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11 Feb 2015 : Column 1211

House of Lords

Wednesday, 11 February 2015.

3 pm

Prayers—read by the Lord Bishop of Worcester.

The Earl of Kinnoull took the oath, following the by-election under Standing Order 9.

Local Enterprise Partnerships

Question

3.07 pm

Asked by Baroness Bakewell of Hardington Mandeville

To ask Her Majesty’s Government what assessment they have made of the effect of local enterprise partnerships on the economy and key skills in their local areas.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con): We have not made an overall assessment in quite those terms. It is early days, especially for the Local Growth Fund, which starts paying out in April. LEPs are locally accountable, but we have asked them to develop monitoring frameworks so we can access progress in the important areas of growth and skills. Of course, recently we also announced investment of a further £1 billion in local economies across England.

Baroness Bakewell of Hardington Mandeville (LD): I thank my noble friend for her response. Since health is a primary concern among the public, it is somewhat surprising that the Heart of the South West LEP refused to assist the local FE college, working with one of the largest hospitals in Somerset, to develop a joint health and care career college on the basis that health was not one of its priorities. Does the Minister agree that that particular LEP should revise its priorities?

Baroness Neville-Rolfe: That is primarily a matter for the LEP, but we undertook a robust assessment of the strategic economic plan for each LEP in allocating the funding—both the £1 billion recently and the £6 billion last year. However, I am very pleased that the noble Baroness has brought this project to public attention, and that she will continue to discuss these claims with the local enterprise partnership. Like her, I live off the A303; the new road investment is changing the area, and the population is ageing. However, the decision on where these projects are focused is a matter for the LEP.

Lord Snape (Lab): My Lords, would the Minister like to monitor LEPs countrywide and share my concern at the lack of women members of those organisations? Is she aware that only 15% of LEPs countrywide consist of women; that in Birmingham, for example, out of 18 members only three are women; and that out of 13 members of the Black Country LEP there are no women at all? Before she gets embroiled in too many specific projects, can she ask the organisation responsible for LEPs overall why there is such a deplorable lack of female representation?

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Baroness Neville-Rolfe: I thank the noble Lord for raising the point, not least because I was discussing it only this morning. My right honourable friend in the other place, Greg Clark, is planning to write to LEPs about diversity. On diversity, gender is important, but so is having small business as well as large business.

Lord Bilimoria (CB): My Lords, in my role as chancellor of the University of Birmingham, I have heard that the Greater Birmingham and Solihull LEP has been a great success. A bold decision was taken to place the local enterprise zone right at the heart of the city. Is the Minister aware of this, and does she believe that it creates high-skilled jobs and has been replicated around the country? On the other hand, in the spirit of the Government’s own partnership, Vince Cable, the Secretary of State for Business, said he was sceptical about whether local enterprise partnerships had been successful at all. What does the Minister have to say about that?

Baroness Neville-Rolfe: My Lords, I am delighted that the noble Lord mentioned the Greater Birmingham and Solihull LEP, because the total that it is receiving under the growth deal is £379 million. We think that local enterprise partnerships have huge potential. What they did in the past I am not sure, but certainly for the future lots of funding is going into skills, enterprise, transport and housing. They are bringing in business funding as well, and there is local matching—following the report by my noble friend Lord Heseltine, which the Government welcomed.

The Lord Bishop of Worcester: My Lords, does the Minister agree that the involvement of the third sector in local enterprise partnerships is very enriching? As that involvement is very varied across the nation, would she be prepared to monitor the involvement of, and the partnership with, the third sector, as part of an assessment of the progress of LEPs?

Baroness Neville-Rolfe: As I have said, the composition of a local enterprise partnership is very much a matter for the LEP, provided that it is business led and brings in local democracy with the local authorities. Otherwise, we draw on people who can help with growth and skills, and certainly there are those in the third sector who bring great strength to these areas.

Lord Young of Norwood Green (Lab):My Lords,does the Minister share our concern about the decline in the number of apprenticeships for 16 to 18-year olds, when there are still areas of very high youth unemployment, and apprenticeship demand vastly exceeds supply? What contribution are LEPs making to encourage employers to offer apprenticeships? Can the Minister give examples of the most successful LEPs working with local authorities, small businesses and so on?

Baroness Neville-Rolfe: My Lords, as always, the noble Lord asks a very good and detailed question, and I will follow up in writing—but £125 million of the £1 billion growth deal recently announced is addressed to skills capital, and a further £26 million to particular

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apprenticeships. By bringing business and local authorities together, and by looking at growth and what is needed—skills represent a particularly important constraint—the LEPs can really help to achieve our ambition of having more apprenticeships, and raising the numbers from the 2.1 million that we have had in this Parliament to 3 million in the future.

Baroness O'Cathain (Con):My Lords, may I suggest that people write to Birmingham City Council and ask for details about how its LEPs are organised? As part of the team from European Union Select Committee Sub-Committee B, as part of our unemployment study, we visited Birmingham City Council and we also went out to some of the organisations funded by it and through the LEPs. That was quite revelatory. Of all the witnesses to that inquiry, those people were by far the best, and they had new ideas about how to get ex-cons and young people who had never had a job, and would not get out of bed to get one, into particular areas. Please let us not condemn a body such as Birmingham City Council, in view of the reality on the ground and the fact that the witnesses’ evidence was so good.

Baroness Neville-Rolfe: I thank my noble friend for drawing attention to all this and look forward to hearing fuller details. I do not think that any of us is condemning LEPs. There are always good and bad things about such organisations. My own view is that they are making a great drive forward in helping local people choose the projects we should support with government funding and matching funding from business and others.

Lord McFall of Alcluith (Lab): My Lords, in the debate on the constitution will the Minister keep in mind the distinction between decentralisation and devolution? Decentralisation is superior to devolution in terms of local enterprise companies. I give the Minister an example. The SNP Government in Scotland abolished the local enterprise zone in my area, but not before I established a public-private partnership in 1998. Sixteen years later, 2,000 jobs have been created with gross value added to the local community of more than £500 million. The public investment in that is one-1,000th, at £500,000. Will the Minister bear in mind that we have no hope of rebalancing the economy if we do not keep in mind the merits of decentralisation and local involvement?

Baroness Neville-Rolfe: My Lords, I very much agree about the power of localism and partnership, which that example demonstrates.

Voter Registration: Students

Question

3.16 pm

Asked by Lord Storey

To ask Her Majesty’s Government, in the light of the initiative in Northern Ireland, what plans they have to allow pupils to register to vote in schools, sixth form and further education colleges.

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Lord Wallace of Saltaire (LD): My Lords, the Government have no plans to legislate to require electoral registration officers or schools and colleges to provide for pupils to register to vote at school. EROs are free to arrange registration sessions in their local education establishments, and many already do. The Government have recently provided additional funding to encourage activities which promote the registration of young people among other target groups.

Lord Storey (LD): I note what my noble friend says, but, given the success of the initiative in Northern Ireland, is there not a case for having an independent evaluation to see whether it is worth using that scheme in the rest of the UK? The fact that 189,000 17 year-olds in college will turn 18 before the deadline shows even more clearly how we need to get the message across.

Lord Wallace of Saltaire: My Lords, we have, of course, evaluated the Northern Ireland experience. We were dealing with paper transactions then and we are now moving to online transactions. Since the beginning of February, there have been nearly 500,000 online registrations, so we are very much achieving what we want, and we look forward to seeing more coming. The Northern Ireland experience was useful at the time. However, it was not a great success in maintaining registration: that there was a very substantial drop-off after the first year of registration for 17 year-olds to the level of registration of 18 to 19 year-olds.

Lord Kennedy of Southwark (Lab): My Lords, first, I declare an interest as the chair of the All-Party Group on Voter Registration. When I asked the noble Lord, Lord Wallace of Saltaire, last week what the Government were doing to deal with the scandalous situation whereby, according to the Electoral Commission, 30% of 18 to 24 year-olds are not registered, he avoided answering the question, so I will give him another chance to do so today. What are the Government doing to deal with this serious matter, because from here it seems that they are doing very little to get these young people registered by 20 April to vote in the general election?

Lord Wallace of Saltaire: My Lords, the Government are doing a great deal. We have provided an additional £14 million over the last 18 months precisely to deal with help in those areas. Most of that has gone to EROs in local authorities, with the largest proportion going to those in areas with a substantial number of students. We have also just funded a number of groups, many of which work with young people and disadvantaged groups, to assist in this process.

Lord Phillips of Sudbury (LD): My Lords, does my noble friend the Minister agree that it sends at best a very weak message to young would-be voters if we do not equip them while at school to take their place as citizens in a highly complex society? Will he do something about the steady decline in citizenship education?

Lord Wallace of Saltaire: My Lords, that is a different question. However, as the noble Lord knows, I strongly support that and have worked to support it in government. I point out that young people are increasingly online.

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One of the things that government and local authorities are doing is to provide links to registration when you go into GOV.UK. For example, we have links for those inquiring about student jobs or paying tax, those looking for higher education courses who need to find and apply, those looking for tenancy deposit protection, a careers helpline for teenagers and so on to make registering to vote easier and to nudge people into thinking about it.

Baroness Armstrong of Hill Top (Lab): My Lords, does the Minister realise that in many areas of the country his answers will seem very complacent? Much of the problem arises because for many young people it is the first time that they are registering. I will give another example, involving, admittedly, not a young person but my husband. Having moved, he was asked to go to the town hall with his passport to prove who he was before he was registered. Most people will never do that, and that is one of the reasons why individual registration is proving very taxing in some areas.

Lord Wallace of Saltaire: My Lords, I am extremely sorry to hear about the difficulties of the noble Baroness’s husband in having to demonstrate that he existed, and I look forward to hearing more offline. In the last two or three weeks, the number of people registering has risen considerably. Part of that has clearly been due to the extra publicity around National Voter Registration Day, and I give credit to those who organised it. However, all of us have to help in raising the level of interest. For example, I took part with candidates and spokesmen of other parties in a packed meeting at the University of York on Friday evening. Some students came up at the end and said, “We had not been thinking about voting so far, but now perhaps we will”. We all need to get out there to encourage young people.

Baroness Perry of Southwark (Con): My Lords, there is a real problem with student hostels, where a number of young people live together and the delivery of post to individual students is not the easiest thing in the world. What are the Government doing to try to address the problem of group registration?

Lord Wallace of Saltaire: My Lords, we have switched from group registration to individual registration, but the Government are working with the Student Forum, which brings together universities, student organisations and representatives of FE colleges, to raise awareness through a whole range of activities for students arriving in universities. There were pilots in Sheffield and Manchester linking registration at university with registering to vote—so we are very active in this area.

The Lord Bishop of St Albans: My Lords, I am grateful to the Minister for referring to last week’s National Voter Registration Day. As part of that, I went into Townsend School in St Albans with two dynamic members of Bite the Ballot, who were able to bring the whole thing alive in an interactive and very lively session. They handed out registration forms at the end and offered to take them back in—so they are already doing this sort of work. Have Her Majesty’s Government considered supporting that organisation and other similar ones that are already doing this work in a very creative way?

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Lord Wallace of Saltaire: My Lords, I have played the game Rock Enrol!, and I hope that a lot of other noble Lords have done so, too. It demonstrates to young people how politics matters to them. I hope that that is going on all over the place. The Government have their own version of this, and Bite the Ballot has adapted another one. We are discussing with Bite the Ballot the question of support and we very much encourage what it and a number of other organisations are doing to bring young people back into being interested and involved in politics.

Public Sector Strikes: Union Support

Question

3.23 pm

Asked by Lord Carrington of Fulham

To ask Her Majesty’s Government what measures they are proposing to ensure that public sector strikes have the full support of union members.

Lord Gardiner of Kimble (Con): My Lords, public sector strikes undoubtedly have a very considerable impact on the public at large and the economy but, between now and Dissolution, the Government will not be bringing forward any further proposals.

Lord Carrington of Fulham (Con): My Lords, does my noble friend agree that public sector trade union bosses should not be able to hold working people to ransom over industrial disputes that have nothing to do with them? Should not public sector trade unions be required to demonstrate a balloted majority of more than 50% of their membership before being able to call a strike?

Lord Gardiner of Kimble: My Lords, we are very much committed to ensuring that people have the right to strike but it is important that this is balanced, so that everyone else’s right to get on with their daily lives is understood as well. The concept of thresholds is very interesting. There are certain public sector strikes where 11% of the membership have caused a strike, with very considerable inconvenience to the public.

Baroness Donaghy (Lab): My Lords, in the interests of balance, does the Minister agree that the legislation governing trade unions is already some of the tightest in Europe and that the level of strikes in this country is, I am glad to say, comparatively low? Does he agree that any further tightening of the noose of that legislation might lead to a growth in unofficial action?

Lord Gardiner of Kimble: My Lords, any responsible Government should look at a situation from time to time, certainly if we were to have strikes where the percentage of the membership voting in favour was 11% or 12%. We have a possible RMT strike coming up with under 25% of the union membership voting for strike action. This is a matter of concern for the public, and, I have no doubt, for the 75% of the union members who did not vote.

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Lord Tebbit (Con): My Lords, does my noble friend recollect that when I was undertaking the changes to industrial relations law which brought about the most enormous change in our industrial relations, from the worst in Europe to the best, I resiled from putting in a requirement of the sort that is now being discussed because I could not believe that trade union leaders would be so irresponsible as to pull a strike on tiny numbers of their members voting for it? Therefore, while I agree that we should not act immediately, trade union leaders should take into account that it will become necessary to do so if they persist in this extraordinary behaviour in the public sector.

Lord Gardiner of Kimble: My Lords, I have the figures of 11% to 12% before me. These are very low figures. They show very often that we have strikes and inconvenience to the public when a huge majority of union members have decided either not to vote for the strike or not to vote at all. These are things that we should think about. We have a responsibility for the public sector—of course we do—but public sector workers have to remember that they are working on behalf of everyone. I think that large numbers of members of unions should be voting for strike action, rather than minorities.

Lord Monks (Lab): My Lords, will the Minister accept that the hallmark of a democratic society is the right to strike, however inconvenient that might be from time to time? British unions—my eye catches the noble Lord, Lord Tebbit—are already among the most restricted in the western world in legal terms. The real problem with turnouts is the insistence on postal ballots to the exclusion of all other possible measures. As we just heard from the noble Lord, Lord Wallace, young people in particular tend to vote online more comfortably than by post nowadays. Rather than engaging in yet another rather tribal round of union bashing in the pre-election period, will the Conservative Party apply its mind to thinking about other means of balloting, rather than simply postal balloting?

Lord Gardiner of Kimble: My Lords, I certainly do not approach this as a political matter. We have in the public sector people who are very important to us all. It is not reasonable for a strike that causes huge inconvenience to people to be on the back of 11% of a union’s membership. Postal votes are increasingly popular. It is one of the ways forward for many people and I encourage it.

Lord Goddard of Stockport (LD): My Lords, I am sure that the Minister will acknowledge that there is not society-wide support for trade unions. Does he agree that this is as a result of many individual unions affiliating themselves to one political party? Does he think that it may be beneficial to the membership levels of those unions if they appeal to a wider section of society away and apart from the traditional political groupings?

Lord Gardiner of Kimble: My Lords, unlikely though it may seem to noble Lords opposite, I think that trade unions and the trade union movement have a very strong place in our national life. There have been

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difficulties, but I think that trade unions are institutions that have had many responsible members—of course I do. The whole issue is whether they have reasonable and responsible leadership on occasion; leadership should be shown. We could be about to have bus strikes where 21% of the union membership have voted for that strike.

Baroness Corston (Lab): My Lords, if a turnout of 21% in a trade union postal ballot is unacceptable, can the Minister explain why we are told that a turnout of 8% in an election for a police and crime commissioner is perfectly okay?

Lord Gardiner of Kimble: My Lords, there is a very big difference. One is offering public service and one is withdrawing public service.

Lord Balfe (Con): My Lords, I point out that the settlement put in place by my noble friend Lord Tebbit— my good friend—has substantially stayed throughout many years of opposition and government. I hope that the leaders of the trade union movement will take note that strikes on very low turnouts are increasingly unacceptable. I also ask the Minister to look positively at ways in which voting could be extended beyond the postal ballot to reflect the modern age that we are in.

Lord Gardiner of Kimble: My Lords, all issues should be looked at, and I very much encourage all trade union leaders to think of their broad membership, most of which often does not vote for strike action.

Adult Social Care Contracts

Question

3.31 pm

Asked by Lord Laming

To ask Her Majesty’s Government what assessment they have made of the use of an auction-style process by some local authorities to tender for adult social care contracts.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): The new Care Act directs local authorities to put the well-being of people at the centre of all decisions about care and support. Commissioning high-quality social care is ultimately a matter for local authorities. We are aware of electronic marketplace systems that, together with professional judgments by authority staff, help to embody this well-being principle by prioritising quality above cost while achieving value for money.

Lord Laming (CB): My Lords, I am very grateful to the noble Earl for that thoughtful response. Does he agree that advertising a block of services in an impersonal way is entirely different from advertising a vulnerable individual, stripping them of their humanity and dignity? Would he be willing to take forward the point that he made about the legislation and examine whether these authorities are disregarding the duty placed on them

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by Parliament to carry out a proper assessment of need for each individual, to produce a care plan and to make sure that that care plan is related to the individual’s developing situation? Will he ask the Care Quality Commission to make unannounced inspections of these authorities to see whether they are complying with the law?

Earl Howe: My Lords, I make it clear that the personal details of would-be service users should not be put in the public domain. The purpose of this system is to develop a tailored care plan that best meets the person’s needs and does not undermine their well-being. Where this has been done well, it has resulted in good-quality care while also, as I said, providing value for money for the taxpayer. We would not wish to make provision for spot checks of local authorities by the CQC but, where there is clear evidence that a local authority’s commissioning practices are leading to poor-quality care—which they should not be—the Secretary of State can order the Care Quality Commission to carry out a special review.

Lord Campbell-Savours (Lab): My Lords, the Minister will know that self-funders have been subsidising local authority places for decades. Have the Government measured what the impact of the increased cost on self-funders would be in the event that we were to go down the route suggested?

Earl Howe: My Lords, whatever system is chosen for commissioning care in a local authority, there has to be a fair system for setting fees. We expect local authorities to comply with their legal duties to sustain a high-quality market of providers in their area, and that involves paying fair fees. That is a matter for local determination. It has to be because, in seeking an open market, as we do, we are also aware that local market conditions have to be taken into account.

Baroness Campbell of Surbiton (CB): My Lords, many service user-led organisations—for instance, the National Centre for Independent Living—provide a high quality of service. Does the Minister accept that in order to achieve high quality and high value, local authorities may have to pay a premium in the short term to achieve long-term cost-effectiveness? If he does, can he remind local authorities of this?

Earl Howe: My Lords, the principle that the noble Baroness articulates is, I am sure, applicable in some areas. I hope that she will be reassured to know that the department has developed statutory guidance for the Care Act to support local authorities, including commissioning. The guidance to the Act directs local authorities to ensure that all packages of care and support that are arranged are good quality and do not undermine people’s well-being. Furthermore, the department will, with partners, be developing a set of commissioning standards which will help local authorities to improve their commissioning practices.

Lord Mackay of Clashfern (Con): My Lords, can the noble Earl tell us whether the Care Act effectively prevents the practice to which the noble Lord, Lord Campbell-Savours, referred?

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Earl Howe: No, my Lords, it does not, because we rely on local authorities to arrive at a fair system of charging that is fair to all. What we do wish to see, however, is greater transparency in these matters, and I think that the Care Act will lead to that.

Baroness Barker (LD): My Lords, commissioning of social care is changing fundamentally, not least because of increased use of individual budgets and integration with health commissioning. Does the Minister agree that it is time for the CQC to do a thorough review of the commissioning skills and capacities of local authorities?

Earl Howe: I think that that would be premature. As I have said, we are developing statutory guidance for local authorities, as well as commissioning standards. We have no evidence to date that the process to which the noble Lord, Lord Laming, has drawn attention is leading to perverse results. If there is such evidence, we would be interested to hear about it. But until we are aware that there is a problem, I think that the noble Baroness’s suggestion is not timely.

Lord Campbell-Savours: My Lords, I go back to my original question. Will self-funders be further subsidising local authority auctioned places?

Earl Howe: My Lords, it is impossible to give generalisations. As I indicated, it will depend on what happens in a given local area. We know that it happens at the moment but, again, it is impossible for me to make a general statement about how much or how little it is happening across the country.

Local Elections (Forms) (Northern Ireland) Order 2015

European Parliamentary Elections (Forms) (Northern Ireland) Regulations 2015

Northern Ireland Assembly (Elections) (Forms) Order 2015

Parliamentary Elections (Forms) (Northern Ireland) Regulations 2015

Motions to Approve

3.37 pm

Moved by Baroness Williams of Trafford

That the draft Orders and Regulations laid before the House on 8 January be approved.

Relevant documents: 19th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 4 February.

Motions agreed.

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European Parliamentary Elections (Amendment) Regulations 2015

Representation of the People (Scotland) (Amendment) Regulations 2015

Representation of the People (England and Wales) (Amendment) Regulations 2015

Motions to Approve

3.37 pm

Moved by Lord Wallace of Saltaire

That the draft Regulations laid before the House on 6, 7 and 8 January be approved.

Relevant documents: 18th and 19th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 9 February.

Motions agreed.

Freedom of Information (Designation as Public Authorities) Order 2015

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2015

Motions to Approve

3.38 pm

Moved by Lord Faulks

That the draft Orders laid before the House on 8 and 12 January be approved.

Relevant documents: 19th and 20th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 9 February.

Motions agreed.

Francis Report: Update and Response

Statement

3.38 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I refer the House to the Statement made by my right honourable friend the Secretary of State for Health in the House of Commons, copies of which have been made available in the Printed Paper Office and the text of which will be printed in full in the Official Report.

The following Statement was made earlier in the House of Commons.

“With your permission, Mr Speaker, I would like to make a Statement on the Government’s response to today’s report on NHS whistleblowing by Sir Robert Francis, and on progress to date in implementing previous recommendations from his public inquiry into the failures of care at Mid Staffordshire NHS Foundation Trust.

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I asked Sir Robert to carry out a follow-up review because of my concerns that, despite good progress in implementing his original recommendations, the NHS was still not making fast enough progress in creating an open and transparent culture in which staff feel supported to speak out on worries about patient care. As a result, I was concerned that changes are still necessary if the NHS is to protect patients properly by adopting a transparent, no-blame, learning culture as is common in other sectors such as the nuclear, oil or airline industries.

Sir Robert has confirmed the need for further change in his report today. He said he heard again and again of horrific stories of people’s lives being destroyed—people losing their jobs, being financially ruined, being brought to the brink of suicide and with family lives shattered—because they had tried to do the right thing for patients. Eminent and respected clinicians had their reputations maligned. There are stories of fear, bullying, ostracisation and marginalisation, as well as psychological and physical harm. There are reports of a culture of ‘delay, defend and deny’, with ‘prolonged rants’ directed at people branded ‘snitches, troublemakers and backstabbers’, who were then blacklisted from future employment in the NHS as the system closed ranks.

We, of course, recognise the high standards of care day in, day out in much of the NHS, and we know that many staff feel supported in raising concerns about patient care, with many dedicated managers going out of their way to address those concerns. However, the whole House will be profoundly shocked at the nature and extent of what has been revealed today. The only way we will build an NHS with the highest standards is if the doctors and nurses who have given their lives to patient care always feel listened to when they speak out about patient care. The message must go out today that we are calling time on bullying, intimidation and victimisation, which have no place in our NHS.

Before outlining the Government’s response to today’s report, I want to update the House on the progress made in implementing previous Francis recommendations. I have today laid in the House of Commons Library a report showing progress on all 290 recommendations originally made by Sir Robert, as well as the progress made in implementing other recommendations by Professor Don Berwick on safety, by the right honourable Member for Cynon Valley, Ann Clwyd, and Professor Tricia Hart in their complaints review, by Camilla Cavendish in her work on healthcare assistants and by the NHS Confederation on reducing bureaucratic burdens. The progress was recognised this morning by Sir Robert, who said that the priority that must be given to safety, compassion and quality of care is now better recognised and acted on.

I want to highlight the impact of Professor Sir Bruce Keogh’s review of hospitals with high mortality rates. The special measures regime that followed introduced the toughest and most transparent hospital turnaround regime anywhere in the world, with 19 hospitals—more than 10% of NHS acute trusts—having been put into special measures so far. Among the vast array of improvements since the start of the process, those trusts have recruited 109 additional doctors and 1,805 additional nurses, and have made 129 board-level changes.

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The independent research company Dr Foster estimated this week that excess deaths in those trusts had fallen by 450 in less than a year. That means that between them, they may have saved as many lives as some estimated were tragically lost at Mid Staffs between 2005 and 2009.

We have moved from a system that tolerated or denied high mortality to one that, while it is by no means perfect, seeks out problems, shares them with the public, takes action and saves lives. Today I can announce that the Care Quality Commission, Monitor and the NHS Trust Development Authority have published a new memorandum of understanding to enshrine and further improve the special measures process.

The other measures that we have introduced include giving the CQC, under its new leadership, legal independence and the legal powers that it needs for its chief inspectors to root out failure and highlight excellence. The chief inspector of hospitals has inspected more than half of acute trusts and will have inspected them all by the end of the year.

We have introduced criminal sanctions for those who wilfully neglect patients and those who provide false or misleading information. The new duty of candour for institutions and professionals means that when mistakes are made, patients or their families must be told. Fundamental standards are now in place to ensure that all providers are required to treat people with dignity and respect. All acute hospitals are now asking patients if they would recommend the care that they receive to friends or members of their family. That is being rolled out to other parts of the NHS, including primary care. Two-thirds of hospitals are now implementing the ‘name above the bed’ initiative to ensure that hospital care is better joined up. More than 200 organisations have joined the ‘sign up to safety’ campaign, which involves a commitment to halve avoidable harm and save 6,000 lives by 2017.

The entire NHS is now committed to patient-centred culture change as a key part of the ‘Five Year Forward View’ plans that were put forward by NHS England last autumn. In that plan, we recognise the important point that safe care and efficient use of resources go hand in hand: doing the right things first time in healthcare saves lives and money.

In respect of whistleblowing, the Government have taken significant steps to protect NHS staff, such as enshrining the right to speak up in staff contracts, amending the NHS constitution, issuing joint guidance with employers and trade unions, extending the national helpline to social care staff, and changing the law to make employers responsible if whistleblowers are harassed or bullied by fellow employees.

Today, Sir Robert makes it clear that there is more to do, and I am extremely grateful to him and his team for their work. He sets out 20 principles and a programme of action. I confirm today that I accept all his recommendations in principle and will consult on a package of measures to implement them.

The recommendations include asking every NHS organisation to identify one member of staff to whom other members of staff can speak if they have concerns that they are not being listened to. Drawing on the inspirational work of Mid Staffs whistleblower Helene Donnelly, those ‘freedom to speak up’ guardians will

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report directly to trust chief executives on the progress in stamping out the culture of bullying and intimidation that Sir Robert today says is still too common. We will consult on establishing a new independent national whistleblowing guardian as a full-time post within the CQC to review the processes that have been followed in the most serious cases where concerns have been raised about the treatment of whistleblowers.

Because too often the system has closed ranks against whistleblowers, making it impossible for them to find another job, I can announce today that the Government will legislate to protect whistleblowers who are applying for NHS jobs from discrimination by prospective employers. With Opposition support, those necessary regulation-making powers could be on the statute book in this Parliament.

We will provide practical help through Monitor, the NHS Trust Development Authority and NHS England to help whistleblowers find alternative employment. Those three bodies have agreed a compact for action on this issue, and will publish detailed arrangements later this year. We will ensure that every member of staff, NHS manager and NHS leader has proper training on how to raise concerns and how to treat people who raise concerns. As a vital last resort, the right of whistle- blowers to contact the press with any concerns they have must always be safeguarded, although it should not have to come to that. Today I will write to every trust chair to underline the importance of a culture where front-line staff feel able to speak up about concerns without fear of repercussions. In addition, Monitor and the TDA will write to trust chief executives today to ask them to ensure that all managers discuss these issues as a matter of urgency with those who report to them.

There must be consequences for trusts that fail to develop a culture of openness, so today I am publishing consultation options to ensure that where hospitals are found to have knowingly withheld information from patients, the NHS Litigation Authority can impose financial sanctions such as reducing the indemnity it offers against litigation awards. The final decision on how we implement these recommendations will be made after proper consultation with NHS providers, whistle- blowers and patient groups to ensure that we honour the spirit of what Sir Robert has recommended, and to avoid unnecessary layers of bureaucracy or financial burden. There is no reason for individual trusts not to get on with implementing Sir Robert’s recommendations right away, particularly in ensuring that staff have an independent person with whom they can raise concerns.

A further foundation of a safe and open culture is one where the NHS and the public have access to meaningful and comparable information about the performance of local NHS organisations. The new MyNHS website has already kick-started a transparency revolution by making the NHS in England the first healthcare system in the world to offer key, up-to-date safety information on every major hospital, including open and honest reporting, nurse staffing levels in every ward, and the number of falls and hospital-acquired infections. Some estimate that we have as many as 1,000 avoidable deaths in the NHS every month, so by the end of March 2016 the NHS will become the first

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healthcare system in the world to publish an annual estimate of avoidable deaths by hospital trust, based on case note reviews and the safety record of those trusts.

I will strengthen the accountability of trusts by asking the chair of every trust to write a letter to the Secretary of State by the end of May each year, outlining what measures they will be taking to reduce the number of avoidable deaths in their trust. In all cases we will make it clear that this is not a process of naming and shaming but one of learning and improving so that our NHS becomes the first healthcare system in the world to adopt system-wide the safety standards that would be considered normal in other industries. We must also better understand avoidable mortality outside hospital settings, and whether we can adapt the methodology to identify avoidable harm as well as avoidable death. I therefore announce today that the department will fund a national study to establish the extent of avoidable death in community settings, and the feasibility of developing locally attributable death rates.

We will be taking steps to hard-wire transparency into the health and care system, and I am publishing a transparency architecture with plans for further information to be released on MyNHS. That will include comprehensive reporting on the friends and family test, data on residential care home admissions, and a new balanced scorecard on the work of CCGs and health and well-being boards. The Care Quality Commission and the National Information Board have confirmed to me that, starting this year, they will report annually and in public to the Secretary of State and the Health Select Committee on the progress of the transparency architecture, and on any recommendations about how we can improve it. The Secretary of State will report to Parliament annually on progress, and today I am publishing for consultation changes that will enshrine that right in the NHS constitution.

One of the biggest causes of poor care is when no one takes responsibility for a vulnerable patient and the buck is passed. That leads to greater costs and numerous personal tragedies as people are passed unnecessarily around the system. The ‘name above the bed’ initiative has strengthened accountability in hospitals, as has bringing back named GPs outside hospitals, but there is still not enough clarity on the role of professionally accountable clinicians, particularly in community settings. Today I can therefore announce that the Academy of Medical Royal Colleges has agreed to develop guidelines for meaningful clinical accountability outside hospitals. It will publish its findings this spring, and before the end of the next financial year all CCGs will publish how many of their patients with long-term conditions are being looked after by clinically accountable community clinicians in the meaningful way the academy will define. Proper proactive care for our most vulnerable patients will not only reduce hospital costs but reduce avoidable harm and improve the quality of compassionate care.

We can fund the NHS with a strong economy, we can put in place new models of integrated care to support an ageing population and we can champion innovation, but if we do not get the culture in the NHS right, we shall never deliver the ambitions that everyone in this House has for our NHS. Today is about tackling that culture challenge head on so that we build an

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NHS that supports staff to deliver the highest standards of safe and compassionate care and that avoids the mistakes that have led to both unacceptable waste and unspeakable tragedy. If we succeed, we will be the first country anywhere to put its entire healthcare system firmly on the path to eliminating avoidable harm and death. Our NHS deserves no lesser ambition, so I commend this Statement to the House”.

3.39 pm

Lord Hunt of Kings Heath (Lab): My Lords, I am very grateful to the noble Earl for referring to the Statement in the way that he did. We welcome the Statement and its commitment to improve the culture around tackling poor care in the NHS. The Opposition endorse the principles in Sir Robert Francis’s new report and we will work with the Government to get them on the statute book in the remainder of this Parliament.

In 1998, the previous Government introduced the first legal protection for whistleblowers in the public interest disclosure legislation, reinforced in the NHS constitution in 2008. We see Sir Robert’s new principles building on those foundations. Our shared aim should be to create a climate in which any NHS worker feels able to raise concerns and confident that they will be listened to, that appropriate action will be taken and that they will not face mistreatment as a result. Today’s report establishes a number of new principles to which all NHS organisations should work. We fully endorse these. The call for support for whistleblowers worried about losing their jobs or finding alternative employment, and training in whistleblowing for all staff, is long overdue. Can the noble Earl confirm that this will apply equally to all providers of NHS services, including voluntary and private providers?

Let me turn to the recommendation for an external organisation which staff can approach for advice and support. In response to the first Francis report in February 2010, my right honourable friend Andy Burnham, when he was Secretary of State, established an expert group to update whistleblowing guidance. It reported in June 2010 and the then Secretary of State, Andrew Lansley, announced plans for a “safe and independent authority” to which staff can turn when their own organisations are not acting on concerns. Will the noble Earl say why little progress has been made since then and assure us that there will be no further delays now that Sir Robert has reinforced this recommendation?

Are the Government concerned by Sir Robert’s findings that the NHS culture might have got worse in recent years? As regards the cases he examined, he said:

“Many were relatively recent or current. This is not about a small number of historic high profile cases from a time when organisations might argue the culture was different. We had a significant number of contributions about cases in 2014”.

The report specifically references figures from the latest NHS staff survey, which shows that reports of bullying have increased from 14% of staff in 2011 to 22% in 2013. Over the same period, staff feeling unable to speak out about poor care, report errors or near misses has fallen from 98% in 2011 to 94% in 2013. Those figures suggest that things are getting worse and not better. Will the noble Earl comment on that and give the reasons?

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This seems to underline the importance of any moves to improve culture being brought forward in the right sprit, supportive rather than punitive, so as not to reinforce the wrong culture and create a climate of fear. At the weekend, the Secretary of State proposed fines and jail sentences for failure to be open about poor care. We certainly support that zero tolerance approach but is the noble Earl not concerned that this might be perceived on the ground as creating such a climate of fear and therefore having the opposite effect?

I know that the Minister’s right honourable friend frequently quotes the airline industry as a model to be followed. I remind him that the experience in the airline industry has been to create a safe environment in which pilots can report near misses and untoward incidents so that the industry can learn from them. I urge the noble Earl to consider that whatever happens in the future, the encouragement to be open is not lost in this new approach.

Turning to Mid Staffordshire, we supported Sir Robert’s original recommendations and I certainly give credit to the Secretary of State for making progress on this since the report was produced and the recommendations were accepted. However, he will know that there are gaps where progress has not been made and that this is a concern when standards overall in the NHS are recorded to be falling and not rising. I particularly want to ask him about the long-standing need to reform the system of death certification. This goes back to Dame Janet Smith’s proposals which were embraced within the Coroners and Justice Act 2009 to make provision for the independent scrutiny by a medical examiner of all deaths that are not referred to by the coroner. Following successful pilots, Sir Robert Francis reinforced Dame Janet Smith’s recommendations. I was the chair of a trust which ran a pilot scheme, and I can testify to the effectiveness of having a senior consultant as the medical examiner looking at the case notes where deaths have occurred, informing patients, finding out where things have gone wrong and helping doctors to improve their practice. There is concern that the Government have shelved this proposal, and I hope to hear that that is not so.

Can the noble Earl set out a clear timetable for the introduction of medical examiners and comment on the arrangements in hospitals for reviewing case notes when patients have died? Over the weekend, the Government announced plans to introduce an annual review from a sample of patients. While that will definitely help us to develop a more accurate measure of avoidable deaths than the current mortality rates, does he think that it will go far enough? Should not the NHS learn from all serious failings, and will he give consideration to our suggestion that every death in hospital should be given an appropriate level of review?

We welcome the progress which has been made at some of the hospitals in special measures, but I want to ask the noble Earl about the use of mortality statistics. Is he aware that the graph on page 8 of the recent Dr Foster report shows that mortality rates at the Keogh trusts fell faster between 2006 and 2010 than between 2010 and 2014? Perhaps I may also refer him to the plans outlined by the Secretary of State to calculate the number of avoidable deaths for individual hospitals. They were described by Nick Black, a professor of health services research who has produced many

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of these ideas, as not having any meaning because of concerns about the robustness of the figures. Will he also acknowledge that a recent investigation by the Academy of Medical Royal Colleges into the use of hospital standardised mortality ratios as a means of comparing the quality of US and English hospitals has shown the method to be unreliable? He will know that Professor Jarman made a proposition that mortality rates between English and US hospitals were such as to cause concern about the UK position. The investigation demonstrates very clearly that the data are not comparable and cautions the use of a crude approach towards trying to judge institutions simply on the basis of HSMR statistics.

Finally, does the noble Earl agree that encouraging an open culture where whistleblowers feel secure in being able to raise issues of concern emanates from a culture that must apply throughout the system, starting at the top in his department and then through all the national regulators as well? If the national bodies feel that they are not able to raise concerns about government policy publicly and if the chief executives of NHS organisations know that if they make any public criticism, they will be penalised in one way or another by the system, is it any wonder that they then find it difficult to create a culture of openness? I urge the noble Earl to embrace fully what is being proposed today by acknowledging that if we are really going to grip the system, a culture of openness and of whistleblowing has to go right through the system and must include his own department, the regulators and NHS England.

In conclusion, we welcome the Statement today and we will do everything we can to ensure that the regulations the Government bring forward are able to go through Parliament before the election.

Earl Howe: My Lords, I am grateful for the welcome and support that the noble Lord, Lord Hunt, has given to the Statement. I do of course agree that Sir Robert’s recommendations, which we accept in principle, build on the current safeguards for whistleblowers. But, as the noble Lord knows, Sir Robert did identify some important gaps in those safeguards which we must now address.

The noble Lord asked me a number of questions. First, he asked whether these provisions would apply equally to all providers of NHS services, including to the voluntary and private sectors. Similar provisions will certainly apply to the voluntary and private sectors. We will expect such providers to reflect on how Francis’s recommendations might apply to them, but we will also use the NHS contract in an appropriate way.

The noble Lord asked whether the Government were concerned about an increase in the number of whistleblowing cases over the last few years. There is evidence that safety and compassionate care have in fact improved in recent years. It is also possible that the new emphasis on openness and transparency may lead to more concerns being raised, which is a slightly counterintuitive effect of a better culture. We want to examine Sir Robert’s findings carefully and would encourage NHS organisations to do the same. But it is important to emphasise that however much improvement we see, we must never be complacent about how good the system is.

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The noble Lord asked about progress in identifying an authority to whom whistleblowers could turn. I refer him to Sir Robert’s recommendations, which provide for local “freedom to speak up” guardians, who will report directly to trust chief executives and, crucially, to whom members of staff in an organisation can speak if they have particular concerns. There will be a new independent national whistleblowing guardian as a full-time post within the CQC, as a further safeguard in this process—a person who can understand what has happened in a given local case and refer back to that local organisation in an appropriate fashion.

I agree with the noble Lord that we want to achieve, above all, a supportive and learning culture. That is something emphasised not only by Sir Robert but by Professor Don Berwick in his review of patient safety issues. He is also right that if we go too far with a punitive approach to these matters, it could deter people from wishing to step forward. That is why we hope that we have the balance right in the legal provisions that we put through in the Care Act so as to ensure that, while organisations must always be on the line for the extent to which they have complied with, for example, the duty of candour, we do not put employees in a state of excessive fear, lest they refrain from speaking up when appropriate.

All the measures we have taken so far—the duty of candour, the new offence of wilful neglect, the fundamental standards that Sir Robert recommended, which will be coming in, and the fit and proper persons test—combine to shore up the system in a helpful way, without, we trust, making the NHS feel oppressed by regulation.

The noble Lord asked about death certificates. No, the policy has not by any means been shelved. The work is continuing. To be frank with him, progress has been slightly less fast than we would have wished, but the Government remain totally committed to the principle of these reforms. Further progress will be informed by reconsideration of the detail of the new system in the light of other positive developments on patient safety since 2010 and by a subsequent public consultation exercise. A number of recommendations in Sir Robert Francis’s Mid Staffordshire inquiry report refer to that reform of the death certification system. A new system of medical examiners has been trialled successfully in a number of areas across the country. The work of the two flagship sites in Gloucestershire and Sheffield has been continued and extended to operate a medical examiner service on a city- and countrywide basis at a scale that will be required for implementation by local authorities when legislation is introduced. We will be publishing shortly a report from the interim National Medical Examiner setting out the lessons learnt from the pilot sites.

The noble Lord, Lord Hunt, referred to the criticism voiced by Mr Nick Black on the way that we interpret statistics on avoidable deaths. The work that we have set in train builds on innovative work at the London School of Hygiene and Tropical Medicine, and we think it has the potential to enable NHS trusts to develop a better understanding of actually avoidable deaths. But we will continue to work with front-line clinicians, national organisations and academics to find ways to

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support trusts to understand better their levels of avoidable mortality and, crucially, to take effective action to reduce those levels.

The first Francis inquiry emphasised the importance of trusts looking carefully at their mortality rates as part of their overall scrutiny of safety measures. We believe that most, if not all, are now doing that but we want to do more to improve the data and their use to make improvements. I would just say to the noble Lord that we should not let the best be the enemy of the good. Imperfections in data should not get in the way of vigilant local scrutiny of those data, even though they may not be 100% accurate.

The noble Lord concluded his remarks with some questions about culture. In particular, he asked me whether I agreed that the culture of the system starts at the top. Of course, I agree with him fully on that. But I would just say to him that as a Government we have taken a conscious approach not to overemphasise poor care where it occurs but to expose it and to adopt a policy of transparency so that poor care as well as good care can be apparent to patients, the public and the system at large. We have given greater legal independence to the CQC. We want it to speak out without fear or favour, and it has indeed done that.

We believe it is right to confront poor practice where it occurs. The key, however, is to turn around those organisations that are found wanting, and the system of special measures has undoubtedly proved its worth, as the Dr Foster report recently made clear. There was an unequivocal finding in that report that the levels of avoidable mortality in most of the special measures trusts had gone down by a statistically significant percentage. There is undoubtedly a high degree of utility in the special measures process, painful as it may be to some organisations.

3.58 pm

Baroness Barker (LD): My Lords, will the Minister please say whether the proposals in the report relate to the provision of mental health services as well as physical health? The proposals are very much focused on hospitals. Secondly, review after review has shown that in a hospital the one group of staff who know better than anybody else what is going wrong are the junior staff—junior doctors and so on. In the work going forward, will the Government pay particular attention to junior doctors and non-clinical staff who are whistleblowers, and what happens to them? Finally, the report mentions the extension of this work to an examination of avoidable deaths in community settings. Will the Minister say who will be involved in that work and when we can anticipate a report on it?

Earl Howe: We envisage that all NHS providers should be subject to whatever practical measures are agreed. We are not yet in a position to be prescriptive about what those arrangements should be. We will consult on how best to implement Sir Robert’s recommendations in the least burdensome way possible but in a way that fulfils his ambitions to the maximum extent. I totally take my noble friend’s point that junior doctors and non-clinical staff are often in the best position to judge the health and culture of an organisation. Indeed,

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I am aware that the CQC, when inspecting a hospital, often makes a point of convening a focus group consisting of junior doctors because it knows that there is a great deal to be learnt from that source. On community care, again, we have taken no firm decisions on how this will come about, but we wish to take the advice of those whose views we value.

Lord Morris of Aberavon (Lab): My Lords, I welcome the Statement and congratulate Sir Robert once again on his most thorough analysis. I also welcome the long overdue proposed change in the law to make employers responsible if whistleblowers are harassed. Does the suggested new duty of candour mean that never again will we see gagging clauses in any NHS contractual arrangements? How long have gagging clauses been tolerated and what is the justification for them?

Earl Howe: I am grateful to the noble and learned Lord. NHS guidance has consistently made it clear that, where confidentiality clauses are used, they should go no further than is necessary to protect the legitimate interests of both the employer and the employee. There are circumstances when a gagging clause is appropriate, but local policies should always prohibit the inclusion of confidentiality clauses in contracts of employment and settlement agreements that seek to prevent an individual making a disclosure in the public interest, in accordance with the Public Interest Disclosure Act. Such clauses are often referred to as gagging clauses. If such clauses were to be included in a severance agreement or settlement, they would be deemed void in any event. We have made it amply clear to NHS organisations where the boundary lies between those two types of confidentiality clause.

Lord Naseby (Con): Is my noble friend aware that the question of patient safety, which is emphasised, is fundamental to all this? In contrast, the number of claims for medical negligence continues to rise—in the past year, it did so by 18%—and now costs the NHS well over £1 billion. Has the time not come to have a thorough review of how such medical negligence claims are handled and who is behind some of them? Perhaps it is ambulance chasers. In any case, is not arbitration possibly the way forward, such as happens in essence when a coroner looks at a difficult case?

Earl Howe: My noble friend makes a series of very good points. We are, as he knows, extremely concerned about the rising level of litigation costs in the NHS. My department is consulting on proposals for how the duty of candour can be further incentivised by requiring trusts and foundation trusts to meet a proportion of the cost of negligence claims in cases where they have failed to be candid. We are also committing up to £35 million so that the NHS Litigation Authority can support trusts in implementing their safety improvement plans where those plans show a likely reduction in the number of higher-volume and higher-value claims over the medium to long term.

Baroness Masham of Ilton (CB): My Lords, I congratulate the Government on accepting this second report. The report states that staff working with vulnerable patients should be responsible. How will the Minister

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make this happen? Patients and carers should be listened to. They can become whistleblowers, but may feel that they will be branded as troublemakers. How can he stop this happening?

Earl Howe: Making every employee responsible goes hand in hand with the duty of candour—the feeling for every employee that they have the freedom to speak up and take ownership of a given situation that is within their control, professionally. We hope that this will gradually show its value in the way that the culture of an organisation changes for the better. Ultimately, though, professionalism depends on training as well. On the whistleblowers, may I ask the noble Baroness to repeat the second half of her question?

Baroness Masham of Ilton: My second question was that since patients and carers could become whistleblowers but might feel that they would be branded as troublemakers, how can the Minister stop this happening?

Earl Howe: I apologise to the noble Baroness. It is very important that that does not happen. This was very much a matter that Sir Robert had in his sights when preparing the report. We have a certain amount of protection for whistleblowers at the moment—the noble Lord, Lord Hunt, referred to this—and the current Government have augmented that protection, not least through the way in which we have improved the NHS constitution. But Sir Robert is clear that we need to go further and, in particular, to ensure that those whistleblowers who find their position untenable in an organisation and are obliged to leave are not thereby blacklisted by the NHS merely for having spoken up. We think that the measures Sir Robert has proposed will achieve this but, more importantly, they will ensure that there is a better form of conflict resolution, able to nip concerns in the bud at an early stage and at a local level.

Lord Touhig (Lab): My Lords, I had the privilege of introducing the first whistleblower protection legislation when I served in the other place. I regret that it was not successful because the then Conservative Government opposed it. Richard Shepherd, a Conservative Member of Parliament whom I consider a good friend, was much more successful in 1998 when he introduced the Public Interest Disclosure Act, together with the support of the Labour Government. Sir Robert refers to that Act a number of times in his report. On page 9, he says:

“For a number of reasons this legislation is limited in its effectiveness … The legislation does nothing to remove the confusion that exists around the term ‘whistleblowing’ … The legislation is also limited in its applicability”.

He also refers on page 78 to suggestions that PIDA should be strengthened. I agree with him; the Act needs to be reviewed and amended. Will the Government agree to do this, because that would certainly overcome many of the problems that this report has highlighted?

Earl Howe: My Lords, it may be that Sir Robert’s recommendations lead to legislative proposals. At the moment, we have no view on that. We want to consult broadly to seek people’s views, not least from all parties in Parliament. If I understand Sir Robert correctly, he

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was keen to achieve answers to these questions that do not involve legislative change and can be achieved easily, without too much bureaucracy. However, we would certainly wish to leave the door open if legislation is needed. In fact, there is one particular measure that we will endeavour to put through in the current Parliament, as long as we have cross-party support for it.

Lord Walton of Detchant (CB): My Lords, I express the thanks of everyone who has worked in the National Health Service for this extremely important and compelling report. Is the Minister in a position yet to say anything about the terms of reference of those who will be the local whistleblowing guardians, what kind of qualifications they will be expected to hold and who will employ them? I take it that the national whistleblowing guardian is to be employed by the Care Quality Commission. Again, it would be helpful to know the Government’s views about the kind of individual who will be sought to fulfil that appointment.

Earl Howe: The noble Lord, as ever, makes a series of very important points. The personal qualities of these guardians need to be considered very carefully. At this early stage, we have made no firm proposals along those lines. As I have indicated, we think that every NHS organisation needs to identify one member of staff to whom other members of staff can speak if they have concerns, particularly if they feel that they are not being listened to. Clearly, the qualities of that local guardian need to be of a kind that inspires trust in the body of employees. As regards the national whistleblowing guardian, that will be a full-time post within the CQC. Again, it will require somebody of stature, sensitivity and trustworthiness so that the system can be seen to be robust.

Lord Framlingham (Con): My Lords, when I served in the other place, I tried very hard to persuade the then Government to bring back the traditional role of matron into our hospitals. I know that we have modern matrons, but they are not the same thing. It was a most disastrous day when we took matrons away from our hospitals; heaven knows why we did it. If we reintroduced that role, with all its responsibility—and particularly its authority—and an awareness of what goes on the hospital, many of the things that we are talking about today would be resolved.

Earl Howe: I am sure that my noble friend’s comments will strike a chord in many places. I am aware that we have had debates of this kind quite often in the past. Of course, it is open to any NHS organisation or hospital to appoint a matron if it so wishes—and indeed some do that. The key point here is that there should be appropriate leadership in nursing at a senior level in the organisation. The successful organisations of which I am aware have had a senior nurse on the board and someone who has taken direct responsibility for nursing standards throughout that organisation.

Lord Warner (Lab): My Lords, I am not necessarily of the Hattie Jacques school of nurse management, but will the Minister say a little more about these leadership issues? Those of us who have actually been

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involved as either a chair or a chief officer of a public body know how difficult it is to keep these agendas alive after they have lost their fashionability in the public eye. What are the Government going to do to ensure that the regulators and the boards keep coming back to this issue and keep bringing to the attention of the front-line staff their enthusiasm—and I use that word advisedly—for learning about failings that are going on in their organisation?

Earl Howe: The answer to that must lie chiefly with the way in which the CQC now operates. One of the domains that it pays attention to in its inspections is the well led domain. Is this an organisation that has leaders in it who are aware of what is going on in the hospital, have a clear vision and a strategy for that hospital and are in touch with patients’ views and experiences, not least through complaints? These, and a whole range of other factors, are what the CQC looks at when assessing the quality of the leadership. The noble Lord is, of course, quite right that this must be and remain a key ingredient of a successful NHS culture and good-quality care for patients. We now have a system in which poor leadership will be exposed quite rapidly.

Lord Stoddart of Swindon (Ind Lab): My Lords, first, I am quite astounded that people should be treated in this way by one of our great national services. Secondly, will the Minister tell us whether arrangements were put in place whereby people who felt aggrieved or threatened would be able to appeal? Thirdly, will he also tell us what the trade union involvement was, and whether the unions were obstructed from doing their proper job of protecting their members? Finally, are the trade unions going to be consulted about this report to give them ideas about how they could be better involved in protecting their membership?

Earl Howe: My Lords, I agree with the noble Lord, Lord Stoddart, that the examples of poor care exposed by Sir Robert’s report were shocking. In many respects, the work he has done and the recommendations he has made constitute a wake-up call for everybody in the NHS—even those who are providing a very good service, which most of the NHS is providing.

There are many levels of protection for NHS employees. An employee can always lodge an appeal if they feel aggrieved and turn to their trade union for support in that context. We intend to consult widely on Sir Robert’s recommendations, including with the trade unions. We welcome their input to these ideas and look forward to further discussions—which, in the normal course, happen very regularly anyway.

Baroness Pitkeathley (Lab): The Minister has acknowledged that it should be the responsibility of all staff to support the principles of openness and whistleblowing. However, has he any concern that the creation of these freedom-to-speak-out guardians might—I say only “might”—lead to staff thinking that they could abdicate that responsibility and leave it all to the guardians?

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Earl Howe: My Lords, the role of the guardians will be primarily to provide advice to those who have concerns and feel that they are not being listened to. They will be able to report directly to trust chief executives on not just individual issues but on progress in general in stamping out any bullying that may be occurring, or the intimidation that Sir Robert says is all too common. I do not think that the creation of a freedom-to-speak-up guardian will in itself inhibit the process. Of course, we are open to views. If that concern is widely held, we will have to take it into account.

Lord Elystan-Morgan (CB): Does the Minister agree that while of course it is right and proper that, in relation to whistleblowers, Sir Robert’s recommendations should be given every opportunity to see whether they succeed in removing this scourge from our society, the situation should be monitored and should it be the case that it is not possible to remove this disgraceful practice of victimising whistleblowers, stern, swingeing criminal sanctions should be considered if necessary? It is a drastic proposal, but the practice it would be designed to meet is disgraceful.

Earl Howe: I take full note of the noble Lord’s proposals. Clearly, we will wish to monitor the effectiveness of these new arrangements once they are in place. It will be open to the next Government to make a judgment on that score and, if necessary, to come forward with more stringent proposals that could indeed involve legislation with penalties attached.

Deregulation Bill

Deregulation Bill

Report (3rd Day)

4.19 pm

Clause 88: Exercise of regulatory functions: economic growth

Amendment 43

Moved by Lord Hunt of Kings Heath

43: Clause 88, page 70, line 29, at end insert—

“( ) This section does not apply to the following—

(a) Care Quality Commission,

(b) Human Tissue Authority,

(c) Medicines and Healthcare Products Regulatory Agency,

(d) Professional Standards Authority,

(e) General Medical Council,

(f) Nursing and Midwifery Council,

(g) Health and Care Professions Council,

(h) General Chiropractic Council,

(i) General Dental Council,

(j) General Pharmaceutical Council,

(k) Human Fertilisation and Embryology Authority, and

(l) any persons exercising a regulatory function with respect to health and care service that the Secretary of State specifies by order.

( ) An order under this section must be made by statutory instrument.

( ) A statutory instrument containing an order under this section may not be made unless a draft has been laid before, and approved by a resolution of, each House of Parliament.”

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Lord Hunt of Kings Heath (Lab): My Lords, I am concerned about the unintended consequences of the economic growth clauses on a number of health regulatory bodies. The clauses on the impact of economic growth specify that regulators must consider the promotion of economic growth in exercising their regulatory functions. The Government have said that the health regulators likely to fall under Clauses 88 to 90 are as follows: the Human Fertilisation and Embryology Authority, the Human Tissue Authority, the Medicines and Healthcare Products Regulatory Agency, the Professional Standards Authority and the Care Quality Commission.

The noble Lord, Lord Wallace of Saltaire, has said that the economic growth duty will complement existing duties and will not override or reduce the protection of the public. However, I put the question to him: if the economic growth duty does not impinge on the prime responsibility of the regulator, why bring in the clause at all?

The Minister then said that the economic growth duty sits alongside any other factor that a regulator must consider. However, “sitting alongside” suggests that it has some weighting and cannot simply be ignored. Indeed, the noble Lord has also pointed out that regulators must understand and consider the impact of their policies on individual businesses. That is of course reinforced by the provisions in the Bill.

Clause 88(2) states that “the person”—that is, the regulator—must,

“consider the importance for the promotion of economic growth of exercising the regulatory function in a way which ensures that … regulatory action is taken only when it is needed, and … any action taken is proportionate”.

In Committee my noble friend Lord Tunnicliffe specifically asked about the position of the Care Quality Commission —the principal health quality regulator, to which the noble Earl, Lord Howe, has just been referring—as regards whistleblowing. My noble friend asked,

“do we want a situation where, when the CQC is contemplating putting a requirement on a failing nursing home that may close it down to protect the residents of that home, the operator of the home can say, ‘Closing me down is against growth. Please prove that this regulation, which you may have used elsewhere, is both needed and proportionate’?”.—[

Official Report

, 20/11/14; col. GC 206.]

I have to say to the noble Lord that I do not detect any enthusiasm from the health regulators themselves about the economic growth duty. The CQC’s briefing to me can hardly bring itself to mention the duty.

The Professional Standards Authority, in line 1, says that it supports the intention behind Clause 88, and then spends the rest of its briefing critically examining the clause. It concludes that Clause 88 ought to be restricted by excluding from the duty any regulatory function the prime purpose of which is to protect the public. I must say that I am surprised to see the Professional Standards Authority included. It is not a regulator. Its job is to oversee the nine statutory regulators, including the General Medical Council, and I do not understand why the GMC and the NMC are not on the Government’s list of organisations to be included within this clause.

Can we come to the Human Fertilisation and Embryology Authority? The noble Lord will know that that body has a crucial and difficult task, and this responsibility could make that duty even more difficult.

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On 24 February we will have a debate about regulations on mitochondrial donation. Currently, the law only allows these techniques to be used in research. For the IVF techniques to be used in patients, Parliament must pass new regulations.

Both the Nuffield Council on Bioethics and the HFEA held extensive public consultations in 2012. They identified broad public support for the use of these techniques with a “robust regulatory framework”. I stress those words. As the noble Earl’s honourable friend the Minister Jane Ellison told the other place when it debated the regulations:

“The HFEA is highly respected across the globe as a model for the regulation of fertility and embryology treatments and research. Many other countries do not have such a framework”.—[Official Report, Commons, 3/2/15; col. 163.]

Indeed, if the regulations are passed by Parliament on 24 February, the HFEA will be expected to introduce a robust regulatory process, as it has in other areas of fertility treatment. I know that not all noble Lords think that it is as robust as they would wish it to be. None the less, many of us would say that it is a robust process.

The question that I put to the noble Lord is about where the economic growth considerations come in. There is no provision in the Human Fertilisation and Embryology Act for the HFEA to have regard to the imperative to promote economic growth when making its decisions. If a clinic does not meet statutory requirements, it cannot grant a licence or allow a certain activity to take place, regardless of how economically desirable it might be thought to be. Similarly, if there had been gross failings at a clinic, regardless of the economic impact of closing it down the HFEA would be bound to say so in the interests of ensuring patient safety and maintaining public confidence in it as a regulator. Surely the economic growth duty is inconsistent with those requirements. The HFEA’s own website has often acknowledged that it is not an economic regulator. This has been confirmed by Ministers in Written Answers. Peter Thompson, the chief executive officer of HFEA, has recently been quoted as recognising a responsibility by that authority to take action against what he described as rampant commercialisation of IVF in the UK.

The Minister has prayed in aid the draft guidance during the passage of this Bill, but it only adds to concern. The guidance summary states:

“The growth duty does not automatically take precedence over or supplant existing duties held by regulators”.

The term “not automatically” must by implication mean that it is entirely possible for it to take precedence.

The decision about mitochondrial donation is of huge importance. It must be made in the absolute certainty of the regulatory process. There is no time for ambiguity. Will the Minister agree to give this further consideration? I find it very difficult to understand why any of these bodies are going to be included in the list for which regulations will be brought forward. Why on earth has the Human Tissue Authority been brought in scope of this provision, or the Care Quality Commission? I certainly do not understand why the PSA is included. I hope that the Minister will bring some words of comfort that the Government have reconsidered this issue, and I beg to move.

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Lord Winston (Lab): I support this amendment wholeheartedly. If my noble friend Lord Hunt decides to divide the House, I shall join him in the Lobby. I disagree with him on a fundamental point, which I shall discuss in a second, but the basis behind his amendment is absolutely correct.

One issue is that London in particular and the United Kingdom in general is increasingly becoming a centre for the healthcare market, which is burgeoning—and, increasingly, there are risks that various practices are being adopted that are not ideal for patients and in some cases are clearly not safe and not validated. If there is an issue about a regulatory authority considering the commercial value and income for the United Kingdom, that would be a very serious issue indeed.

On the Human Fertilisation and Embryology Authority, I was not going to get to my feet until I heard my noble friend move his amendment, but I disagree with him fundamentally about that body. It is not a good body but one that we have been left with, and I think that it badly needs reform. It is nothing to do with mitochondrial transfer, which we will discuss in a couple of weeks—I think that it will regulate that perfectly well. But at present there are large areas that that body is not regulating well. My noble friend says that it is the envy of the world, but I say with deference to him that the fact is that there is not a single sovereignty anywhere in the globe that has adopted that model. No one has adopted that model because it is not widely respected outside the United Kingdom. That is a problem. None the less, we have it.

4.30 pm

One of the issues that the Human Fertilisation and Embryology Authority has not been capable of dealing with is the burgeoning private care market in London. To give a typical example, last week a friend of mine—a lady approaching her 40s, who does not have a partner and is worried that she might run out of fertility time —went to a private clinic in London asking for donor insemination. I do not want to go into the gruesome details of donor insemination, but essentially it is simply placing donor sperm inside the body of the woman so that she can conceive. It is not exactly a high-tech treatment—but it is regulated by the HFEA.

The Minister might be surprised to hear that the clinic my friend went to, which is not by any means the most expensive in London, was going to charge her £11,000 for three months of treatment. That kind of exploitation is widespread across the market. I have recently seen patients who have written to me in distress because they have mortgaged their houses and spent £60,000 or £70,000 on three cycles of in vitro fertilisation.

When we have complained to the HFEA, it has again and again said that it is not there to regulate prices and there is nothing it can do. I think that the HFEA is anxious about the situation, but cannot do anything about it. If we do not agree to this amendment—if not now, at Third Reading—there is a real risk that we will encourage what is already a disgraceful market in this important area.

The House should not forget that infertile people are deeply vulnerable. They are very distressed. They are often seemingly deranged—although of course they

11 Feb 2015 : Column 1239

are not: they are sensible people like the rest of us. Noble Lords who have infertile relatives who have had these treatments will know well what it means to those individuals. This is a very serious issue. That combination of avarice and desperation is a serious worry. So when it comes to any kind of impetus to understand and to try to look at the commercial value of this activity—even though it is undoubtedly capable of producing an income to London and other parts of the country—we should be very aware that, as with the whole of healthcare, which my noble friend has covered in his amendment, we need to give it very serious consideration.

Baroness Warnock (CB): I rise simply to underline everything that the noble Lord, Lord Winston, has just said. It seems to me a disgraceful possibility that individual private clinics might be allowed to exploit these vulnerable people. The words that the noble Lord quoted show that this could happen automatically. It is not just that people may be allowed: the suggestion is that they will be allowed, unless some very special consideration applies. I therefore beg the Minister to reconsider this part of the Bill.

Lord Alton of Liverpool (CB): My Lords, the Minister may not be surprised to find that I am keen to intervene on this amendment, moved by the noble Lord, Lord Hunt of Kings Heath, but he may have been surprised by the noble Lord’s ability to put together an interesting coalition of voices which would not necessarily always agree on some of the substantive issues raised in the context of human fertilisation and embryology. On this occasion I strongly agree with what my noble friend Lady Warnock and the noble Lord, Lord Winston, have said, and I hope the House paid attention to the specific example that the noble Lord gave of someone having to spend £11,000 in a London clinic. I find that extraordinary and we are all grateful to the noble Lord for telling us about it.

I strongly agree with what the noble Lord, Lord Hunt of Kings Heath, said about some of the organisations mentioned in the amendment: the Care Quality Commission, the Human Tissue Authority, the Professional Standards Authority and the Human Fertilisation and Embryology Authority. What have they got to do with economic growth duties? They have much more important duties than that and I find it amazing that we are dealing with this issue at all in the context of the Deregulation Bill.

If we examine the press releases of the Human Fertilisation and Embryology Authority, or look at its website, we will see, in terms, the phrase that the noble Lord, Lord Hunt, used. The HFEA says:

“We are not an economic regulator”.

That is also emphasised in a previous Written Answer by the noble Earl, Lord Howe, in which he stated:

“The HFEA is not an economic regulator and, accordingly, does not publish information on costs at a clinic level”.—[Official Report, 22/1/13; col. WA 195.]

And nor should it. So, surely this serves only to emphasise that the HFEA is not competent to undertake any economic growth duty.

Indeed, at last year’s Progress Educational Trust’s annual conference, the noble Lord, Lord Winston, described how most NHS trusts charge above cost,

11 Feb 2015 : Column 1240

and that they are driven by profit motives. Dr John Parsons, the former director of King’s College Hospital’s assisted conception unit, also argued at the same conference that simple greed had made profits, rather than compassion for patients, the top priority of many fertility clinics today. That point was underlined by the noble Lord, Lord Winston. Dr Parsons further argued that this encouraged the use of dubious technologies which are motivated simply by market forces rather than treatments motivated by compassion that are targeted to suit the needs of the individual patients about whom we have heard today. Are the Government proposing that the HFEA should emulate those whom it is failing to regulate?

If the HFEA, which is not an economic regulator, should now have the additional duty to make a profit, how might its judgments be further impaired by such pecuniary interests? How might this exacerbate what the report of the Progress Educational Trust’s last annual conference described as—I repeat what was quoted by the noble Lord, Lord Winston—

“the rampant commercialisation of IVF in the UK”?

If the profit motives of some avaricious clinics go unchecked by the regulator, and the regulator itself becomes increasingly motivated by profit, will this not make an already bad situation even worse?

It is far from clear that the HFEA has proven itself to be a particularly effective regulator as it is. The noble Lord and I do not agree on this point. I do not believe that it is sufficiently robust. To begin with, recent Written Answers to Parliamentary Questions reveal that it does not even maintain proper records on the number of human embryos used in research or allowed to perish. Instead, the HFEA seems more concerned about providing repeated references to a pinhead, the relevance of which to the number of human embryos destroyed is far from clear, except perhaps as a reflection on the competence of whoever is responsible for answering these Questions.

The HFEA’s enforcement of its multiple births policy has already proven to be utterly toothless. That is exemplified by a press statement on the HFEA website from 13 November 2013, in which it was conceded that IVF clinics would no longer be subject to a condition on their licence that they keep their multiple births rate below the HFEA target. As the press statement further revealed, this was in response to a legal challenge launched by two UK clinics,

“resulting in considerable cost to the HFEA”.

How much easier it will be for the HFEA to cave into those it is supposed to be regulating if it has to prioritise an economic growth duty.

Strikingly, an ensuing Written Answer from the noble Earl, Lord Howe, on 9 December 2013 stated the following in relation to the incidence of multiple births and the HFEA’s publication of clinic success rates:

“It is not clear whether additional powers of economic regulation would alter the HFEA’s influence on such practice”.—[Official Report, 9/12/13; col. WA 79.]

If the profit motives of some clinics already remain unchecked in a continuing environment of IVF postcode lotteries, how will this not be made even worse by having the HFEA join the fray in prioritising profit over protecting patient interests?

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Although the HFEA chief executive, Peter Thompson, may be trying to make some modest efforts to combat,

“the rampant commercialisation of IVF in the UK”,

this seems limited only to “tentative steps” for increased transparency on the part of clinics and an expectation that others will bring about a change in culture. This does not exactly sound like an effective regulator, does it? If it is up to clinics to bring about a change in culture, what is the HFEA there for? The impotence of the HFEA is already serious enough as it is. As Dr Geeta Nargund, who I met recently, pointed out in a Huffington Post article that I would encourage noble Lords to read,

“no-one appears to be monitoring the drugs given to women during IVF treatment. Extremely high doses of stimulation drugs and intravenous immune therapy injections are administered to women by some clinics with no scientific evidence to support those practices. The HFEA do not collect information about drugs and dosages given to women, but we need this information to study any adverse effects of the drugs on women and their children in the future”.

How is the HFEA protecting the interests of patients if neither it nor anyone else is monitoring this? Dr Nargund’s concerns are only reinforced by the Written Answer I received from the noble Earl, Lord Howe, just yesterday, in which it was admitted that the,

“administration of medicinal products to patients undergoing fertility treatment ... is not regulated by the Human Fertilisation and Embryology Authority ... The HFEA has advised that it does not collect information on the identity of medicinal products used in treatment”.

But it gets worse. The same Written Answer received yesterday goes on to describe nevertheless how the,

“HFEA is aware of some clinics that have administered reagents to permitted gametes or permitted embryos that are then introduced into patients when the reagents concerned have not been CE marked. … Although the HFEA does not hold information on the effects of particular dosages on the welfare of the developing child and the health of the mother, the HFEA expects clinics to do such monitoring as part of their licensing conditions”.

It should be noted that we are not just talking about unlicensed medicines but about off-the-shelf laboratory reagents, most of which I gather would typically be labelled as unsuitable for clinical application. It should also be noted that no mention is made here of the sanctions imposed by the HFEA on clinics for putting goodness knows what into patients without knowing the effects,

“on the welfare of the developing child and the health of the mother”.

It therefore seems that as long as the clinic is responsible for whatever happens, the HFEA is satisfied.

In closing, I would like to reinforce what the noble Lord, Lord Hunt, said in relation to proposed interventions for mitochondrial diseases. Regarding the question of profit, it is noteworthy that a “competing interests” statement on a recent paper by Shoukhrat Mitalipov—belatedly added as a corrigendum—includes the admission that he has a patent application entitled:

“Method for mitochondrial DNA replacement in oocytes”.

My understanding is that researchers at Newcastle have no similar patent applications for pronuclear transfer, which is probably unsurprising because their proposed use of this technique is not original, having

11 Feb 2015 : Column 1242

already been attempted in humans in China with woeful results. However, how would the economic growth clauses in the Bill affect the HFEA’s consideration of such licence applications? Would the HFEA be compelled to favour proposals for spindle-chromosomal complex transfer over proposals for pronuclear transfer on the basis of patent applications and potential profits to be gained? Or can the Minister please spell out clearly how the projected use of pronuclear transfer in admittedly limited numbers of clients could be seen as a contributing factor to economic growth, such that the HFEA would be seen as satisfying the economic growth clauses in the Bill?

I am sorry to have wearied the House with some of this but the point I am making is that these are complex and clear ethical, as well as medical and scientific, issues. This is not about things being driven by the state of the economy or deregulation, and it is a great error on the part of the Government to have included this in the Bill. I hope that between now and Third Reading the noble Earl will listen to what the noble Lord, Lord Hunt of Kings Heath, has said and give this much greater and more detailed consideration.

Baroness Masham of Ilton (CB): My Lords, we should be protecting desperate patients from being ripped off by clinics whose main interest is to make money. I hope that the Minister will look at this again.

Lord Wallace of Saltaire (LD): My Lords, this debate has ranged widely over a number of health issues, and I realise the seriousness of the issues that have been raised. Given that I am painfully aware of the cost of a new hip, and the noble Lord, Lord Winston, is telling me cost of IVF treatment is in the same league, there are some major questions. I am also conscious, partly as a result of conversations with the noble Lord, that the United Kingdom has identified biomedical research and development as one of the core areas that we want to develop. One member of my family is heavily involved in some of that. London, Oxford, Cambridge, Edinburgh and other places are centres of expertise, and this is therefore an important area in which aspects of economic growth are entirely relevant, but careful regulation also has to be part of it. The question of care homes has also been raised. That is another very broad area where sustainability, how far profit should be part of the process and how far we should be promoting mutuals are some other major questions.

4.45 pm

Since this is the first of three related areas, it might be helpful if I say something about the Government’s approach in this Deregulation Bill. We are following the course set out in the Legislative and Regulatory Reform Act 2006, which proposed that there would be regulations that set out the various regulatory functions that would follow. The Regulators’ Code, which comes under that Act, includes as its first principle of six:

“Regulators should carry out their activities in a way that supports those they regulate to comply and grow”.

That is very much the delicate balance that we are talking about.

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In Clause 88—perhaps it would be useful if I read it out carefully—we propose:

“A person exercising a regulatory function … must … have regard to the desirability of promoting economic growth”.

It does not in any way say that economic growth should override other functions. Some regulators will regard this as a factor to be included, but not as one of the more important ones—other issues rather than economic factors will clearly matter a good deal more. It has been made very clear in the debate that, in a very large number of areas of medical and biomedical concern, the question of economic growth—let alone of commercialisation—will have to be treated either as not relevant to the subject, or as one of the factors but certainly not one of the most important ones.

May I explain where we go from here? The Government are currently consulting on which functions are to be regulated and which are out of the Bill’s scope. The HFEA was in scope in the original 2013 consultation on the growth duty; that remains the Government’s case. I recognise that part of the discussion about the HFEA here has been a criticism of the way that that body functions, rather than whether it is in scope. The Government are currently exploring whether the Professional Standards Authority has any regulatory functions. If they conclude that it does exercise a number of regulatory functions, they will then consult on including them before doing so. The regulations, when ready after extensive consultation, will come back to Parliament as an affirmative statutory instrument. I have no doubt that the concerns that have been expressed about this will be taken very fully into account in the continuing consultations.

I hope that that provides the level of assurance needed for the amendment to be withdrawn. The Government are very aware of concerns in the biomedical area. We stress that Clause 89 requires that any such order specifying regulatory functions to be included in the scope of the duty must be subject to the affirmative procedure. This is a debate that will continue. Once the Bill becomes an Act we will consider which bodies will come within its scope and for which purposes. Again, I stress that Clauses 88 to 91 follow the recommendations in the proposals by the noble Lord, Lord Heseltine, and others that regulatory authorities, where appropriate, should include the consideration of economic growth in their factors to be taken into account. Again, I stress that in some cases that will be a very important part of what they should consider; in others, it will be one factor and not necessarily one of the most important.

I hope that that provides the assurance that the noble Lord seeks and that he will therefore be able to withdraw his amendment.

Lord Hunt of Kings Heath: My Lords, I am very grateful to all noble Lords who have spoken. However, I am disappointed with the Minister’s response because I thought that at the least he would have been prepared to give this matter further consideration between now and Third Reading. With my noble friend Lord Winston here to talk about the Human Fertilisation and Embryology Authority and the noble Lord, Lord Alton, also present, I knew that we would have an interesting debate.

11 Feb 2015 : Column 1244

The point is that, however effective or not the HFEA is at the moment, the one thing that unites us all is that we do not want to see its regulatory function weakened. My noble friend Lord Winston spoke about London becoming the centre of a healthcare market, and the Minister welcomed that. When I took through the 2001 regulations that extended the purposes of research in the original 1990 Act, which was based very much on the extraordinary work of the noble Baroness, Lady Warnock, we clearly had in mind that there was research potential for the UK. That was one of the factors behind taking through those original regulations. The argument that we put forward then was that the UK would be able to attract research investment because, despite some of the doubts that noble Lords have expressed today, we were considered to have a first-rate regulatory function. I put it to the noble Lord that he is putting that reputation at risk by allowing ambiguity in the nature of the regulatory process.

My noble friend talked about the dangers of commercialisation in this field and he is surely right. It is interesting that the chief executive of the HFEA has recently been quoted as recognising the responsibility to take action against rampant commercialisation of IVF in the UK. That statement is very welcome. My noble friend has argued that at the moment it does not have the powers to do anything about it, but the noble Lord comes here with a proposal to weaken its already inadequate powers. That is quite remarkable.

The Government are very keen for the mitochondrial donation regulations to be approved on 24 February. I support them, but has the noble Lord considered the risk to that decision from the impact of this Bill? This will be a big issue when we debate those regulations. When the noble Earl, Lord Howe, comes to make proposals for the regulations, he will say that your Lordships can have confidence in passing the legislation because of the robustness of the HFEA. However, I, who support those regulations, will have to get up and say that actually the noble Earl is incorrect because of what the noble Lord here is proposing to do.

Lord Alton of Liverpool: I entirely agree with what the noble Lord is saying, but does it not also undermine the noble Earl, Lord Howe, who has consistently said that the HFEA is not an economic regulator, to now put him in that invidious position?

Lord Hunt of Kings Heath: That is absolutely right. The noble Lord then went on to say that we should be fine because the provisions in the Bill say that all the regulator has to do is to “have regard to” the desirability of promoting economic growth. However, the moment you include those words, the regulator becomes liable if it can be shown that he does not have regard to that, even though the noble Lord recognises that in many cases he ought not to have regard to it.

It is quite inadequate to say that we are consulting on this. This is absolutely wrong. We need to know by Third Reading whether the Government are going to keep in the HFEA and the PSA. I think that the noble Lord ought to allow further discussions to take place between now and Third Reading, and he ought to discuss this with his colleague—particularly the impact

11 Feb 2015 : Column 1245

on the new regulations on mitochondrial donations that will be coming forward. As for his assurance that any of these bodies will be included by an affirmative resolution, how many times has an SI been defeated in Parliament? It is fewer than 10 times, so it is a meaningless safeguard in effect. I invite the Minister to say that he will at least give this further consideration before Third Reading before I make my decision.

Lord Wallace of Saltaire: I will be glad to take this back and confer with others, but I cannot give any assurances that the Government will come back with anything different on Third Reading. However, I am always open to conversations off the Floor.

Lord Hunt of Kings Heath: My Lords, that is very handsome of the Minister and I beg leave to withdraw the amendment.

Amendment 43 withdrawn.

Clause 89: Functions to which section 88 applies

Amendment 44

Moved by Lord McNally

44: Clause 89, page 71, line 2, at end insert—

“(d) a regulatory function of the Commission for Equality and Human Rights.”

Lord McNally (LD): My Lords, I am not sure that I can give the same assurance to the Minister about withdrawing my amendment because, as I will try to explain, even the offer he may make—that the Equality and Human Rights Commission will be excluded from future statutory instruments—will not relieve the commission from the sword of Damocles that is hanging over it, as a future Government could bring it within the ambit of this legislation.

Perhaps I may explain to the House the position and why I think it should take this as an exceptional case and put the commission into this primary legislation. First, I should like to make clear the commission’s current position:

“The Commission supports the principle and intention behind the growth duty. We do, and will continue to, exercise our regulatory functions fairly and proportionately, taking all relevant considerations into account—including the impact on businesses and economic growth. However, applying the growth duty to the Commission risks our status as an NHRI”—

national human rights institution—

“and a National Equality Body and introduces legal uncertainty into the exercise of our functions. We therefore consider that the Commission should be excluded from the scope of the growth duty, as proposed by”—

Amendment 44. It continues:

“The Commission has the highest possible UN accreditation (‘A status’) as an NHRI rated against the UN ‘Paris Principles’, which clearly and unequivocally require NHRIs to be independent of government”.

I made sure that I had that clear statement of where the commission itself is in terms of its attitude to this legislation.

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I should give the House a little background. When the coalition came into office in 2010, there were many criticisms of the EHRC, some justified. Since then the organisation has been refocused, restructured, given a new board and a new leadership in the person of the noble Baroness, Lady O’Neill, who I am pleased to see in her place. During my time as a Minister at the Ministry of Justice I became involved with the EHRC on two fronts: first, in attempting to regain A-list status at the UN, which we had lost; and secondly, regaining Britain’s place on the UN Human Rights Committee. With the help of the FCO and the DCMS, particularly the then Minister Maria Miller, we were able to achieve both. We were able to do that, however, by stressing the independence from government and the integrity of the Equality and Human Rights Commission.

As noble Lords will be aware, Clause 88 places a legal duty on regulators to have regard to the desirability of promoting economic growth when exercising regulatory functions. The EHRC, as I said, supports that principle. However, when the Joint Committee on Human Rights looked at the matter, it opined that the Bill,

“raises serious questions about the EHRC’s independence from the executive”.

It concluded that the matter could easily be dealt with,

“if the proposed new duty did not apply to the EHRC”.

The committee went on to ask that the EHRC and the Government should continue to negotiate to see whether such a settlement could be reached. As I indicated, no such settlement has been reached. The noble Baroness, Lady O’Neill, has gone on record to express her concern about this matter, particularly the threat to our hard-won A status.

5 pm

I now come to the reason for my amendment. In a letter to the noble Baroness, Lady O’Neill, on 19 November, my right honourable friend Vince Cable, the Secretary of State for Business, Innovation and Skills, wrote:

“I would like to take this opportunity to state that the Government has taken the decision to fully exclude the EHRC from the growth duty. This decision was taken to ensure that the Government mitigated the risk of this policy unintentionally triggering a review of the important ‘A’ status that EHRC holds as a National Human Rights Institution”.

The Government accept that the threat to the EHRC status and reputation exists—so far, so good. However, the commission fears that leaving the Bill as it is would leave it open to future Administrations to apply the growth duty to regulatory functions of the commission through secondary legislation. I agree entirely with the noble Lord, Lord Hunt, that the idea that secondary legislation offers protection from further inclusion is not sustainable. It is to avoid that threat that I have put down my amendment.

In opposing my amendment in Committee, my noble friend Lord Wallace said that,

“listing inclusions and exemptions in a Bill is not generally regarded as appropriate because primary legislation would then need to be amended each time a regulatory function were changed or created”.—[

Official Report

, 20/11/14; col. GC231.]

QED—that is exactly why I am putting this amendment forward. I am putting it forward as a narrow, focused

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amendment to turn the Government’s good intentions into a copper-bottomed guarantee—or as the EHRC has said,

“the risks to the Commission’s independence, and the consequences of impinging on it, are of such importance that this matter should be”,

put beyond doubt in primary legislation.

Let me emphasise, particularly to my colleagues on these Benches, that my amendment does not change the Bill in any way other than to remove beyond peradventure what the Secretary of State himself describes as the risks of unintentionally jeopardising our A status as a UN organisation. I beg to move.

Baroness King of Bow (Lab): My Lords, I am speaking in support of Amendment 44 in the name of the noble Lord, Lord McNally, in place of my noble friend Lady Thornton. On these Benches, we are very pleased that the noble Lord has brought this matter back to the Floor of the House. We fully support having the EHRC’s exclusion from the list of regulators included in the Bill, and the noble Lord has already explained the importance of doing so—it is what he described as a copper-bottomed guarantee. We really cannot see why the Government would not want to support this. Essentially, as the noble Lord says, it would just ensure that the Government’s good intentions actually hold up regardless of what a future Administration might wish to do. We are also in no doubt that even the risk that the EHRC might be included in the regulations in future could have an adverse effect on its A status as a UN accredited national human rights institution—an NHRI. That, in turn, might impact on the UK’s compliance with European Union law.

However, the real issue here is around the independence of the EHRC. The UN International Coordinating Committee has said to the UK Government that independence from government is an essential element of a national human rights institution. In considering whether an NHRI is independent, the ICC looks at all the ways in which the particular institution in question is subject to control or direction. Although the Deregulation Bill may not intend to affect the independence of the EHRC, attaching an additional duty could be seen as competing with or limiting its existing duties, and may have that effect on its decision-making. Being subject to ministerial direction and the possibility of legal challenge could have a detrimental effect on the EHRC’s ability to make decisions in relation to upholding human rights. When combined with the existing connections and accountabilities to the British Government, these clauses will raise questions about the compliance of the EHRC with the UN Paris principles—the principles which uphold the protection of human rights by national institutions.

The real point here is that it would be a shame if—when we are all agreed that the EHRC should have that independence, and we all want to see that status maintained by the UN—we were yet again to pass the law that we pass most often here, the law of unintended consequences, and thereby damage the ECHR’s prospects when it goes through the process of UN reaccreditation. The accreditation process, when the UN considers whether an NHRI will retain its accreditation, takes place around once every five years. I am sure the

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Minister will be aware that the EHRC is up for that process this year. Given that, is this not the worst possible time for us to introduce uncertainty? The way to remove that uncertainty is, as we are all aware, to put the amendment on to the face of the Bill.

We know that the Minister will say that the Secretary of State for BIS has written to the EHRC to say that the Government have decided to,

“fully exclude the EHRC from the growth duty”.—[

Official Report

, 20/11/14; col. GC229.]

If the Government want to do that, they will accept the amendment because it delivers the Government’s aims. This is a matter of huge importance and we assume from what the noble Lord said in introducing the amendment that he will press it to a vote. However, if for any reason he decides not to do so, we on these Benches certainly will. It would be an extraordinary own goal to limit the perceived independence of the EHRC and it is something that we should not allow to happen, even if only inadvertently or by accident. I hope that the Government and indeed the House will accept the amendment.

Lord Wallace of Saltaire: My Lords, the noble Baroness has given us a lot of hypothetical, “If a future Government were to”, and so on. The Government have made it entirely clear and said publicly that they intend the EHRC to be excluded from the growth duty. No Parliament can bind its successors. I cannot imagine that any major party or minor party that might be part of a future Government is likely to want to do this, and as I say, no Parliament can bind its successors. Indeed, if that were to happen we would encounter heaven knows what. At the present moment the Government have taken the clear decision to exclude the EHRC from the growth duty in order to remove any threat to its international standing. We have provided the commission with a reassurance of that decision and, as has already been said twice in this debate by my noble friend Lord McNally and the noble Baroness, Lady King, the Secretary of State for Business, Innovation and Skills wrote to the EHRC in November to confirm the decision. We have also reaffirmed the commitment to exclude the commission from the duty in the recent consultation document on extending the growth of the duty.

The Government Equalities Office, which is the EHRC’s government sponsor, does not see a significant threat to the commission’s A status by not excluding it on the face of the Deregulation Bill, and the GEO has advised the commission to accept those reassurances.

Baroness King of Bow: When does the Minister expect that these regulations would actually be brought forward?

Lord Wallace of Saltaire: My Lords, my understanding is that it is going to be very difficult to bring them forward before the election. However, I will take that back and will be sure to write to the noble Baroness with any exact dates for the regulations.

No specific regulatory functions of any other particular named body are listed on the face of the Bill, and it is not necessary to do so in relation to the regulatory functions of the EHRC. The regulatory functions to

11 Feb 2015 : Column 1249

which the growth duty is to apply will be set out in secondary legislation, as I have said before. Meanwhile, the Government have given a range of assurances that the EHRC is outside the scope of the growth duty and will be excluded.

Baroness O'Neill of Bengarve (CB): My Lords, I had not intended to speak because, as chair of the EHRC, it is difficult for me to do so, but before the Minister sits down, I think I can allow myself to say one factual thing. This is an unusual regulatory body in that it is subject to international inspection and rating—which will be done by the ICC. Unfortunately, as a matter of timing, all the evidence that the ICC requires will have to be submitted in June this year, and I think the Minister has just informed us that it will not be possible to lay the statutory instruments that exclude the commission from scope before that time.

Lord Wallace of Saltaire: My Lords, I would simply reply that we are of course well aware that this is not the only body for which there are a range of international complications and obligations. Indeed, the RSPB briefing, which some Members will have seen, raises questions about EU legislation. We are very conscious that everything we do in this area, biomedical issues included, carries international implications.

Lord Jones of Birmingham (CB): My Lords, before the Minister sits down, could I just draw on two aspects—

Lord Gardiner of Kimble (Con): My Lords, we are on Report, and the Companion is very clear about Report stage. I suggest that the noble Lord may not be in a position to speak.

Lord McNally: Another gem is lost to us from the noble Lord, Lord Jones. Let us not confuse this issue: the protection of a statutory instrument is not the same as the protection afforded by being in primary legislation. It is that protection of primary legislation that I want to give to the Equality and Human Rights Commission.

I have no doubts about my noble friend’s commitments, but we live in strange times. For most of my life, the concept of the Universal Declaration of Human Rights has been accepted as part of our world governance. We live in an age when people think of the concept of human rights as somehow a western imperialist invention, but I believe that this country’s role in championing human rights since the Second World War has been a very great one, of which we should be proud. David Maxwell Fyfe drafted the European Convention on Human Rights, and when Eleanor Roosevelt launched the Universal Declaration of Human Rights, she called it a Magna Carta for all mankind. There was no need for a translation of what she meant.

This is an exceptional case that I am arguing. I know all the objections of the barrack-room lawyers and draftsmen to specifics in primary legislation, but by putting this in primary legislation, I believe we will be keeping faith with our tradition of protecting human rights and be giving the EHRC the strength to carry on its excellent work. As I have indicated, I would like to the test the opinion of the House.

11 Feb 2015 : Column 1250

5.14 pm

Division on Amendment 44

Contents 197; Not-Contents 208.

Amendment 44 disagreed.

Division No.  1

CONTENTS

Adams of Craigielea, B.

Adonis, L.

Allen of Kensington, L.

Alli, L.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Avebury, L.

Bach, L.

Bakewell, B.

Bassam of Brighton, L.

Beecham, L.

Best, L.

Bhattacharyya, L.

Blackstone, B.

Boateng, L.

Borrie, L.

Brennan, L.

Broers, L.

Brooke of Alverthorpe, L.

Brookman, L.

Brown of Eaton-under-Heywood, L.

Browne of Ladyton, L.

Campbell-Savours, L.

Carter of Coles, L.

Cashman, L.

Chester, Bp.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Clinton-Davis, L.

Collins of Highbury, L.

Colville of Culross, V.

Condon, L.

Corston, B.

Craig of Radley, L.

Craigavon, V.

Crawley, B.

Cunningham of Felling, L.

Davies of Coity, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Deech, B.

Derby, Bp.

Donaghy, B.

Drake, B.

Dubs, L.

Eames, L.

Elder, L.

Elystan-Morgan, L.

Evans of Temple Guiting, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Giddens, L.

Golding, B.

Gordon of Strathblane, L.

Goudie, B.

Grantchester, L.

Greaves, L.

Grey-Thompson, B.

Grocott, L.

Hameed, L.

Hanworth, V.

Harris of Haringey, L.

Harrison, L.

Hart of Chilton, L.

Haughey, L.

Haworth, L.

Hayman, B.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hilton of Eggardon, B.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hughes of Woodside, L.

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Hylton, L.

Irvine of Lairg, L.

Jones, L.

Jones of Birmingham, L.

Judd, L.

Kennedy of Cradley, B.

Kennedy of Southwark, L.

King of Bow, B.

Kinnock, L.

Kinnock of Holyhead, B.

Kirkhill, L.

Laming, L.

Lawrence of Clarendon, B.

Lea of Crondall, L.

Lennie, L.

Levy, L.

Liddle, L.

Lister of Burtersett, B.

Lytton, E.

McAvoy, L.

McDonagh, B.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Maclennan of Rogart, L.

McNally, L. [Teller]

Mallalieu, B.

Masham of Ilton, B.

Massey of Darwen, B.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Mitchell, L.

Morgan of Ely, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Northbourne, L.

Nye, B.

O'Loan, B.

O'Neill of Bengarve, B.

O'Neill of Clackmannan, L.

11 Feb 2015 : Column 1251

Patel, L.

Patel of Bradford, L.

Pendry, L.

Pitkeathley, B.

Ponsonby of Shulbrede, L.

Prescott, L.

Prosser, B.

Quin, B.

Ramsbotham, L.

Rea, L.

Rebuck, B.

Rees of Ludlow, L.

Reid of Cardowan, L.

Rennard, L.

Richard, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Sawyer, L.

Scotland of Asthal, B.

Scott of Foscote, L.

Sherlock, B.

Shutt of Greetland, L.

Simon, V.

Singh of Wimbledon, L.

Smith of Basildon, B.

Smith of Finsbury, L.

Smith of Gilmorehill, B.

Snape, L.

Soley, L.

Stern, B.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taverne, L.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Touhig, L.

Trees, L.

Triesman, L.

Truscott, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Warner, L.

Warnock, B.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wigley, L.

Wilkins, B.

Williams of Baglan, L.

Williams of Elvel, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Hornsey, B.

Young of Norwood Green, L.

NOT CONTENTS

Addington, L.

Ahmad of Wimbledon, L.

Anelay of St Johns, B.

Ashcroft, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Balfe, L.

Barker, B.

Bates, L.

Berridge, B.

Bilimoria, L.

Black of Brentwood, L.

Blackwell, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bottomley of Nettlestone, B.

Bourne of Aberystwyth, L.

Brabazon of Tara, L.

Brady, B.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browne of Belmont, L.

Burnett, L.

Byford, B.

Caithness, E.

Callanan, L.

Carrington of Fulham, L.

Cathcart, E.

Chidgey, L.

Clement-Jones, L.

Colwyn, L.

Cooper of Windrush, L.

Cormack, L.

Cotter, L.

Courtown, E.

Cumberlege, B.

De Mauley, L.

Deighton, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Eaton, B.

Eccles, V.

Eccles of Moulton, B.

Edmiston, L.

Elton, L.

Empey, L.

Evans of Bowes Park, B.

Falkner of Margravine, B.

Farmer, L.

Faulks, L.

Feldman of Elstree, L.

Finkelstein, L.

Fookes, B.

Forsyth of Drumlean, L.

Fowler, L.

Framlingham, L.

Freeman, L.

Garden of Frognal, B.

Gardiner of Kimble, L. [Teller]

Gardner of Parkes, B.

Garel-Jones, L.

Geddes, L.

German, L.

Glasgow, E.

Glenarthur, L.

Goddard of Stockport, L.

Gold, L.

Goodlad, L.

Grade of Yarmouth, L.

Greenway, L.

Griffiths of Fforestfach, L.

Hamilton of Epsom, L.

Hanham, B.

Harris of Peckham, L.

11 Feb 2015 : Column 1252

Harris of Richmond, B.

Hay of Ballyore, L.

Helic, B.

Henley, L.

Heyhoe Flint, B.

Higgins, L.

Hodgson of Abinger, B.

Hodgson of Astley Abbotts, L.

Hogg, B.

Home, E.

Horam, L.

Howard of Rising, L.

Howe, E.

Howell of Guildford, L.

Humphreys, B.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

Inglewood, L.

James of Blackheath, L.

Janvrin, L.

Jenkin of Kennington, B.

Jolly, B.

Jones of Cheltenham, L.

Jopling, L.

Kilclooney, L.

Kirkham, L.

Laird, L.

Lamont of Lerwick, L.

Lane-Fox of Soho, B.

Lang of Monkton, L.

Lawson of Blaby, L.

Leigh of Hurley, L.

Lexden, L.

Lindsay, E.

Lingfield, L.

Liverpool, E.

Ludford, B.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

Magan of Castletown, L.

Maginnis of Drumglass, L.

Mancroft, L.

Manzoor, B.

Mar and Kellie, E.

Marlesford, L.

Mobarik, B.

Morris of Bolton, B.

Moynihan, L.

Naseby, L.

Neville-Jones, B.

Neville-Rolfe, B.

Newby, L. [Teller]

Newlove, B.

Noakes, B.

Northbrook, L.

Norton of Louth, L.

O'Cathain, B.

Oppenheim-Barnes, B.

Paddick, L.

Palmer of Childs Hill, L.

Palumbo, L.

Parminter, B.

Patten, L.

Pearson of Rannoch, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Popat, L.

Purvis of Tweed, L.

Randerson, B.

Rawlings, B.

Razzall, L.

Redesdale, L.

Ribeiro, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rogan, L.

Scott of Needham Market, B.

Seccombe, B.

Selborne, E.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharples, B.

Sheikh, L.

Shephard of Northwold, B.

Sherbourne of Didsbury, L.

Skelmersdale, L.

Smith of Clifton, L.

Smith of Newnham, B.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Stewartby, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Suri, L.

Suttie, B.

Taylor of Goss Moor, L.

Teverson, L.

Thomas of Gresford, L.

Thomas of Winchester, B.

Tope, L.

Trefgarne, L.

Trenchard, V.

True, L.

Tugendhat, L.

Ullswater, V.

Wakeham, L.

Waldegrave of North Hill, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walmsley, B.

Warsi, B.

Wasserman, L.

Wheatcroft, B.

Whitby, L.

Wilcox, B.

Williams of Trafford, B.

5.31 pm

Amendment 44A

Moved by Lord Tunnicliffe

44A: Clause 89, page 71, line 3, at end insert—

“( ) Section 88 shall only apply to a person exercising a regulatory function in so far as it is consistent with the proper exercise of their existing regulatory functions.”

11 Feb 2015 : Column 1253

Lord Tunnicliffe (Lab): My Lords, the Labour Party, despite rumours put about by the Benches opposite, is pro business. We see business as central to our society: it is essential, and thriving industry is good for us. We are also pro growth. We might have slightly different views about its distribution: we think that growth should go to the many as well as to the few. That would have been a point of difference until the recent conversion of David Cameron to a belief that firms should be paying their staff more. This we applaud, and therefore we so far have consensus. Because we are pro business and pro growth, we support the generality of Clauses 88 and 89, but with reservations. I was almost talked out of supporting the two clauses by the Minister, who pointed out that the 2006 Act apparently does what these two clauses do anyway. Life might have been easier if the Government had not brought forward these clauses at all.

However, just as we are pro business and pro growth, we are pro good regulation. Once again, I am absolutely delighted that we are not alone in this. Oliver Letwin, the Minister of State for Policy, indicated at the beginning of this Bill in the other place that he, too, was in favour of good regulation. Good regulation protects the citizen from the overly powerful, be it overly powerful commercial interests, the state or other large bodies. It protects consumers, workers, patients, the old and those with disabilities, while other regulatory bodies protect the environment, the built environment and many other areas of our lives. The challenge is to create a balance between legislation that is pro growth on the one hand and protects the citizen on the other. We think that Clauses 88 and 89—and I think Clause 90 as well—go too far, and that is why we are moving Amendment 44A.

Just stand back for a second and see how these clauses are going to promote growth, and look at the guidance material that we have already received—and discussed at some length in Committee. They divide into two areas. A great deal was said about the bureaucracy of regulation, the same form coming twice and different inspectors coming on different days. The essence of much of the illustration of the value of these two clauses was about regulators being much more efficient at bureaucracy, more sensitive to the needs of business and much more business-friendly. We could not agree more. It is absolutely sound that that should be true.

The other potential for the two clauses is to have an impact on protection itself and actually diminish it. We are very concerned about that. We discussed this at some length in Committee, and the Minister very kindly arranged a number of meetings. We thank him for doing that. Those meetings were very much the same. They were very much the curate’s egg—good in parts. They almost always started with the Minister present stating fairly flatly that these clauses were not meant to diminish protection. The Minister would say that they did not have an impact on safety. Then, towards the end of the meeting, the Minister would float back into perhaps that being the area where they could impact.

At the end of this, we had two letters, including a very useful letter from the HSE. I shall not quote it at any length, but the HSE is a much derided body. It is an excellent organisation that has matured greatly

11 Feb 2015 : Column 1254

under the chairmanship of Judith Hackitt. In many ways, its maturity is reflected in the letter. Essentially, the HSE does not say that it does not need the provision, but it is sort of saying that in practical terms it will not make a difference to protection because the essence of the 1974 Act—one of the best pieces of legislation around, which has survived to this day largely unamended—is that it had a sense of proportionality about it. It said,

“so far as reasonably practicable”.

We were very satisfied with that letter.

Then—not exactly sequentially—the Minister wrote to us to assure us. His letter had more of the history of British Raj about it, almost: “On one hand”, and then “On the other”. Early in the letter, he says:

“I can assure you that the duty will complement existing duties and will not override or reduce the protection of the public”.

I had a little trouble with “complement”. If you look it up, it seems to mean “add to” or even perhaps “enhance”, but where in the Bill is it clear that the duty will not override or reduce the protection of the public? It is clear in his assurance in this letter, but it is not clear in the Bill. This is where in the meetings we had the same sense of floating away. The letter states that: “This duty sits alongside”—so one is now having words of equal weight—

“any other factors that a regulator must consider … As experts in their relevant areas, it is the regulators themselves who are best placed to decide how much weight it is appropriate to afford to the desirability of economic growth in the relevant circumstances; in order that economic growth is considered whilst public protections are maintained. Indeed, it would not be appropriate for Government to dictate how growth should rank in relation to other factors which regulators also need to consider”.

We do not agree. It is appropriate for government and this House to give clear guidance in the Bill about how the growth duty ranks with the other duties of the regulators involved.

Once again in this balanced approach we get to where he says:

“I might also add that if a regulator has had regard to, and considered growth, and can justify its decision, then a business cannot expect to successfully challenge that decision, nor can it use the duty to escape legitimate compliance costs”.

One of the ways to understand a sentence like that is to reverse it. It would then read: “I might also add that if the regulator has not had regard to and not considered growth and cannot justify its decision, a business could expect to successfully challenge that decision and could use the duty to escape legitimate costs”. In other words, each of the three conditions—“have regard to”, “consider growth” and “justify”—have to be met for the challenge not to be made. Clearly, the person who drafted this letter envisaged that challenges could be made, and those were the three conditions that had to be met.

Why am I so concerned with what might seem like a nuance? The whole problem with regulation is that, frequently, balance is achieved very much in the matter of the nuance. I come from a very regulated back- ground—originally aviation, then railways, then nuclear, and so on. In a high-hazard background you sit down and consider killing people and how much you are going to spend to avoid that, to mitigate that risk. Those are

11 Feb 2015 : Column 1255

very difficult decisions, but they are taken. When you edge or nuance protection, ultimately you are talking about harm and about people getting killed. I worked in an industry where, sadly, we killed people every year. You cannot carry 800,000 passengers a year without killing some of them. We abandoned the whole idea that it was just an accident; we took the view that every death was our responsibility. That meant that every death was analysed so we could establish how much we could have spent or sensibly should have spent to mitigate that death.

Those are the sorts of decisions small and big companies take. We know that they take those decisions, perhaps most famously from the BP Texas City explosion in 2005. The examination of that event uncovered that BP head office had demanded cuts in costs. There was no mitigation on safety and no qualification; cuts in cost had to be made. Sadly, 15 people died in that event. We know that BP did not learn its lesson, because the Gulf of Mexico spillage happened five years later, in 2010.

What, then, is our remedy to avoid this now? It is the amendment to which I speak:

“Section 88 shall only apply to a person exercising a regulatory function”—

that is the growth duty—

“in so far as it is consistent with the proper exercise of their existing regulatory functions”.

That makes it clear that the protection—the balance—in the present regulatory structure should be unaltered. It makes it clear that in the nine areas which we have talked about, particularly the bureaucratic areas, let us get rid of the bureaucracy—yes, great—and if you look at the impact assessment, you will see that that is where virtually all the money is. However, it protects us from any erosion of the protection of the current regulatory regime.

My nuance may be unfounded—it may be that all firms take their safety and other protection responsibilities seriously. However, sadly, I have seen too much evidence of the opposite. I have been in rooms where people have said, “Compliance with this regulation is too expensive. How can we avoid it or reduce it?”. We have to maintain the present regulatory balance while introducing the growth concept. We want noble Lords to support this amendment to protect citizens from the bad guys, which of course will leave a level playing field for the good guys.

5.45 pm

Baroness Andrews (Lab): I rise to support my noble friend’s amendment and congratulate him not only on the way he exposed the ambiguities in the Bill but on how he introduced the argument on protection and balance. That is an argument I want to pursue. The amendments that we have just debated have totally exposed the fact that the language of the Bill is a morass of ambiguity. I am thinking of terms such as “have regard to” or “not automatically”, and the suggestion that it should be up to the regulators to interpret the Bill as will suit their best purposes.

In this amendment, we are giving the Government an opportunity to do what they say that they want to do: to have a clear intention of purpose with regard to regulation; to put in the Bill exactly what they mean by

11 Feb 2015 : Column 1256

their expectations of regulators; to show that they understand what regulators do, can do and should do; and to put clarity into the Bill that leaves no one in any doubt about the limits to what they can do.

I want to talk about balance and growth in another context—in relation to the built environment and the protections that surround our environment. That is a parallel argument to the one that my noble friend made. One danger of the ambiguity is that it introduces an additional requirement for growth, although the Government say that it is complementary. Will that additional requirement sit alongside or above the existing growth duties that regulators have to implement and which they are bound by law to do? With the National Planning Policy Framework, the Government very wisely embraced the advice of statutory bodies such as English Heritage, which retained the essential point about planning law—that it is a balance between development and protection of landscapes and precious spaces, the ancient and characterful environment with which we all live.

The need for appropriate development in the right place and time is not in dispute, but it is balanced with the need to protect and sustain what this country is uniquely known for. We already have a presumption of growth in the National Planning Policy Framework; in short, we have a duty to promote growth. But that is balanced by a requirement to protect our precious landscapes and the heritage of our built environment. The balance has worked well, and it was very gratifying that, after a lot of discussion, when the National Planning Policy Framework was introduced, it repeated and reflected those traditional, tested balances that had been in the previous planning law. The statutory agencies know how to do that, in the full knowledge that there must be scope for development and a response to housing pressures and the need for infrastructure, but there is also a prior duty to protect what they are there to protect.

All this amendment does—I urge the Government to think about this, because they will get themselves out of a real problem if they do—is to make clear beyond doubt that the duty to promote growth must be consistent with the proper exercise of existing regulatory functions. Everything that I have heard the Government say, in their letters, suggests that it is what they want. So what is the difficulty about putting a clear, unambiguous, crisp statement in the Bill? It is vital that we have that assurance, because it will tell all the practitioners and the country as a whole that the Bill does not change or challenge that balance, and it does not override the scope of the functions of protection. It does not create an unnecessary diversionary distraction in the shape of another growth duty.

If the amendment is not accepted, that will send the opposite signal. It will send a signal to the developers, for example, that there is an imperative of growth, which is undefined—we have perhaps lost the argument that sustainable growth should have been specified; that would have been infinitely more acceptable and sensible—and that that imperative can be taken to override the other protective functions.

I think that there will be a chilling effect on regulators, because if it is up to them to try to interpret what is meant by a duty to “have regard to” something in the

11 Feb 2015 : Column 1257

exercise of their proper functions, they will always be looking over their shoulder. They will always know that there will be a challenge from people who think there is a higher imperative— in many cases, an inappropriate economic imperative.

The local and national authorities will suffer from the same fear—that they are getting it wrong. They will be faced with a further layer of confusion. We all know that what the planning system needs above everything else is certainty. This provision will introduce another layer of uncertainty, and will have perverse consequences. It will cause further delays while people argue about whether the regulator has had proper regard to something. For that reason, it would hand greater scope and power to developers. My great fear is that the balance, which the noble Lord spoke about in relation to health and safety, will also be compromised or lost in relation to the protection of the environment.