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House of Lords

Wednesday, 29 February 2012.

3 pm

Prayers-read by the Lord Bishop of Liverpool.

Health: Mesothelioma

Question

3.06 pm

Asked by Lord Alton of Liverpool

The Minister of State, Ministry of Justice (Lord McNally): My Lords, based on the data available to us, it appears that the vast majority of mesothelioma claims against the state settle rather than proceed to the courts. While we do not collect centrally data relating to costs in individual categories of cases, there is no evidence to indicate that these cases differ markedly from other personal injury cases, either in cost to the Exchequer or in the costs of bringing them.

Lord Alton of Liverpool: I am grateful to the Minister. Will he demolish two myths? The first is that these cases are legally aided, which they are not, and, secondly, that they are part of a compensation culture, which they are not-given that there have been 30,000 deaths from mesothelioma. Would it be possible in any circumstances to fake such a disease? Instead of confiscating, as the Government intend to do, some 25 per cent of the modest compensation awarded to a terminally ill victim, why not consider other ways, such as fixing success fees-as has been done for industrial disease claims-without using asbestos victims as a rod to discipline solicitors or to aid and support the insurance industry?

Lord McNally: My Lords, the noble Lord uses strong words. Of course I do not believe that victims of this dreadful disease are in any way part of a compensation culture. He is quite right to say that legal aid for these kinds of cases was removed by the previous Administration in 2000. However, his strictures on what we are trying to do on this are too harsh. First of all, there is no compulsion on solicitors to charge any success fee, let alone 25 per cent, which is the maximum they can charge. The reforms that we are proposing upgrade the costs awarded by 10 per cent and protect a large amount of that compensation for future care. It is therefore not fair to term our reforms in the way that the noble Lord described, but I am pleased to make the clarifications that he asked for.

Lord Bach: My Lords, will the Minister confirm that the Government's civil justice proposals mean that mesothelioma sufferers may have to pay 25 per cent of their general damages, plus their special damages for past loss, which, because of the length of these cases, can be very significant? Given that these sufferers

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may die in a short period of time, why will the Government not back the principle that hard-working people who have done nothing wrong should receive their full damages and not a penny less?

Lord McNally: The noble Lord keeps on picking these cases to support. The fact is that the previous Government removed legal aid from these cases, as was pointed out-not many cheers for that. As to the package that we have put together, as I said before there is no compulsion on solicitors to demand a 25 per cent success fee from these people. Solicitors still get their full fee; we are talking about the maximum success fee that they can get. We are putting in place a system that deals with a real abuse in the costs of these cases that crept in after the reforms that the noble Lord's party introduced in 1999. We are simply returning to the system as originally brought in by the previous Government. We think that that worked well and will work well again.

Lord Avebury: My Lords, it is clear from their response to the Jackson committee report on civil litigation that the Government's main objective is to save money. Does my noble friend acknowledge that in the case of mesothelioma sufferers, they do that by deterring people from making genuine claims? Does he also accept the estimate in the London Economics report on the fiscal impact of the Jackson proposals in the area of employers' liability that the net loss to the Exchequer of the proposals is £70.2 million a year? If not, can he place a note in the Library of the figures that the Government would substitute for those in the Jackson committee report?

Lord McNally: My Lords, we are in no way deterring people from making claims for this terrible disease. We fully acknowledge that a large number of people have been diagnosed as sufferers. Even more tragically, the estimate is that many more will be diagnosed over the next 30 years. That is the terrible nature of this affliction. We have been trying to lower the bar to litigation. As I said, most cases, certainly against government bodies, are settled before they get to court. The Department for Work and Pensions has undertaken various initiatives to make it easier for claimants to trace their employer's insurers. Discussions are being held with stakeholders to determine what more can be done for sufferers. The High Court is introducing a fast-track procedure so that these cases can be dealt with more easily.

I understand why noble Lords are campaigning on this, but I do not think that the charge that we are trying to victimise the sufferers in some way really sticks.

The Lord Bishop of Liverpool: My Lords, is the Minister aware of the landmark judgment won in the Supreme Court recently by the president of the Liverpool Law Society about compensation for this disease? Is he further aware that Mr Jones commented afterwards that, had it lost the case, his firm would face bankruptcy? Will not the Minister reconsider the policy in the light of that experience?

Lord McNally: My Lords, the Supreme Court has removed some of the hurdles for sufferers of respiratory diseases in bringing claims, and that is all to the good.

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We are also progressing with the primary legislation brought forward under the Compensation Act 2006. As I said, Senior Master Whitaker, who oversees these cases in the High Court, has helped to introduce a fast-track procedure, which has been incorporated into a practice direction, ensuring that claims are dealt with as quickly as possible. These are terrible cases. It is right that noble Lords and others, such as the Daily Mirror, campaign for sufferers, but I reject the claim that we are in any way penalising or victimising them by what we propose.

Lord McFall of Alcluith: My Lords, as one who represented many hundreds of mesothelioma sufferers from local shipyards in Scotland, I give the noble Lord some examples of what happened there. Given that court cases were taking two years and the average life of sufferers was 18 months, the Lord President was approached and he decided to designate a judge to look at those cases in particular, thereby cutting down the waiting time in courts. Also, the Scottish Parliament passed the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill, which took away the iniquitous choice of either sufferers claiming while they were living or their relatives waiting until they died before making a claim. By adopting these two measures, the Government could, at a stroke, save themselves money, save court time and produce a more humane way of treating the sufferers of this terrible disease.

Lord McNally: I fully appreciate the noble Lord's concern arising from his experience as a Member in the other place. One thing that we have been trying to do-the previous Administration also initiated this-is to speed up these cases. As I mentioned before, perhaps taking the lead from the Scottish example, Senior Master Whitaker oversees these cases in the High Court and brings his expertise to the whole matter. However, perhaps I may give one example of misinformation. The Daily Mirror suggested that up-front insurance of £2,300 would have to be paid. The reforms that we are bringing in remove that burden on sufferers. Therefore, I think that a proper, balanced look at our reforms would make some of the accusations made today seem very unfair indeed.

Caribbean Nations

Question

3.16 pm

Asked by Baroness Benjamin

The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, the Government are committed to maintaining and strengthening our excellent relationship with the Caribbean. The Foreign and Commonwealth Secretary led a strong delegation of Ministers, senior officials and businessmen to the UK-Caribbean Ministerial

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Forum in Grenada in January. At that forum an action plan was agreed with the Caribbean nations that will benefit both the region and the United Kingdom. This plan focuses on security, economic resilience and sustainable development.

Baroness Benjamin: I thank my noble friend for that encouraging Answer. However, I am sure he is aware that the Caribbean nations are feeling very vulnerable at the moment, partly due to the unfair air passenger duty and the crippling EU banana and sugar agreements. Also, an increase in drug trafficking is corrupting the area. Can my noble friend tell the House when the fine words that came out of the UK-Caribbean forum will be put into action to avoid Caribbean nations having perhaps to turn to untested friendships for support?

Lord Howell of Guildford: I assure my noble friend that the decisions reached at the forum will lead to action. A new strategic partnership has been agreed with the forum and we have undertaken to engage the Caribbean nations before every G20 and OECD to see that their interests are at the fore. As my noble friend knows, there is a large DfID programme. We want to make the European economic partnership agreement really work and we will press our EU colleagues on that front. As for the APD issue, I agree that this is contentious and difficult. It was agreed at the forum to continue the dialogue on APD-related issues and we are open to further discussion. For the time being, it has been decided to retain the existing banding but, as I said, this matter is very much in our minds.

Lord Tomlinson: Is the noble Lord aware that this year is the 50th anniversary of Jamaican independence? In view of the large number of Jamaicans forming a diaspora in this country, can he say whether Her Majesty's Government have any plans to celebrate that anniversary and what form it will take?

Lord Howell of Guildford: This is obviously a celebration in which we wish to participate. To mark the Diamond Jubilee this year-which of course is not the same as the anniversary to which the noble Lord has referred-Prince Harry will visit Jamaica and the Earl and Countess of Wessex will visit a whole range of other islands in the Caribbean. I think that that is all I can tell the noble Lord about the matter at the moment but it is very much in our minds.

Lord Boswell of Aynho: My Lords, does the Minister consider it important that there should be a continuing and visible Royal Navy presence in the area?

Lord Howell of Guildford: Yes, we agree that there should be. A Royal Fleet Auxiliary Ship is there all the year round. It has a royal naval presence on it for six months of the year, and it has had some success. The noble Lord is absolutely right.

Lord Harrison: Will the Minister report on the levels of trade between the United Kingdom and the Caribbean and whether it is on an upward or a downward

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trend? Can he further report whether he has confidence in the Commonwealth Business Council to promote that trade?

Lord Howell of Guildford: On the second point, we have both confidence and hope: the Commonwealth Business Council has gatherings in the Caribbean and is very much on an upward trend as an organisation. As the noble Lord will know, down at the Heads of Government Meeting in Perth, which was attended by most of the Caribbean nations, there was a vast concourse and an enormous deal-flow generated by the Commonwealth Business Council. So I think that it can certainly help. As for direct bilateral trade between this country and the Caribbean region, it is the biggest chunk of trade of the whole area, taken for Caricom as a whole. It is, I think, on a steady upward trend, and it is one that we certainly intend to encourage.

Lord Phillips of Sudbury: Can my noble friend tell the House whether there are plans to renegotiate any of the tax arrangements between this country and those Caribbean countries that are tax havens?

Lord Howell of Guildford: I cannot give a specific answer, but these matters are always under review.

Lord Morris of Handsworth: My Lords, I note the Minister's reply that Prince Harry intends to visit Jamaica as part of the 50th anniversary celebrations. Would it not be more economical if the newly elected Prime Minister of Jamaica, the right honourable Portia Simpson-Miller, were invited to visit the United Kingdom?

Lord Howell of Guildford: The more exchange of invitations and the more visits on both sides-which would certainly be very welcome-the better. I cannot give a specific response to the noble Lord's suggestion, but the more we travel between our regions and the more we understand dialogue together the better the future will be for both the UK and the whole Caribbean region.

Health: Pneumoconiosis

Question

3.22 pm

Asked by Lord Wigley

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): In the year from April 2010 to March 2011, 2,820 payments were made in total under the Pneumoconiosis Etc. (Workers' Compensation) Act 1979. We are not able to identify how many payments were made specifically in respect of former slate quarrymen.



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Lord Wigley: My Lords, the Minister will clearly be aware that, while the 1979 pneumoconiosis Act was primarily triggered by the plight of slate quarrymen who were unable otherwise to secure compensation for industrial lung diseases they suffered, most of the beneficiaries have, quite fairly, been from other industries. Is he aware that while some coal-miners suffering emphysema and chronic bronchitis have secured compensation under the 1979 Act, former slate quarrymen suffering emphysema and chronic bronchitis-which are equally endemic in slate quarrying as in coal-mining-cannot be compensated under the Act? Will he discuss this with fellow Ministers so that this small but long-suffering group of slate quarrymen can achieve the justice to which they are equally entitled?

Lord Freud: My Lords, I was not aware of this discrepancy, so I will go back and have a look at exactly what is behind it, because I just do not know.

Lord Roberts of Conwy: My Lords, as many of us will know, many of the sufferers from pneumoconiosis were victimised by avaricious lawyers and lost a substantial portion of their compensation awards. Was that money ever recovered and returned to the proper beneficiaries?

Lord Freud: Again, my Lords, I am regrettably not an expert in that matter. As far as I am aware, there was not any movement to restore it, but I will have a look and write to the noble Lord on that matter.

Lord Morris of Aberavon: My Lords, I am encouraged by the statement of the Minister that he will look to see if there is a gap in the legislation that needs to be covered. The Act was one of the proud achievements of the Labour Government of 1974 to 1979. Its intention was to apply generally where there was a problem. In particular, the question of the quarrymen had been raised and pushed forward very strongly. We take pride in having passed the Act and the Minister has encouraged me by saying that he would look for any gaps in it.

Lord Freud: My Lords, I will look at the Act. The 2008 Act and the 1979 Act were intended to help people with this set of diseases. We are very conscious that some people miss out because they cannot trace claims. That is another matter that we are looking at very actively.

Lord Roberts of Llandudno: My Lords, I am grateful for the Act, and of course some who advocated it are present in the Chamber this afternoon. At its height, the Welsh quarrying industry employed some 17,000 quarrymen. As the years have gone by, the numbers suffering from pneumoconiosis and silicosis have fallen. How many people now have been diagnosed with these two diseases, which the Act was introduced to cover?

Lord Freud: As noble Lords may imagine, when I was asked this Question I tried to get more fine detail, but it simply is not available. There is a division between those suffering from mesothelioma and those

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suffering from other diseases; that is the only breakdown that we have. I cannot provide the information that the noble Lord requested.

Lord Morgan: My Lords, perhaps in common with other noble Lords I have members of my family who worked in the slate quarries and died as a result of their employment. When the Act was passed by the Callaghan Government in 1979, Members of the Commons were assured that there would be an equality of authority for workers in the slate quarrying industry-a small, fragmented, rural industry-and those in more powerful and numerous groups working in, let us say, the coal-mining and textile industries. In view of the figures given by the noble Lord, Lord Wigley, can we be sure that those assurances have been met?

Lord Freud: My Lords, the 1979 and 2008 Acts were drawn very precisely to cover certain diseases. I am sure that noble Lords know that these range from asbestosis through mesothelioma, relevant silicosis and other illnesses contracted from cotton, clay, and so forth. The Acts that cover these diseases are very precise. Other industrial diseases are covered by the Industrial Injuries Advisory Council, and industrial benefits are based on those diseases.

Lord Cormack: My Lords, while strongly supporting the pleas made by noble Lords who come from Wales, could I, who represented many thousands of coal-miners in England, emphasise to my noble friend that the problem is by no means confined to the Principality, and that there are people in Staffordshire, Yorkshire and all over England who will want to hear what he says and who will hope for a positive result?

Lord Freud: My Lords, if there are discrepancies between miners and quarrymen, I will go back and look at them. I was not aware that there were such discrepancies. I will look at them and take whatever measures are required.

Lord McKenzie of Luton: My Lords, as we know, one of the challenges of long-latency diseases is the tracing of old employer liability insurance policies. The noble Lord referred to that a moment ago. Will he be more specific about progress on the Employers' Liability Tracing Office, and in particular whether it is now accepted that there should be back-filling of policies to November 1999-the start of the code-rather than applying it only to future policies? Will the Minister also say whether there has been progress on ELIB, the bureau of last resort when employer liability policies cannot be traced?

Lord Freud: My Lords, although there has been silence since the document came out in May 2010, I assure the noble Lord that there has been a lot of activity behind the scenes. I am holding discussions with all the relevant parties and I hope that I am making progress on the matter of tracing. Noble Lords will be aware that when a company disappears some claimants simply cannot find their insurance. That matter is under active discussion.



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Employment: Work Programme

Question

3.29 pm

Asked by Lord McKenzie of Luton

The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud): My Lords, the Work Programme provides personalised support for the long-term unemployed and those at risk of long-term unemployment. By the end of October 2011, 332,000 people were already receiving this support. We will publish the first statistics on job outcomes in the autumn.

Lord McKenzie of Luton: My Lords, I thank the Minister for his reply. As the recent NAO report made clear, the Work Programme has been bedevilled by the speed of its introduction, which included a lack of piloting, going live before the IT was in place, and compiling the business case after the decision to proceed. Perhaps this is why the Government are a little coy about releasing data, although such relevant data as we have show that benefit off-flow rates are down, not up; that referrals to the Work Programme include only a trickle of the hardest to help; and the haemorrhaging of voluntary and community sector providers. Will the Government now at least permit providers to publish their own performance data and, under the Government's own data work programme, arrange for the publication of user satisfaction information?

Lord Freud: My Lords, I must point out that the NAO acknowledged that the Work Programme addressed significant weaknesses of previous programmes; that key elements within it improved affordability and drove value for money; and that it was a significant achievement to introduce it in a year. It is expected to help more people more effectively and for less money than previous programmes. As for information, ERSA has put out some information about what happened to the first cohort. It said that people got into jobs at a rate of between 18 per cent and 23 per cent, which was more or less in line with the expectations of the industry.

Lord German: My Lords, up and down the country there are third sector and charitable organisations supporting the Government in delivering this Work Programme as subcontractors. However, the National Audit Office report shows that many of these subcontractors are concerned about the way they are being treated by the prime contractors, and recommends that the Government should institute a programme of spot checks to ensure that they are fulfilling the standards which I know the Government have put in place. Can my noble friend tell me whether these spot checks have taken place yet, and if not, when are they likely to take place, and will he report to the House?



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Lord Freud: My Lords, we monitor very closely what is happening within each of the prime provider contracts, and we have introduced-I think for the first time by any Government, in this country certainly-a process where the prime providers look after their supply chains, which we call the Merlin Standard. That is the main protection for subcontractors to make sure they are treated appropriately.

Baroness Sherlock: My Lords, when travelling the country with the Riots Communities and Victims Panel, a frequent complaint was that the Work Programme did not have any subregional targets. For example, if you had a couple of wards with very bad unemployment, which could potentially be a reason for future disturbances, a contractor could actually meet all its targets by cherry picking people from other areas who were easier to move into work, and leaving that area untouched. Can the Minister tell the House what the Government are doing about that?

Lord Freud: My Lords, the way that we are trying to reduce the cherry picking, which has been natural in all of the programmes that have been introduced, is to try to fine-tune the financing so that providers are incentivised to help the hardest to help. That is why providers can earn up to £14,000 to help the very hardest to help. If we see problems developing, in that we have not priced accurately, we will need to look at pricing structures, because that is the way to solve the problem.

Lord Knight of Weymouth: My Lords, the Department for Work and Pensions says that, of those referred on to the Work Programme-those unemployed for more than 12 months-30 per cent would get a job anyway, regardless of any intervention. I gather that the minimum contract performance on the Work Programme is to get 33 per cent into work. Therefore, for a difference of only 3 per cent, they can start making a profit. Is it not therefore vital that there is full disclosure region by region or contractor by contractor in real time-that is what is wanted from employers for universal credit-so that we can make sure that those contractors are doing a lot better than a paltry 3 per cent?

Lord Freud: My Lords, this is designed so that people are investing their own money, which they will get back when they start making a return above what would have happened anyway-that is, in the jargon, above the dead weight. We will produce statistics to national statistics standards. Clearly, we can do that only once we can see some results. This is a long-term programme in the sense that you start getting rewards, even your first reward, possibly only after six months of that person being in work. Then you start getting further rewarded as you keep the people in work. The first time we think that it is sensible to have national statistics is around the autumn. That is what that process has come up with. I assure the noble Lord that I am looking forward a lot to showing noble Lords what those figures say. From what I am hearing anecdotally, I think that I shall be feeling very smug at that point.



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Lord McKenzie of Luton: My Lords, perhaps I may ask the Minister to answer the question I posed. Will the Government now permit providers to publish their own performance data?

Lord Freud: My Lords, I thought that I had made that clear. Some performance data have been put out by ERSA. We are discussing with ERSA what kind of performance data it can put out. Clearly, we have to be careful that the information that goes out from the providers cannot undermine what the national statistics will say. That is the issue.

Trusts (Capital and Income) Bill [HL]

First Reading

3.36 pm

The Bill was read a first time and ordered to be printed.

Deputy Chairman of Committees

Membership Motion

3.37 pm

Moved by The Chairman of Committees

Motion agreed.

Legal Aid, Sentencing and Punishment of Offenders Bill

Order of Consideration Motion

3.37 pm

Moved by Lord McNally

Clauses 1 to 8, Schedule 1, Clauses 9 to 23, Schedule 2, Clauses 24 to 30, Schedule 3, Clauses 31 to 37, Schedule 4, Clause 38, Schedule 5, Clause 39, Schedule 6, Clauses 40 to 59, Schedules 7 and 8, Clauses 60 to 65, Schedule 9, Clauses 66 to 83, Schedule 10, Clause 84, Schedule 11, Clauses 85 to 99, Schedule 12, Clauses 100 to 104, Schedule 13, Clause 105, Schedule 14, Clauses 106 to 114, Schedule 15, Clause 115, Schedules 16 and 17, Clauses 116 and 117, Schedules 18 and 19, Clause 118, Schedule 20, Clause 119, Schedule 21, Clauses 120 to 124, Schedule 22, Clauses 125 to 127, Schedule 23, Clauses 128 to 133, Schedule 24, Clause 134, Schedule 25, Clause 135, Schedule 26, Clauses 136 to 143.

Motion agreed.



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Jobseeker's Allowance (Domestic Violence) (Amendment) Regulations 2012

Social Security Benefits Up-rating Order 2012

Guaranteed Minimum Pensions Increase Order 2012

Pensions Act 2008 (Abolition of Protected Rights) (Consequential Amendments) (No. 2) (Amendment) Order 2012

Motion to Approve

3.37 pm

Moved by Lord Freud

Motion agreed.

Domestic Violence, Crime and Victims (Amendment) Bill

Bill Main Page

Third Reading

3.38 pm

Bill passed.

Health and Social Care Bill

Bill Main Page

Report (4th Day)

3.39 pm

Clause 22 : The NHS Commissioning Board: further provision

Amendment 71

Moved by Lord Marks of Henley-on-Thames

71: Clause 22, page 24, line 27, at end insert-

"( ) For the purposes of this section a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service."

Lord Marks of Henley-on-Thames: My Lords, all the amendments in this group have a single theme, although Amendments 294 and 295, to which I shall turn later, are in a slightly different category from the rest, and except for those two amendments all these

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amendments are supported by my noble friend the Minister. These amendments are intended to put in place a robust failure regime to permit the Secretary of State, or the board where it is the intervening body, to intervene in the operations of bodies within the NHS in the event of a significant failure by such bodies properly to exercise their functions. The purpose of the amendments is to ensure that it is for the Secretary of State to decide whether a body is failing or has failed to discharge its functions in a way that he considers is consistent with the interests of the health service. If he so decides, his intervention powers will be triggered and an intervention will be justified.

However, there is a proviso. The failure must be significant so that the Secretary of State cannot intervene in the case of an insignificant failure, but in practice he will be the judge of significance. Although strictly speaking his view of the significance of a failure could be challenged, in my view such a challenge would be hard to maintain in normal circumstances. I would add that in cases in which it is for the board to intervene in the functions of a clinical commissioning group, it is correspondingly the view of the board that will count.

Without wishing to go into detail about these amendments, perhaps I may canter quickly through the intervention powers with which they are concerned. Amendment 71 is the Secretary of State's power under new Section 13Z1 of the 2006 Act to intervene in the event of failure by the board. The Secretary of State may then step in to give a direction to the board as to the discharge of its functions, and if the board fails to comply with such a direction he may step in and exercise them himself or delegate them to another. Amendment 113 is concerned with the power of the board to require information and documents from clinical commissioning groups or to require an explanation from clinical commissioning groups under new Sections 14Z15 and 14Z16 in the event of failure by those groups to discharge their functions. Amendment 114 concerns the board's very wide powers of intervention to give directions to clinical commissioning groups, to change their accountable officer, to vary their constitution, to dissolve a group or to take over its functions if a direction is not complied with.

Amendment 176 concerns the Secretary of State's power under Clause 69 to intervene by giving directions to perform functions or to perform them in a specified manner in the event of a failure by Monitor. Amendment 258 concerns the Secretary of State's power under Clause 244 to intervene by giving similar directions in the event of failure by NICE. Amendment 291 concerns his power under Clause 268 to intervene by giving similar directions in the event of failure by the Information Centre, and Amendment 296 concerns his power, amended by Clause 290, to intervene by giving directions in the event of failure by the Care Quality Commission under Section 82 of the Health and Social Care Act 2008.

When debating and then discussing the Secretary of State's role and overarching duties under Clause 1, coupled with his duty to promote autonomy under Clause 4, your Lordships will remember how quickly it became clear that the new structure brought with it a

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considerable difficulty. Gone will be the Secretary of State's direct duty to provide. In its place, the provision of services will now be the responsibility of clinical commissioning groups under Clause 12. It follows that the new substitute duty on the Secretary of State could be a duty to exercise his functions only so as to ensure that services are provided in accordance with the Act.

To achieve that in a way that was consistent with the Secretary of State retaining ministerial responsibility effectively for the health service, it was essential to ensure that the functions accorded to him by the legislation were up to the task, and that really is the point of these amendments. It means that the Secretary of State has to be given effective powers to intervene. Such powers to intervene would not be effective if he could intervene only in the event of a body's failure to discharge its functions altogether. A power to intervene in the event of a failure to discharge them "properly" would not be up to the task either if it was going to be open to the body concerned to argue that it was discharging its functions properly whatever the Secretary of State might think, even if he took a contrary view.

Such a body might then have been able to say to the Secretary of State, "You may disagree with the way we choose to exercise our functions, but we disagree and it is up to us". The Secretary of State might in those circumstances have been left to return to Parliament with the lame and ineffectual excuse that there was nothing he could do because he could not show clearly that the body was not exercising its functions properly, whatever he thought of its conduct.

3.45 pm

These amendments address that central difficulty. They do so in each case by making it clear that a relevant body is failing to discharge its functions if it is failing to discharge them properly, and it is failing to discharge them properly for these purposes if it is failing to discharge them in a way that the Secretary of State considers not to be in the interests of the health service.

Lord Hunt of Kings Heath: My Lords, as this is a government-supported amendment, perhaps I may seek clarification from the noble Lord. In the past three months the Secretary of State has intervened in the health service any number of times: for example, on issues arising from primary care trusts massaging figures on waiting times and on the way in which A&E departments work. If an issue was raised in Parliament, would the Secretary of State be able to intervene without any question or worry about whether it meets the terms for failure set out in the amendment? It is important to clear that up.

Lord Marks of Henley-on-Thames: It is indeed important to clear that up, and the answer is yes. If the Secretary of State considers that the body with which he proposes to intervene is acting in a way that is not consistent with the interests of the health service, then, for the purpose of these amendments, it is not acting properly and the Secretary of State's powers of intervention are triggered. That was the point of our amendment in Committee and it is the point of these

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amendments, which have now been accepted, as the noble Lord points out, by the Government. So the answer to his question is indeed yes.

A similar test applies in the case of the board's powers to intervene in the conduct of clinical commissioning groups, where a parallel test is applied. It is, then, the board's view of the interests of the health service that counts, just as, where it is for the Secretary of State to intervene, it is his view that counts.

As my answer to the noble Lord's intervention makes clear, the amendment puts the Secretary of State right back in the driving seat. He has of course to have regard to autonomy, and a failure has to be sufficiently significant for him to take the view that an intervention is warranted, but, subject to those two points, if he takes that view, he may intervene in the ways prescribed by the Bill, and his ministerial responsibility and his answerability to Parliament are assured.

I am grateful to my noble friend the Minister for his support and to those in his department who have helped with these amendments. I am grateful also to all those who spoke in Committee on the intervention and failure regime and who took part in the quite involved discussions about it that we had privately. By going carefully through the Bill to pick up all the relevant powers of intervention, and by then applying a consistent trigger within the control of the Secretary of State, we have developed a coherent and effective way of ensuring that the failure regime is workable.

Amendments 294 and 295, in my name and the names of my noble friends Lady Tyler and Lady Barker and the noble Baroness, Lady Murphy, are designed to rectify a small but not insignificant failure in the arrangements in the Bill as it stands. Clause 287 deals with the consequences of a failure to co-operate, a duty imposed by the Bill on Monitor, the Care Quality Commission, the board, NICE, the NHS Information Centre and strategic health authorities. If the Secretary of State is of the opinion that there is a breach, or the risk of a breach, of one of the specified duties to co-operate, he may under the Bill as it stands give a notice setting out the opinion that it is in breach to each relevant body, and he must publish the notice. If the breach continues and it is detrimental to the performance of the health service, he may then prohibit each body from exercising specified functions until the other body with which it is not co-operating agrees in writing what the first body may do. The Secretary of State's prohibition may last for a year in the first instance but can be extended year on year. In default of agreement by the bodies concerned there is a long-stop power to go to arbitration.

Quite apart from the utter complexity of these provisions, there is an Alice in Wonderland feel of unreality about them. With all this activity, there is a serious danger that nothing will get done. The power of the Secretary of State arises only in the event that there is a breach of duty to co-operate-and then it is only a power to stop anything being done. The first problem is that the parties can, honestly and in good faith, co-operate with each other so that there is no breach of the duty, but nevertheless fail to reach

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agreement so that a conflict persists. The trigger for intervention should not be a mere breach of a duty to co-operate but the existence of an actual or potential conflict. That is the point of Amendment 294.

The second problem is that the power should not be simply a power to stop all action but should instead be a power to act in such a way as to resolve the conflict. In respect of the intervention powers that we have already considered with the other amendments in this group, the power has generally been to direct that the body concerned exercises functions or exercises them in a specified manner. Why is that not an appropriate power here? I suggest that it is and that Amendment 295 would give the Secretary of State a power to give such a direction, thus effectively resolving any conflict.

The power in our amendment is an additional power. If a stop order of the kind proposed in the clause at present is considered likely to be effective in resolving a failure to co-operate or an outright conflict, then let that power be exercised. However, there must be some power accorded to the Secretary of State to step in and resolve a stalemate. That power is not currently in the clause and there is a risk that not only the bodies concerned but the health service, patients and the standing of the Secretary of State may suffer in consequence. I beg to move.

Baroness Murphy: My Lords, I will very briefly say that I added my name to two of these amendments because I have, in practice, come across occasions when organisations such as the former Monitor and CQC had difficulties in their relationships, which had to be sorted out with some difficulty. It seems that they could be in the very position that the noble Lord, Lord Marks of Henley-on-Thames, has described so eloquently, and that we need some way of resolving these conflicts to the benefit of patients so that decisions are made quickly. I support these amendments.

Lord Hunt of Kings Heath: My Lords, this is an important debate. I want the noble Earl, Lord Howe, to make it absolutely clear in relation to Amendment 71 that the intervention of the Secretary of State will follow if the Secretary of State considers it to be in the interests of the health service when one of these bodies is failing to discharge a function properly. The wording of this amendment means, in effect, that if issues are raised in Parliament about NHS performance on which the Secretary of State, quite naturally and properly, wished to intervene, the Secretary of State can indeed do that. In the end, only the Secretary of State can, in those circumstances, consider what is in the interests of the health service. It is absolutely right and proper for the Secretary of State to be in that position.

The second set of amendments starts with Amendment 294. The noble Baroness, Lady Murphy, is absolutely right to point out the problem of conflict between the CQC and Monitor, which is almost built in intentionally. The second report of the Francis inquiry into the Mid-Staffordshire trust may have some points to make about that. However, we are also adding to the architecture of the national Commissioning Board, and there is inevitably going to be tension

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between those three bodies. For instance, the national Commissioning Board and Monitor are to be given roles relating to the tariff, and it is clear that there is confusion over the roles in respect of quality issues. Monitor is now involved in making some inquiries of foundation trusts relating to quality, which is no doubt a defensive reaction to the criticism that will flow from the Francis inquiry. The national Commissioning Board is so powerful in the new structure that there are bound to be some issues about its relationship with the quality and economic regulators. We would like to hear from the noble Earl, Lord Howe, that the Secretary of State will not hesitate to intervene and knock heads together if the natural-and probably useful-tension goes beyond that and becomes a problem.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, this group consists of amendments to the Secretary of State and the Commissioning Board's powers of intervention over health bodies and to the Secretary of State's powers in the case of breaches of duty to co-operate. First, I should like to discuss the amendments relating to the powers of intervention. In doing so, I thank my noble friend Lord Marks for tabling the amendments and presenting them to the House so ably. He committed a great deal of time and effort to developing these amendments and I believe that they will make this a better Bill.

As noble Lords will be aware, the amendments sit within the package of amendments relating to ministerial accountability that was agreed through a process of cross-party negotiation and consensus-building. They address concerns from several Peers that, in the words of my noble friend Lord Marks,

I hope they provide reassurance to the House that this will not be the case. I support the amendments and hope that other noble Lords will follow me in doing so.

In answer to the noble Lord, Lord Hunt, my noble friend's amendments clarify that the Secretary of State can intervene where he considers that a national body is failing to discharge its functions consistently with what he considers to be the interests of the health service, provided that he considers that the failure is significant. They also clarify the same point for the Commissioning Board's intervention powers over CCGs and, in addition, where a national body may have functions beyond the remit of the health service, these amendments clarify that the Secretary of State can intervene where the body significantly fails to exercise the function consistently with the purpose for which it was conferred. I hope that that explains fully the point of the amendments and answers the noble Lord's question.

4 pm

I turn to Amendments 294 and 295, tabled by my noble friends Lord Marks, Lord Clement-Jones, Lady Tyler and Lady Barker. They relate to the Secretary of State's powers to take action where national bodies are

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breaching their duties to co-operate. Amendment 294 would allow Ministers to issue a formal notice if two bodies were,

in the words of the amendment, not just if they were in breach of their duties to co-operate. In cases where the conflict between two bodies arises from a failure to co-operate with each other, this extension of the power is unnecessary. However, there may well be legitimate occasions when different bodies have different views, and we would not want to make that situation an automatic cause for ministerial intervention. The onus should be on the bodies themselves to work through any differences in a co-operative way. Ultimately, Ministers would be able to intervene when, and if, intervention is appropriate, as my noble friend's amendments will clarify. Ministers would be able to intervene when a body's significant failure was contrary to the interests of the health service, and if a body's conflict with another body constituted such a failure the intervention route would be open. I hope that that is helpful.

Amendment 295 would give the Secretary of State the ability to instruct bodies on how to carry out their functions in cases where they breach their duties to co-operate. That is also unnecessary. The clause allows the Secretary of State to place bodies under an agreement lock whereby they can carry out specified functions only with the agreement of the other body. The point of that is to ensure that bodies in dispute are strongly reminded of their interdependence as part of a national system and are pressed to resolve their differences without the need for ministerial direction. However, the agreement lock is only one of a number of levers open to the Secretary of State to promote co-operation and prevent conflict, as I have already said. My noble friend's earlier amendments will clarify that the Secretary of State could invoke his intervention powers to direct the bodies in the exercise of their functions if he believes that the bodies are not acting in the interests of the health service. For those reasons, which I hope my noble friend will accept are robust, I cannot support Amendments 294 and 295. I hope that I have persuaded him not to press them.

Lord Marks of Henley-on-Thames: My noble friend the Minister has certainly persuaded me not to press those amendments. I never had any intention that they should go to the vote. However, I still express some concern about the point made by the noble Lord, Lord Hunt, as to whether the stop power can actually involve the Secretary of State in having the power to knock heads together in the way that he describes. Of course, I entirely accept that the intervention powers under the other amendments go a great deal of the way to improving the position, but if he would like to give it further thought that would be very helpful.

Lord Hunt of Kings Heath: I thought that there was a question to the Minister as to whether he would consider the matter between now and Third Reading. Am I not right?

Earl Howe: My Lords, I should be happy to meet my noble friend to discuss the matter further between now and Third Reading.



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Lord Hunt of Kings Heath: Does that mean that the matter can be brought back at Third Reading? I think that is the point here.

Earl Howe: I am not giving my noble friend a green light to do that, because I genuinely do not think that these amendments are necessary, but that can be a matter for discussion.

Amendment 71 agreed.

Amendments 72 and 73

Moved by Earl Howe

72: Clause 22, page 25, line 9, leave out "This section has" and insert "Paragraphs (a) to (c) and (h) of subsection (1) have"

73: Clause 22, page 25, line 33, at end insert-

"section 13LA,"

Amendments 72 and 73 agreed.

Clause 24 : Clinical commissioning groups: establishment etc.

Amendment 74

Moved by Earl Howe

74: Clause 24, page 29, line 16, leave out "in writing by" and insert "by order of"

Amendment 74 agreed.

Amendment 75

Moved by Baroness Williams of Crosby

75: Clause 24, page 29, line 23, at end insert-

"( ) The Board must exercise its functions under this Chapter so as to ensure that every person resident in England has access to all services provided by a clinical commissioning group."

Baroness Williams of Crosby: In replying to the last group of amendments the Minister referred to the fact that concern was expressed in many parts of the House about those issues. I am pleased to say that exactly the same is true of this group. Voices from the Cross Benches and from Labour as well as from the Conservative Party have been raised to address the need to ensure that CCGs always cover every resident individual so that we can ensure that the services of clinical commissioning groups are available to all the residents of the United Kingdom-or more precisely of England, although one could extend it to the United Kingdom.

One concern which has been expressed in the House on several occasions is whether, for example, people who are homeless or belong to Travelling groups, such as Gypsies or Didicois, would strictly be covered by the clinical commissioning groups given that there is not total coterminosity as there was in the old National Health Service. The purpose of Amendment 75, in particular, and the related Amendment 94 is specifically to ensure that nobody resident in the United Kingdom is simply left out of the new machinery. It is very

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important that this should be so as the people likely to be left out tend to be the most vulnerable members of society-the ones who slip through the cracks, if I can use that phrase. I am delighted to see that the noble Lord, Lord Laming, seems to share that view.

Lord Mawhinney: Can the noble Baroness tell us whether this amendment would also encompass illegal immigrants?

Baroness Williams of Crosby: The phrase used, which I think is also used in other parts of the Bill, is "resident in England". It is not for me but for others, particularly the immigration tribunal, to judge whether somebody who is an immigrant to this country counts as a resident, but I would assume that if he was an illegal immigrant he would not be. If he or she were here except as an asylum seeker then clearly they would be covered by the amendment, which does not purport to set out a new set of immigration regulations. It would be inappropriate for the health service to do that. Therefore, let me turn back for a moment to Amendment 94 as well.

Lord Patel: Surely, my Lords, if they are illegal immigrants who happen to be sick or seriously ill we would treat them, would we not?

Baroness Williams of Crosby: Let us hope so. I simply wanted to suggest that there is nothing about the status of illegal immigrants in this amendment. Of course I share the view, which is accepted, that people who need treatment-and later we will discuss the amendment on HIV-should have access to emergency care, for example. That has always been true. However, this amendment relates precisely to clinical commissioning groups and therefore attempts to set their responsibility in terms of normal residency in the United Kingdom-not nationality, but residency. That seems appropriate.

Amendment 94 tries to do its very best to ensure that this is an absolutely total requirement. Together, Amendments 75 and 94 relate responsibilities not just to the clinical commissioning groups but, crucially, to the national Commissioning Board itself. Ultimately, it will be for the national Commissioning Board to ensure that anybody who is "resident in England" will be covered by all the services available to a clinical commissioning group. The crucial point of principle is that we are not talking here, as we might in some other countries, about emergency care only as a last resort. We are talking about all the services that clinical commissioning groups provide, and we are indicating that that should cover all residents of England. So this is an important group of amendments.

I will not move on to talk about some of the other amendments in this group, which concern themselves with the structure of governing bodies or CCGs. I am sure that the noble Lord, Lord Hunt, or the noble Baroness, Lady Thornton, will address those issues. In some ways they are slightly different; it is rather surprising that they are in the same group, because they address very different issues.



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Because time is always shorter than we need for discussions on the Bill, I will not say a great deal more about this. I think that the whole House will agree that it is right and appropriate that there should be an ultimate duty on the board to ensure that every clinical commissioning group makes available the services that it provides to those who are members of it for everyone who is resident in the area, and that the board ensures that that happens across the whole of the nation. I beg to move.

Baroness Cumberlege: My Lords, my two amendments have also been grouped with this one. In our debate on 13 December, I explained why I felt so strongly that the evidence from patients gained by the work of local healthwatch and HealthWatch England should inform local commissioning. I have since had two very helpful meetings with my noble friends Lord Howe and Lady Northover about local healthwatch and its role. I think that we are moving in the right direction, although there seem to be some outstanding concerns.

Among my serious concerns, and the reason why I brought this amendment back, is that I feel we are not making commissioning robust enough. The process must be founded on evidence. Local healthwatch offers independent local evidence gathered through the unique statutory function of enter and view. This is evidence straight from the experience of patients lying in wards or sitting in mental health units, as well as those who can fill in surveys. Surveys are useful but do not necessarily reflect the views of the most vulnerable, people who may not be able to fill them in due to frailty, language difficulties or other reasons.

The amendment also relates to the experience from HealthWatch England. If the local healthwatch has not done work on a particular provider but those in other areas have, that intelligence will be available to a CCG commissioner who is considering giving the contract to a new provider. It has been pointed out to me that Clause 182(6) already requires CCGs to have regard to those reports and recommendations, and that is very valuable. However, this means only that if local healthwatch produces relevant reports and recommendations, the CCG will have to have regard to them.

It could be that those reports and recommendations arrive at the wrong point in the commissioning cycle or do not arrive at all. Then the CCG will not have an opportunity to have due regard to them. They will be commissioning from providers without evidence from patients of their actual experience, which can come only from local healthwatch, with its responsibilities to enter and view. The amendment was laid to ensure that that could not happen. It was redrafted in response to my noble friend Lady Northover's characterisation in Committee that if local healthwatch had an obligation to feed in such evidence, it would be too burdensome for a small organisation composed of volunteers. I am now suggesting that the responsibility should be with the CCG to take evidence from local healthwatch. It would be helpful if my noble friend could give assurances that CCGs will be guided to seek out from their local healthwatch evidence of the patient experience to inform their commissioning to the standard set out in new Clause 14Q.



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We know that local healthwatch will have a seat on health and well-being boards, and that will ensure that the knowledge that local healthwatch has will influence commissioning. Again, I welcome the membership of a lay member. This will have an input into the strategic role of those boards, but how can it give them a say in commissioning when the health and well-being board does not actually commission health services? The board's function is to explore opportunities to integrate services, and this is not the same as deciding whether the outcome of a good patient experience with provider A is better than with provider B. These decisions rest with the CCG under Clauses 140 to 145.

4.15 pm

In our debate on 15 December, my noble friend Lord Mawhinney queried whether this amendment was yet another,

My view is that only a provider with something to hide would see this as a barrier. In market terms, this is market research carried out by experienced, impartial, accountable members of the public at no cost to the provider. No provider worth its salt would quibble with such a resource for its quality assurance, and no commissioner trying to commission for the outcome of a better patient experience should ignore this evidence. The best route from patient reality to commissioning theory is through local healthwatch and the Bill should provide for this.

A report has recently been published on the Forward Look seminars that were held by the public inquiry into Mid Staffordshire NHS Foundation Trust, as has already been mentioned by the noble Lord, Lord Hunt. The inquiry concluded that CCGs need,

as well as,

My amendment would help to address this. I hope my noble friends will seriously consider the value of this approach and, if they cannot accept the amendment as it stands, seek to achieve it through a government amendment and bring it back at Third Reading.

The amendment is also grouped with Amendment 111, which carries forward the logic of connecting the key evidence-gathering function of local healthwatch, including its enter and view reports, with commissioning by CCGs, as set out in Amendment 95. Just as the health and well-being board, with its strategic function rooted in the community to which it is democratically accountable, should be consulted about the commissioning plan for local people, so should local healthwatch. After all, it is the repository of views and experiences garnered from health services. Both perspectives are indispensable to making commissioning work well. I hope my noble friend will look kindly on this simple amendment, too.

Baroness Finlay of Llandaff: My Lords, I also have an amendment in this group. For the convenience of the House, I have left it there because it concerns the clinical commissioning group's function. On 27 February,

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the Minister rejected the amendment that I had tabled, which provided that the Commissioning Board must ascertain that clinical commissioning groups commission for less common conditions and that they collaborate.

Today is Rare Disease Day and my amendment specifically addresses rare diseases. In responding to me on 27 February, the Minister cited sources of advice that are available to patients, healthcare professionals and carers, specifically NHS Choices and NHS Evidence. I have been to their websites to find out how they inform commissioning for some of these rarer diseases. They are very helpful websites and they are a resource, but they are enormously complex. Trying to read across from one condition to another to put together a cohesive package for commissioning is very difficult. I am concerned that replicating this in lots of small clinical commissioning groups all around the country will be, in effect, a duplication of effort.

For some of these conditions there is no NICE guidance at all as yet. NICE does a fantastic job by producing the guidance that it does but it is not there for everything. The European Union's recommendation of an action in the field of rare diseases has been published. The Minister informed us that there will shortly be a consultation on the Government's response to that.

What are these conditions? They range across 5,000 to 8,000 different diseases, which occur at an incidence of less than five cases per 10,000 of the population. However, most of these people suffer from diseases that are so rare that they affect less than one person in 100,000 of the population.

The European Union recommends that member states should have plans and strategies in this field and adequate definition, codification and inventories of these diseases and research into them. It also recommends that member states should establish centres of expertise with a European reference network, gather expertise and empower patient organisations. These objectives are compatible with the amendments in the name of the noble Baroness, Lady Cumberlege. The European guidance also states that these services should be sustainable. However, given that the prevalence of these diseases is so low, it would not be cost-effective routinely to commission services in populations of fewer than 250,000.

These amendments are supported by more than 98 patient organisations, 70 of which are members of the Neurological Alliance. There is concern about the application of the appropriateness test to clinical commissioning groups. The biggest area in this context often relates to rehabilitation and aftercare and comprises people with severe anorexia and those who are rehabilitating after a severe head injury or major trauma or stroke and quadriplegia. An increasing number of survivors are coming back from our theatres of war who would previously have died of their injuries. They require complex rehabilitation. Sadly, there are already instances where some of these soldiers are not able to obtain the prosthetic support that they require and are having to raise funds themselves to obtain their prostheses, and some are going to the United States for this provision.



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Some people may think that stroke is a common occurrence and therefore does not come into this category. However, some types of stroke are complex and occur infrequently in the population. Stroke comprises a very broad spectrum of diseases. Some of the rehabilitation and services required fall to local authorities to provide. There is concern about the extent to which the appropriateness test will be applied and where discretion will lie as regards these conditions. As I said, the clinical commissioning groups cover relatively small population areas and therefore it is not cost-effective for them to commission services for less common conditions. I am concerned that they will have no duty to collaborate with other clinical commissioning groups in commissioning services. One hopes that they will but there does not seem to be a requirement that they should. If commissioners lack adequate guidance on best practice in commissioning comprehensive and equitable services, they risk commissioning services which do not provide value for money and do not meet the needs of people with these less common conditions. The National Audit Office report on services for people with neurological conditions showed that there is a great need for improvement in service provision for this population, with significant variation in access to services and variation in quality in different areas. Even where there are localised examples of good practice, sometimes leadership is lacking on the outcomes analysis so these bodies are not able to disseminate their good practice for wider implementation.

The Bill certainly provides opportunities for collaboration between clinical commissioning groups, but not encouragement or incentives to do so, and these groups are left to determine when to co-operate. This amendment would provide an important indicator for clinical commissioning groups and would bridge the strategic gap between the commissioning that will be done centrally by the Commissioning Board and that which will be done at a local level. I give a very simple example of a neurology service involving someone with motor neurone disease who requires non-invasive ventilation. That service should be provided in patients' homes or somewhere nearby. If it is not provided to a high standard, patients have a much higher chance of ending up as emergency admissions-in fact, this is almost inevitable-and the cost of that provision is three times that of providing adequate NIV services. It therefore becomes very cost-effective to ensure that there is appropriate commissioning for this group across the piece. The risk is that the disparity in service provision and outcomes will widen. I stress that the difficulty comes because these patients sit in the spectrum between what will be commissioned centrally by the Commissioning Board, what will fall to the clinical commissioning groups and, when patients get into long-term care and rehabilitation and being sustained at home, what will fall to the local authority-and that has not been made clear.

I will listen very carefully to the Minister's response because this matter is so important that we may need to test the opinion of the House. I am hoping that I will get satisfactory answers from him and that these

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discrepancies will be clarified. If not, I ask him, if he is unable to provide adequate answers, to consider these issues at Third Reading.

Lord Newton of Braintree: My Lords, perhaps I may briefly intervene, although not in any way to differ from my noble friend Lady Williams of Crosby; I am much too diffident to dare to do that. In fact, I want to raise a few nitpicking points that occur to someone who has had a bit of ministerial experience over a fairly long period. They occur in relation to several of these amendments. First, it is far from clear, in light of the exchange with my noble friend Lord Mawhinney, just what "resident" means in this context. Someone needs to answer that clearly before we go down the path of the amendment. Secondly, on a related matter, does the proposal mean-whatever "resident" means-that people would be entitled to free NHS services, regardless of their status? Under existing law, a lot of people living in this country are liable to be charged for NHS services. That is not clear in some of these amendments.

In particular, it is not clear whether illegal immigrants are liable to be charged. I do not know the answer to that, and I probably ought to. If, however, they are liable, it is another factor to be taken into account when looking at what all this means. If we really mean that clinical commissioning groups must provide services-and I shall come back in a moment to the term "provide", which also occurs in another of the amendments-to everyone resident in their area, how are the CCGs to establish that? Illegal immigrants, along with a number of other people, go to great lengths to stay beyond the radar. They will not be on the electoral register. They will not be registered with doctors. They will be trying to make sure that no one knows they are there. Do CCGs have to set up an immigrant police investigation team to find out who is resident in their area? These may sound like nitpicking points but they would be real issues if an amendment along these lines were passed, even though I am sympathetic to the aim. Parliamentary draftsmen would need to do some work.

What does "provided by" mean? Clinical commissioning groups will not provide many services; they are essentially commissioning groups. Do we mean "any services commissioned by" commissioning groups, many of which will involve secondary services-certainly-tertiary hospitals, and a whole range of other people? The amendment and several others in the group, however worthy their purpose, require a lot of careful drafting before we can accept them as amendments to an actual piece of legislation. My noble friend may care to comment on that.

Lastly, this rather curious group also includes the amendments of my noble friend Lady Cumberlege relating to HealthWatch England. I cannot see any problem with them. I support her entirely. It seems to be a no-brainer that if we are to set up a healthwatch system, people should have to take account of what their local healthwatches have to say.

The Earl of Sandwich: My Lords, before the noble Lord sits down, may I correct him on the question of illegal immigrants? There is no question of illegal

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immigrants having access to the health service. Certain vulnerable categories, such as mothers and children and so forth, are given access, but it is quite wrong to suggest that that is what is generally happening.

4.30 pm

Lord Harris of Haringey: My Lords, the intervention we have just heard raises a particular point about the position of illegal immigrants. There is a problem here. The number of people who are not here legally varies in different areas. There are concentrations in particular areas where the impact on local health services will be disproportionately high. A simple assumption that this could be lost in the wash does not work. That issue needs to be addressed.

This is a pot-pourri of amendments. Amendment 75 raises an extremely important point, which I hope that we can include in the Bill in some form. The very important Amendment 96, in the name of the noble Baroness, Lady Finlay, raises a completely different set of points.

I want to pick up on Amendments 95 and 111 in the name of the noble Baroness, Lady Cumberlege, and, in particular, the points she made about why she introduced the amendments in this form on the basis of conversations that she had with the government Front Bench and, in particular, the noble Baroness, Lady Northover. She had been led to believe that this would be too burdensome a task for local healthwatch organisations and that they would be too small to carry out the functions that she talked about.

Baroness Cumberlege: That was not in a private conversation; it came out in Committee and was open to everyone who attended that sitting.

Lord Harris of Haringey: That does not alter the point I was about to make, which is that, on the basis of those remarks, it is important to recognise in the Bill that that is the expectation on local healthwatch organisations. That reflects the growing concern of people outside that, despite the Government's best intentions for how healthwatch will be organised, those organisations will not be anything like as effective as your Lordships would hope. We hear, for example, that there is widespread concern that the Government will remove the statutory nature of local healthwatch organisations-we will no doubt come to that in due course. We are told that the Government are indifferent to the consequence of not ring-fencing their finances. The concerns expressed by the noble Baroness, Lady Northover, in Committee, that those organisations may be too small and unable to cope with some of these loads are real. Therefore, it is all the more important not only that we provide a framework which enables healthwatch organisations to be effective but that we make clear in the rest of the legislation the importance of giving a clear statutory role to healthwatch organisations-in particular, in the vital role of commissioning local services.

Lord Walton of Detchant: My Lords, this is a disparate group of amendments. I shall speak in particular to Amendment 96, which has been so ably proposed by

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my noble friend Lady Finlay. I do not propose to redeploy the arguments that I expressed when a similar amendment was discussed recently. One thing that is beginning to emerge as the Bill continues its progress through your Lordships' House is that the size and, perhaps, quality of the clinical commissioning groups will be extraordinarily variable. Some will be large and contain a large number of GPs, and so on; therefore, with the secondary care individuals who will become members of the group, and others, some will deploy a wide range of expertise.

However, it is perfectly clear that in some parts of the country the clinical commissioning groups are going to be very much smaller. The range of issues in highly specialised services will be very limited and the smaller clinical commissioning groups will lack the knowledge and expertise to handle those areas well. For that reason, it is crucial that the national Commissioning Board should have the major responsibility for commissioning highly specialised services, in which I include not only the neurological services, about which I spoke in some detail last week, but cardiological services, cardiothoracic services and many other specialties.

On Rare Disease Day, the point that my noble friend Lady Finlay made about rare diseases is very important. There are thousands of rare diseases affecting a very small number of patients throughout the UK. The Rare Disease UK consortium, chaired by Dr Alastair Kent, the former chairman of the Genetic Interest Group, is deeply concerned, as is the Neurological Alliance, about the mechanism by which these diseases will be given attention in this legislation and proper understanding, control and attention by the national Commissioning Board. As my noble friend said, there are several thousand rare diseases, some affecting very small numbers and some larger numbers.

I spoke in detail last week about muscular dystrophy. As an example, last week I was asked by a former medical colleague in Newcastle to see, with him, a patient-not as a consultation but to look at the problem posed by a condition called haemolytic uraemic syndrome. This is due to a genetically determined disorder of the complement system. It is a disease that affects the kidneys, is steadily progressive and is ultimately fatal. However, recent research has identified and produced a licensed medicine which is effective and which in the patient whom I met, with her husband, has proved to be virtually life-saving. The problem is that there are only 200 patients in the UK with this disease and the cost of the medicine for that patient is £250,000 a year. At the moment, it is paid for by the drug company, which is carrying out trials.

That is one example but there is a huge number of genetically determined rare diseases for which new drugs are coming on stream. There are many cases where the causal, abnormal or missing gene product has been identified and where, slowly but surely, drugs which are beginning to have a beneficial effect on these progressive, disabling or ultimately fatal diseases are beginning to emerge. These are called orphan or ultra-orphan drugs. Whatever happens in the future with the National Health Service, the possibility-the probability-of having a special mechanism to deal with the needs of people with these rare diseases,

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as well as the needs relating to the orphan and ultra-orphan drugs, is going to be a massive problem. It is crucial that there is a very clear indication in the Bill that rare diseases deserve special consideration. For that reason, I warmly support Amendment 96, which has been proposed so ably by my noble friend Lady Finlay.

Lord Newton of Braintree: Perhaps the noble Lord could comment on one specific point. In my experience, the biggest problem in respect of these rare diseases is not providing the services-although that can be a problem-but the fact that they are not identified in the first place because no doctor has ever seen one before. Identification is at least as big a problem as treatment but that is not addressed in this amendment.

Baroness Murphy: My Lords, I quake to disagree with my noble friends Lord Walton and Lady Finlay about Amendment 96 but I do so as someone who has been the chief executive of a very large health commissioning organisation. It is utterly crucial that rare conditions are considered individually and that the level at which they are commissioned is decided by the national Commissioning Board coming together with the clinical senates and the clinicians involved in the area. They are best placed to decide on the best level of commissioning based on epidemiology and public health expertise. In fact, this amendment would achieve the very opposite of what the noble Baroness, Lady Finlay, wanted: to highlight some of these very important rare conditions which we do not want to forget. It is not helpful, however, to have rare conditions identified in this form in the Bill. We must leave it to the clinicians to make a judgment about how they are commissioned in groups. That will protect patients better, in my view, than any statutory guidance of this kind. I hope she will reconsider and not press this amendment.

Lord Harris of Haringey: The noble Baroness is not only disagreeing with the noble Baroness, Lady Finlay, and the noble Lord, Lord Walton, but disagreeing with all the organisations associated with these particular rare diseases. They think that the way forward is in the amendment of the noble Baroness, Lady Finlay.

Baroness Murphy: I will respond briefly to that. We all have tremendous sympathy with the fact that very many rare conditions are not currently commissioned to the standard that we would wish. It is also true, by the way, that many ordinary conditions are not commissioned to the standard of service across health and social care which we think would be best for the patients. That is undoubtedly true, but we would not necessarily fix that by having a special focus on the way we say where it is going to be commissioned. What we need are specialists in each of those rare conditions' groups to be consulted, to ask patients and their relatives about how they should be commissioned, and some professional advice about the epidemiology of it.

Noble Lords should remember that the national Commissioning Board has the ability in this Bill to use, for example, the good offices of their local offices

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that will regionally be able to ensure that clinical commissioning groups can come together to commission properly for rare conditions. That is already happening around the country, and that is more likely to be a way forward than this particular statutory amendment. I am not saying that those rare conditions do not need some focus and better commissioning: they certainly do.

Lord Patel: My Lords, my name is on Amendment 96. I feel we might be running the risk of missing the important point in a rush to say whether this amendment should be tested. I would very much like the Minister to accept that there is an issue to be addressed here: it is on how the commissioning would be carried out for patients with less common conditions and rare diseases. The Bill is not clear, hence this debate and the amendments put forward by my noble friend Lady Finlay, previously in relation to commissioning boards and now in relation to commissioning groups.

This amendment alludes to the duties of the commissioning group,

Small commissioning groups may not be able to ensure the provision and may well have to co-operate with other commissioning groups. The direction may well actually have to come from the national Commissioning Board.

The noble Lord, Lord Walton of Detchant, referred to the funding issue. There has to be some pool funding from the national funding pool because the commissioning group may not be able to afford the large amount of money required for treating those people. I am familiar with that, because I was involved in setting up the process for handling it in Scotland. I ask the Minister to accept that there is a lacuna here of how commissioning for rare diseases would be done. He needs to reassure us that it will be robustly done, with clear leadership and responsibility. I hope that he will be able to do that.

4.45 pm

I also tabled Amendment 119 in this group. I hope and have no doubt that the noble Earl will deal with it very swiftly. The amendment relates to quality payments. New Section 223K(6) states:

"Regulations may make provision as to how payments under subsection (1) may be spent (which may include provision as to circumstances in which the whole or part of any such payments may be distributed to members of the clinical commissioning group)".

These are quality payments. As I understand it, members of clinical commissioning groups are individual providers of primary care-mainly GPs-so I am puzzled at how the quality payments will be handled. The Bill states that they will be given to individual primary care providers as merit awards or bonus payments-personal gains. My amendment states that they should be given not to individual providers but to commissioning groups, which should use them to improve services. That seems to be more appropriate. I look forward to the Minister's comments.



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The Earl of Listowel: My Lords, I support the amendment of my noble friend Lady Finlay of Llandaff. I noted what my noble friend Lady Murphy said. The Minister is aware that I have a long-standing concern about less-than-mainstream services for children and families, particularly in the mental health area. It became apparent several years ago when considering legislation around safeguarding children that there was a great shortage of appropriate interventions for children who sexually harmed other children. The approach was very piecemeal across the country. I became aware of a service working in London with these children. A team with a psychiatrist, a couple of clinical psychologists and a couple of social workers helped children who sexually harmed other children. Its interventions prevented those children going on to become adults who sexually harmed children. A large proportion of children who are sexually harmed are harmed by other children.

This is a very important service, and what I have heard again and again over the years was how the service had struggled to find funding. It appealed to its primary care trust, which simply did not recognise the importance and value of what it did. My concern is that, in a climate where there is such a shortage of resources, the national Commissioning Board may be too far away from these very small services in local areas. Therefore, it is important to do all that can be done to ensure that clinical commissioning groups have the expertise to recognise the value of these niche services and do what they can to support them. I look forward to the Minister's response and hope that he will comfort me.

Baroness Tyler of Enfield: My Lords, I rise briefly to support Amendments 75 and 94, tabled and spoken to so clearly by my noble friend Lady Williams of Crosby, which are very important. The nub of the amendments is that they are designed to address the problem that we know still exists of a limited number of people who are not on GPs' lists and who, as has been said, fall through the cracks and often-inappropriately-turn up in accident and emergency units. I can verify this because on a recent weekend I spent 12 hours in accident and emergency with two of my relatives. During that time, time after time people came in with needs that were real but which it was not for A&E to meet. Problems with access lead to some of the inequalities in health outcomes about which we on all sides of the House are very concerned.

When considering the Bill recently, the Minister agreed to new duties to ensure that CCGs and the national Commissioning Board include in their annual report details of how they have met their health inequalities duties. I very much welcome these changes to the Bill, but I am not convinced that this reporting after the event is going to be sufficient to tackle some of these very deep-seated inequalities, which often lead directly from difficulties in access to NHS provision.

Will my noble friend the Minister consider giving some very real teeth to the absolute imperative, as I see it, of universal provision-an absolute founding principle of the NHS, which I know is supported across the House-and see whether these duties could be extended in some way so that CCGs and the board also need to

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include health inequalities and issues of access in their commissioning plans and in the board's performance assessment of CCGs? I would be very grateful if the Minister could reflect on this in his concluding remarks.

Baroness Masham of Ilton: My Lords, I have added my name to Amendment 96. These patients can have very complex and varied needs. Will the Minister give an assurance that they will not fall through the net between the Commissioning Board and the CCGs? There will be a great need to have excellent communication between the Commissioning Board and the CCGs. There is concern, as has been shown here today-and if there is concern here, my goodness, what will be the problem outside when funds have to be found for these patients? I implore the Minister to sort this out.

Baroness Howarth of Breckland: My Lords, I wish to add my voice to the need for clarification, as raised by the noble Baroness, Lady Finlay, between the services provided by the national and regional boards for rare diseases and conditions. I declare an interest as a patron and trustee of an organisation that deals with children with hypoplastic left heart syndrome and some similar conditions of right heart defects.

As the Minister will know, a recent Safe and Sustainable review has been looking at how those services should be delivered. Obviously the complex surgical procedures need to be carried out in specialist hospitals, but the aftercare very often takes place locally. The Safe and Sustainable review having stalled during the discussion about this Bill, parents are extraordinarily concerned about how that will be taken forward. I say this as an example but it is true of all families who have children or adult relatives with rare conditions that they want to be absolutely assured that the right service is commissioned at the right level, and need to know how that assessment is going to be made. At the moment it is extraordinarily unclear and I think that is why the noble Baroness, Lady Finlay, has tabled her amendment and the other issues have been raised.

All I am seeking is that clarification, partly because I have got to go and tell the parents this weekend at their AGM.

Baroness Hollins: My Lords, I have been reflecting on the amendment tabled by my noble friend Lady Finlay. I declare an interest as one of my daughters has one of the conditions that she mentioned in her speech.

This lacuna must be addressed because the discretionary powers of clinical commissioning groups to apply the appropriateness test provide no assurance for those with these rare diseases. Today's debate shows that it is essential that this is addressed in the Bill. I hope that the Minister will be able to suggest a way in which perhaps a government amendment might be able to address this lacuna.

Lord Hunt of Kings Heath: My Lords, this is a very interesting group of amendments. They do not entirely fit together but all of them raise important points.



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I very much support the noble Baroness, Lady Cumberlege, in her comments about HealthWatch. This is my mea culpa moment about the demise of community health councils. It is clear that having a statutory body with the right to be heard and listened to is very important at local level. Of course, I would link the noble Baroness's amendment with the desire for HealthWatch England to be wholly independent of CQC, which is another important ingredient in ensuring that the patient voice is heard as effectively as possible.

We support Amendment 96. There has been a persuasive argument about the need to ensure that services for patients with less common conditions are commissioned effectively. We debated these issues on Monday. We know that primary care trusts have often found it difficult to give proper attention to these services. With clinical commissioning groups, this will become even more problematic. I hope that the noble Baroness will be able to pursue that.

I entirely support the noble Baroness, Lady Williams, on Amendment 75. This is a very important statement of principle. I understand the points made by the noble Lords, Lord Mawhinney and Lord Newton. I am sure that this matter will be put to the vote. The whole point about Third Reading is that it can be used for parliamentary counsel to tidy up the wording of such amendments. I do not think that we should let minor technical difficulties get in the way of passing an amendment which has a very important principle. It may be that the noble Earl, Lord Howe, will agree to it. Let us hope so.

My amendments relate to the corporate governance of clinical commissioning groups. On Monday, I developed my arguments when we discussed conflict of interest issues. I do not want to go over the same ground again, save to say that clinical commissioning groups will have a crucial role to play in the new system. They are to be handed billions of pounds by the NHS Commissioning Board to commission services. Essentially, a clinical commissioning group is not an NHS board as we know it. It is a group of small business people-GPs-who will be able to benefit financially from the decisions of that board. I cannot conceive that the Government could be going down this route if they did not want more resource spent in primary care. That must be one of the end results of the Bill. The Government want to spend more money in primary care and to reduce expenditure in acute hospital services, which is a very fair aim. But that means that the board of clinical commissioning groups will be spending public money and placing it in the hands of GPs who also sit round the board of the clinical commissioning group.

The conflict of interest amendment in the name of the noble Baroness, Lady Barker, which the noble Earl accepted, was very weak and does not provide the kind of assurance that we require. I have to say to him that there will be trouble in the future with clinical commissioning groups in this area. The proper safeguard would be for clinical commissioning groups to have a proper board. Proper boards in the public sector usually ensure that there are a majority of non-executives, people who are appointed independently, who can make sure that the public interest is protected. We

29 Feb 2012 : Column 1324

have the extraordinary proposal that we are guaranteed only two non-executives on the board of clinical commissioning groups. We are not even guaranteed that one of them will be the chair of that clinical commissioning group. Looking over all the corporate governance difficulties in this country in the past 20 years, can noble Lords imagine that any of those inquiries would endorse the kind of governance arrangements that the Government are putting forward for clinical commissioning groups? I say to the noble Earl, Lord Howe, that I just wonder how long it will be before the first group of members is prosecuted for corruption. This is an open invitation for corrupt action. The Government show no signs of understanding or realising what difficulties they will put the whole service in by these proposals.

I have put forward a number of amendments to put in place proper corporate governance protection. I also believe that the constitution of clinical commissioning groups should be subject to approval by your Lordships' House. In relation to primary care trusts, orders go through. I do not see why the same thing should not happen to clinical commissioning groups. I also endorse everything said by the noble Lord, Lord Patel, about quality payments. It is absolutely abominable that quality payments could be made to clinical commissioning groups where those payments end up in the pockets of individual GPs. That money ought to go into the commissioning of services. Again we see the conflict of interest. There is so much potential for conflict of interest between commissioning decisions in the public interest and commissioning decisions which are to the financial advantage of the members of the clinical commissioning group.

Finally, Amendment 118 would remove the quality premiums altogether. This is very much a probing amendment. I am content to support the noble Lord, Lord Patel, in his argument that, if quality payments are to be made, they should simply be put back into the commissioning pot.

5 pm

Earl Howe: My Lords, if there is a common theme to these amendments, I suggest it might be the fear of falling through the cracks, and I hope I can demonstrate that there are no cracks to fall through. However, there is a lot to cover and I apologise in advance if I speak for longer than normal.

First, perhaps I may say how wholeheartedly I agree with my noble friend Lady Williams as to the crucial role that CCGs will play in meeting the health needs of their entire population. In preparation for today's debate I reacquainted myself with the requirements in the Bill to ensure that this happens. The requirements are robust and I can confirm that CCGs must exercise their responsibilities so that services are commissioned to meet the reasonable requirements of all their patients. My noble friend Lady Williams can be absolutely assured that every person registered with a GP practice or usually resident in England-that is the term-will be the responsibility of a CCG and the board must ensure that the whole of England is covered. This means that Amendments 75 and 94 are unnecessary.



29 Feb 2012 : Column 1325

I was asked by my noble friend Lord Newton about charges for patients. Noble Lords need to understand that as regards issues of entitlement to access to the NHS, the Bill does not change the status quo. I listened with care to my noble friend Lady Tyler, and I would like to thank her for spotting the inconsistencies in the Commissioning Board and CCG duties. As she quite rightly says, the inequality duties, if the government amendments on the annual reports are agreed, would be in the unusual position of being specifically referred to in the annual report provisions but with no similar reference in the provisions on the annual plans of CCG performance assessments. I therefore undertake to bring forward amendments at Third Reading to rectify that.

Amendments 95, 108 and 111, which are similar in effect, would require CCGs to have regard to the advice of local healthwatch and HealthWatch England, or in the case of Amendment 111 would require local healthwatch's involvement in developing or revising commissioning plans. HealthWatch England will not advise CCGs directly. Instead its advice will inform the board's commissioning guidance for CCGs. Certainly at the local level, we would expect CCGs to be taking account of local healthwatch; and, to reassure my noble friend, under Clause 182 CCGs already have to have regard to the views made known by local healthwatch when exercising functions relating to healthcare services. As my noble friend said, local healthwatch will also have a key role to play via the health and wellbeing board in assessing local population need-preparing the joint strategy and influencing the commissioning plans of CCGs. Taken together, this represents a robust set of arrangements for the views of patients and the public to feed into local commissioning.

The noble Lord, Lord Hunt, painted a doomsday-like picture of what he sees as the consequences of the arrangements that we have set out in respect of CCG governance. The noble Lord suggests that by not having the more traditional arrangements, as per his amendments, the CCGs will be more likely to run into financial distress, not properly meet their statutory duties, commit fraud or even commission unsafe care. Simply put, I cannot agree with that gloomy outlook, because it overlooks completely the arrangements that are already in place and what would happen if a CCG was to face the risk of running into any of these difficulties.

Let us take financial management, which he focused on. A CCG must have an accountable officer who is responsible for ensuring that the CCG meets all its financial obligations. The appointment must be agreed with the NHS Commissioning Board. A CCG must keep and publish proper accounts, which must be audited in accordance with the Audit Commission Act 1998 and must be sent to the NHS Commissioning Board by a date specified by the board. If the board requests specific information relating to a CCG's accounts, or to its income, expenditure or use of resources, the CCG must provide it. Each CCG must have a constitution that sets out the CCG's arrangements for decision-making. Each CCG must have a governing body, which must meet in public, except when it feels that it is a confidential matter and so not in the public interest.



29 Feb 2012 : Column 1326

The governing body must have an audit committee chaired by a lay person who must have the skills, knowledge and experience to assess and confirm that the CCG has appropriate arrangements for all aspects of governance, including financial and risk management. The governing body must ensure that the CCG adheres to such generally accepted principles of good governance as the Nolan principles, which are foremost among these-indeed, the Commissioning Board Authority has been clear that it expects CCGs to adhere to them. Furthermore, if the CCG is at risk of failing, is failing or has failed to exercise its functions, including those in relation to financial management, the board can intervene with a range of powers, from directing remedial action to be taken, removing the accountable officer, to dissolution-although we would expect that to be very much a last resort.

I absolutely agree with the noble Lord that it is essential for CCGs to have strong governance-there is no difference between us on that. This is a topic on which we listened to the Future Forum and made a number of significant amendments last year. We remain open to suggestions that would improve the Bill in this regard, I hasten to say, but I cannot agree that the noble Lord has suggested the right mechanism to achieve that end. To agree to either of his Amendments 76 or 77 would not only fail to meet his stated objective of improving a CCG's governance but would risk introducing additional bureaucracy and confusion with the wide range of existing ways that CCGs are held to a high standard of good governance.

Given the role of the board in scrutinising arrangements and ensuring that governing bodies are effective, I do not accept the need for an additional centralised process of independent appointments to governing bodies, as proposed by Amendment 76, or for asking both Houses of Parliament to approve each CCG constitution. It cannot be reasonable or proportionate to require both Houses of Parliament to scrutinise the constitutions of several hundred local bodies. The board can publish guidance on the form and content of constitutions, and take a view of local circumstances, which Parliament, with the greatest respect, could not do.

Amendment 77 would require a majority of non-GPs on the governing body. This overlooks some important points about CCGs: that they are rooted in general practice and build on the central relationship between GPs and patients. It is GPs who look at patients' needs in the round, making sure that they have access to the services that will best meet their needs and keep them healthy. Our rationale for having governing bodies with non-GP membership was not to put GPs in the minority but to make sure that there are other voices and perspectives alongside those of GPs so that decisions are made in an open, accountable and transparent way. The NHS Future Forum supported that vision. Requiring non-GP members to outnumber the GP membership on a CCG's governing body would not make that governing body any more effective in ensuring adherence to principles of good governance, or in ensuring that the CCG was effective, efficient and economical. As we discussed on Monday, there is extensive provision for managing conflicts of interest.



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On the quality payment, the debate today, as in Committee, centred on two questions: what the quality premium should reward and what the premium should be spent on. The payment would incentivise and reward improvements in quality and outcomes and reductions in health inequalities. It is not there to encourage a focus on financial management, and it is not-to answer a question posed by the noble Lord, Lord Hunt, in Committee-a way to reward demand management.

Our intention is that the quality premium will reward performance against the commissioning outcomes framework. The starting point would be the five domains of the overall outcomes framework and could contain measures such as reductions in mortality rates for cardiovascular disease, cancer survival rates, the management of diabetes, stroke and mental health and reductions in the number of cases of healthcare-associated infections. Those are only a few examples. If CCGs commission services in such a way that they achieve excellent outcomes in areas such as those, it is only right that the NHS Commissioning Board should be able to reward them for doing so.

The noble Lord, Lord Patel, has put across a persuasive case that the payment should be restricted to being spent on improving services. I have given that proposal significant thought but on this occasion I am unable to agree with the noble Lord's amendment. We all want to see quality and outcomes improving and inequalities falling, and we are aware of the scale of the challenge. I want the quality premium to be as an effective incentive as it can be in order to best drive those improvements.

Indeed, I was pleased to see last week that this view was shared by Age UK and the National Osteoporosis Society in their report on falls and fracture services, which called for a greater role for financial incentives in the commissioning and provision of services. The report said that,

That is a very good example.

There are any number of ways in which a CCG may wish to use such payments. It might wish to spend the money on a new service for patients; to reward provider organisations that have played a major part in helping achieve the improvements; and, yes, it might wish to reward GP practices that are members of the CCG if they have played an instrumental part in improving quality of services and outcomes-for instance, through their work on service redesign. It would be wrong in principle to rule out any one of those options in the Bill.

However, I hope to reassure the noble Lord on his central concern. I agree that great care needs to be taken in designing the mechanics of the payment. We will use secondary legislation to make detailed provisions as to how CCGs can use these payments, including the circumstances in which they may be able to distribute the whole or part of a payment to individual member practices. That is very important and provides flexibility to adapt any rules or principles governing payments in the light of experience.



29 Feb 2012 : Column 1328

We have started discussing the potential contents of these regulations with stakeholders and I can confirm that we will extend these discussions to include a broad spectrum of views, including the NHS, patient groups and professional bodies. I hope I have reassured noble Lords sufficiently to enable them to not press their amendments.

Amendment 96 relates to an area with myriad terms that have a slightly different meaning, and I shall set out the crucial differences. Very rare conditions, which often require highly specialised services, will be commissioned by the NHS Commissioning Board. Rare or less common conditions will by and large be commissioned by CCGs, but they will be supported in doing so by the board, clinical senates, networks and the ability of CCGs to work together to pool skills and expertise.

5.15 pm

The Bill allows the Secretary of State, through regulations, to decide which very rare conditions the board alone will commission. It is important to set that out at the beginning, because "less common conditions", which is the phrase used in the amendment, is not a term of art. What the noble Baroness, Lady Murphy, said in this connection is very important. I hope that noble Lords will understand that, if we are not careful, we will-if this amendment is approved-confer on CCGs the responsibility for commissioning services that should rightly be commissioned nationally and centrally.

I do not support the amendment, not because I do not accept the fundamental importance of ensuring the provision of services for patients with less common conditions-of course I do-but because it is already, or will be, a responsibility of the board in respect of specialised services and of CCGs in respect of other conditions; and because it is not appropriate to spell out, in primary legislation, every individual possible scenario if it is already covered by the Bill. We discussed similar amendments on Monday, so I will be quite brief in my response.

CCGs already have responsibility for commissioning services to meet the reasonable needs of all those for whom they are responsible, excepting those services that the NHS Commissioning Board is responsible for commissioning. These include services to meet the needs of patients with less common conditions. Amendment 96 would not change this statutory responsibility-in that sense, it gets us no further forward. I am sure the Bill puts in place the right levers to do what we all want, which is a mix of statutory duties and powers. As I have indicated, the Bill provides a framework for collaborative working between CCGs and local authorities, including lead commissioning arrangements, allowing CCGs to come together to commission services at the right level for a particular patient-group or condition.

The board will have a robust authorisation process to ensure that CCGs cover an appropriate area and have made appropriate arrangements to ensure that they will be able to discharge their functions: in particular of course, their overarching function of ensuring they are meeting the reasonable needs of their population-

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which is where we began with my noble friend's amendment. The authorisation process will include consideration of the extent to which CCGs have, or propose to put in place, collaborative arrangements for commissioning with other CCGs and local authorities. That takes care, I believe, of the cracks. CCGs already have statutory duties relating to securing expert advice, and involving patients and their carers. They will be able to choose to access commissioning support, if they wish, which could equip them to commission effectively for less common conditions.

The board has to publish guidance on commissioning, to which the CCG must have regard. It would be entirely appropriate for this guidance to include provision about the importance of ensuring services for patients with less common conditions. I reassure noble Lords that we would seek to ensure that the board's commissioning guidance for CCGs included guidance on how CCGs can make appropriate arrangements for commissioning in respect of less common conditions, and in particular for securing appropriate professional and expert advice. I hope that the noble Baroness will be satisfied with that reassurance and will not press her amendment when we come to it.

Very briefly, I will speak to the minor and technical government Amendment 92A, which would give CCGs the ability, when executing legal documents, which generally require the use of a seal, to authenticate the seal with the signature of an authorised individual or to use an authorised signature instead of a seal. The amendment also provides that where a document appears to have been duly executed or signed on the CCG's behalf, this is to be accepted in evidence unless the contrary is proven. I hope noble Lords will support this amendment when I come to move it.

Baroness Finlay of Llandaff: Can the noble Lord clarify whether the guidance will also cover the commissioning of services that are currently going to fall within the responsibility of a local authority, at the interface between health and social care, for the long-term maintenance of patients with very severe disability?

I accept the Minister's comments on this amendment and the onus on clinical commissioning groups, and those made by my noble friend Lady Murphy, that the commissioning board may be the central focal point, as was outlined in the amendment that was not accepted, Amendment 63A. However, my second question is whether the Minister would be prepared to meet me to see whether there is a need for a review of the wording to clarify completely that there are no gaps for these patients, who may be large in number but very disparate and heterogeneous, with a very broad range of views. In that event, perhaps we could return to the matter at the last point, at Third Reading.

There are two distinct questions there on which I would appreciate clarification.

Earl Howe: On the first question from the noble Baroness, we fully anticipate that NICE will provide quality standards and guidance on services commissioned by CCGs and local authorities jointly. Typically, those are the kinds of service that the noble Baroness has spoken of, some of them in relation to less common and

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more complex conditions. Therefore, the commissioning guidance would reflect the NICE advice, and I hope that I can reassure her on that point.

Of course, I am willing to meet the noble Baroness between now and Third Reading, although I am not necessarily giving her the green light to bring this amendment back at Third Reading. I have explained that the Bill adequately covers the points of concern. Furthermore, I think that the amendment is flawed. We can achieve what she seeks through provisions already in the Bill and those that are not in the Bill that I have described.

Baroness Williams of Crosby: In moving the amendment, I asked the Minister for an unqualified assurance that all people resident in England would be covered by a clinical commissioning group, and I have to say that I think he gave me that assurance. However, I simply ask that between now and Third Reading, if any Member of this House comes forward with evidence of the exclusion from clinical commissioning groups of anyone resident in England, the Minister will give that careful consideration. I am sure he will. He has won the trust of this House and I take the assurance on the basis of that trust, but if there is a dispute over whether there is any exclusion I hope he will permit me to suggest that his door might be as ever open if any Member of this House wants reassurance on the basis of evidence brought before him. I beg leave to withdraw the amendment.

Amendment 75 withdrawn.

Amendment 76

Moved by Lord Hunt of Kings Heath

76: Clause 24, page 35, line 9, at end insert-

"( ) provide for the chair and non-executive members of each governing body to be appointed using an independent process, the details of which are to be laid out in regulations;"

Lord Hunt of Kings Heath:The Minister thought that I was projecting a doomsday view of corporate governance within clinical commissioning groups. It is not doomsday but a warning that if you give enormous power to professionals who can take advantage financially from their decisions, you need strong corporate governance safeguards. The best safeguard is to have independent appointment of non-execs, who should be in a majority on a board. That is such a well known process and a safeguard in all public bodies. I beg to test the opinion of the House.

5.24 pm

Division on Amendment 76

Contents 185; Not-Contents 282.

Amendment 76 disagreed.



29 Feb 2012 : Column 1331


Division No. 1


CONTENTS

Adams of Craigielea, B.
Alli, L.
Alton of Liverpool, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Bilston, L.
Boateng, L.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Chandos, V.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Corston, B.
Cunningham of Felling, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Dixon, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Dubs, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Glasman, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Grocott, L.
Hall of Birkenhead, L.
Hameed, L.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Hattersley, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hereford, Bp.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of Southwark, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Layard, L.
Lea of Crondall, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Low of Dalston, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Monks, L.
Moonie, L.
Morgan, L.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Myners, L.
Nye, B.
O'Neill of Clackmannan, L.
Owen, L.
Pannick, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Puttnam, L.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.


29 Feb 2012 : Column 1332

Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sherlock, B.
Simon, V.
Singh of Wimbledon, L.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Leigh, L.
Snape, L.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tonge, B.
Touhig, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warner, L.
Warwick of Undercliffe, B.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Norwood Green, L.

NOT CONTENTS

Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashton of Hyde, L.
Astor, V.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Ballyedmond, L.
Barker, B.
Bates, L.
Bell, L.
Benjamin, B.
Berridge, B.
Bew, L.
Black of Brentwood, L.
Blackwell, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browne of Belmont, L.
Browning, B.
Burnett, L.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Carlile of Berriew, L.
Carrington, L.
Cathcart, E.
Chadlington, L.
Chidgey, L.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Cumberlege, B.
Dannatt, L.
De Mauley, L.
Deben, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dundee, E.
Dykes, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Edmiston, L.
Elton, L.
Emerton, B.
Erroll, E.
Falkner of Margravine, B.
Faulks, L.
Feldman, L.
Feldman of Elstree, L.
Fellowes, L.
Fellowes of West Stafford, L.
Fink, L.
Finlay of Llandaff, B.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
German, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Grade of Yarmouth, L.
Greaves, L.
Greenway, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Hennessy of Nympsfield, L.
Heyhoe Flint, B.


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Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hollins, B.
Home, E.
Hooper, B.
Howard of Lympne, L.
Howard of Rising, L.
Howe, E.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Inglewood, L.
James of Holland Park, B.
Jay of Ewelme, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kilclooney, L.
King of Bridgwater, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Laming, L.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lingfield, L.
Linklater of Butterstone, B.
Listowel, E.
Liverpool, E.
Loomba, L.
Lucas, L.
Luke, L.
Lyell, L.
Lytton, E.
McColl of Dulwich, L.
Macdonald of River Glaven, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Manchester, Bp.
Mancroft, L.
Maples, L.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montgomery of Alamein, V.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Moynihan, L.
Murphy, B.
Newby, L.
Newlove, B.
Newton of Braintree, L.
Northbourne, L.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer, L.
Palmer of Childs Hill, L.
Palumbo, L.
Parminter, B.
Patel, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Popat, L.
Quirk, L.
Ramsbotham, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Reay, L.
Rennard, L.
Renton of Mount Harry, L.
Ribeiro, L.
Richardson of Calow, B.
Ripon and Leeds, Bp.
Risby, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Rotherwick, L.
Ryder of Wensum, L.
St John of Bletso, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Sassoon, L.
Scott of Foscote, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharman, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Sterling of Plaistow, L.
Stewartby, L.
Stirrup, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Swinfen, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
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Trumpington, B.
Tugendhat, L.
Turnbull, L.
Tyler, L.
Tyler of Enfield, B.
Verma, B.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Warsi, B.
Wasserman, L.
Watson of Richmond, L.
Waverley, V.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Wilson of Tillyorn, L.
Wolfson of Sunningdale, L.
Younger of Leckie, V.
5.38 pm

Amendments 77 and 78 not moved.

Amendment 79 had been withdrawn from the Marshalled List.

Amendment 79A

Moved by Baroness Barker

79A: Clause 24, page 36, line 1, at end insert-

"14NA Registers of interests and management of conflicts of interest

(1) Each clinical commissioning group must maintain one or more registers of the interests of-

(a) the members of the group,

(b) the members of its governing body,

(c) the members of its committees or sub-committees or of committees or sub-committees of its governing body, and

(d) its employees.

(2) Each clinical commissioning group must publish the registers maintained under subsection (1) or make arrangements to ensure that members of the public have access to the registers on request.

(3) Each clinical commissioning group must make arrangements to ensure-

(a) that a person mentioned in subsection (1) declares any conflict or potential conflict of interest that the person has in relation to a decision to be made in the exercise of the commissioning functions of the group,

(b) that any such declaration is made as soon as practicable after the person becomes aware of the conflict or potential conflict and, in any event, within 28 days, and

(c) that any such declaration is included in the registers maintained under subsection (1).

(4) Each clinical commissioning group must make arrangements for managing conflicts and potential conflicts of interest in such a way as to ensure that they do not, and do not appear to, affect the integrity of the group's decision-making processes.

(5) The Board must publish guidance for clinical commissioning groups on the discharge of their functions under this section.

(6) Each clinical commissioning group must have regard to guidance published under subsection (5).

(7) For the purposes of this section, the commissioning functions of a clinical commissioning group are the functions of the group in arranging for the provision of services as part of the health service."

Amendment 79A agreed.

Schedule 2 : Clinical commissioning groups

Amendments 80 to 82 not moved.



29 Feb 2012 : Column 1335

Amendment 82A

Moved by Baroness Barker

82A: Schedule 2, page 281, leave out lines 32 to 34

Amendment 82A agreed.

Amendments 83 and 84 had been withdrawn from the Marshalled List.

Amendments 85 and 86 not moved.

Amendments 86A and 86B

Moved by Baroness Barker

86A: Schedule 2, page 281, line 38, at end insert-

"( ) The constitution must specify the arrangements made by the clinical commissioning group for discharging its duties under section 14NA(1) to (4)."

86B: Schedule 2, page 282, leave out lines 33 to 34

Amendments 86A and 86B agreed.

Amendments 87 to 89 had been withdrawn from the Marshalled List.

Amendment 90 not moved.

Amendments 91 and 92 had been withdrawn from the Marshalled List.

Amendment 92A

Moved by Earl Howe

92A: Schedule 2, page 288, line 12, at end insert-

"Seal and evidence

(1) The application of a clinical commissioning group's seal must be authenticated by the signature of any person who has been authorised (generally or specially) for that purpose.

(2) Any instrument which, if executed by an individual, would not need to be under seal may be executed on behalf of a clinical commissioning group by any person who has been authorised (generally or specially) for that purpose.

(3) A document purporting to be duly executed under a clinical commissioning group's seal or to be signed on its behalf must be received in evidence and, unless the contrary is proven, taken to be so executed or signed."

Amendment 92A agreed.

Amendment 93 had been withdrawn from the Marshalled List.

Clause 25 : Clinical commissioning groups: general duties etc.

Amendments 94 to 96 not moved.

Amendments 97 and 98

Moved by Earl Howe

97: Clause 25, page 37, line 8, leave out from "decisions" to end of line 9 and insert "which relate to-



29 Feb 2012 : Column 1336

(a) the prevention or diagnosis of illness in the patients, or

(b) their care or treatment."

98: Clause 25, page 37, line 10, leave out "may" and insert "must"

Amendments 97 and 98 agreed.

Amendments 99 to 102 not moved.

Amendments 103 and 104

Moved by Earl Howe

103: Clause 25, page 37, line 34, leave out "have regard to the need to"

104: Clause 25, page 37, line 36, at end insert-

"14XA Duty as to promoting education and training

Each clinical commissioning group must, in exercising its functions, have regard to the need to promote education and training for the persons mentioned in section 1E(1) so as assist the Secretary of State in the discharge of the duty under that section."

Amendments 103 and 104 agreed.

Amendments 105 and 106 not moved.

Amendment 107

Moved by The Earl of Sandwich

107: Clause 25, page 38, line 23, at end insert-

"14YA Duty as to addiction to benzodiazepines, selective serotonin reuptake inhibitors and Z-drugs

(1) Each clinical commissioning group shall have a duty to provide services to those suffering from addiction to and withdrawal from benzodiazepines, selective serotonin reuptake inhibitors and Z-drugs.

(2) In fulfilling this duty, clinical commissioning groups must co-operate with and take account of the good practice of specialised agencies in this field."

The Earl of Sandwich: My Lords, this is a non-political amendment. However, by the end of our discussion, it may become more political; it depends on what happens in this short debate.

I am very grateful for the support and encouragement I have received from my noble friends and noble Lords on all sides of the House in raising this issue now and on previous occasions; that is, prescribed drugs such as sleeping pills and antidepressants. I moved a similar amendment after midnight on 30 November. In that debate the noble Lord, Lord Alderdice, said:

"I hope my noble friend the Minister will be able to give some reassurance that this is regarded seriously as an iatrogenic disorder that the health service is in some cases responsible for bringing into play through absence of proper monitoring and, in some cases, errant prescribing".-[Official Report, 30/11/11; col. 372.]

If the health service does carry responsibility for iatrogenic disorder-as I believe it does-surely this makes it imperative that it moves faster on the issue than it otherwise would, even during a recession. The Minister did not respond to that point on that occasion. I would be grateful if he could acknowledge it today, if he can.



29 Feb 2012 : Column 1337

It may be helpful to remind the House that the singer, Whitney Houston, may have been under the influence of Xanax, which is a popular benzodiazepine, when she died. Without it, she may have survived. She had also taken Ativan and valium-drugs which I am sure are familiar to all noble Lords. Amy Winehouse took Librium. I mention them as two prominent recent examples of what is happening. Many thousands of people-not drug addicts but ordinary, mainly young, people living ordinary lives-are suffering from a diet of benzodiazepines, selective serotonin reuptake inhibitors called SSRIs, and z-drugs that all may initially have been prescribed for very good reasons and for a limited period of between two and four weeks as standard, but now blight their lives to the point of dark despair.

The Centers for Disease Control and Prevention in the US reported 37,485 deaths from prescribed medication in one year, 2009. It is recognised as a leading cause of death, in front of deaths from road traffic accidents, from firearms and from all illegal drugs put together. This information came only in the past few days, and we now hear from the British Medical Journal that sleeping pills, even taken lightly, can treble the risk of an early death.

5.45 pm

I know that the Minister takes these issues very seriously and I wish I could say that our own Department of Health is now actively on the case, but I cannot. The Government have not even got the numbers together from their two major reports. The Bill is completely silent on prescribed medication, although the noble Earl did refer in a previous debate to new structures that will help the health service to respond-and he may repeat that today. After all, this is mentioned in the national drugs strategy. We have been waiting for nearly three years for action on an issue that was first publicised more than 30 years ago.

There has been some progress. I have been to see the Minister, Anne Milton, and one or two things have happened since Committee stage, but the noble Earl will himself admit that they are nothing to boast about yet. The withdrawal charities are at last being consulted, thanks largely to pressure from the all-party group in Parliament, and two of them, in Oldham and Bristol, are to receive a ministerial visit.

The Minister asked me in November if I would accept that this was an indication of the Government's good faith. Yes, of course, every little helps, but people in pain are waiting for proper services. At the moment, there is no policy, no proper service, and they have to fend for themselves and depend on dedicated people. Perhaps I may quote from the Minister's previous reply on 30 November, when he was describing existing provision. He said:

"There is access to support and treatment services for addiction to medicines in most local areas".

That is simply untrue. He added,

That is also untrue, because most areas are woefully short of such services. I know that the Minister is conscientious, and that has been demonstrated throughout the Bill, but he has been misinformed. My wife and I

29 Feb 2012 : Column 1338

have researched this and have given a copy of the research to Anne Milton. The truth is that there are very few areas in the UK with such services, and almost all are voluntary. That is no bad thing, as I argued last time, because support for the voluntary sector may well be the best route towards a new government strategy for prescribed drugs, based on the good practice that already exists. The knowledge is out there to be used.

What we do not want is a pretence that because there are government-funded addiction centres-I know one in Roehampton, for instance-with proper budgets behind them for addiction to hard drugs, and because they are there to help people suffering from hard drugs, such centres cater for prescribed drugs at the same time. They emphatically do not. There is no government budget for that at all. Will the Minister assure me that there will soon be a policy-I am sure that there will be-and that there will be a statement from Anne Milton that preferably has the support of the Royal College of General Practitioners, which is what she is seeking. I can understand that there are little local difficulties at the moment, but this is something that GPs could get behind publicly. That is what she told us; I cannot see what could be the delay for making a statement such as that.

Finally, on a more positive note, I expect the Minister to confirm that the process of consultation on the withdrawal of charities and user groups is properly under way. The expert group at the round-table meeting, which has had two meetings and is meeting again next month, must prepare not for future research or more action points but for a proper programme of services nationwide. That programme will draw on and reflect the genuine success of the voluntary sector, using the direct experience of patients in places such as Bristol, Oldham, Bradford, Belfast and the London boroughs of Camden and Islington-incidentally, those are the only boroughs served in the whole of the London area at present.

The second part of my Amendment 107, which we discussed in Committee, deals with the voluntary sector itself. I will not repeat what has been said by many noble Lords. It requires the CCGs not only to take account of good practice but to co-operate with the sector, because it often knows better. The noble Lord, Lord Rooker, and others, including the Minister, have already made that point forcefully during debate. I endorse that and I beg to move.

Baroness Masham of Ilton: My Lords, I support my noble friend's amendment. Only yesterday, there were headlines in the press about the American study in the BMJ Open which found that sleeping pills were linked to increased death risks. It was found that death risk among users was about four times higher than among non-users. UK guidelines for NHS staff state that hypnotic drugs should be used for only short periods of time, because of tolerance to the drug and the risk of dependency, but they make no mention of an associated death risk, despite other studies having already reported that potential risk.

Many of your Lordships will know that doctors often do not review their patients' drugs enough. Patients can have repeat prescriptions for years, putting

29 Feb 2012 : Column 1339

them at great risk. Addiction to prescribed and over-the-counter drugs is an enormous problem. Groups which give support to the unfortunate people who become addicted themselves need support. Will CCGs be able to do that? Does the Minister think that that serious problem will get worse? My noble friend's amendment is an effort to make that worrying situation better. I hope that the Minister will accept the amendment.

Lord Williamson of Horton: My Lords, the amendment deals with the distressing and serious problem of addiction to certain prescription drugs and, as is specified in the text, the problem of withdrawal from those drugs, because when such efforts are made, on many occasions they unfortunately fail and result in other difficulties for the patient in question.

Without going into detail about what may happen to the amendment, I hope that the Minister will be able to confirm that there should be an appropriate priority for the services available to treat that distressing problem. I do not press the point more than that, but it would be useful if we could have that sort of assurance from the Dispatch Box. In particular, whether the Minister agrees with this or not, some of us believe that in the past the issue has been allowed to fall into the shadows. That is what has happened in practice. It has been neglected and people have suffered in consequence. Perhaps we are improving but we could improve more, and I hope that the Minister will give an encouraging reply about the appropriate priority that ought to be given to the problem.

Baroness Finlay of Llandaff: My Lords, this is a clear example of an iatrogenic condition, very often originating in primary care. When patients have presented with insomnia, instead of being taken through the more complex and time-consuming aspects of sleep hygiene and possibly talking therapies to discover the cause of their insomnia, a prescription has been given all too quickly and readily. If we are looking at responsibility falling back to clinicians in primary care, it seems inordinately sensible that the clinical commissioning group should consider its responsibility to provide support to patients who end up with an iatrogenic problem.

I can see that the Government may feel that this is a very specific amendment targeted at a very specific area, but the guidance that needs to go out to clinical commissioning groups on their responsibility for the behaviour of all those prescribing on their patch may well deal with some of the principles behind this amendment and ensure that the necessary services are provided to patients who, completely inadvertently, fall foul of taking the drugs that they were prescribed and as they were told to take them.

Baroness Hollins: My Lords, I pay tribute to the work of my noble friend Lord Sandwich, who has done so much to raise awareness of the often unmet needs of people whose addiction originated in a legal prescription. There is some progress in training doctors-for example, in undergraduate medical education with a new national curriculum on substance misuse. This guidance provides learning objectives on rational

29 Feb 2012 : Column 1340

prescribing and iatrogenic addiction. The fact that such a curriculum is only just being introduced shows the need for the attention of clinical commissioning groups to be brought to this issue.

There seems to be a special responsibility on the National Health Service to provide better care for people affected by medical prescribing practice, and I hope that the Minister will be able to suggest how such a responsibility could be emphasised in the Bill.

Baroness Thornton: My Lords, I intend to make only two remarks. We have a great deal to get through tonight, so I shall exercise great self-discipline. I think that I will come in at under a minute and a half.


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