, your Lordships should feel uncomfortable if that was all that was concluded tonight in relation to the Question of the noble Lord, Lord Warner. Israel's security cannot and will not be wished away on this basis. We know that food, fuel, construction materials, people, cash and even livestock were moved through the network of smuggling tunnels, but they were also the route taken by significant quantities of weapons, particularly many thousands of rockets. Those rockets are routinely fired into Israel. Candidly, neither this Government, the Israeli Government nor any Government could allow such assaults to continue without trying to deny the enemy access to those munitions. No population would ever tolerate having to shield their children or themselves night after night in air raid shelters.

It is of course tragic that preventing these attacks will never easily be focused on the people firing the weapons without there being an impact on the wider population, but I do not accept that taking steps represents a policy of collective punishment. I simply do not accept that that is a credible definition.

8 Feb 2012 : Column 331

We require a balance of these decisive factors. First, a relaxation of the blockade and far greater sophistication in weapons interception is important if the quartet is to be successful. Secondly, every international pressure is needed to ensure that Hamas does not succeed in prosecuting violence against the people of Israel, whose right to a secure state Hamas denies. The peace process will only work if it reaches in both directions.

8.20 pm

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, I congratulate the noble Lord, Lord Warner, on promoting this important debate. As has been remarked on, this is the second time today that we have addressed the issue and we will address it again tomorrow. No one can accuse your Lordships of lack of focus or interest. I know that for many speakers it has been a rushed job but it is amazing what punch and wisdom can be put into two minutes. Many wise and effective points have been made-of course, not all of them agreeing with each other. I will make some points in a general context before coming on to details.

The Government agree that the restrictions on movements of goods and people, including access to agricultural and fishing areas, do tremendous damage to the economy and living standards of ordinary people in Gaza. As a result, industry in Gaza is currently a quarter of what it was before the restrictions and agriculture a half. We recognise and welcome the fact that the volume and range of goods entering Gaza has increased somewhat over the past year but much more still has to be done. In close co-ordination with our European partners and the Office of the Quartet Representative, we will continue to press the Israeli Government at ministerial and official levels to ease access restrictions. When I say we will continue to press them, we maintain an almost daily and continuous pressure and seek responses. In particular, we want an increase in imports of construction and raw materials, both for private sector and international projects; an increase in exports; a relaxation on movement of people, particularly between Gaza and the West Bank; and an extension of the fishing zone from three to 12 miles, which the noble Lord, Lord Warner, and other noble Lords mentioned.

I make this quite clear to those noble Lords who made the point: we understand Israel's legitimate security concerns over Gaza. One could not fail to understand the facts when one sees the amount of rocketry that continues. However, the current restrictions are ineffective in stopping the flow of illicit goods into Gaza. As was graphically described, these goods enter anyway through the tunnels and thereby generate income for Hamas. There are advantages for Israel in reducing the restrictions. In the Government's view, any easing would strengthen the moderates in Gaza and lower the dependency of the population on Hamas. It would provide better opportunities within Gaza for education, jobs and legitimate interactions with the outside world. It is in Israel's long-term security interests to have a stable and prosperous Gaza, which we have certainly not got at the moment

8 Feb 2012 : Column 332

with unemployment well over 28 per cent and youth unemployment at 38 per cent. The figures may well be higher than that.

Like your Lordships, the Government are obviously concerned at the broader human costs of the current situation. We are deeply concerned about the horrific reported shooting of 29 children between March 2010 and December last year near the border fence between Gaza and Israel. We have raised and continue to raise these issues with the Israeli authorities. We are concerned about reports of abuses carried out under Hamas rule in Gaza, including arbitrary detention, mistreatment, intimidation of civil society and the use of the death penalty. As I have already intimated, we are also very concerned at the all too frequent exchanges of rocket fire and air strikes between Gaza and Israel. We consistently urge all sides to show restraint and work to reduce tensions.

I obviously cannot physically cover all the many points raised in the time available. I read with great interest the report of the noble Lord, Lord Warner, on his visit last July with the Council for European Palestinian Relations. It painted a very grim picture. We are concerned at the deterioration in the quality of healthcare in Gaza as a result of Israeli movement and access restrictions, and political and institutional separation between the West Bank and Gaza. The shortage of essential drugs is now critical. We have urged and will continue to urge Israel to enable uninterrupted access for medical supplies, personnel and patients from and into Gaza. The World Health Organisation confirmed the detrimental impact of movement and access restrictions on children's health. There has been an increase in stunting in children under five resulting from malnutrition. Some 65 per cent of mothers of pre-schoolers report a negative impact on their children's mental health.

What are we doing about that? This legitimate question comes up again and again. UK financial assistance has supported the Palestinian Authority to the tune of £87 million in 2009, 2010 and last year. About half of that goes into Gaza to support services there. We work with the UN Relief and Works Agency to provide primary healthcare and hospital care to Gazans. The Relief and Works Agency is delivering real improvements in children's health. That includes 100 per cent immunisation of the under-fives and progress to reduce child mortality. We also support the UN Access Co-ordination Unit to facilitate the transfer of medical equipment and personnel into Gaza. Of course, we work with the European Union and the World Food Programme. I am told that DfID helps 24 UN agencies and 132 non-government agencies. The activity from the United Kingdom to support the people of Gaza in the challenges they face in all those aspects is considerable. I am sure we can always do more. We are always searching for new ways to develop our programmes.

The House can be assured that Her Majesty's Government will continue to work extremely hard with our partners to encourage Israel to ease the restrictions further. We will also continue our important support through DfID for the people of Gaza, as I have just described, including our work to address the

8 Feb 2012 : Column 333

key access constraints, promote economic growth and provide support to the poorest and most vulnerable parts of society. Of course, all these actions are overshadowed by the bigger fact that the longer-term answer to the problems faced by the people of Gaza, and the rest of the Occupied Palestinian Territories, lies in reconciliation.

That includes reconciliation between Fatah and Hamas, resulting in free and fair elections in 2012 and the formation of a new Palestinian Authority composed of independent figures who will continue the excellent work on state-building and uphold the quartet principles. We welcome recent moves in this direction. We are aware of reports that Fatah and Hamas have agreed and that President Abbas will become Prime Minister. It is a bit too early to make a detailed assessment of these changes but in our view it is important that any new Palestinian Authority should be composed of independent figures, will uphold the principle of non-violence, is committed to a negotiated, two-state solution and accepts the previous agreements of the PLO. We also look to the Palestinian Authority to continue the important progress on state-building achieved in recent years. We have made it consistently clear that we will engage with any Palestinian Government who show, through their words and actions, that they are committed to the above principles.

We also welcome the aim of reconciliation between Israelis and Palestinians. That is what we must work for. We encourage both sides to build on their recent talks in Jordan. We will continue to do all we can to support and encourage negotiations which lead to a sovereign, viable and contiguous Palestinian state, living in peace and security alongside a safe and secure Israel and its other neighbours in the region. When those conditions develop, the people of Gaza and their present condition can really, tangibly improve. Until we have those conditions, we will be prevented from moving in the right direction. I do not have time to go into the wider issues of the Middle East peace process or the many problems that trouble your Lordships, such as the settlements issue that continues to be, in our view, an illegal operation. I hope that I have indicated our determination and hands-on approach to the problems. This is one of the sores and tragedies of the modern world that can be resolved with determination, if we really work hard to do so.

8.30 pm

Sitting suspended.

Health and Social Care Bill

Report (1st Day) (Continued)

8.35 pm

Amendment 6

Moved by Lord Hennessy of Nympsfield

6: After Clause 2, insert the following new Clause-

"The Secretary of State's duty as to the NHS Constitution

After section 1A of the National Health Service Act 2006 insert-

"1AA Duty as to NHS Constitution

8 Feb 2012 : Column 334

"(1) In exercising functions in relation to the health service, the Secretary of State must have regard to the NHS Constitution.

(2) In this Act, "NHS Constitution" has the same meaning as in Chapter 1 of Part 1 of the Health Act 2009 (see section 1 of that Act).""

Lord Hennessy of Nympsfield: I shall speak also to Amendment 150, which is in my name on the Marshalled List. These amendments are a product of the conversations chaired by my noble friend Lord Laming, designed to bring the highest possible level of consensus to what the noble Earl, Lord Howe, calls the suite of clauses dealing with the accountability of the Secretary of State. I am very grateful to my noble friend for his sensitive chairmanship of the discussions and to the Minister for generously accepting the argument-that the special essence of the National Health Service as distilled in the NHS constitution be enshrined in the Bill.

With this new status, the NHS constitution will shine even more, both as a beacon for all involved in healthcare, whatever their place in the proposed new mixed economy of service provision, and as a statement of enduring values, which occupy such a central place in how we wish our services to be undertaken and how we conceive of ourselves as a people.

I shall not detain your Lordships long, as I am confident that these amendments, for all the friction and division that other clauses have generated, are ones that embrace the views of the vast majority of your Lordships as they do the country they serve. But I must also express my gratitude to the noble Lord, Lord Darzi, and his colleagues in the last Labour Government, for commissioning the wide consultation whose streams of thought fed into the NHS constitution when it first appeared in January 2009. It managed to contain the key principles in seven well worded paragraphs, which I shall not recite as your Lordships have the text to hand and will be familiar with its ingredients.

The Bill, when an Act, will take a great deal of bedding down, and it will take the second coming for the rifts between the political parties and the anxieties expressed by so many health professionals to be assuaged-and perhaps not even then. However, with the NHS constitution in its prominent place towards the top of the statute, we shall have a touchstone, not just for aspiration and inspiration but for behaviour and conduct, a shared talisman for the tougher moments when the implementation of this Bill throws up its inevitable problems and controversies. When we find a lustrous patch of consensus on the NHS's road from 1948, as represented by the NHS constitution, we should cherish it through thick and thin, for we are never better as a country than when we concentrate on those things that unite us rather than divide us. I beg to move.

Baroness Thornton: My Lords, I am very pleased to put my name to this amendment and I congratulate the noble Lord, Lord Hennessy, on his tact and diplomacy in getting us to this point, and in getting agreement to have the constitution mentioned in the Bill, and in such a prominent part of it. In preparing a few supportive remarks, I had a look at the constitution because I was working for my noble friend Lord Darzi in a similar

8 Feb 2012 : Column 335

role to the one the noble Baroness, Lady Northover, has-as his support and his Whip-when we were working towards the constitution, and when it was discussed and adopted across government and Parliament.

The importance of having it in the Bill is there in various key parts of the constitution, which are worth mentioning on the record here because we need to remember them as we move forward to discuss this Bill in all its glory in the next five or six weeks, or however long it takes us. The constitution says:

"The NHS is founded on a common set of principles and values that bind together the communities and people it serves-patients and public-and the staff who work for it".

It goes on to say that it,

It says:

"All NHS bodies and private and third sector providers supplying NHS services are required by law to take account of this Constitution in their decisions and actions".

That is a very important part of why this needs to be in the Bill.

The final part which I would like to draw to your Lordships' attention is point 6 of the guiding principles in the constitution, which is a commitment,

That is exactly right. It is not the shareholders of companies and not individuals who might seek to make a profit but the people whom the NHS serves, and the taxpayer.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I am very grateful to the noble Lord, Lord Hennessy, for tabling these important amendments and for the eloquent way in which he introduced them. As he said, they seek to require the Secretary of State to have regard to the NHS constitution when exercising his functions in relation to the health service. I say to him in all sincerity that I very much welcome his contribution throughout this debate. I identify myself entirely with the enthusiastic remarks that he addressed towards the constitution itself, which is a most succinct and inspiring document, and I agree with him that we have reached a very workable and satisfactory outcome to the question that he originally posed to me and to the House.

I fully support these amendments. It is right that we continue our commitment to the principles set out in the NHS constitution. I hope that these amendments together provide noble Lords with reassurance of the Government's continued commitment to the core principles and values to which the noble Lord and the noble Baroness have referred. I commend them to the House.

Lord Hennessy of Nympsfield: I am grateful to the noble Baroness, Lady Thornton, and the noble Earl, Lord Howe, for their kind remarks. Earlier, a noble Lord-I forget who-thought we were mired in the treacle of consensus. All I can say is: long may we be stuck in this particular pot of treacle.

Amendment 6 agreed.

8 Feb 2012 : Column 336

Clause 3 : The Secretary of State's duty as to reducing inequalities

Amendment 7

Moved by Baroness Finlay of Llandaff

7: Clause 3, page 2, line 40, at end insert-

", and

(b) the Secretary of State should by regulations set out a clear system of recourse for patients, or other concerned individuals, who do not believe that an equitable service is being commissioned either for their condition or in their locality, or both."

Baroness Finlay of Llandaff: My Lords, the amendment seeks to ensure that there is a system of recourse for patients or other people who are concerned and who do not believe that an equitable service is being commissioned either for their condition or in their locality. One of the difficulties that patients have is to challenge decisions once they have been made without a prohibitively expensive legal challenge. As a result, many decisions are made by commissioners that are effectively unchallengeable, for example on service configurations where the public are not consulted properly or in fact feel that they have not been consulted at all.

Some clear system of recourse is required that will give patients a meaningful chance to challenge decisions that they think are wrong, poorly consulted on or inadequately evidence-based, or that might even have ignored the evidence that is there or the guidance that goes with it. In such an instance, a system of recourse would be to allow people to challenge where they believed that services had not been provided fairly or equitably. I expect that the Minister will say that there is always healthwatch and that they could go to their local one, but how is that loop closed? What are the powers to influence the commissioning decision? How are patients who feel that they have really not been provided with the service that they need able to appeal, be listened to or have a fair hearing? They may be refused or their points may be accepted, but that loop for patients needs to be closed and there need to be clear pathways.

8.45 pm

I fear that just saying that they can go and complain locally, or that they can go to their local healthwatch, is not going to be enough. They may find that they are in a long queue or in a complaints system that they find difficult. I hope that the Minister might respond that guidance and regulations will deal with this and will provide clear pathways for patients and others who wish to question decisions. I beg to move.

Lord Beecham: My Lords, I welcome the noble Baroness's amendment, particularly because it extends the implicit obligations under Clause 3 from the individual to the locality. It includes individual access, of course, but it speaks in terms of an equitable service being commissioned either for the individual patient's condition or in their locality, and that enhances to a considerable degree the provision of Clause 3 and its proposed

8 Feb 2012 : Column 337

amendment to the 2006 Act. The drafting of proposed new Section 1B is a little odd, it might be thought. The intention is clearly good, but,

is a slightly curious phrase. It might be asked, between the people of England and what? The drafting could be improved by the time we get to-actually it will not, as we are on Report. Perhaps it is capable of being improved, let us say.

The noble Baroness has touched on the broader issue of the locality, which raises issues of how the Government might pursue their objectives, which are shared by all sides of the House. There are different organisations in the new structure that will have a responsibility to promote equality, which will include the clinical commissioning groups and the health and well-being boards. Some mechanism ought to provide accountability for both those bodies. In particular, the need to promote equal treatment in a patient-centred service ought to be very much part of the joint strategic needs assessment that should be undertaken by the health and well-being boards, and ought to influence the commissioning. We hope that these regulations will establish that connection and, as the noble Baroness has suggested, lay down a clear structure, though not one that is too prescriptive-a pathway, as she usefully put it, for patients, individually or, as it were, collectively, to raise the issues that concern them through healthwatch.

There is another route that I hope the noble Baroness will agree would be helpful. Local authorities retain the duty of scrutiny of local health services. For that matter, inequalities can arise on the social care side of the health and social care world. Local authorities therefore provide an additional route that would repay further consideration. It ought to be feasible for a health and scrutiny committee, and I serve on one in my own authority, to have regard to the level and type of complaints regarding not only equitability but the standard of service in all parts of the health and social care services in that locality. Therefore, it would be useful if the Minister could liaise with the Local Government Association, perhaps to produce some kind of working model for dealing with this aspect. For example, it may be that the Centre for Public Scrutiny could, in conjunction with the department, the LGA and HealthWatch itself, representing patients, come up with a model that authorities could adopt and promote among their populations to provide clear recourse for dealing with difficulties and complaints about either individual treatment or collective provision that is a matter of local concern.

I hope the Minister will accept the thrust of the amendment and, even if it is not built into the Bill, that action can be taken to fulfil the aspirations that the noble Baroness has outlined.

Lord Willis of Knaresborough: My Lords, briefly, I should like some clarification on this amendment, and I hope that the Minister will be able to provide just that in summing up. There seems to be a real difficulty here. The architecture of the Bill says that we should have a Commissioning Board and local commissioning

8 Feb 2012 : Column 338

groups, and that those local commissioning groups will have a great deal of autonomy over the services that they commission-for example, the drug pathways that they permit-in treating particular patients. This amendment appears to say that if the treatment given through the commissioning pathway of one commissioning group is different from that of another commissioning group, you would therefore have recourse to action if you felt, for instance, that the drug regime in one group was unacceptable. Perhaps I could have clarification on that. It is important because there will be that sort of difference in provision, regardless of whether we agree to the local commissioning group position.

Lord Northbourne: My Lords, I intervene briefly to support the noble Baroness, Lady Finlay, because I believe that there will be real problems. The immense complexity of the Bill will lead to tremendous delays and a great deal of misunderstanding among people who feel, rightly or wrongly, that they have failed to get the service or treatment to which they are entitled. I hope the Minister can say something about the possibility of some sort of short-circuit response, whereby people who feel that they have been ill treated can, if necessary, have some kind of help and encouragement to make contact with the right people to resolve their problem.

Earl Howe: My Lords, this has been a very useful short debate. As the noble Baroness, Lady Finlay, said, her amendment seeks to provide appropriate recourse for individuals who believe that the commissioning of services for either their condition or their locality is inequitable. It would insert a new paragraph in the Secretary of State's inequality duties. The noble Baroness spoke with considerable persuasiveness on this amendment but I will suggest to her that it is unnecessary and explain why.

The Bill and existing legislation already provide a number of mechanisms for exactly the kind of recourse that the noble Baroness seeks. She foresaw that I would talk about local healthwatch and I will. Local healthwatch, which will replace local involvement networks from April 2013, will provide local people with the opportunity to have their views on their needs and experiences made known to commissioners and providers of health and social care services and others. One of the roles of local healthwatch will be to make reports and recommendations about how local care services could or ought to be improved. To ensure that these have real clout, the Bill requires the people who receive such reports and recommendations, such as the NHS Commissioning Board, to have regard to them in exercising any function relating to care services.

We then have a further avenue for recourse because HealthWatch England will also provide the NHS Commissioning Board, among others, with the views of people on their needs for, and experiences of, health and social care services and on the views of local healthwatch and others on the standard of provision of services and on whether or how the standard could or should be improved. Where the board is provided with advice, it must inform HealthWatch England of its response, or proposed response, to the advice.

8 Feb 2012 : Column 339

However, if an individual feels that a CCG, or the board, or any other body in the future health service, has neglected their responsibility with regard to tackling inequalities, they can do several things. They may raise the matter directly with the organisation itself, specifically by pursuing a complaint through the NHS complaints procedure. Where not satisfied with the response at a local level, they may refer the matter to the Health Service Ombudsman. As a last resort-I emphasise "last resort" because I do not want noble Lords to feel that this process would be run of the mill-as the NHS constitution makes clear, should an individual feel that local resolution has not been possible, and in the event that the Secretary of State or an NHS body is failing to comply with its legal duties, there would be a right to seek legal redress by means of a claim for judicial review.

There is a central issue here. CCGs will be under a statutory obligation to arrange for provision of care to meet the reasonable requirements of the people for whom they have responsibility. The local authority's health and well-being board, the membership of which will include the CCG or CCGs, will assess local population needs, and will develop a strategy to meet those needs. Local healthwatch will also be a member of that board and be able to input into the strategy. There will be a duty on the CCG, the local authority and the NHS Commissioning Board to have regard to the relevant assessment and strategy when exercising functions. This would include the function of preparing commissioning plans. The NHS Commissioning Board will have a duty to perform an annual assessment of how well each CCG has fulfilled its duties in the previous financial year. This will include, in particular, an assessment of how well it has taken account of assessments and strategies under Section 116B of the Local Government and Public Involvement in Health Act 2007.

My noble friend Lord Willis rightly said that we should expect that there will be differences between CCGs in their commissioning policies. Of course he is right, because each CCG will be bound to formulate policies for commissioning that reflect the needs of their constituent populations. I do not think that we should shy away from variation that is considered and that genuinely reflects that diversity in population. What we do not want, clearly, is postcode and random variations which have no relationship to the needs and requirements of local patients.

We should not forget either that the Health Service Commissioner has power to investigate complaints that are not resolved locally and to make recommendations as a result of those investigations. It is very rare for those recommendations not to be implemented but, in extremis-and this is not often done-the Health Service Commissioner is able to lay a report before Parliament.

We believe, therefore, that there is already a clear system of recourse where patients are concerned that an equitable service is not being commissioned either for their condition or their locality, and the Bill strengthens the ability of patients to make their views heard. The Bill also introduces, for the first time ever, duties on the Secretary of State and commissioners to have

8 Feb 2012 : Column 340

regard to the need to reduce inequalities, and amendments we have tabled would ensure that they would have to report on how they had fulfilled those duties.

With those remarks in the round, I hope that the noble Baroness is perhaps more reassured than she was at the outset of the debate, and that she will be willing to withdraw the amendment.

9 pm

Baroness Jolly: Before the Minister sits down, will he clarify whether the same processes that he has just outlined would apply to people in receipt of specialist services that are commissioned by the NHS Commissioning Board, not by local CCGs?

Earl Howe: My Lords, where a service is commissioned by the NHS Commissioning Board-and let us imagine that it is a specialised service-the patient's recourse should be to the board. However, of course, the board will be represented at a local level rather than only centrally, and we expect that the board will be represented in health and well-being boards and in the discussions that take place there. It would therefore be possible for a patient to address their concerns, in the first instance, to the health and well-being board, which would have the ability and power to communicate directly with the NHS Commissioning Board, if that was felt to be appropriate. However, as I said, the patient would be able to go straight to the board in those circumstances.

Lord Harris of Haringey: I appreciate that this is very bad manners, given that I missed most of the debate. The Minister has just said-although perhaps I misinterpreted him-that the NHS Commissioning Board will have a representative on every local health and well-being board. If so, how will those individuals be known or accountable? Is that not the most extraordinary bureaucracy? He seems to have made a most extraordinary statement.

Earl Howe: My Lords, we are at Report stage and I hope that the noble Lord will forgive me if I do not reply at length. The point I was seeking to make was not about representation on the board but involvement in the health and well-being board's wider deliberations. It is entirely open to a health and well-being board to invite a member of the Commissioning Board to be a permanent member, but I am not saying that we are prescribing that.

Baroness Finlay of Llandaff: Perhaps I may seek a tiny bit of clarification. The noble Earl spoke about the ombudsman as being almost a final port of call. Will the Minister confirm that the ombudsman would have the ability to investigate any organisation that is providing services to patients if it is in receipt of any NHS money whatever-not only if the care for an individual patient is commissioned from it but if it is receiving a block grant? In particular, I have in mind services such as those provided by hospices that may be receiving a block grant but do not have a specified contract per patient, and it may be that its patients want to question what is going on or that they have a concern that they wish to express and take further. Apart from the local complaints service within the

8 Feb 2012 : Column 341

organisation, it is really important that such patients have the same ability as other patients to have oversight through the ombudsman. I know that we have discussed this previously, and I am seeking clarification today on that issue.

Earl Howe: The answer to the noble Baroness is that all NHS-funded care would come under the umbrella of the ombudsman. It is not about organisations; it is about whether that person is or is not an NHS patient and about the care that they are receiving as an NHS patient.

Baroness Finlay of Llandaff: This is Report; I do not want to and fro. I will assume that that covers part-funding of care by charities as well as where care is fully funded by the NHS, so the same will apply.

I am grateful to the Minister for setting out the processes so clearly. It will be very helpful for patients, patient groups and charities in particular to see that laid out. For clarification, of course there will be local variation, different drug regimes and different ways of doing things. Equipoise is around the evidence base. The problem is where there is no provision or gross differences. That is where patient groups are concerned. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

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

Amendment 8

Moved by Earl Howe

8: Clause 4, page 3, line 5, leave out from "must" to end of line 6 and insert "have regard to the desirability of securing, so far as consistent with the interests of the health service-"

Earl Howe: My Lords, I shall speak also to Amendments 9, 34, 53 and 54.

This group of amendments deals with the role of the Secretary of State in the health system. As noble Lords will be aware, our proposals for the NHS involve a fundamental shift in the balance of power away from politicians to patients themselves and to doctors and other professionals. Greater local autonomy is one of the key things that will enable local front-line services to become more responsive and innovative, in turn delivering greater efficiency and quality. The Bill makes clear that Ministers are responsible, not for direct operational management, but for overseeing and holding to account the national bodies in the system-backed by extensive powers of intervention in the event of significant failure.

The amendments we are debating here cover some of the key concerns raised by the Constitution Committee and Peers from across the House, as part of our wider discussions about ministerial accountability. These are the autonomy duties on the Secretary of State and the Commissioning Board and the link between the functions of clinical commissioning groups and the Secretary of State's duty to promote the comprehensive health

8 Feb 2012 : Column 342

service. I will speak to each of the amendments tabled in my name, as well as the amendments tabled by the noble Baroness, Lady Thornton, which seek to remove the duties of autonomy on the NHS Commissioning Board and the Secretary of State.

Amendments 8 to 10 and 52 to 54 concern the autonomy duties placed on the Secretary of State and the board. Government Amendments 8 and 53 re-phrase the duties of autonomy on the Secretary of State and the Commissioning Board as duties to,

autonomy, rather than duties to,

such autonomy. The desirability of autonomy is therefore a factor for the Secretary of State and the board to consider when exercising their functions, rather than an end which they must seek to secure or promote. That should allay the fears of those who felt that the autonomy duties would prevent Ministers and the board intervening when they needed to.

In addition, changing to a duty to have regard necessarily means that the autonomy duties are subsidiary to the primary duties of the Secretary of State in Section 1 of the NHS Act: to promote the health service and to exercise his functions so as to secure the provision of services. To that extent, there is no further need to state that the duties of autonomy are "subject to" his Section 1 duties. However, government Amendments 9 and 54 make a further change to address this point. Rather than simply say that the autonomy duty is "subject to" the duty of promoting the comprehensive health service, they set out an explicit test, which makes clear that promoting the health service and securing the provision of services takes priority over autonomy, if there is ever a conflict between the duties. We think that this more clearly indicates how the Secretary of State and the board should resolve any tension between autonomy and the interests of the health service. I hope that noble Lords will agree that this provides helpful clarity and avoids any possible doubt.

Having said that I would address the amendments of the noble Baroness, Lady Thornton, I think that on reflection it would be discourteous of me to do so before she has introduced them. I shall therefore retain my remarks for later in the debate if she chooses to speak to those amendments. Meanwhile, I beg to move.

Lord Marks of Henley-on-Thames: My Lords, perhaps I may explain why I support the Government's amendments on the autonomy clauses to which I have added my name-that is, Amendments 8, 9, 53 and 54.

The autonomy clauses were at the heart of the Government's consultation with other noble Lords about the Secretary of State's duties. During Committee and thereafter, at the very helpful discussions that we have had with my noble friend the Minister and with Peers across the House and, indeed, at the meeting of lawyers in which I took part with my noble and learned friend Lord Mackay, the noble and learned Baroness, Lady Scotland, and the lawyer advising your Lordships' Constitution Committee, a substantial consensus was reached.

8 Feb 2012 : Column 343

The concerns that we sought to address, which I regarded then and still regard as significant, were twofold. The first was that I believed there would be an inherent conflict between, on the one hand, the Secretary of State's duties under Clause 1 to promote a comprehensive health service and to exercise his functions so as to secure services and, on the other hand, an unfettered duty to promote the autonomy of others. Secondly, if the Bill went unamended, there would exist a risk that a Secretary of State who was unwilling to intervene when things went wrong would be handed a justification for inaction. Such a hands-off Secretary of State could say, "I will not intervene because I am bound by my duty to promote autonomy". In my view, with the Bill as it stands it would be very difficult to mount a successful legal challenge to such a failure to intervene.

Those were the two flaws in the Bill that the amendments were required to address. In relation to the board, the unamended Bill was flawed in exactly the same way as it is in relation to the Secretary of State.

The consultations that we held outside the Chamber during Committee led to the formulation of the Government's amendments. As the Minister has pointed out, the effect of Amendments 8 and 53 is that the duty to act with a view to securing autonomy is reduced to a duty to have regard to the desirability of securing it. That is still subject to the limitation that the duty applies only so far as it is consistent with the interests of the health service. Therefore, what is currently an absolute duty to follow the autonomy line is to be replaced with a more nuanced and, I suggest, a more appropriate obligation to accord to the desirability of autonomy its proper place in the balancing exercise which all discretionary decision-making involves.

However, it is Amendments 9 and 54 that are decisive in addressing the concerns that we identified. Those two amendments provide that in the case of conflict between the Secretary of State's or the board's duties in relation to autonomy and their overarching duties under Clause 1 or the board's overarching duties to secure the provision of services, those overarching duties will prevail. Those four amendments taken together fully address the two flaws of which I spoke and, I suggest, completely resolve the issues that they pose.

I turn now to the two amendments of the noble Baroness, Lady Thornton, directed at deleting the two autonomy clauses. Indeed, at the earlier stages of this process, I believed that the autonomy clauses could and should be deleted from the Bill. However, my view now is that with the problems that they presented having been addressed, we should support the government amendments and retain the two clauses as amended. Promoting autonomy is, in principle, to be welcomed as many who have spoken from all sides of the House both on Second Reading and in Committee have stressed. It is fundamental to the architecture of the Bill, and its great merit that it establishes a clear, decentralised structure for the health service. It is entirely welcome that future commissioning decisions, in particular, will be made locally to meet local needs, locally assessed.

8 Feb 2012 : Column 344

9.15 pm

A number of Peers have spoken of the need to avoid micromanagement and of the desirability of expressing that in the Bill. There was much discussion as to whether micromanagement was a word that could be usefully employed in legislation. The Government's amendments maintain the commitment to avoiding micromanagement but do so in a way in which the flaws in the unamended Bill are rectified. I suggest that they represent an elegant and effective solution to a difficult and challenging problem. I believe that the way in which this solution has been reached brings great credit to this House, as others have said today. I should like to say how much I have personally appreciated the opportunity to work with my noble friend the Minister, and officials and draftsmen from his department, as well as other Peers from across the House who have all brought us to this compromise. These are amendments that we can support and not lose the commitment to avoiding micromanagement. That would disappear if we accepted the amendments tabled by the noble Baroness, Lady Thornton, so we should oppose them.

I briefly express support for Amendments 34 and 35, which neatly tie in the CCGs into the Secretary of State's duty under Clause 1 and the objectives and requirements stipulated by the Secretary of State for the board. In that way, the line of responsibility from the Secretary of State through the board to the clinical commissioning groups exercised through the mandate is maintained and clarified. This has been very important because the amendments embed the mandate in the line of responsibility by which the Secretary of State exercises his constitutional responsibility for the provision of the health service. It is also consistent with the new arrangements for provision introduced by the Bill.

This establishment of responsibilities was something that we were very concerned to see in the Bill. Again, it is a tribute to the House that the procedures we adopted have achieved a structure that is both clear and internally consistent, while being effectively co-ordinated.

Baroness Jay of Paddington: My Lords, the House will be aware that the second report of the Constitution Committee on this Bill suggested amendments in this area, precisely for the reasons well outlined by the noble Lord, Lord Marks, and as expressed by the Minister. We were concerned that the way in which the Bill was originally framed would dilute that line of responsibility through the Secretary of State and that the provisions on autonomy were such that that link would be broken, or at least threatened.

I wish to explain briefly why, although the committee produced amendments that are very similar to the ones tabled by the Government and supported by the noble Lord, Lord Marks, I have not put my name to them. That is simply because the wording of the government amendment is not as simple as the one that the Constitution Committee supported and wished to see in the Bill. We suggested:

"Subject to sections 1(1) and 1(3)",

which we discussed on government Amendment 5,

8 Feb 2012 : Column 345

et cetera. Clearly that is very close to the wording of the amendment tabled by the Government. The Constitution Committee is particularly grateful for the phrase "having regard to", as the Minister has explained. We were not in a position to discuss the change in formulation that has occurred, and we have yet to listen to my noble friend Lady Thornton, but as there were members of the committee who, like me, would prefer to see this clause deleted, I have not put my name to this amendment although I understand that it is very close to the one that the committee originally suggested.

Baroness Finlay of Llandaff: My Lords, I wish to raise some questions because I have put my name to the amendment suggesting that Clause 4 be deleted. The Government's guidance notes published with the amendment that has been tabled appear to make the duty of autonomy subject to the Secretary of State, but there is ongoing concern that there remains the risk that the clause could be used by clinical commissioning groups to justify not providing a full range of services or putting inappropriate services out to tender. While local organisations should have the freedom to respond appropriately to the health needs of the population, local commissioners should not be able to act totally autonomously and commissioners must have regard to national guidance. In his closing summary, the counsel to the chair in the Francis inquiry pointed out that there is a need for far greater standardisation of operating and quality standards in the NHS and close monitoring of compliance.

Next Section Back to Table of Contents Lords Hansard Home Page