8 Mar 2012 : Column 1893

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House of Lords

Thursday, 8 March 2012.

11 am

Prayers-read by the Lord Bishop of Exeter.

Royal Assent

11.07 am

The following Acts were given Royal Assent:

Supply and Appropriation (Anticipation and Adjustments) Act,Live Music Act,Public Services (Social Value) Act,Domestic Violence, Crime and Victims (Amendment) Act,Welfare Reform Act,Consumer Insurance (Disclosure and Representations) Act,Bank of Ireland (UK) plc Act.

Schools: Campaigns


11.08 am

Asked by Baroness Gale

Baroness Warsi: My Lords, today, on this 101st anniversary of International Women's Day, when women, and men, around the world are celebrating the progress that has been made on the rights and protection of women, the noble Baroness, Lady Gale, asks an important and timely Question. It is tragic that violence against women and forced marriage are still issues in this country. Sexual health is taught in personal, social and health education-PSHE-and is currently under review. The consultation phase closed three months ago, and the Department for Education is in the process of drafting a response.

On forced marriage, the Forced Marriage Unit conducts outreach work domestically and internationally and produces a wide range of resources that are available to schools.

Baroness Gale: I thank the Minister for her reply. I congratulate the Government on their excellent campaign "This is ABUSE". Is the Minister aware that research has shown that the highest proportion of sexual abuse experienced by teenagers is perpetrated by those under 18 and that one in three teenage girls experiences unwanted sexual contact at school? It is essential that teenagers get as much information as possible, especially from this campaign. Will the Minister say why the Department for Education is not promoting the campaign, as that is where most teenagers are? I hope that she will not say, as the Minister for Children said the other day, that it is to reduce burdens on schools.

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Baroness Warsi:My Lords, the noble Baroness is correct that the National Society for the Prevention of Cruelty to Children recently produced a report that stated that 16 per cent of teenage boys and, tragically, 33 per cent of teenage girls had experienced some form of sexual violence or abuse, predominantly from a partner. The teenage rape prevention campaign, which was launched earlier this week by the Deputy Prime Minister, will build on the recent teenage relationship abuse campaign. All partners and front-line practitioners with whom the Home Office has been working, which include teachers and schools, will have access to this further information and resource material. It will also be featured on the Times Educational Supplement Connect website and on the Department for Education's corporate Facebook page. Before I came into the Chamber, I typed in "teenage abuse", and the Home Office-funded website "This is ABUSE" and information about the new campaign, including a very hard-hitting video, are immediately available as the top click.

Baroness Hussein-Ece: My Lords, many of us will agree that forced marriages have no place in any civilised society and are also against the teachings of any religion that we are aware of. I am aware that the consultation ends on 30 March. However, most people are unaware that forced marriages are not illegal. Does my noble friend the Minister agree that making this a criminal offence would act as a deterrent, would support victims and would send out a very strong message that it is simply illegal to force any young girl to marry against her will?

Baroness Warsi: My Lords, I agree with my noble friend's comments, and I completely agree that this issue is not confined to any specific culture or religion. Indeed, no religion condones this kind of behaviour. The forced marriage consultation, which started in December last year, is looking specifically at moving from a civil remedy to a criminal sanction. That consultation concludes at the end of March. During the consultation we are speaking to victims' groups, lawyers and specialists who have been involved in this area for many years. There are arguments on both sides as to whether this should be a criminal offence. I have made it clear in both opposition and government that the time has now come to make it a criminal offence, but of course the Government will have to consider all responses to the consultation before we come to a final decision.

Baroness Massey of Darwen: Does the Minister agree and sympathise with my concern and frustration about the slowness of the implementation of personal, social and health education in schools? Can she also say who will be responsible in the mean time for carrying out education on things such as sexual consent and forced marriage, in which part of the curriculum it will be done, and how schools will get the information about where to refer young people to afterwards?

Baroness Warsi: My Lords, as I said earlier, the position of PSHE in the curriculum is under review. It would be wrong to predict the outcome of that review and to predict where that subject would be taught. Of

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course, noble Lords will be aware that the responsibility for holding local agencies, including schools, to account for the effectiveness of safeguarding work relating to children rests with the local safeguarding children boards. All these boards have some sort of teacher representation, so there is ongoing contact with local child protection services and schools. Where this will be taught in the curriculum is currently under review.

The Earl of Listowel: My Lords, will the Minister consider looking at the services for children who sexually harm other children? There has been considerable concern in the past about the variable quality and availability of those services. Will she consider looking at that and perhaps write with her findings to noble Lords taking part in this short debate?

Baroness Warsi: There has been research; indeed, the NSPCC specifically looked at abuse between children and the pressures that young people face when a relationship turns abusive. Indeed, the video that I referred to-which, if noble Lords have a few moments, is worth looking at-is a very hard-hitting video that specifically highlights the pressures that can be placed upon young people when they are in relationships. That video is being played not just as a resource within schools but during primetime viewing for that particular audience on television.

Baroness Gardner of Parkes: My Lords, I am sure that we all in this House are glad that the Minister has made clear that there is no religious basis for these marriages. Nevertheless, does she think that there is a long-established cultural tradition that will take a long time to change and that making it criminal might help to speed up that process?

Baroness Warsi: My noble friend makes a very valid point. There are certain countries of origin in which this practice of forced marriage is more prevalent. Statistics show that it is more likely to occur in the Indian subcontinent, specifically in Pakistan and Bangladesh. The Forced Marriage Unit is hugely active in those countries and a great amount of resource has been put into that. This has been a long journey and I must give all credit to the opposition Benches and the noble Lord, Lord Ahmed, of Rotherham, who did a huge amount of work on this in the late 1990s and in early 2000. This is an ongoing journey. The current consultation is about whether we are prepared to take the next step and criminalise it, and I am delighted that I have the support of noble Lords from across the House in taking that initiative forward.

Crime: Domestic Violence


11.15 am

Asked by Baroness Gould of Potternewton

8 Mar 2012 : Column 1896

Baroness Verma: My Lords, because the Government take domestic violence so seriously, we have ring-fenced nearly £40 million of stable funding for specialist local domestic and sexual violence support services until 2015. Accommodation is the foundation to ensuring that victims are afforded safety and security, which is why homelessness legislation in England provides one of the strongest safety nets in the world for families with children and vulnerable people who become homeless through no fault of their own.

We are also piloting domestic violence protection orders in three police force areas by which the police and magistrates can put into place protection for the victim so that they need not flee their own property, and the perpetrator is prevented from returning to the residence and from having contact with the victim for up to 28 days.

Baroness Gould of Potternewton: I thank the Minister for that reply and for any action that the Government are taking to protect women suffering from domestic violence. In spite of her comments, will she justify why up and down the country refuges are closing down or facing cuts? On a typical day, Women's Aid is turning away about 230 women because it does not have the funding to accommodate them. Women are literally having to find places to sleep outside-such as in the Occupy camps, hospitals or night buses, and I have even heard of a case of a woman sleeping in an internet cafe-or are having to return to an abusive partner. Can the Minister indicate what action the Government propose to take to ensure that women are not subject to such a position and do not have to return necessarily to an abusive home rather than find a place of safety? How will places of safety be found?

Baroness Verma: My Lords, I fully understand the noble Baroness's concerns but I reiterate that we are committed to ensuring that victims have a place to go if they are in need of such a place, which is why we are conducting a pilot in three police areas. I should also like to say to the noble Baroness and to noble Lords that we are in difficult circumstances. We have to deal with that alongside funding for all sorts of organisations. We have made this an issue that is dealt with locally. We have ensured that £6.5 billion is in place to support the Supporting People programme. At any one time, that programme looks after 1 million people. We have increased spending on housing-related support for victims of domestic violence from £62 million in 2007-08 to £71 million this year. A lot is going on, but we are in difficult times and we have economic constraints.

Baroness Seccombe: My Lords, does my noble friend agree that some of these victims of domestic violence are men? Does she feel that on this special day we might spare a thought for and celebrate the men in our lives?

Noble Lords: Hear, hear!

Baroness Verma: I think that my noble friend has had her question answered. On a more serious note, any victim will be supported by this Government. Victim support will always be gender neutral. We are seeing rising numbers of men being violently abused,

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so I agree completely with the sentiment expressed by my noble friend. This is a gender-neutral issue that we need to take in the round.

The Earl of Listowel: My Lords, while recognising the devolution to local areas, can the Minister say a little about specialist services to provide access to adult, child and adolescent mental health services in situ in refuges? Are there any special arrangements for those parents and their children?

Baroness Verma: The noble Earl has raised another serious issue and of course we will find a prevalence of mental health issues in these cases. I very much take on board what the noble Earl has said, but I would rather write to him specifically about the work that is being done because this is a broad question that needs to be answered in detail.

Baroness Royall of Blaisdon: My Lords, I accept entirely that the Government have ring-fenced some money for dealing with the problems faced by the victims of domestic violence. However, as my noble friend Lady Gould said, refuges up and down the country are either closing or are under threat of closure, including in the Forest of Dean. Can the noble Baroness tell me whether the Government expect local authorities to undertake impact assessments before refuges are closed to see what the impact will be on vulnerable women who will be left homeless or without a place to stay when they close?

Baroness Verma: My Lords, I will repeat myself and say that we have difficulties with finances simply because there is no money to spare, as the noble Baroness will be aware. However, the homelessness strategy will not see people who require support and housing being left without refuge. There is a close relationship between what we are doing nationally and the work that we are making sure local authorities do through the funding that we have secured with them. Of course, local authorities will make decisions about need in their areas, and I would say to the noble Baroness that authorities have a duty to ensure that any victims of any form of violence are supported in securing refuge.

Baroness Hamwee: My Lords, I welcome the financial contribution that this and the last Government have made to the national domestic violence helpline, but will my noble friend take away from the exchanges today the message that it is direct provision that is so important? Things such as telephone advice are helpful, but they cannot carry out the whole job.

Baroness Verma: My noble friend makes an important point, but she will also understand that these are difficult times.

Equality: Pay and Opportunities


11.23 am

Asked by Baroness Prosser

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Baroness Northover: My Lords, the Government are committed to making full use of the skills and experience that women bring to our economy. We are increasing flexibility in the workplace and extending help with childcare. We are supporting women's enterprise through identifying and training 5,000 business mentors. We are encouraging greater transparency on gender equality in the workplace and, with the noble Lord, Lord Davies of Abersoch, we are helping more women reach the boardrooms of our leading companies.

Baroness Prosser: I thank the noble Baroness for that reply. Does she agree that as the reasons for the continuing gender pay and opportunities gap are many and various, the solutions must be multilayered as well? Can she tell the House about any proposals the Government may have to address the unaffordability of childcare, the paucity of good quality part-time employment and the training needs of women working below their capacity?

Baroness Northover: I pay tribute to the noble Baroness for her work in this area and for chairing the Women and Work Commission and its later update, which is an impressive piece of work. She will be aware that the trend is in the right direction. It is very marked. If you look at 1970, there was a 38.2 per cent gender pay gap and in 2011 it was 9.2 per cent. But we cannot be complacent and the issues that she has flagged up rightly identify some of the challenges that face women in work.

Under the universal credit, we will be extending the amount of support to childcare for those working less than 16 hours a week-so those working part-time-and that should assist 80,000 families. We are extending the right to request flexible working to employees. It is also extremely important to note that there are many more apprenticeships, often being taken up by women in later life so that they can more easily get back into work if they have taken time out.

Baroness Kramer: My Lords, my noble friend will be aware that students taking maths at A-level almost always go on to higher education and earn something like £17,000 more a year than their counterparts. That is true also for those taking subjects such as physics and engineering. What are we doing today to try to persuade girls that they can choose this route, which would very quickly close a great deal of the earnings gap?

Baroness Northover: My noble friend is absolutely right. Gender stereotyping in schools has tended in the past to direct girls way from the areas that she is talking about. The new National Careers Service will encourage girls and young women to challenge those stereotypes and encourage them to choose from the broadest possible career options. That includes providing good information, which girls, certainly from my experience, are very interested in, about the wide range of career opportunities that studying science and maths can lead to.

Baroness Pitkeathley: My Lords, does the Minister agree that, with the demographics of an ageing population, the provision of elder care and care for disabled people

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is just as important, if not more important, than the provision of childcare in enabling people to return or stay in the workforce? What provisions are the Government making to help people with caring responsibilities enter or remain in the workforce?

Baroness Northover: The noble Baroness is absolutely right. We often debate how we can better develop the support of social care. I look forward to future debates this year on that area, as she knows. She is quite right that many people find themselves trapped in a situation where they are responsible both for the care of children and for elder care. That means that it is extremely important that our extension of the right to request flexible working for all employees-men and women, as we seek to share that responsibility-is taken forward. It is very important that this does not simply fall on women. At the moment, many men support their parents as well, so I hope that this is something that will move forward steadily.

Baroness Howe of Idlicote: My Lords, does the Minister agree that one of the most important issues is to ensure that men have equal access to flexible and part-time working and that that is seen as important in all the firms that employ men? That is one of the gaps that still exist. I also congratulate the Government on the progress-there are visible signs of progress-in opportunities and on pay. This Government have done a fair amount to increase that and the previous Government did a great deal to start the climb.

Baroness Northover: I am very grateful to the noble Baroness for those comments and I also pay tribute to the previous Government for their work in that area. It is indeed extremely important to extend flexible working to make sure that both sexes take full advantage of that and play their part-whether looking after children or helping with elder care, as we have just discussed.

Lord Boswell of Aynho: My Lords, while in no sense seeking to denigrate the importance of equality legislation, where we must not take our foot off the pedal, will my noble friend agree that it is time to trumpet the positive benefits to companies and organisations of a workforce and decision-makers who are diverse in experience and attitudes? More wisdom will come out of that diversity than out of a monolithic offer.

Baroness Northover: I could not agree more with my noble friend. That was emphasised in the debate on women last week. I note that 24 per cent of all appointments to FTSE 100 boards are now women, up from 13 per cent the previous year. That is one area where it is extremely important to carry through the points that my noble friend made.

Baroness Sherlock: My Lords-

Lord Dannatt: My Lords, on this day when we focus on women and are mindful of the loss of six soldiers in Afghanistan, bringing the number who have lost their lives in that campaign to 404, will the Minister and the whole House join in paying tribute to women-

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mothers, daughters, girlfriends and wives-who are at home while their men are on the front line? We must also bear in mind that some of those on the front line are women. We pay tribute to women who serve at home by supporting those who are on the front line on this day when we focus on women in particular.

Baroness Northover: I am very happy to pay tribute to the men and women who serve for us on the front line and their families at home-their partners, wives and husbands, and their children.



11.31 am

Asked by Lord Bates

The Minister of State, Department for Business, Innovation and Skills & Foreign and Commonwealth Office (Lord Green of Hurstpierpoint): My Lords, the United Kingdom has an internationally competitive manufacturing sector, with companies across a wide range of activities. The automotive sector is a great example of that. We were delighted to see the unveiling of Nissan's new concept car in Geneva this week. We welcome the news that the production model will be built at the Sunderland plant next year, creating about 2,000 new jobs at Nissan and in its supply chain.

Lord Bates: I am grateful to my noble friend for that Answer. It is indeed very good news. Does he recall that three years ago the confidence of the north-east was shattered by three simultaneous announcements: the lay-off and mass redundancies at Nissan, the closure of the Corus steel plant and the shelving of plans for a £5 billion investment in new high-speed trains? Does he recognise that over the past year we have seen the reopening of the Corus steel plant, the go-ahead for the Hitachi investment in new trains, and now the thousands of new jobs coming through Nissan's investment? Does he agree that this demonstrates restored confidence in manufacturing in Britain and also in the policies pursued by the Government?

Lord Green of Hurstpierpoint: Before I answer that question, I am sure that the whole House would like to join me in congratulating my noble friend on just completing a 3,000-mile walk around Europe in support of the Olympic Truce initiative.

Yes, I agree with my noble friend that this is a sign of confidence in the British economy and in the north-east in particular. There is recent evidence of inward investment into this country in a range of sectors-not just cars but also rail, as my noble friend mentioned, renewable energy and steel. The investment comes from a range of countries-Japan, India, Thailand, China, as well as the more traditional sources of Europe and the United States. This is a welcome sign of the rejuvenation of the British economy.

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Baroness Armstrong of Hill Top: We in the north-east are very pleased that Nissan, in my home town of Sunderland, is investing even more. It is a real tribute to the quality of the workforce and to the support that Nissan has had-it is proud to acknowledge it-from One North East, which has been so important in getting this investment. One North East is not there any more. What is also not there is a lot of jobs. Sunderland now has an unemployment rate of around 11 per cent and many young people feel that their opportunities have gone for another generation. What will the Government do to make sure that those lives are not written off?

Lord Green of Hurstpierpoint: The noble Baroness points to the significant challenges that we still face in many parts of the country. The north-east is a graphic example of an area that has become overly dependent on the public sector, where youth unemployment is at unacceptable levels and the role that foreign direct investment can play is significant in rejuvenating the economy and creating new job opportunities. Of course that is not the only thing that we need to see but it is a key part of it.

Lord Bilimoria: My Lords, as a proud manufacturer in one of the world's brewing capitals, Burton-on-Trent, I wonder whether the Government agree with the Leader of the Opposition that British manufacturers should proudly mark their products "Made in Britain" rather than "Made in the EU", as many of us do at present? Furthermore, what are the Government doing to help improve productivity in UK manufacturing and to learn from the United States, which has bounced back from recession? One of the key drivers there is the United States' impressive track record of ramping up its productivity.

Lord Green of Hurstpierpoint: The noble Lord makes two very important points, one of which is about "brand Britain", if I may use that phrase. I have travelled to over 30 countries in the past 12 months and, wherever I go, I find that brand Britain is extraordinarily well appreciated. In the next breath, people will often say, "Where are the British businesses? We would like to see more of them". I absolutely agree that we should be proud of the "Made in Britain" brand.

We have a continuing task of upgrading productivity. This is about a number of things, including the new Catapult centres and apprenticeship schemes. We need to continue to invest because we are behind the curve in productivity in a number of sectors.

Lord Razzall: My Lords, in this burst of Sunderland euphoria it would perhaps be unkind to ask the Minister whether he agrees with the recently leaked letter from Vince Cable to the Prime Minister on the subject of growth. However, perhaps I may ask whether the Minister believes that the Government are seriously considering the possibility of breaking up the Royal Bank of Scotland, which would, of course, lead to increased lending to the manufacturing industrial sector?

Lord Green of Hurstpierpoint: On my noble friend's first question, I believe that my right honourable friend the Secretary of State made an important point about

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a strategy that looks at the various sectors of this economy and identifies the appropriate measures that government can take to support them. It is of course true that while deficit reduction and fiscal consolidation is the most urgent challenge, we need to find a path of growth for this country that is more balanced and stable. On the question of the Royal Bank of Scotland, the answer is clear: we do not believe that breaking up the RBS is the right answer to addressing the financial issues in this country.

Lord Barnett: My Lords, before the Minister sits down, could he tell us what specific strategy his department has to deal in this area of manufacturing with the Chinese, if we are ever to hope to be able to compete?

Lord Green of Hurstpierpoint: The noble Lord raises a very important question. The Chinese are becoming more and more formidable competitors across a range of sectors, and we have to assume that that will continue. For the next generation, they will continue their fast growth and become more and more international. There are two answers to that question. One is to make sure that we are as innovative as we can be-that we move up the value chain, in short. Secondly, we need to be open to Chinese investment in this country. A key priority of my own brief is to encourage and nurture Chinese investment in this country, because they bring capital and, in some cases, expertise, which is valuable to this economy.

Health and Social Care Bill

Bill Main Page
18th Report from the Constitution Committee.
22nd Reports from the Constitution Committee.

Report (6th Day)

11.38 am

Amendment 217A has been retabled as Amendment 292A.

Clause 149 : Interpretation and consequential amendments

Amendment 218

Moved by Earl Howe

218: Clause 149, page 148, line 26, at end insert-

"( ) Until section 8 comes into force, the references in this Part to the National Health Service Commissioning Board (other than the reference in section 95(11)(b)) are to be read as references to the NHS Commissioning Board Authority.

( ) Until the day specified by Secretary of State for the purposes of section 14A of the National Health Service Act 2006, the references in this Part to a clinical commissioning group (other than the reference in section 95(11)(a)) are to be read as references to a Primary Care Trust.

( ) Until section 180 comes into force, the following provisions in this Part are to be read as if the words "and its Healthwatch England committee" were omitted-

(a) section 84(4)(c);

(b) section 85(5)(a)(iii);

(c) section 96(2)(e);

(d) section 100(2)(e)."

Amendment 218 agreed.

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Clause 153 : Accounts: initial arrangements

Amendment 218A

Moved by Baroness Thornton

218A: Clause 153, page 151, line 32, at end insert-

"(1B) Annual proper accounts and proper records must be separately prepared and kept which separately detail the income and expenditure derived-

(a) from private charges, and

(b) in relation to the provision of services to NHS patients.

(1C) "Private charges" means charges imposed in respect of goods and services provided to patients other than patients being provided with goods and services for the purposes of the health service in England."

Baroness Thornton: My Lords, I start by wishing everybody in the Chamber a happy International Women's Day.

We turn to the discussion about the private patient cap. We have three amendments in this group, and I will talk to each of them.

Amendment 218A seeks to ensure that proper information is available on private patient income-that is, more than just the final line of total income. This is relevant to ensure that there is no possibility of cross-subsidy from the NHS to the private sector, either directly or by some accountancy magic. There needs to be absolute clarity. As we see new foundation trusts emerge that are neither mental health nor acute-based trusts-ambulance trusts, for example-the issues may be different but the need for transparency and accountability is just the same. This is important for openness and transparency and makes easier the kind of considerations that the governors need to apply. It is also a means of sending a signal that this activity is separate and, at least in some sense, subordinate to the principal purpose, which is to treat NHS patients.

The amendment seeks to delete the part of Clause 163 that brings in the 49 per cent test, which is a new way of making explicit the "principal purpose test" that all foundation trusts have to meet. I think we could all agree that the reaction to the figure of 49 per cent shows how strongly many believe that this is an obvious signal that there should be a great increase in private income that is neither anticipated nor desired. We know that in reality very few foundation trusts even get to 5 per cent, let alone 50 per cent, and there is no immediate prospect of them doing so. It is therefore difficult to see why the Liberal Democrats or indeed Mr Lansley would be so crass as not to see how the 49 per cent figure would be greeted.

There are several dangers with this late pre-Christmas addition to the Bill. It sends the wrong message. We believe that it may tempt bureaucrats and quangos charged with funding to say that some foundation trusts should get less funding as they have not done enough to push up their other sources of income, as we have seen with local authorities that rely heavily on other income. This would be totally wrong and an inappropriate target for the NHS. We also think that there is a danger that high levels of foundation trust income may exacerbate fears of queue-jumping and charging.

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There is a serious argument that when private patient income is as the result of innovation and intellectual property, as we all wish to be the case, then high levels of benefit should be shared more widely rather than being kept in one trust. Since the NHS as a whole will have nurtured that opportunity, the NHS as a whole should benefit. A high-performing trust with little or no private income is certainly no worse than any other, and some may argue that it may even be better if its focus is in the right place-that is, NHS patient care. We suspect that this might be an attempt to shift foundation trusts from being NHS providers that focus on NHS patients to some sort of multinational health business, and that their success or otherwise will be measured against a new benchmark of how much private patient income they generate.

Of course we recognise the special place that some of our leading hospitals have in the high private patient cap that they need to reflect their partnerships with research and other institutions across the world. None of these amendments seeks to diminish that-indeed, quite the reverse-but those hospitals will only ever be a small number, and the amendments address the majority of foundation trusts.

In Committee I asked the Minister for any evidence of benefits to NHS patients. It seems that the Government were just relying on claims made by a number of foundations trusts eager to expand. One day perhaps a proper independent study will be carried out. Some would say that independent studies into claims that foundation trusts are more innovative or that they improve faster than non-foundation trusts have been disproved by evidence. The real test is how private income benefits NHS patients, and that is not the same as benefiting the organisation or the prestige of some of its senior staff. Removing the 49 per cent and relying on the principal purpose, plus the role of governors, is a much better route to providing the flexibility that is needed to change private patient income caps. Our Amendment 220C addresses that issue, and it has been the subject of much discussion. I hope that the misrepresentation of that amendment, particularly by the Prime Minister, will not be repeated here. We accept the need for flexibility, and were looking at this matter when in office.

11.45 am

We do not propose to reduce any FT cap from where it is at the moment; that is not what that amendment is about. Our principles encompassed in that amendment are that there is a cap set on authorisation; that it is foundation-trust specific, and therefore local, which is completely in tune with the Bill; that it may be changed by the foundation trust board in agreement with the governors after proper consultation with the members of the trust; that it should be changed only after consultation with local CCGs and health and well-being boards; that regulations should set out the basis for consultation; and that major changes should only be additionally agreed with the regulators. In other words, if one of those foundations trusts already has a high cap and wants to increase it, we do not say that that should not happen, but we do say that the regulator should be involved in that discussion.

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The amendment accepts that the cap can change up or down, and that a cap can reflect local circumstances. That is not a bar to change, nor is there some arbitrary upper limit. To avoid any other misrepresentation, if a foundation trust is already above the 5 per cent level, it can still increase its cap but would require the approval of Monitor. That seems to me to be a sound case that could not unreasonably be refused. We are not inhibiting the Royal Marsden or any others.

I would like the Minister to clarify something in his amendment: is his "5 per cent" 5 per cent of 5 per cent, or is it 5 per cent of the total figure? It is not completely clear to me what is being proposed there.

These principles are sound. I beg to move.

Lord Marks of Henley-on-Thames: My Lords, this group of amendments is on the question of foundation trusts' private income cap. All of us are agreed that the number of private patients and the amount of private income are important considerations for foundation trusts. The risks to the NHS of too much private income and private treatment in foundation trust hospitals are clear and perhaps do not need rehearsing at length. If too many beds in such hospitals are taken up with private patients, unless we are very careful, that may limit accessibility of those beds to NHS patients. The development of foundation trust hospitals with an unusually great proportion of private income may-again, unless we are very careful-threaten to undermine the commitment to reducing health inequalities that runs through the Bill. Emergence of "star hospitals" could threaten other hospitals in the region.

Finally, the threat of foundation hospitals being subject to EU competition law would have been greater if it were possible to have foundation trust hospitals a majority of whose income was private; that, at any rate, is our view. This is one of the principal reasons for the cap on caps, by which the principal purpose of foundation trust hospitals can only be fulfilled if more than half of foundation trusts' income is NHS income. That is the so-called 49 per cent.

I say to the noble Baroness, Lady Thornton, that the only reason that that majority provision can be said to send the wrong message is that, sadly, some in her party have taken to the airwaves to say that there is a hidden agenda to the Bill by which the Government seek to make national health foundation trust hospitals have 49 per cent of their income from private patients. There is no such hidden agenda. Frankly, it has not been responsible politics to raise people's fears by going around the country suggesting the contrary.

Baroness Thornton: Does the noble Lord think that it was necessary to put 49 per cent in the Bill? Why did the Government have to put a percentage in at all? Does he think that the communication issues, as it were, around this were handled very well?

Lord Marks of Henley-on-Thames: My Lords, on these Benches we take the view that it was sensible to include this provision. The advice that we have is that the risk of the application of competition law is reduced by ensuring that the majority of income for NHS foundation trust hospitals will always be for the purpose

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of treating NHS patients. It is not an absolute guarantee but it is a sensible risk-reduction exercise and it was put in for that purpose. There is no point in taking a risk unnecessarily. The communication problem has frankly been the result of the efforts of opponents of the Bill, partly in the party of the noble Baroness, in stressing the 49 per cent and suggesting that it is the purpose of the Bill, which, as I say, it is not.

That is not to say that private income in NHS foundation trusts is bad. The Labour Government recognised that throughout. In her speech, the noble Baroness herself very properly recognised it. Private income represents an opportunity for foundation trusts to attract innovation, to buy new and expensive equipment and to develop world-class centres of excellence. We recognise and applaud those features of private income. However, when tabling Amendment 220B, we were concerned that there should also be an individual arrangement for foundation trusts by which individual limits would be subject to agreement with Monitor.

Lord Campbell-Savours: Will the noble Lord explain, in very simple language that people outside can understand, what is to prevent a central London teaching hospital with an international reputation ending up taking almost half its business from overseas patients who pay by private means?

Lord Marks of Henley-on-Thames: I take the noble Lord's question to mean: why should a proportion not exceed 50 per cent? As I have explained, the reason is that we regard that as having a risk. If the question is why should a central London hospital not take nearly half its income from private patients, the maximum taken at the moment is, I believe, some 39 per cent. There is a limit of 5 per cent on any increase to be proposed, more than which the governors would have to agree to by a majority. It could not just be a simple majority; a majority of the governors must vote to approve the change. It may well be that some hospitals will wish to go nearer to 50 per cent, which is why there is a reference to 49 per cent.

Lord Campbell-Savours: So that we can have it absolutely on the record, is the noble Lord saying that a teaching hospital in central London-

Baroness Rawlings: My Lords, we are on Report.

Lord Campbell-Savours: It is a very important question.

Baroness Rawlings: My Lords, it must be a brief question.

Lord Marks of Henley-on-Thames: My Lords, I believe that I have answered the question. I accept that it is important. We believe that the provisions that are now to be in the Bill, given the government amendments and an assurance that I hope to receive from the Government, will cover the position.

I was explaining that, when we tabled Amendment 220B, we believed that there should also be an individual arrangement for agreement with Monitor so that all considerations could be balanced when considering any substantial increase in private income. However,

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in discussions, the Government agreed to respond to amendments that Liberal Democrat Peers tabled in Committee on the involvement of governors. Those amendments that the Government now pursue-Amendments 220BZA and 220BZB-represent that response. They ensure that any increase of more than 5 per cent would have to be approved by the governors voting, as I say, by a majority. The governors have to be satisfied that the plans put forward by the foundation trusts for attracting private income would not interfere with the treatment or welfare of NHS patients. I suggest that that scheme represents a devolved, local scheme that is consonant with the structures in the Bill and the desire to keep local decision-making at a local level.

There may still be concern that the governors of individual foundation trusts will primarily have in mind the concerns of their own foundation trusts. However, under amendments that have been agreed, Monitor is now to have continuing powers of supervision and intervention over foundation trusts. If we are assured that in every case where the governors approve a proposal for an increase in private income in excess of 5 per cent Monitor will consider whether the interests of NHS patients as a whole are to be safeguarded, and if it is not so satisfied it would intervene, I suggest that that assurance will meet that concern. We will not move Amendment 220B but we seek that assurance from my noble friend the Minister.

Baroness Finlay of Llandaff: My Lords, I have an amendment in this group. I recognise that it is badly worded and simplistic and I shall not be moving it. However, I would like to address other amendments in this group which are far better worded than mine. The adversarial debate that we have had has been unconstructive in view of the importance of the amendments we are discussing. Amendment 220C has the great advantage of involving all stakeholders. Some people will be affected when the balance of provision within a foundation trust changes. I am concerned about the amendment to which the noble Lord, Lord Marks, has just spoken because, as he admitted, the concerns of the foundation trust governors may be paramount as it is in their interests to look after their foundation trust and therefore the interests of others will be secondary in their minds. However, it is important to know what the local health and well-being board thinks about a proposed change, and that the clinical commissioning groups are involved and consulted on what could effectively be a change of provision.

I make it clear that I am not opposed to foundation trusts having private patient business. Indeed, I can see that it would be beneficial to all patients if we were to revert to the position that applied 30 years ago when these bodies were completely integrated. If highly specialised consultants provide outpatient and inpatient services to private patients on one set of premises in an area, they are on hand when things go wrong or an opinion is needed on a patient who has come in as an NHS patient. By driving some private provision outside that hospital campus, those consultants may be unavailable when they are needed because they are on premises down the road or they are on the end of a phone and

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cannot run down the corridor, see the patient and plan what is to happen strategically with the rest of the team and then monitor it.

An issue that has been resolved is the situation where a UK patient receives private treatment but something goes wrong and they need to go into intensive care, a renal unit or some other unit provided by the NHS. That previous episode of care has finished, they are now in a new episode of severe critical care and they go in as an NHS patient. That integration is therefore solved. But I hope that the Government will look kindly on Amendment 220C, despite some of the tone of the debate, because it ensures that all stakeholders are involved in the discussion. The change in provision is therefore planned and can happen smoothly and that decision is not taken on business grounds alone but can be for the benefit of the whole population that is being served.


Baroness Murphy: My Lords, it is evident that everyone around this House who has participated in the discussions on the Bill in effect wants the private patient and other private income to be of benefit to and contribute to institutions whose primary focus, not just their duty, is to public patients. That is what we have all been trying to achieve and it is a matter of finding the right words. Actually, I was going to say to the noble Baroness, Lady Finlay, that I quite liked her Amendment 220. The amendment might not have the right wording but it encapsulates exactly the principle that we are trying to get into the Bill. The amendment is admirable.

I do not have any problem at all with Amendment 218A, which is about accounts, because foundation trusts already produce very detailed accounts in order to indicate to Monitor how near or far they are from meeting their existing private patient cap, which is carefully monitored. Those sorts of accounts are already there. The only difficulty is that accounts, being made up by accountants, do not always reflect which service line is supporting another service line. Therefore, I am not quite sure that requiring this great detail will do quite what the opposition Benches hope. However, in principle, I see nothing wrong with the amendment.

It is worth while remembering all the time during these debates that we are talking about a situation where the vast majority of hospitals-apart from a handful of internationally renowned specialist hospitals in London and the suburbs and in one or two other cities outside-have a private patient income of about 2 per cent. That is not likely to change very much. However, we need to add something that is reassuring because we all understand the anxieties out there. Amendment 220BZB, in the name of the noble Earl, Lord Howe, is an excellent solution. The change to a 5 per cent limit during the year means that there will be no great energy thrown at changing this area, which is the most important thing. We want the board of the hospital and the governors to focus on public patients. If they have some other income coming in from private activity, that is fine, but we do not want them suddenly to throw a lot of energy at it. Therefore, I think that 5 per cent is about right. I know that some foundation trusts have asked for 10 per cent, but 5 per cent is fine.

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Requiring hospitals to warn everyone in advance what they are going to do is also helpful. I seek reassurance from the Government that that will still protect the confidentiality of plans, because I know that trusts have expressed anxiety about that. However, I cannot see any problem with it.

The reason that I prefer the amendment of the noble Earl, Lord Howe, to Amendment 220C is because his amendment involves the governors. Crucially, they are the people responsible for the institution, whereas Amendment 220C involves the much wider membership-often 10,000, 12,000 or 20,000 members. That is just too unwieldy a group to be seriously involved in the governance of an organisation. They are vital people in getting local communities to be involved in and have knowledge about the hospital but they would not be the right people when it comes to these sorts of changes.

I support much of what the noble Lord, Lord Marks of Henley-on-Thames, has said, but I am attracted to the Government's amendment, which solves the problem that we are all looking for a solution to.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, this has been a good and constructive debate on NHS foundation trusts. It is right that we should focus on the removal of the private patient income cap, as I am acutely aware that that is where the majority of noble Lords' concerns lie.

We need to focus on one core point at the outset. Fears have been expressed that removal of the cap could see foundation trusts increasing private income at the expense of NHS patients-in other words, that it could create a two-tier NHS, with those who can afford to pay going to the front of the queue. That is wrong and, I believe, alarmist. There are robust safeguards in place to prevent that kind of outcome.

Allowing a foundation trust to generate more private income does not release it from its prime duty to its NHS patients. Foundation trusts will still have to meet their legally binding contractual obligations on waiting times and provide the highest standards of care for NHS patients. Foundation trusts themselves are very clear about that. Removing the private patient income cap would allow them to bring extra investment in infrastructure and leading-edge technology to benefit NHS patients. Today, foundation trusts can be prevented by the cap from treating private patients who wish to be treated at the trust even when the income that the trust would earn would support its NHS services. The point made by the noble Baroness, Lady Finlay, was absolutely spot on. The cap leads to the ridiculous situation where NHS consultants are forced to get into their cars to drive to independent providers to perform private patient work in their non-contracted hours. Removing the cap would improve clinical safety for all patients in NHS hospitals, because doctors would be more likely to remain on site for longer.

It may well be, as the noble Baroness, Lady Murphy, pointed out, that most foundation trusts will not be affected at all by the removal of the cap. Many of them are earning below their caps at the moment. It is worth noting that NHS trusts, as distinct from NHS

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foundation trusts, which are not subject to a cap at all, are not earning proportionately more than corresponding foundation trusts. The point is that removing the cap gives the most innovative organisations the opportunity to boost income for NHS services.

I can also assure the House that we have put in place substantial safeguards to protect NHS patients. NHS foundation trusts will remain first and foremost NHS providers. Their principal legal purpose, to treat NHS patients, has been in legislation since 2003. I tabled an amendment in Committee to clarify its legal meaning. A foundation trust's principal purpose requires it to earn the majority of its income from the NHS. That is very different from saying that 49 per cent of the work of foundation trusts will be with private patients, as some have misinterpreted it. The Bill does not mention 49 per cent, as I hope the noble Baroness is aware. Amendment 220A would remove the clause. That would be most unfortunate, because its effect would be to leave governors and local communities unclear that foundation trusts must remain predominately NHS providers.

There have been worries that the internal governance of foundation trusts will not be strong enough to exercise the requisite control in that area. I hope that I can provide reassurance on that point. As the local community's representatives, it is the responsibility of the governors to hold the board to account for its management of the trust. The governors should also consider whether the level of private activity is in the best interests of their organisation. The Bill will ensure that governors are better able to do that. It strengthens their arm by giving them new powers to hold directors to account and, if necessary, to remove the chair and non-executives of the board of directors. It would be entirely appropriate for the governors to use these powers if they felt that non-NHS activity was not operating in the interests of NHS patients.

At this stage, I should like to thank my noble friend Lord Clement-Jones for setting out a very persuasive case for adding to governors' powers to oversee a foundation trust's private income. I have tabled an amendment, which I hope will address his concerns, requiring directors to detail in the trust's annual plan-that is, the forward look-any proposals to earn private income and the income that they expect to receive. By law, directors already have to take into account governors' views in preparing this plan, but this amendment would place an explicit duty on governors to consider the plan and be satisfied that any proposals to increase private income would not significantly interfere with their foundation trust's principal legal purpose to treat NHS patients.

With regard to the point raised by the noble Lord, Lord Campbell-Savours, a plan to increase private income substantially-that is, to increase by 5 percentage points or more the proportion of total income earned from non-NHS activity-must secure agreement by a majority of governors in a vote. For example, governors would be required to vote where a foundation trust planned an increase in non-NHS income from 2 per cent to 7 per cent or more of its total income, or from 3 per cent to 8 per cent or more. To make it quite clear, the vote would be triggered by plans for large increases

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in non-NHS income. Other matters, such as significant transactions, are for foundation trusts to decide. These proposals would complement the amendment that we introduced in Committee to require directors to explain in a foundation trust's annual report how private income had benefited NHS patients.

Lord Campbell-Savours: We all know of cases where in the real world GPs have said to their patients, "Go private and go early. Effectively, jump the queue". That is going on all over the country and in certain parts it is happening on a great scale. If that is the case, what is to stop GPs working with governors and consultants to try to move patient activity more towards the development of private operations within National Health Service facilities? Will the impetus not come from GPs working in conjunction with consultants and governors who might be sympathetic to the cause?

Earl Howe: With respect to the noble Lord, perhaps I may point to a later group of amendments in the name of my noble friend Lord Phillips, which gets to the heart of that question. I do not think that the noble Lord's question is directly related to the private patient income cap but, if I may, I should like to cover the answer to it when we reach the later group.

Baroness Thornton: This goes back to the maths, which partly relates to the question that I asked the noble Earl earlier. I think that the Minister and his colleagues may need to look at what his proposals actually say about the proportion. His amendment refers to 5 per cent, and I am not sure that that is not a very tiny amount. I do not want it to be a particularly big amount but I am not sure that the Bill says what the noble Earl says it says. That is the clarification that I need.

Earl Howe: I shall gladly seek clarification and, if I have misled the noble Baroness, I apologise. By the time we reach the end of the debate, I shall have made doubly certain that what I said was correct. I hope that the approach that I have just laid out will allay noble Lords' concerns, subject to any clarification that I am able to offer the noble Baroness. I am now told that I was absolutely right in what I said.

One thing that these arrangements may well do is nurture the working relationship between directors and governors. I think that they would help to ensure that directors worked collaboratively with their governors to develop non-NHS activity in the best interests of NHS patients. A planned increase of 5 percentage points or more in one year would be a very significant increase in non-NHS income for any foundation trust. Such an increase would certainly be due to a major development becoming operational, such as a new private patient facility. Requiring governors to vote on such a significant development strengthens directors' accountability to their local communities. However, I take the point made by the noble Baroness, Lady Murphy, about confidentiality. In all of this, we should be aware that the strengthening of the governors' oversight in this way places increased responsibility on the governors to maintain an appropriate level of confidentiality while a new project is initially

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developed. I would expect the directors and governors to ensure that a foundation trust's constitution would protect that.

12.15 pm

On Amendment 218A, in the name of the noble Baroness, Lady Thornton, I think there is a meeting of minds between us on the importance of transparency and openness. It is important that foundation trust accounts give a true and fair view of the profitability of private activities. However, I am afraid that I cannot agree that requiring every foundation trust to produce two sets of accounts-one for NHS activity and the other for private activity-is the right approach. That would impose very high costs on trusts with low levels of private patient activity, which cannot be right. Instead, the Government have given a commitment that they will require foundation trusts to produce separate accounts for NHS and private-funded services; that is to say, requiring foundation trusts with material amounts of private-funded services to produce separate accounts. We think that that ensures the right balance between the costs and benefits of reporting private patient activity.

Finally, we should not forget that there are also existing structures for the overview and scrutiny of the NHS. Those allow for the examination of proposals to extend private patient treatment by NHS providers, if there are concerns that it would impact negatively on NHS service provision.

Lord Avebury: I am sorry if I am a little late in raising this point. The Minister was talking about the burden that would be placed on the accounting system by having separate accounts for the private sector when it was a small proportion of the total. How will the person scrutinising these accounts know what the profitability of that private work is when that small amount of the total is not separately itemised in the accounts?

Earl Howe: We would certainly expect boards of directors to satisfy themselves on that point through management accounting systems and, if necessary, produce the relevant evidence to governors, if a question were asked about that. I think that the point that we were alive to was the cost involved in compelling all foundation trusts-some of them hardly have any private income at all-to go to the trouble of producing statutory accounts and separating out those two income streams. Although my noble friend's question is well placed, it is perhaps a different question from the one that I was addressing.

We can allay all these anxieties in this area through one simple principle, and that is transparency. Today, I have tried to set out an open and transparent regime for the oversight of a foundation trust's planned increase to non-NHS income. The governors, as representatives of local communities, would hold the directors to account for ensuring that non-NHS activity does not significantly interfere with their foundation trust's principal legal purpose to provide NHS services. I think our proposals strike the right balance between the powers of the directors-

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Baroness Williams of Crosby: Before the Minister concludes, perhaps I may press him on what is implicit in Amendment 220B, although I shall not move it. If, for example, the governors were to oppose a figure of more than 5 per cent, and the figure were greater than appears to be proper in the light of health services, what steps would be available to ensure that health services are protected?

Baroness Northover: As we are on Report, perhaps noble Lords will allow the Minister to develop his argument and then put brief questions in the light of what he said-otherwise he will lose his train of thought.

Lord Hunt of Kings Heath: My Lords, I hesitate to take issue with the noble Baroness because clearly she is in a position to help the House. However, interventions on Report are quite allowed. I am very puzzled that the Government are trying to seek to rule that Report stage procedure should change so that we simply listen to the Minister. That is not Report.

Baroness Northover: My Lords, I am not saying that short questions cannot be put. However, it might be beneficial to the House if the Minister were able to develop his argument. Then, if noble Lords had questions that he had not addressed, that would be the relevant time to put them.

Noble Lords:Hear, hear!

Baroness Northover: That is what the noble Lord, Lord Hunt, preferred when he was a Minister. I hear from around the House some sympathy for the point. If the suggestion does not work, no doubt we can take the matter to the Procedure Committee and look at a different way of doing things.

Lord Hunt of Kings Heath: My Lords, the noble Baroness is not in a position to dictate to the House that it should change its procedure on Report. Surely the beauty of debate lies in interventions, and responses by Ministers. When I was a Minister for 10 years at the Dispatch Box, I always took interventions and welcomed effective and proper debate. I am on my feet-

Baroness Northover: For clarification, perhaps I may remind the noble Lord that the Companion sets out that a Member shall not speak after the Minister on Report,

I realise that noble Lords are putting short questions of elucidation. The Minister made it clear that he wishes to make progress and that at the moment he does not wish to take interventions so that he can develop his argument.

Noble Lords: No!

Baroness Northover: He certainly did to me. Perhaps the Minister would like to make it clear-if he wishes to be interrupted many times and not develop his argument, so be it. Perhaps my noble friend would like to clarify-

Lord Campbell-Savours: I object to the procedures of the House of Lords being changed by a junior Minister.

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Earl Howe: My only frustration was that I was getting to what my noble friend wanted me to cover but she did not give me the chance to do it. Otherwise, I am more than happy to take questions from noble Lords on points of clarification.

I was explaining that governors, as representatives of local communities, will hold directors to account for ensuring that non-NHS activity does not significantly interfere with the foundation trust's principal legal purpose, which is to provide NHS services. Our proposals strike the right balance between the powers of the directors and the responsibility of the governors.

The answer to my noble friend's point, and that of my noble friend Lady Williams, is that Monitor will publish guidance for NHS providers on the requirements it sets for them to maintain the continuity of NHS services. We fully expect this guidance to cover conditions for foundation trusts relating to the need to ensure that the continued provision of NHS services is not put at risk by non-NHS activity. As the House will know, foundation trusts will be required to demonstrate how non-NHS income contributes to the foundation trust's delivery of improved NHS services. In particular, if a foundation trust is increasing its non-NHS income by more than 5 per cent of its total income in a year, we will expect Monitor in every instance to review whether there is any cause to intervene in order to safeguard the ongoing provision of NHS services. This will be in addition to the required scrutiny and approval by the foundation trust's governors. I hope that fully reassures my noble friends that this matter is not just a question that will be looked at within the confines of a foundation trust. It will have wider exposure than that.

I am afraid I am going to disappoint the noble Baroness, Lady Finlay, not as regards her amendment, which she did not speak to, but as regards Amendment 220C. The problem with it is that it would give Monitor the discretion to agree private income caps for foundation trusts. It would also retain the current cap and, as I have indicated, we think that the cap is unfair and has definitional complexities. That is an undesirable road to go down. It would burden foundation trusts with a governance regime that would be bureaucratic, costly and at odds with a foundation trust's ability to manage itself.

Requiring governors to vote on any increase to their trust's private patient cap, and therefore any increase to non-NHS income, would unreasonably inhibit the board of directors' ability to manage its organisation. We surely do not want foundation trusts being run by boards that are constantly requiring votes by governors. The proposal in Amendment 220C would also require a majority vote by the members of a foundation trust for any increase to the trust's private patient cap. That is a completely misguided approach. It would undermine the authority of the governors. Governors represent the members, the majority are elected by the members, and they should be allowed to get on and fulfil their responsibilities.

Securing a majority vote by members would also be very expensive. Many foundation trusts have several thousand members. Do we really want scarce NHS resources being spent on polling members about any

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increases to non-NHS income? I gently ask noble Lords opposite to think again about that.

Finally, Amendment 220C proposes that Monitor should be required to approve any increases to private patient caps beyond 5 per cent. My objection to that is that it would undermine foundation trusts' autonomy to manage themselves. Directors and governors are better placed than Monitor to decide what is best for their organisation. Monitor's involvement could also dissuade foundation trusts from pursuing innovative approaches if they are required to go through an external assessment and, in effect, a second approval process.

The central point is this: Part 4 has been built on the experience of what foundation trusts know will work. It represents the opportunity to realise what value foundation trusts can bring to the NHS. It will enable them to develop as responsive, transparent, autonomous and accountable bodies. Removal of the private patient income cap is about foundation trusts making the most of the opportunities they have to earn additional income for investment in the NHS. It is precisely why many NHS leaders and clinicians wrote an open letter to this House urging support to remove the cap. I hope that what I have said will reassure noble Lords that we have the right checks and balances in place while also giving foundation trusts the freedom that they need and have asked for. I also hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Thornton:I thank the Minister for those remarks. I might be able to make him happy at least in one or two respects. This has been an interesting and useful debate, but I would like to start by making two comments. The first is about the remarks made by the noble Lord, Lord Marks. I know that he and his colleagues have been frustrated about the interpretation that has been put on the 49 per cent. The noble Lord spoke about that being there to mitigate risks. The only point that I would make to him and his colleagues is that the opportunity to mitigate those risks was there earlier this week, and they did not take it.

I would also like to apologise to colleagues on the Cross Benches if they have found the adversarial style in this part of the Bill unhelpful. On these Benches, it partly stems from our very grave disappointment that we have not managed on Report to protect the NHS in the way that we felt was necessary. I am afraid that those arguments are political arguments and the arguments that we have had to have. I put that on the record. I do not apologise for the fact that they have been political, but I apologise to my colleagues that sometimes they have not been entirely comfortable with that.

12.30 pm

Moving back to the issue of 49 per cent and/or less than 50 per cent-I accept that the figure of 49 per cent is not in the Bill but of course it says "not a majority", so 49 per cent seems to be "not a majority"-we believe that it is not necessary for it to be there because we believe that the "principal purpose" test combined with Amendment 220C addresses those risks.

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However, both our Amendment 220C and the noble Earl's amendments seem to have annoyed the Foundation Trust Network, which suggests that between us we have some merit here. We agree that there needs to be local consultation and local accountability, and I am grateful for the discussions that we have had about that. Either of those amendments would be better than the Liberal Democrat amendment on offer, and I am very pleased that that is not going to be accepted either. I appreciate that the Liberal Democrats will be withdrawing it, but that has also been a feature as we have proceeded through this part of the Bill.

We think that government Amendment 220BZB addresses the private patient cap and we note that this is a late movement in the right direction, but we think that our Amendment 220C does a better job. We think that the government amendment proposes a different route and is not as comprehensive as ours, as the noble Baroness, Lady Finlay, said, and that consultation with CCGs and health and well-being boards is a very important part of that process.

The noble Earl mentioned the cost of consultation. I have never felt that arguments about cost should be the main arguments when you are talking about accountability and democracy. We know that democracy costs, and these are organisations that have a membership.

Finally, the noble Earl has made a good case about the first amendment in this group. I am very happy to please him by saying that I wish to withdraw the amendment.

Amendment 218A withdrawn.

Clause 163 : Goods and services

Amendment 219

Moved by Lord Turnberg

219: Clause 163, page 159, line 35, at end insert-

"(c) the promotion of education and training"

Lord Turnberg: My Lords, this amendment brings us back to the subject of education and training. We had long debates on education and training earlier in the considerations on the Bill. The Government went a very long way when they accepted earlier amendments that set out the duties of the Secretary of State, the Commissioning Board and the clinical commissioning groups, as well as private providers. I am extremely grateful for the acceptance of those amendments.

This amendment simply completes the task by placing the same responsibility on foundation trusts. Foundation trusts have great freedoms but as so much of the education and training of doctors and nurses takes place there, there should be a straightforward indication in the Bill that education and training is an important part of their role too.

I commend this amendment to the noble Earl. I know that an earlier amendment might be thought to have covered foundation trusts too, but they are right at the centre of this. They are key responsible funders and supporters of education and training. Most of it goes on there. I hope that this amendment will find favour and I hope that the noble Earl will take this kindly.

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Baroness Finlay of Llandaff: My Lords, we have, I hope, threaded education and training through the Bill and established it as a core principle for all providers.

In support of the comments by the noble Lord, Lord Turnberg, it is essential to place on record that the vast majority of specialist training for all those specialties in secondary care occurs in those places that will have foundation trust status, if they do not have it already. That future investment in the specialist workforce to provide services is essential and there is merit in restating the importance of it.

Baroness Wall of New Barnet: My Lords, I also support the amendment. Adding to what the noble Baroness, Lady Finlay, has said, the House may be aware that trusts are now committed to quality accounts, certainly for clinical staff, and an integral part of those quality accounts is education and training. I would like to see it being widened beyond the clinical staff, because there are lots of staff in a hospital who need that constant education and training, to make sure that patient care overall is as good as we would all want it to be.

Lord Hunt of Kings Heath: My Lords, I refer to my chairmanship of a foundation trust. From the opposition Benches, we very much support this amendment and wish to reinforce the importance of education and training.

It is right that we should emphasise the importance of NHS foundation trusts recognising their responsibilities in relation to education and training. It is equally important that they have an influence over the architecture for education and training. As the noble Earl will know, there are going to be local boards responsible for commissioning the education and training of professional people. It is very important that the people who run hospitals should be very much involved in the selection of students and ensuring that the curriculum is effective. The noble Earl will know that the Future Forum paper chaired by the chief executive of University Hospitals Birmingham NHS Foundation Trust emphasised the importance of looking at these matters.

We will be debating the quality of nursing next week, but there is no doubt that there is a real problem with public perception of the quality of nursing in particular, and issues to do with nutrition and basic nursing skills. I am convinced that there is a real problem that the universities that train our nurses, in the end, are much more focused on academic practice, because that is what universities do. I am anxious that no one has been able to put their finger on the solution. One way of improving the quality is to involve the foundation trusts much more in these matters. My noble friend's amendment is very helpful in that respect.

Earl Howe: My Lords, as noble Lords will know, we have had a number of earlier discussions about education and training and I welcome this new opportunity to return to the subject. As the noble Lord, Lord Turnberg, is aware, we are putting in place what we see as a strong national system for education and training, with a strengthened focus on quality outcomes.

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In the Bill we have introduced a clear duty on the Secretary of State to ensure that such a system is in place. We are now making good progress in establishing Health Education England and the local education and training boards. We are acutely aware of the importance of a safe transition to the new system. We are proceeding with care and at a sensible pace to ensure that the new system is fully up and running by April 2013.

We have also introduced amendments to strengthen links with the wider system. Our Amendments 61 and 104, which were accepted in an earlier debate, place duties on the board and on clinical commissioning groups to have regard to the need to promote education and training. They are designed to ensure that commissioners of NHS services consider the planning, commissioning and delivery of education and training when carrying out their functions.

We also accepted an amendment tabled by the noble Lord, Lord Patel, to strengthen co-operation among providers of NHS-funded services, which would place a duty on commissioners to ensure that any person providing services as part of the health service would have to co-operate with the Secretary of State in the discharge of his education and training duty, or with any special health authority discharging that duty-that is, Health Education England. This aims to ensure that providers, too, play an active role in education and training.

The noble Lord, Lord Hunt, spoke with his customary authority on this subject and I agree with what he said. I particularly agree that employers best understand the workforce they employ and the kind of workforce they want to employ. They also understand the need to link service planning and workforce planning. They are able to focus on the whole workforce and to recognise the levels of contact with patients and service users, and the varying local needs. Evidence from other sectors and feedback from providers has been clear that in order to deliver successful and responsive world-class services, employers need to have clear ownership and involvement in the education and training and planning of their workforce. I am entirely at one with the noble Lord on that.

Employers have welcomed our plans for education and training. They believe that this approach should provide real opportunities so that healthcare providers have the right incentives to secure the skills that they wish to have, invest in training and innovate to improve the quality of services that they provide. They welcome the opportunity to have the incentives to align service, financial and workforce planning, and to have greater flexibility to respond to the strategic commissioning intentions of the NHS Commissioning Board and clinical commissioning groups.

The NHS Confederation, NHS Employers, Foundation Trust Network and the Association of UK University Hospitals all support a system that provides greater accountability for employers. Strategic health authorities are working with employers to support them in developing these local partnerships so that they can take full responsibility for workforce planning, education and training.

8 Mar 2012 : Column 1919

I hope that that is of reassurance to the noble Lord, Lord Turnberg. What is happening on the ground almost pre-empts the speech he so articulately made. We are rapidly moving towards the kind of system to which he and other noble Lords aspire. Having secured the amendments that are already in the Bill, we do not believe that it is necessary to build in any more. On the strength of what I have said, I hope that the noble Lord will feel comfortable in withdrawing his amendment.

Lord Turnberg: My Lords, I am well aware of the lengths to which the Government have gone to support education and training, for which I am truly grateful. I am also aware that earlier amendments might appear to have covered the points that I raised about the need for foundation trusts: there is a particular recommendation for them. I am a little disappointed that my amendment cannot be accepted but I understand the reasoning. The foundation trusts are key providers and, therefore, it should be clear to them that they have this responsibility. I know that they are willing providers of education and training but it should be in the Bill. However, I beg leave to withdraw the amendment.

Amendment 219 withdrawn.

Amendment 220 not moved.

Amendment 220A

Moved by Lord Hunt of Kings Heath

220A: Clause 163, page 159, leave out lines 36 to 40

Lord Hunt of Kings Heath: My Lords, I beg to move.

12.44 pm

Division on Amendment 220A

Contents 154; Not-Contents 212.

Amendment 220A disagreed.

Division No. 1


Ahmed, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Bach, L.
Bakewell, B.
Bassam of Brighton, L. [Teller]
Beecham, L.
Billingham, B.
Bilston, L.
Borrie, L.
Boyd of Duncansby, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Chandos, V.
Clancarty, E.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Collins of Highbury, L.
Corston, B.
Cunningham of Felling, L.
Davies of Coity, L.
Dean of Thornton-le-Fylde, B.
Donaghy, B.
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Finlay of Llandaff, B.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Golding, B.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Grey-Thompson, B.

8 Mar 2012 : Column 1920

Grocott, L.
Hannay of Chiswick, L.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hennessy of Nympsfield, L.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howarth of Newport, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jones of Whitchurch, B.
Jordan, L.
Kennedy of Southwark, L.
Kestenbaum, L.
King of Bow, B.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Laming, L.
Layard, L.
Lea of Crondall, 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.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mallalieu, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Myners, L.
Nye, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Owen, L.
Patel of Bradford, L.
Pendry, L.
Pitkeathley, B.
Prescott, L.
Prosser, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Richardson of Calow, B.
Rogers of Riverside, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sandwich, E.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stern, B.
Stevenson of Balmacara, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Wheeler, B.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Winston, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Norwood Green, L.


Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Bates, L.
Benjamin, B.
Berridge, B.
Best, L.
Bichard, L.
Black of Brentwood, L.
Bonham-Carter of Yarnbury, B.
Boswell of Aynho, L.
Bowness, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Broers, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Butler-Sloss, B.
Caithness, E.
Campbell of Alloway, L.
Cathcart, E.
Chalker of Wallasey, B.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Courtown, E.

8 Mar 2012 : Column 1921

Craigavon, V.
Crathorne, L.
Crawford and Balcarres, E.
Crickhowell, L.
Cumberlege, B.
Dannatt, L.
De Mauley, L.
Dear, L.
Deben, L.
Deech, B.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dundee, E.
Dykes, L.
Eaton, B.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Emerton, B.
Empey, L.
Exeter, Bp.
Falkland, V.
Falkner of Margravine, B.
Faulks, L.
Fink, L.
Flight, L.
Fookes, B.
Fowler, L.
Framlingham, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Green of Hurstpierpoint, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Harris of Richmond, B.
Henley, L.
Higgins, L.
Hill of Oareford, L.
Hooper, B.
Howard of Lympne, L.
Howard of Rising, L.
Howarth of Breckland, B.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kakkar, L.
Knight of Collingtree, B.
Kramer, B.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lexden, L.
Lingfield, L.
Liverpool, E.
Lucas, L.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Maginnis of Drumglass, L.
Maples, L.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mawhinney, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Hendon, B.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Moynihan, L.
Murphy, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Newlove, B.
Northover, B.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Palmer of Childs Hill, L.
Patel, L.
Phillips of Sudbury, L.
Popat, L.
Quirk, L.
Ramsbotham, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Reay, L.
Rees-Mogg, L.
Rennard, L.
Ribeiro, L.
Risby, L.
Roberts of Llandudno, L.
Saltoun of Abernethy, Ly.
Sanderson of Bowden, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Soulsby of Swaffham Prior, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stewartby, L.
Stirrup, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strathclyde, L.
Swinfen, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tonge, B.
Tope, L.

8 Mar 2012 : Column 1922

Trefgarne, L.
Trenchard, V.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Ullswater, V.
Verma, B.
Vinson, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warnock, B.
Warsi, B.
Wasserman, L.
Wei, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Wolfson of Sunningdale, L.
12.56 pm

Amendment 220B not moved.

Amendments 220BZA and 220BZB

Moved by Earl Howe

220BZA: Clause 163, page 159, line 42, at end insert-

"( ) for "The" substitute "An","

220BZB: Clause 163, page 160, line 8, at end insert-

"(3B) Each document prepared by an NHS foundation trust under paragraph 27 of Schedule 7 (forward plan) must include information about-

(a) the activities other than the provision of goods and services for the purposes of the health service in England that the trust proposes to carry on, and

(b) the income it expects to receive from doing so.

(3C) Where a document which is being prepared under paragraph 27 of Schedule 7 contains a proposal that an NHS foundation trust carry on an activity of a kind mentioned in subsection (3B)(a), the council of governors of the trust must-

(a) determine whether it is satisfied that the carrying on of the activity will not to any significant extent interfere with the fulfilment by the trust of its principal purpose or the performance of its other functions, and

(b) notify the directors of the trust of its determination.

(3D) An NHS foundation trust which proposes to increase by 5% or more the proportion of its total income in any financial year attributable to activities other than the provision of goods and services for the purposes of the health service in England may implement the proposal only if more than half of the members of the council of governors of the trust voting approve its implementation."

Amendments 220BZA and 220BZB agreed.

Clause 164 : Private health care

Amendment 220BA

Moved by Lord Phillips of Sudbury

220BA: Clause 164, page 160, line 24, leave out subsection (2)

Lord Phillips of Sudbury: My Lords, in moving this amendment I shall speak also to Amendment 220BB. If passed, they will amend Section 44 of the National Health Service Act 2006, which deals with private healthcare. I am supported in these amendments by three highly distinguished consultants: the noble Baroness, Lady Finlay of Llandaff, and the noble Lords, Lord Kakkar and Lord Darzi of Denham. Indeed, I would not have had the confidence to persevere with the amendments if it had not been for their support, which I did not canvass. Each of them volunteered to support the amendment and I am much reassured by that because, if I can put it this way, they know what they are talking about and I do not. They live in the

8 Mar 2012 : Column 1923

health world and have a great deal of engagement with the National Health Service, and for at least two of them, I think, they have a private engagement as well.

The fact is that there is an abuse which should be dealt with more effectively than it is at present: the abuse which some might call queue jumping. I am not in a position to say that it is widespread. I would like to think that it is not and that it happens only rarely. However, there is no doubt that there is queue jumping, and I know from many doctors-I have relatives who are doctors-that it is a phenomenon of the status quo. My position is that, on any reckoning, this legislation-this 450-page statute-is a major upheaval of the National Health Service. It seems bizarre that it should at no point include a clear statement of this fundamental principle of the National Health Service. I should say that the wording of Amendment 220BB is somewhat different from the wording in the amendment-Amendment 299B to Clause 162-that the four of us tabled in Committee. The amendment now talks of,

As I say, that is a principle which I do not think anyone disagrees with. It is a paradox as clear as the nose on your face to have a National Health Service that actually favours private clients over national health patients. To be fair to my noble friend the Minister-who, as always, has been extremely accommodating in discussing this-he accepts absolutely that the Government wholly support the principle and wish to uphold it. The difference, I suppose, lies in how to do that.

1 pm

The Minister said on one occasion during our discussions that the amendment would infringe on clinical independence. I do not think that that is the case. For a start, it does not touch what might go on in a purely private hospital; and in any event, if the Government are right in saying that there is no need for the amendment because it is upheld in other ways, then the concern about infringement of clinical independence is redundant.

This amendment affects the way that an NHS institution functions and does not touch on the issue of independent clinical judgment. I am sure that it will have been noticed that, crucially, it affects only essential clinical care and treatment. If it is argued that there is no definition of "essential" then I would say that if you look through this mammoth Bill, you will find plenty of words and phrases that are individually defined. As a lawyer, I am more than content to leave the definition of "essential" to the consensus of the medical profession itself. If it had to be taken to court, it would be judged in the same way as, for example, the issues of what is "reasonable conduct" or "negligent behaviour". Both of those are undefined phrases. Let me make it clear that the amendment does not affect issues of what one might call hotel accommodation or inessential care. That is important to note.

In another of the arguments with which they have so far resisted this amendment, the Government say that it is covered by the various codes, particularly

8 Mar 2012 : Column 1924

GMC codes. In a letter to me, the noble Earl, Lord Howe, referred me to a point about good medical practice. He said:

"I was especially struck by the provision that clinicians must, at all times, 'act in your patients' best interests when making referrals and when providing or arranging treatment or care'".

He continued:

"I think it would be generally agreed any clinician giving substandard care in the hope of persuading a patient to become a private patient would be acting contrary to this duty".

I think that we can all say amen to that. However, the amendment does not deal with the issue of substandard care. It deals essentially with queue jumping.

The noble Earl then pointed me to another piece of guidance, Conflicts of Interest-Guidance for Doctors, paragraph 72(e) of which states:

"You must not put pressure on patients to accept private treatment".

Again, that is stating the obvious. The problem is how to define "putting pressure on a patient". If, for example, you truthfully say to a patient, "If I treat you under the NHS, the waiting list will be six weeks, but if I treat you as a private patient within this NHS institution you could be operated on within a fortnight", then that would not constitute putting pressure on a patient. It would be in answer to the patient's question, "What will happen, doctor, if I go private?". None of the guidance presently covers that example or the others that the Minister cited. None of it covers the evil that my amendment seeks to address. There is a lot of stuff about the relationship between clinicians and their patients, but in no case that I am aware of does it deal with what one might call the strategic position of a doctor and the health service. It is always the relationship between an individual doctor and an individual patient, not about the general policy of a hospital, for example.

I sought to find out whether there was any instance of disciplinary proceedings being brought under the GMC codes against a doctor for breaching any one of the paragraphs to which the Minister referred me. The answer is that there was not one. The only case that was produced to me in which a doctor had been disciplined in respect of queue jumping was one where the doctor had been dishonest when answering the patient's question, "How much sooner could I be treated if I go private?". The doctor in that case had given a dishonest answer, which is a clear breach of any principle you would like to consider. But the fact remains that I have seen not one example showing the disciplining of a doctor in respect of this code, and I have asked at a high level within the GMC.

There are, at best, ambiguous rules that the Government rely on to prevent queue jumping, rare though it may be. Our position in moving the amendment is that it must surely be right to put on the face of the Bill a principle as fundamental as,

It is right in theory and right in practice, so that everybody knows exactly where they are.

This is by no means an issue only for doctors and clinicians. As noble Lords will hear from some of my colleagues who support this amendment, it applies at least as much to hospital managements. I will say no more about that now because you will hear from them exactly what I mean.

8 Mar 2012 : Column 1925

I hope the Government will accept the amendment because there is great concern about the issue, as I need hardly say-it was raised in the first group of amendments today by the noble Lord, Lord Campbell-Savours. There is great concern in the country about the totality of the reforms that the Bill will introduce and the possibility that it will do so in a way that breaks the great underlying principle of the original health service. That is particularly so as privatisation in various forms is foreshadowed, and indeed promoted, by the Bill, albeit within limits that seem very sensible.

For those reasons and others which noble Lords will no doubt hear from my supporters, I hope that the Government will think that this amendment underpins what they are trying to do, salves public anxiety and gives clear guidance to hospitals, hospital managers and clinicians about what is and is not permissible. I beg to move.

Lord Kakkar: My Lords, I support the amendment moved by the noble Lord, Lord Phillips of Sudbury, to which I have added my name. I refer to Good Medical Practice, the document produced by the General Medical Council, which sets out the principles and values on which good medical practice is founded. Indeed, it is the document to which we as clinicians are obliged to practise. In so doing, I remind noble Lords of my own entry in the register of interests as a consultant surgeon at University College London Hospital NHS Foundation Trust, an institution that has a private healthcare facility that might avail itself of any change in the cap on private income.

In paragraph 9, Good Medical Practice makes important reference to decisions about access to medical care. It states very clearly that, as a clinician,

elsewhere when raising your concerns. I support the amendment because it provides an important opportunity to place on hospital managements and healthcare systems in the National Health Service the same obligation that currently rests on clinicians: their absolute obligation to provide and take decisions about access to treatment on the basis of clinical need and priority.

It is not entirely clear that hospital managements have that same obligation. In promoting this amendment, one hopes that that obligation will be placed on hospital managements in such a way that in future, when there may be greater opportunity for income from outside the funding of the National Health Service-private income-into NHS institutions, no opportunity arises for pressure to be applied to clinicians. For instance, when there is limited access to operating lists or scanning facilities, and where two patients-one an NHS patient and the other a private patient-need to avail themselves of those facilities, the decision might be taken by the hospital management that preference be given to the private patient because it could provide further income for the NHS institution. When accessing facilities that are essential for clinical care, the same principle must always apply: the clinician uses their clinical judgment to determine on the basis of clinical need alone, rather

8 Mar 2012 : Column 1926

than any other financial consideration for the institution, that the patient with the greatest clinical need at that particular moment is able to avail themselves of the necessary facilities. I hope that Her Majesty's Government are able to ensure that that principle is enshrined or at least properly and effectively known so that there may be no misunderstanding in this matter in future.

Baroness Finlay of Llandaff: My Lords, I also have my name down on this amendment. I follow the same theme as my noble friend Lord Kakkar, who has just spoken. Good Medical Practice states:

"You must be honest and open in any ... arrangements with patients".

We have already discussed a duty of candour in relation to errors. There is also a requirement to give patients accurate information, as the noble Lord, Lord Phillips of Sudbury, has already said. Giving a patient information about what is available to them can entail informing them, for example, that other drugs are available but not currently funded by the NHS, or that clinical trials are available that they may wish to consider going into. You must answer the question, "Would I get treated quicker?", honestly and with factual, correct information.

Of course, as has already been said, such stringent criteria do not apply to hospital managements. It would easy for them to see that there is something to be gained by increasing the private patient provision. I hope that this amendment encapsulates within it, in much more sophisticated wording, the spirit that I tried to capture in Amendment 220, which I withdrew. That spirit was to state that the provision should not be to the detriment of NHS patients. That is a fundamental principle that should go right the way through. I know that my wording was inadequate.

1.15 pm

On the perception of the Bill outside this place and among the public, there is a great deal of concern. I quote from a paper coming out tomorrow in the British Medical Journal. The beginning of the paper discusses the new clinical commissioning groups, which,

However much one agrees or disagrees with the conclusions of a paper to be published tomorrow, I quote from it because the perception out there is that there is a threat to the NHS and the equity of provision.

I hope that the Government will be able to accept this amendment, which has been carefully worded-and drafted and redrafted-to try to make sure that that principle of equity is spelled out clearly in the Bill and not caught up with different figures, numbers, formulae and so on. The basis of equality of access to essential clinical care and treatment should be a core principle threaded right the way through, between private patients

8 Mar 2012 : Column 1927

and those provided with such care and treatment for the purposes of the health service. That is a fundamental principle. We have discussed it on many occasions and many assurances have been given by the Minister. There is great merit in that principle being threaded right the way through the health service so that everyone at every level of management has to adhere to those criteria as well.

Lord Warner: My Lords, I have been puzzling about the practical effect of this particular amendment. I will pose a number of questions to the Minister but also to the movers of the amendment. In the real world, which some of us occupy, it has always been the case that, as we live in a democracy, people can use some of their disposable income to get diagnosis of a condition as quickly as possible. Sometimes, in some parts of the country, the NHS is unable to provide that diagnostic service as quickly as some people might want it. They are entitled as citizens to use their disposable income to, for example, get an MRI scan after a sports injury or where they suspect that elective surgery may be needed.

In those circumstances, they may be under the jurisdiction-if I may put it that way-of a consultant who works in the NHS and also has a private practice. Again, there is nothing evil about private practice. It was enshrined in the 1948 legislation by a Labour Government. This kind of conundrum has been around for some time. However, the technology has moved on with things such as MRI scans. You can often accelerate the diagnosis of a person's condition. I welcome being corrected on this and seek the Minister's guidance, but, as I understand it, if I as a citizen get my MRI scan from the guy near Waterloo station, that is usually at a unit price a bit lower than the cost to the NHS.

I would like to finish my line of argument. I can see that the noble Lord, Lord Phillips of Sudbury, is ready to pounce on me for daring to challenge this, but I listened patiently to his line of argument and would like him to listen patiently to mine before he bursts in. I am happy to take an intervention in a minute, but let me first deploy the argument.

Let us say that I get my MRI scan and am aware of a consultant in an NHS hospital who can respond to my sports injury-a fanciful thing, given my age-and this consultant is practising in a foundation trust but also has facilities to practise in a private hospital. I may be quite badly injured, with a cruciate ligament injury. What happens under this amendment? Does it mean that the only safe thing for the consultant to do, in case he gets called up before the GMC, is to treat me, however urgent my case is, in the private hospital? Or does he, despite his clinical judgment, have to seek the approval of the foundation trust management and compare me against all the other people who may be on the waiting list? Let us be real-waiting lists will be rising as we move through the kind of financial circumstances that the NHS faces. If we make this amendment to the Bill, those consultants will be put into a rather difficult position in those kinds of circumstances, which are not fanciful. That is a question for the noble Lord, Lord Phillips of Sudbury, but I would welcome the Minister's view as well.

8 Mar 2012 : Column 1928

Lord Phillips of Sudbury: I did not want to leap on the noble Lord, Lord Warner, because that would do him an injury, but I wanted to assure him that the amendment does not affect his trotting off to the chap down at Waterloo station. He can buy whatever private patient care he likes, wherever and whenever he likes-

Baroness Northover: I remind my noble friend that he can reply on his amendment at the end. I am sorry to keep on intervening on my noble friends in defence of the noble Lord, Lord Warner, who wanted to continue his argument, as he did. My noble friend has the opportunity to respond at the end.

Baroness Murphy: I have concerns similar to those of the noble Lord, Lord Warner, but this amendment is different from those that I have seen floating around from the noble Lord, Lord Phillips. I also have questions, but we must be very clear about what we mean by "queue-jumping". If an NHS patient goes to an ordinary NHS hospital consultant and is told that they need an operation, it is completely legitimate for them then to ask to go privately and pay for the operation. That is, as the noble Lord, Lord Warner, said, enshrined in the NHS Act of 1948, and completely legitimate. Queue-jumping is when a patient sees a private consultant who then inserts the patient into the NHS list ahead of other NHS patients. That is what we want to avoid, and it is already completely illegal and highly frowned on. Most hospitals do what they can to exclude it, but I take the point made by the noble Lord, Lord Phillips, that it goes on, and we know that it does. It is an unpleasant practice and should be stamped out, but I do not know whether this amendment does that.

As the noble Lord, Lord Kakkar, reminded us, the conundrum of private units in NHS hospitals must be borne in mind. That may be the most constructive way in which to ensure that NHS consultants are available to NHS patients when they need to be, as the noble Baroness, Lady Finlay, said. But often private patients have operations that go wrong-and then, if there are two patients in need of an NHS intensive care bed, the patient who takes priority is the person with the clinical need. It is very much the same as someone on a battlefield. It does not matter whether it is an enemy soldier or a domestic soldier.

Lord Hunt of Kings Heath: I thought that the amendment was focused not so much on clinicians but on the board of the trust. That is a slightly different argument.

Baroness Murphy: The noble Lord may be right. If the change in wording applies to how the management behaves but makes no change in clinical priorities-the noble Lord, Lord Kakkar, said that it would not interfere with clinical priorities-I would support it. It is necessary to ensure that management acts like that, as long as it does not cut across the clinical priority that the sickest person comes first, whether private or NHS.

Lord Ribeiro: I have one question for the noble Lord, Lord Phillips of Sudbury. I agree with the comments made about management. When I worked as a surgeon, during a period when we were desperate

8 Mar 2012 : Column 1929

to get patients into hospitals because we had already completed our NHS quota of work by January and had from January to April to make money, pressure was often placed on us as consultants by management to bring private patients into the NHS so that we could make the income. I hear "Oh!" from the other side. However, one problem that came from separating and withdrawing private beds from the NHS was that most consultants have established private practice in private hospitals outwith the NHS. The point that the noble Baroness, Lady Finlay, made was that part of the reason for removing or adjusting the cap and why she supported earlier amendments was to try to get integration of care to allow consultants to be on the spot.

The amendment refers to NHS foundations trusts. As we know, there are trusts that are not foundation but ordinary. What would apply to them? Would they therefore be free to undertake private work in a way that has been described here? This refers only to NHS foundation trusts.

Lord Campbell-Savours: I want to intervene briefly because we want to vote on these matters today. The amendment subtly gets to the problem at the heart of the Bill, which totally underestimates the new pressures that will build up within foundation trusts on management to change the nature of the patient body that comes into the trust for financial reasons. The noble Lord who has just spoken in many ways let the cat out of the bag. Pressures are exerted on clinicians by management to take actions that they do not necessarily want to take. If a trust is building up a substantial body of patients referred to it by insurance companies, it will want to be sure that within that trust's operation some element of priority is given to its patients if only to minimise the liability that the insurance company has to the patient to pay their bills. In 10 years' time, when the Government review the Bill, they will find that the pressure on management to change what happens in hospitals will lead to the beginning of the destruction of the National Health Service as we know it.

Lord Hunt of Kings Heath: My Lords, I have a great deal of sympathy with the amendment. When I first worked in a hospital in 1974, the Nuffield Orthopaedic Centre in Oxford, we had a private patients' ward called Mayfair. The succession of senior consultants, the head OT and head physio, gave me an impression of the priority that was given. There will always be debate about the phasing out of paid beds-this was the case even under Barbara Castle-but some of it arises from real concerns over differentiation in equity of treatment.

I take the amendment to be very focused on the board of an NHS foundation trust, not on individual clinicians. It is an important safeguard regarding the way in which the board of a foundation trust may wish to deal with the financial pressures that it is under. We should not be under any doubt, and I speak as an FT chair, that many foundation trusts are facing financial pressures alongside the rest of the NHS. They are required to make efficiency savings and, probably, to move resources from acute hospitals into primary care without any reassurance that primary care is going to

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demand-manage. There is a real worry that GPs will give more money to themselves but with no guarantee that that will impact on the flow of patients through acute hospitals. There is concern that the pressure on acute hospitals, instead of reducing, which we would like to see, will actually grow.

1.30 pm

If, with the 49 per cent cap that we now have, there are opportunities for private patient practice, some boards will very much want to take advantage of that. The problem is that those boards, when faced with real financial difficulty, may put undue pressure on their clinicians. I am always in favour of protecting clinicians in these circumstances, and the amendment is very welcome in giving a clear indication to the boards of foundation trusts that they must not put undue pressure on clinicians with regard to this tricky issue of the relationship between private patients and public NHS patients.

Earl Howe: My Lords, before I address the amendments in the name of my noble friend, I would like to come back to some of the comments made by the noble Baroness, Lady Finlay. She mentioned one of the most pernicious myths about the Bill. The paper that she quotes is not just factually inaccurate on a large scale but is also, frankly, scaremongering. As she herself knows, the Bill does not extend current arrangements for charging; indeed, the Government have committed to introducing no new charges for healthcare during this Parliament. I felt that I had to make that abundantly clear. I know that the noble Baroness realises that that is the case but it is important for the world out there to understand what the Bill does and does not do.

I agree completely with the sentiments behind the amendment that my noble friend has tabled. Patients' access to essential clinical care and treatment should be on the basis of clinical need, not their ability to pay. That has been a fundamental principle of the NHS since its inception, and we fully support that. I understand that there is some concern that private healthcare by NHS providers might represent a better deal for patients in need of essential treatment. However, I hope that I can convince my noble friend and other noble Lords that there are already adequate safeguards in place, because that is what I firmly believe.

First, I shall cover the issue from the perspective of clinicians-I shall move on to hospital management in a moment. Ethically and professionally, clinicians are required to treat all their patients to the same standard and should not discriminate in any way. It would be wrong to suggest that the vast majority who provide an excellent standard of care would not do so, and I am sure that my noble friend would never suggest that. The General Medical Council's Good Medical Practice states that the overriding duties for doctors include making the care of patients a doctor's first concern and never discriminating unfairly against patients or colleagues. The Government also have in place a robust system of regulation on the quality of services. The Bill strengthens that system and makes it more accountable.

Secondly, Good Medical Practice ensures equality of access. It requires all doctors to treat their patients on the basis of clinical priority and to the same

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standard. Therefore, if a doctor did not treat a patient on the basis of clinical priority or was treating a private patient to a better clinical service, they could be in breach of the principles set out by the GMC and could be putting their registration at risk. In addition, the terms and conditions of service in NHS consultants' contracts make it clear they are responsible for ensuring that their private work,

That principle was reiterated in the department's guidance on NHS patients who wish to pay for additional private care alongside their NHS treatment, which was published by the previous Government following a review by Professor Sir Mike Richards in 2008. The guidance makes it very clear that patients who choose to pay for additional private treatment,

The NHS consultant contract also binds them into adhering to the principles set out in a code of conduct for private practice. These are recommended standards of practice for NHS consultants published by the department. This says that,

and that,

It is important to note the point about NHS commitments taking precedence over private work. I strongly believe that professional regulation through the General Medical Council combined with guidance from the Department of Health is the best way to ensure equality of access for patients. It allows regulators to respond to changing circumstances and practice without departing form the central principle involved.

Putting the amendment into statute would risk endless arguments about what is and is not essential care and treatment. Perversely, it could prevent a foundation trust giving preferential treatment to its NHS patients because of the amendment's reference to equality. The primary purpose of a foundation trust is to provide NHS services. A foundation trust may want to prioritise NHS patients where there is equal clinical need. The amendment might well prevent that; at the very least, it would create legal ambiguity and confusion.

Some noble Lords have voiced concerns that a foundation trust might pressurise its consultants into prioritising private healthcare ahead of its NHS patients. There are safeguards to prevent that as well. First, foundation trusts have a public service ethos; they are governed by the public and by NHS staff. They have a principal legal purpose to treat NHS patients. Secondly, the NHS Commissioning Board and clinical commissioning groups would be responsible for ensuring that NHS patients continued to be offered prompt and high-quality care. With regard to managers, my noble friend will wish to know that we have already commissioned the Council for Healthcare Regulatory Excellence to produce standards of conduct and competence for senior NHS leaders, and these are currently the subject of public consultation.

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I remind noble Lords of the points that we debated earlier. If there appeared to be a trend or a significant increase in the level of a trust's private income, not only would that be picked up by the governors but it would be seen by Monitor, which will have extensive powers to direct foundation trusts through the licence. Foundation trusts will also be required to explain in their annual reports what the impact will be of their non-NHS income on NHS services. One might say that there is going to be no hiding place in this regard.

The noble Lord, Lord Campbell-Savours, asked earlier about GPs channelling patients to NHS private patient units. GPs' responsibility is to ensure the best care for their patients. They would have nothing to gain from trying to collude with foundation trust managers and commissions to increase a foundation trust's private income. More to the point, they would risk being reported to the GMC for not serving their patients' interests. If the noble Lord's point is that clinical commissioning groups may try to do this, then it would clearly be unethical and would give grounds for the commissioning board to intervene. I hope that that provides the noble Lord with reassurance on that point.

I make a further point to my noble friend around any possible incentive that trust management might have to channel patients into a private wing, a concern raised by the noble Lord, Lord Kakkar. The Bill will establish a transparent and legally enforceable pricing system that will reward foundation trusts for treating NHS patients. In other words, money will genuinely follow the patient, and foundation trusts will be paid a fair price for treating complex cases. The current system has not always achieved these simple aims. An independent report into the current system published last month makes this clear; I have placed a copy of that report in the Library of the House for noble Lords who are interested. As the report makes clear, although foundation trusts should have been paid for every NHS patient treated, this has not always been happening. There have been unacceptable levels of cross-subsidy that have meant that the prices payable for complex cases have sometimes been woefully inadequate. One important facet of the reassurance that I can give my noble friend is that the pricing system proposed under the Bill will address those problems and ensure that foundation trust managers have the right incentives and rewards for prioritising NHS patients.

For some-although not, I think, for my noble friend-the amendment has been prompted by fears around the consequences of the private patient income cap for foundation trusts being removed; again, the noble Lord, Lord Campbell-Savours, voiced that fear. I suggest to him that those fears are misplaced. It is not, to my mind, a valid argument to suggest that removing the cap, a restriction that does not apply to NHS trusts, would lead to foundation trusts ignoring NHS patients as their prime concern and responsibility. Foundation trusts are the only NHS organisations which have never been subject to a cap on the amount of private income that they can earn. However, some foundation trusts can and do earn high levels of private patient income. There are also

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some NHS trusts which earn private incomes well in excess of many foundation trusts. There is no evidence that these NHS providers have ignored NHS patients as their main responsibility. The NHS constitution guarantees fair access to NHS treatment. The Government are putting in place a quality improvement framework that will improve outcomes for patients. Therefore, there is no scope for NHS patients to be harmed by private provision. Indeed, I say again that the extra income that the NHS would earn through the lifting of the private patient income cap would help to provide better quality care for all in the future.

I hope that my noble friend will accept that he and I are on the same page-on the same side-on this question. The difference between us lies in how to tackle it. As the noble Lord, Lord Warner, was right to remind us, privately funded and NHS healthcare have always co-existed in NHS hospitals. Governments of all parties have preferred to use professional regulation rather than statute to ensure equality of treatment. I am sure that that is right. It is unnecessary and, I think, a mistake to use primary legislation to establish the same principles. Of course, over the length of time for which the NHS has been in existence, professional regulation has, on the whole, been an effective safeguard of equality of access. On that basis, I hope that my noble friend will feel genuinely reassured and able to withdraw his amendment.

Baroness Finlay of Llandaff: Before the Minister sits down, I seek clarification. It is extremely reassuring to hear about the code of conduct that will be coming through for managers. I seek reassurance that the code of conduct will cover managers at every level. While there is clarity over consultants, consultants' contracts and the GMC guidance which we have discussed at length, there are many others in the healthcare team who are not managerially answerable to the consultants. They are managerially answerable in other streams. There needs to be consistency across all those aspects of management. That includes other professional managers such as nurse managers, allied healthcare professional managers and so on, not just those who are caught, perhaps, by the council guidance because they are managers coming from a non-healthcare background. We were seeking that consistency of conduct with the amendment. I hope that the Minister can give me reassurance.

1.45 pm

Earl Howe: My Lords, I can give the noble Baroness that reassurance. This will apply to managers and leaders at every level in the system. It will not be confined just to a select group.

Lord Phillips of Sudbury: My Lords, I first thank the seven Peers who added their voices to the amendment. I thank my noble friend the Minister for an extremely thoughtful and comprehensive reply. None the less, it would be dishonest of me to say that he convinced me on all counts. It is perhaps asking too much on such a complicated business to have full satisfaction.

The one thing that I am bound to say is that the Minister's interpretation of these various provisions in the various codes is different from mine. I am a lawyer

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extremely long in the tooth and I do not think that the provisions that he quoted, although they look helpful on the face of it, actually work in practice. That is evidenced by the total absence of any disciplinary measures-ever, as far as I can see-against doctors acting improperly in relation to queue-jumping. However, that is in the past.

I must quickly answer questions raised of me by the noble Baroness, Lady Murphy, and the noble Lords, Lord Warner and Lord Ribeiro. The noble Lord, Lord Ribeiro, is the easiest to answer: the amendment does not cover the existing NHS trusts, only the NHS foundation trusts. However, I think that the NHS trusts are going to be out of existence in a couple of years' time. I saved the House by not including that; I would have had it at Third Reading if necessary. As to the noble Lord, Lord Warner, he can go to his private knacker any day, any place, any time and pay what he likes. To the noble Baroness, Lady Murphy, the answer is that, if you are having private treatment within an NHS hospital, the amendment would prevail, had it passed; namely, you could not then barge the queue because you were a private patient in respect of essential clinical care. It really is as simple as that.

I do not get the sense from the House that noble Lords want a Division on this matter. I do get the sense that they are impressed by what the Minister said, particularly in relation to the management code. That could make a very big difference. The only thing that I ask my noble friend the Minister-if he is with me-is that he just keeps an eye on the issue at the heart of this amendment and the debate, and, in the new regime that we are ushering in, on the concerns behind this amendment, shared by many in the country.

Earl Howe: Before my noble friend withdraws the amendment, I give him that reassurance. The NHS constitution will be monitored at every level in the system, from the Secretary of State downwards, as will the provisions within relating to access to healthcare for NHS patients. Of course, if there is any sign that that pledge in the constitution is being jeopardised in any way, appropriate action will of course be taken.

I am told that I should clarify what I said in answer to the noble Baroness, Lady Finlay, about to whom manager training will apply. It will apply to "leaders across the NHS"-it says here. It will primarily be aimed at very senior managers with a cascade of good practice down to more junior levels.

Lord Phillips of Sudbury: I beg leave to withdraw the amendment.

Amendment 220BA withdrawn.

Amendments 220BB and 220C not moved.

Clause 172 : Repeal of de-authorisation provisions

Amendment 220D not moved.

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Clause 174 : Objective of trust special administration

Amendment 221

Moved by Earl Howe

221: Clause 174, page 167, line 24, at end insert-

"( ) If, at any time before section 8 comes into force, Monitor obtains the approval of the NHS Commissioning Board Authority to publish guidance under section 65DA(4)(c) or (5) of the National Health Service Act 2006, that approval is to be treated for the purposes of subsection (6)(b) of that section as approval obtained from the National Health Service Commissioning Board."

Amendment 221 agreed.

Clause 178 : Abolition of NHS trusts in England

Amendment 221A not moved.

Schedule 14 : Abolition of NHS trusts in England: consequential amendments

Amendments 222 and 223

Moved by Earl Howe

222: Schedule 14, page 392, line 20, leave out "section 78" and insert "sections 78 and 79"

223: Schedule 14, page 400, line 12, at end insert-

"Charities Act 2011 (c. 25)

The Charities Act 2011 is amended as follows.

In section 149 (audit or examination of English NHS charity accounts), in subsection (7), omit paragraphs (c), (d) and (e).

In section 150 (audit or examination of Welsh NHS charity accounts), in subsection (4)-

(a) in paragraph (b), omit the words from "all or most" to the end,

(b) in paragraph (c), omit "falling within paragraph (b)", and

(c) in paragraph (d), omit "such"."

Amendments 222 and 223 agreed.

Clause 180 : Healthwatch England

Amendment 223A

Moved by Lord Patel

223A: Clause 180, page 176, line 16, at end insert-

"( ) After Section 158 (Duty to consult Board in relation to regulations about patient information) insert the following new Section-

"Representation of Patients' Interests

Healthwatch England

(1) There shall be a body corporate known as Healthwatch England.

(2) The primary duty of Healthwatch England shall be to represent the interests of patients and users of national health services and social care services (hereafter known as "patients and users") in relation to providers, regulators and the Secretary of State.

8 Mar 2012 : Column 1936

(3) Healthwatch England shall be independent of any provider of national health or social care services or of any regulator of health or social care or of any other body established by this Act or otherwise.

(4) Healthwatch England shall have the following functions-

(a) to establish a local healthwatch organisation for each local authority area;

(b) to provide each local healthwatch organisation with such resources as may be agreed by Healthwatch England;

(c) to provide local healthwatch organisations with advice on, and assistance in relation to, their functions and on such other matters that Healthwatch England may determine; and

(d) to provide relevant persons with information and advice on-

(i) the views of people who use health and social care services and of other members of the public on their needs for, and experiences of, health and social care services; and

(ii) the views of local healthwatch organisations and of other persons on the standard of provision of health and social care services and on whether or how the standard could or should be improved.

(5) Relevant persons referred to in subsection (4)(d) are-

(a) the Secretary of State;

(b) the National Health Service Commissioning Board;

(c) the Care Quality Commission;

(d) Monitor; and

(e) English local authorities.

(6) A person provided with advice under subsection (4)(d) must inform Healthwatch England in writing of his or her response or proposed response to the advice.

(7) Healthwatch England shall in addition have powers of investigation as prescribed in subsections (8) and (9) and powers to require disclosure of information as prescribed in subsection (6).

(8) Healthwatch England may investigate-

(a) a complaint made by or on behalf of a patient or user or a local healthwatch organisation which appears to the Board to raise one or more issues of general relevance; or

(b) any matter which appears to the Board of Healthwatch UK to be or be related to a problem which affects or may affect patients or users generally or patients or users of a particular description.

(9) For the purposes of subsection (8) a complaint raises an issue of general relevance if it raises-

(a) a novel issue which affects or may affect patients or users in general or patients or users of a particular description, or

(b) any other issue which has or may have an important effect on patients or users generally or patients or users of a particular description.

(10) Healthwatch England may by notice require a person within subsection (11) to supply it with such information as is specified or described in the notice within a reasonable period as is so specified and the information so specified or described must be information that Healthwatch England requires for the purpose of exercising its function.

(11) The persons referred to in subsection (6) are-

(a) any provider of health or social care services licensed by the Care Quality Commission and Monitor under the provisions of this Act;

(b) the National Health Service Commissioning Board;

(c) Monitor;

(d) Care Quality Commission; and

(e) any other person specified or of a description specified by the Secretary of State.

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(12) If a person within subsection (11) fails to comply with a notice under subsection (10) the person must, if so required, give notice to Healthwatch England of the reason for the failure and if that reason for failure is not acceptable to the Board of Healthwatch England then the Board of Healthwatch England may take steps to publish the notice and the reasons for failure provided or to seek enforcement of the said notice through the courts.

(13) Healthwatch England must publish details of arrangements it makes under this section, including details of payments of remuneration or other amounts.

(14) In performing functions under this section, Healthwatch England must have regard to such aspects of Government policy as the Secretary of State may direct.

(15) As soon as possible after the end of each financial year, Healthwatch England must publish a report on the way in which it has exercised its functions during the year.

(16) Healthwatch England must-

(a) lay before Parliament a copy of each report made under subsection (15); and

(b) send a copy of each such report to the Secretary of State.

(17) Healthwatch England may publish other reports at such times, and on such matters relating to health or social care, as it deems appropriate.

(18) Before publishing a report under subsection (15) or (17), Healthwatch England must, so far as practicable, exclude any matter which relates to the private affairs of an individual, the publication of which, in its opinion, would or might seriously and prejudicially affect that individual's interests.

(19) In this section "financial year" means-

(a) the period beginning with the date on which Healthwatch England is appointed and ending with the following 31 March, and

(b) each successive period of 12 months ending with 31 March."."

Lord Patel: My Lords, Amendment 223A and those that follow, which relate to local healthwatch, are the key amendments that address public and patient involvement in the Bill. The Bill says a lot about how the patient will be centre stage in the whole reorganisation. Therefore, it is important that the patient's voice be heard. How will we do that?

I say at the outset that my amendment is about the independence of HealthWatch England in statute and its ability to get the information about health services that it will need to do its job. Public involvement in health and social care in England has been in a turbulent state since 2003. Despite the genuine aspiration of the Government to establish an effective system of public involvement, they have failed. This is now the fourth, or even the fifth, attempt to do so.

In 2003, more than 500 patient forums were set up around the country, many with a tiny membership. They had an independent national body, which was distant and isolated from local patient forums. It failed because it was neither useful to nor respected by local forums. The abolition of patient forums led to Local Involvement Networks being established with no statutory national body. The name LINks made them invisible to the public. They were often isolated and struggled against the odds to develop successful systems to monitor services and influence commissioning. Nevertheless, after two or three years, many LINks have done well; they have established a good local reputation and had an important impact on the effectiveness of local services. However, they

8 Mar 2012 : Column 1938

need a national body to support them, enable them to develop successfully and give a hand to those that are failing.

Recognising the problems and weaknesses of some LINks, the Government decided to abolish them and replace them with HealthWatch. The plan-to have a national body called HealthWatch England, working closely in a supportive relationship with local healthwatch-is very good. The intention is for HealthWatch England to be up and running by 1 October 2012 and local healthwatch by 1 April 2013. Ministers had a vision of a relationship between the local and the national that went in the right direction but needed some tuning to make it work for the benefit of the public. However, the plans that the Government now have for both HealthWatch England and local healthwatch may risk that vision being realised.

To succeed, HealthWatch needs strong input from people with practical experience of building a successful national HealthWatch England that works in tandem with local healthwatch. A national governance framework is required from the centre to enable local people to get on with the job. Supportive governance from the centre reduces local friction and speeds the process of local development. HealthWatch England should provide a national vehicle to drive standards in health and social care and identify areas of poor practice. It has a very special mission, which is quite different from that of the regulator, the CQC, of which the Government want HealthWatch England to be a committee.

HealthWatch England should be the voice of the people-the voice to which the Secretary of State must listen in making the CQC, Monitor and the Commissioning Board have a strong relationship. HealthWatch England is the voice of the abused patient, the forgotten person with dementia on the second floor of a nursing home, of the child with a learning disability who is getting poor care on a children's ward and of the people waiting excessive periods for emergency care in an A&E department. When local healthwatch or a member of the public raises their voice because of a persistent local problem-as occurred in Mid-Staffordshire-HealthWatch England must hear it and respond immediately. To do this, independence is critical.

Embedding HealthWatch England in the CQC is a fundamental error. To call it a committee is a fundamental error. It diminishes the power and influence of HealthWatch England if it becomes a committee of the CQC. The only people who think that a committee is important are the people who sit on it. Having sat on many of them, I might agree. Most people think a committee is a talking shop. HealthWatch England must not be thought of across the country as a talking shop.

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