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Health Bill [Lords]

Volume 497: debated on Monday 12 October 2009

[Relevant Documents: The Eleventh Report from the Joint Committee on Human Rights, Legislative Scrutiny: Health Bill; Marine and Coastal Access Bill, HC 396, and the Fourteenth Report from the Committee, Legislative Scrutiny: Welfare Reform Bill;Apprenticeships, Skills, Children and Learning Bill; Health Bill, HC 414.]

Consideration of Bill, as amended in the Public Bill Committee

New Clause 12

De-authorisation of NHS foundation trusts

‘(1) In the National Health Service Act 2006 after section 52 insert—

“52A Application of sections 52B to 52E

(1) Sections 52B to 52E apply to—

(a) an NHS foundation trust authorised under section 35 on an application under section 33;

(b) an NHS foundation trust established under section 56 to which subsection (2) applies.

(2) This subsection applies to an NHS foundation trust if—

(a) at least one of the trusts on whose application the NHS foundation trust was established was an NHS foundation trust within subsection (1)(a), or was an NHS trust all or most of whose hospitals, establishments and facilities were in England, or

(b) the NHS foundation trust is the result of a succession of mergers under section 56, any of which involved an NHS foundation trust within subsection (1)(a) or an NHS trust all or most of whose hospitals, establishments and facilities were in England.

52B De-authorisation: regulator’s notice

(1) The regulator may give the Secretary of State a notice under this section if it is satisfied that—

(a) an NHS foundation trust to which this section applies is contravening or failing to comply with, or has contravened or failed to comply with, any term of its authorisation or any requirement imposed on it under any enactment, and

(b) the seriousness of the contravention or failure, or, if there has been more than one, of any of them taken together, is such that it would justify the Secretary of State making an order under section 52D.

(2) The notice must be in writing.

(3) With the notice the regulator must give the Secretary of State a report stating the reasons why it is satisfied as mentioned in subsection (1).

(4) Before giving a notice under this section, the regulator must consult first the Secretary of State (unless the notice follows a request by the Secretary of State under section 52E) and then—

(a) the trust,

(b) any Strategic Health Authority in whose area the trust has hospitals, establishments or facilities, and

(c) any other person to which the trust provides goods or services under this Act and which the regulator considers it appropriate to consult.

52C Grounds for de-authorisation notice

(1) In determining under section 52B(1)(b) whether the making of an order would be justified, and in determining whether to give a notice under that section, the regulator must consider these matters (among others)—

(a) the health and safety of patients;

(b) the quality of the provision by the trust of goods and services;

(c) the financial position of the trust;

(d) the way it is being run.

(2) The regulator must publish guidance as to the matters (including those mentioned in subsection (1)) that it proposes to consider in making those determinations.

(3) Before publishing any guidance under this section, including any revised guidance, the regulator must consult—

(a) the Secretary of State,

(b) each NHS foundation trust to which this section applies,

(c) each NHS trust intending to make an application to become an NHS foundation trust, and

(d) such other persons as the regulator considers appropriate.

52D De-authorisation

(1) If the regulator gives notice under section 52B in relation to a trust, the Secretary of State must make an order for it to cease to be an NHS foundation trust.

(2) An order made under subsection (1) must specify the date when it is to take effect, which must be within the period of 5 working days beginning with the day on which it is made.

(3) On an order under subsection (1) taking effect in relation to a body, it ceases to be an NHS foundation trust and a public benefit corporation and becomes a National Health Service trust.

(4) The order must specify, in relation to the trust, the matters mentioned in paragraph 5(1)(a) to (c) of Schedule 4 and, where the trust has a significant teaching commitment, the matters mentioned in paragraph 5(1)(d).

(5) The order may provide for any provision under subsection (4) specifying the number of executive directors and non-executive directors to take effect at the end of a period specified in the order.

(6) Schedule 8A makes further provision about trusts in respect of which an order is made under subsection (1).

(7) If it appears to the Secretary of State to be necessary in order to comply with provision made under subsection (4), or made by regulations under paragraph 4 of Schedule 4, the Secretary of State may by order—

(a) terminate the office of any executive or non-executive director of the trust;

(b) appoint a person to be an executive or non-executive director of the trust.

(8) Within seven days after the day on which the Secretary of State makes an order under subsection (1) the regulator must publish its report under section 52B(3).

(9) In this section “working day” means any day which is not Saturday, Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.

52E Secretary of State’s request

(1) If it appears to the Secretary of State that there are grounds for the regulator to be satisfied as mentioned in section 52B(1), the Secretary of State may request the regulator in writing to consider exercising its power to give a notice under that section.

(2) A request under this section must—

(a) specify the NHS foundation trust to which it relates, and

(b) state the grounds relied on by the Secretary of State.

(3) The Secretary of State must lay before Parliament any request under this section.

(4) If within the required period the regulator does not give a notice under section 52B in response to a request under this section, it must, within that period, publish its reasons for not doing so with a statement as to how it has complied with section 52C(1).

(5) The required period is—

(a) 14 days beginning with the day after the regulator receives the request, or

(b) any longer period specified in the request.

(6) The Secretary of State may by order extend or further extend the required period.”

(2) Schedule 2 (which inserts Schedule 8A to the National Health Service Act 2006, which makes provision about de-authorised NHS foundation trusts) has effect.’.—(Mr. Mike O'Brien.)

Brought up, and read the First time.

With this it will be convenient to discuss the following:

New clause 11—Notification of Care Quality Commission special reviews and investigations—

‘(1) The Health and Social Care Act 2008 is amended as follows.

(2) In section 39 (bodies required to be notified of certain matters) after subsection (2)(d) insert—

“(e) an investigation under section 48 (special reviews and investigations).”’.

Government amendments 21 to 37. [Interruption.] I appeal to Members who are leaving the Chamber to do so quickly and quietly to allow for orderly transition to the next business.

I rise to move Government new clause 13. This amendment would insert the new clause into the Bill to enable a designated mental health NHS foundation trust to earn up to 1.5 per cent. of its total income from income that it derives from private charges. The new clause also contains a definition of mental health foundation for that purpose.

In the course of the Bill’s passage through Parliament—[Interruption.] Sorry, Mr. Speaker, I am afraid that my speaking notes are not in the right order. I apologise for that. They have just been reorganised, and I think that those who reorganised them did so somewhat more efficiently than they should have. Let me move to new clause 12 and Government amendments 21 to 37.

The Mid Staffordshire Foundation NHS Trust failed its patents and the national health service. Members will be well aware of the history of that case, the House has debated it at length and I am grateful to many hon. Members, from all parts of the House, who during the past year have drawn our attention to the issues at Mid Staffordshire. We have to learn the lessons from that case and ensure that such events cannot take place again. The report of Dr. David Colin-Thomé, the national clinical director for primary care, contained a number of recommendations that are being taken forward, including better co-ordination among both the regulators themselves, and among the regulators and the primary care trusts and strategic health authorities.

I am very grateful. On that particular point, following the dreadful events in Staffordshire did the Minister issue to the strategic health authorities throughout Britain a lessons-learned document or any other instructions?

Dr. David Colin-Thomé undertook a report on the issue, so a full report on the lessons to be learned was issued throughout the national health service. It was not issued as a ministerial directive; it was more a clinical examination of the issues that had arisen. We have now started an inquiry into the details of what happened locally in the trust. The inquiry is hearing evidence and will, we hope, report towards the end of this year or the start of next. I hope that that deals with the hon. Gentleman’s point.

Improvements have been made: for example, Monitor has formalised and improved its contact with the Care Quality Commission, which needed to be done; and, working with the CQC and Monitor, we are tightening up the quality requirements for aspirant foundation trusts.

The amendments act on just two of the many lessons that we have learned from Mid Staffordshire. First, foundation trust status should not be seen as a one-way ticket. That is an important message which we need to put out off the back of the Mid Staffordshire incident. Secondly, transparent democratic accountability is vital when a foundation trust fails. Members want to know what Ministers will do to sort out the problem, and on that issue there were clearly some difficulties.

Will my right hon. and learned Friend ensure that foundation trust board meetings are held in public? At the moment, the vast majority are held privately and therefore do not reassure the public that there is transparency in foundation trusts as currently constituted.

There will clearly be variation in the work that trusts—whether foundation or, indeed, non-foundation—are able to conduct in public and in private. Some of their work is about contracts, including which contracts they are going for and how they make judgments and arrangements in relation to them, so some matters are commercially confidential. However, we need to ensure that trusts—whether foundation or non-foundation—are accountable publicly, so as much as possible should be in the public arena.

I agree with my hon. Friend as far as that is concerned, but let me say this: the foundation trust model is a key plank of reform, allowing greater freedom and autonomy to those who can demonstrate high performance. FT status is a hard-earned privilege and an incentive to drive up quality, innovation, productivity and local accountability. When an FT has failed to live up to that standard and public confidence has been damaged, it is in our interests to ensure that the privileges of FT status are withdrawn. When I say “in our interests”, I am talking about the interests of the public as a whole in ensuring that the foundation trust brand justifies giving such freedom and responsibility.

Will the Minister give an assurance to the rest of the foundation trusts that what happened in Stafford cannot be repeated across the rest of the country? What audit has he carried out to ensure that?

We have set up the Care Quality Commission, whose job it is to ensure that standards in the trusts across the health service are high. The commission can look at how such standards are operated. Furthermore, Monitor, the organisation that oversees the foundation trusts, is responsible for ensuring that the overall operation of the brand is of high quality.

I shall give way, but there is a lot to get through today and I want to make progress after my hon. Friend’s intervention.

My right hon. and learned Friend mentioned the use of Monitor, but would it not be common sense for the organisation that oversees NHS hospitals to oversee foundation trusts as well? The fact is that Monitor does not oversee both; perhaps there would be better similarities if only one organisation investigated.

I take my hon. Friend’s point, but in a sense the Care Quality Commission will be considering the quality of the NHS as a whole; it will examine particular trusts and particular issues in relation to trusts where it needs to do so. Monitor’s role is different: to oversee foundation trusts and to ensure that that brand of independence, identity and accountability demonstrates good standards.

The amendments need to be viewed in the context of Monitor’s existing powers of intervention under the National Health Service Act 2006 and the de-authorisation proposals already in the clauses relating to trust special administrators. The 2006 Act gives Monitor wide powers to intervene on an FT in the event of a significant breach—the word “significant” is important—of the terms of authorisation. Monitor has a range of powers, including removing any or all of the directors of the board or requiring the board of an FT to do, or not to do, specific things. The clauses relating to trust special administrators already enable Monitor to trigger de-authorisation of a foundation trust that is no longer sustainable—again, an important word—in its current form. That is as a preliminary to the de-authorised trust coming under the control of a trust special administrator as part of a clearly defined six-month process.

The proposal under consideration today is a further, distinct piece of the jigsaw. It enables Monitor to trigger de-authorisation when—and this is very rare—a sustainable FT has breached any term of its authorisation or a statutory requirement and the breach is so serious that it justifies that step. A power to de-authorise makes it clear that foundation trusts must maintain the high standards expected of them and gives a strong signal to the public that organisations must earn the right to continue as foundation trusts. A de-authorised foundation trust would become an NHS trust under the Secretary of State’s powers of direction. As with the clauses relating to trust special administrators, transitional arrangements would be put in place to allow the continuation of commercial arrangements entered into using FT freedoms and to ensure continuity of services for local people; that was particularly important in relation to Monitor.

Triggering de-authorisation is a complex decision. I make no apologies for the complexity of the process, which is about balancing the freedoms and independence of the FT network with the need for democratic accountability. The amendments establish a framework requiring that Monitor considers the health and safety of patients, the quality of services that are provided, the financial position of the trust and the way in which it is being run. To ensure full and proper consideration of this issue, the amendments propose that Monitor be required to publish guidance setting out in detail the factors that it will take into account. It is also important that before triggering a de-authorisation, Monitor consults key stakeholders to get their views. Accordingly, the amendments require Monitor to consult the Secretary of State, the trust, the appropriate strategic health authority and relevant commissioners of the trust’s services. That mirrors the process relating to trusts’ special administrators.

In addition to highlighting the need for such a de-authorisation process, the Mid Staffordshire experience highlighted issues of democratic accountability. While Monitor is responsible for the regulation of foundation trusts, the Secretary of State is ultimately accountable to Parliament for the overall provision of NHS services. Monitor’s operational independence is a vital component of the regulatory framework, and one that we should seek to maintain, but when considering the most serious risks to patients the Secretary of State should have the ability at least to express formally his view. To enable that, the amendments propose that the Secretary of State will be able to request formally that Monitor considers de-authorising a foundation trust. In such a situation, it will be vital that the Secretary of State and Monitor are able to act quickly and transparently.

We therefore propose that if Monitor believes that a differing course of action is preferable, it will be required publicly to explain its decision, either within a default of 14 days or within such further time as the Secretary of State deems appropriate to the particulars of the case. If there is a case for a longer period, Monitor may ask for that and the Secretary of State will be able to consider it and take a view as to how long it should be.

I speak as a governor of an acute hospital trust. At what stage does the Minister believe that Monitor should be talking to governors, and what time frame should governors have to consider some of the internal operations of the trust? There is not much point in being a governor if the first thing that happens is the disempowering of their role in any such questioning of the trust. Where do the governors come into this arrangement?

Monitor will have to publish guidance on how it will carry out the process, as well as the criteria that it will use. How that is done will be the subject of further discussions between Monitor and the various trusts and/or interested parties, including the Secretary of State. Our view is that if Monitor decides that the way in which a trust has behaved means that it has to go through the process of considering whether that trust should be de-authorised, Monitor will need to carry out appropriate consultation, and it may well be that governors are appropriate people to consult.

The Minister will know from our consultations on the sad episode in Stafford that I have sympathy with his view that Monitor should be able to take sanctions against a defaulting trust. However, having listened to what he has said I am a little worried that the process will be vague and cumbersome. What can he do to reassure me on that?

We have discussed the process with Monitor and made it clear that we want it to be relatively quick. The hon. Gentleman will know from his experience as a Staffordshire MP that there were concerns about how that matter was dealt with and the speed. We therefore need to ensure that there is sufficient time to deal with the issues so that Monitor is able to receive a request from the Secretary of State, in that particular part of the process. The Secretary of State will determine whether he believes that the situation requires such a request. Monitor will then have 14 days—it will be able to apply for more time if it wishes—to take a view as to whether de-authorisation is the appropriate process. If it decides that it is not, and that it can deal with the matter by taking various steps, it will say so and have to set out its reasons.

If Monitor takes the view that de-authorisation is necessary, there will be a further stage in the process. We must not get mixed up about which stage we are talking about. At that stage, Monitor will be able to consult governors, the relevant strategic health authority and the various other parties that are directly affected, including the commissioners for the trust involved.

I make no apologies for the fact that the system is complicated, but in practice, given the urgency and rareness of the situation in question, we need to be able to deal with problems expeditiously. It is important to make the point that, thankfully, we do not expect situations such as that in mid-Staffordshire to arise with any regularity. On the contrary, we believe that the process will be very, very exceptional. However, the criteria need to be set out on which each party that has to make decisions, such as the Secretary of State and Monitor, can do so. The speed at which decisions can be made and the various consultations involved will be allowed for in the process, because various organisations have an interest in the matter.

I should like to reinforce the point that has just been made about the need for decisive action if we have another catastrophe such as that in Staffordshire, which I hope we do not. The frustration in that case, knowing the enormity of what had happened, was the delay in doing anything about it, and particularly the inability quickly to put in a new chief executive and top staff to clean up the place. This machinery sounds rather elaborate; I want to know that it will enable the Department of Health and Ministers to get in and sort the thing out immediately.

The important point is that the system will keep Monitor as the decision maker in the process. Monitor will still have the role of making a decision, but it will have to explain and justify in a public forum why it reached it. I understand from advice that Monitor is comfortable with the position that we have reached. It has gone through the process with us and considered the matter, and it can understand why we feel that in certain circumstances, when a serious case arises, Ministers need to be able to make a request to it. It will then make a decision whether to de-authorise, after which the trust will be in a position in which Ministers can take action quickly.

My hon. Friend will recall that what happened in the case of Mid Staffordshire, with reasonable speed, was that as soon as the report came out Monitor acted to put in place temporary managers. One problem, as he will recall, was that the chief executive, who by all accounts was a talented individual, was part-time and was also working elsewhere for another hospital. That was not satisfactory in the view of much of the public in Stafford, and various local MPs, including my hon. Friend the Member for Stafford (Mr. Kidney), made representations expressing the view that we needed to put in place new, full-time management, particularly a chief executive. Through discussions with Monitor, we were able to ensure that that happened. My hon. Friend the Member for Cannock Chase (Dr. Wright) will be aware of the detail of the process, so I do not need to outline it. If my hon. Friend is asking whether Ministers will be able to crash into the whole process, yank out a trust and say, “You are no longer a foundation trust, and as a Minister I am going to do this”, the answer is no. Ministers will not have that power, but they will work through Monitor to see whether there is a way of ensuring that the best approach is taken.

I will give way briefly, but I am reaching a conclusion. If the hon. Gentleman insists that he wants me to give way, I shall do so.

The Minister will recall that the intervention by Monitor took place on the same day as the publication of the Healthcare Commission’s report on Mid Staffordshire NHS Foundation Trust. The same thing happened in relation to Maidstone and Tunbridge Wells NHS Trust. Given that the Secretary of State, not Monitor, was responsible for the scrutiny and oversight of Maidstone and Tunbridge Wells NHS Trust, what action did the Department take that was different from the action that Monitor took on Stafford?

Clearly, it was much easier for the Minister to take action directly with regard to Maidstone, which was not a foundation trust—to deal with the problem as soon as we had looked at the detail of the evidence that was presented. The Department took action on Maidstone.

The hon. Gentleman can stand up and give his response rather than sitting chuntering from the Front Bench. If he wants to ask a question, I will happily give him an answer, but if he just wants to dismiss it and chunter, that is up to him. I am not sure that it is the best way of dealing with arguments, but there you go; it is the way he does it.

I shall now deal with new clause 11, which was tabled by the hon. Members for Eddisbury (Mr. O'Brien) and for Hemel Hempstead (Mike Penning). It seeks to ensure that when the Care Quality Commission undertakes an investigation or special review into a particular aspect of care pursuant to section 48 of the Health and Social Care Act 2008, relevant bodies are informed. In the case of an investigation or review of NHS services, that would mean informing the relevant primary care trust, strategic health authority and Monitor.

I understand the concerns behind the new clause and I am very sympathetic to its aim; in principle, there is no great difference between us. However, an amendment to that effect is not necessary because the intended purpose is already covered under formal agreements that the CQC has made with Monitor and the SHAs. There is a shared view about what should happen, but I am concerned about some of the drafting problems with new clause 11. I could go into those problems, although there is no great difference between us on what the hon. Member for Eddisbury wants to happen and the various levels of contact.

The CQC can carry out an investigation when it has evidence that suggests a serious problem, which may be putting patients at risk. Under the 2008 Act, it also has new, more powerful enforcement powers, which it will be able to use to tackle serious service failings, such as those in the Mid Staffordshire NHS Foundation Trust. The CQC always informs SHAs when an investigation is carried out. That is clearly set out in a memorandum of understanding that has been signed by the CQC and the SHAs. In almost all cases, the CQC would also question the relevant SHA and PCT as part of its investigation. It would therefore be well aware of what was going on.

The CQC also informs Monitor of an investigation involving NHS foundation trusts. Section 70 of the 2008 Act places a duty on the two regulators to work together. A legal duty therefore already exists. A memorandum of understanding between the two regulators states that, in carrying out their regulatory functions, the CQC and Monitor will inform each other as soon as reasonably possible of any matters that may require action or a response from the other. That includes notification in advance where that is appropriate. Therefore, in the case of investigations, the formal agreements that the CQC has in place with the SHAs and Monitor would provide for the notification that the amendment seeks to achieve. We know from experience that the CQC will also publicly announce any new investigation, and will involve all key stakeholders. I hope that that reassures the hon. Member for Eddisbury that we do not have a big difference in principle. We have already achieved what he and I would like through the agreements that have been made and the legal duty to co-operate in the 2008 Act, which is in place. I therefore do not believe that we need new clause 11.

Amendment 25 seeks to correct a minor drafting error in clause 18(8)(b), which lists orders that are not subject to any statutory procedure. The other orders made in connection with trust special administrators are not subject to any statutory procedure and an order made under subsection (5) of proposed new section 65L should also have been included in the list. That makes the drafting consistent with the Government’s original intention, which was approved by the House of Lords Committee on Delegated Powers and Regulatory Reform.

Foundation trust status and its regulatory framework have brought significant benefits for patients. We want to continue and enhance those benefits, and to encourage more movement towards foundation trusts. However, the Government new clause and amendments will fill an important gap in the current regulations, to enable some of the issues that arose in the wake of the Mid Staffordshire debacle to be dealt with by Monitor and, in due course if necessary, by the Secretary of State. They also ensure that we can help to protect patients on the very rare occasions when a foundation trust fails its local population.

In addition to addressing Government new clause 12 and speaking to their amendments, I shall address new clause 11, which was tabled by my hon. Friend the Member for Hemel Hempstead (Mike Penning) and I.

Before I address the substantive points, I want to place on record how disappointed I am that the Government have seen fit to make this serious group of changes to the Bill at this very late stage. They are introducing three new areas to what is already a portmanteau Bill. There is little reason why the measures could not have been introduced in Committee. I am sure that the whole House, particularly Back Benchers, will be disappointed that the debates that they wished to have are being squeezed by the Government’s last-minute legislating.

Government new clause 12 introduces five new sections to the four clause part of the National Health Service Act 2006 that deals with failing NHS foundation trusts, as we have just heard. The new sections give Monitor the power to give the Secretary of State a notice recommending de-authorisation on the following grounds:

“the health and safety of patients…the quality of the provision by the trust of goods and services…the financial position of the trust”


“the way it is being run”.

The measures give the Secretary of State the power to de-authorise within five working days of such a notice being received, and the power to recommend to Monitor that it give a notice recommending de-authorisation. If Monitor does not give such a notice, the Secretary of State will have the power to ask it to provide a written report as to why not. The other measures are consequential amendments.

The reason for the changes, as was made clear in the Secretary of State’s letter to the shadow Secretary of State, my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), is the Government’s somewhat less-than-adequate response to the tragic events at Mid Staffordshire. Indeed, that response was, in part, the result of the absence of a transparent failure regime, which was promised in 2003 but is still not forthcoming.

As it happens, as shadow Minister for the Potteries as well as a shadow Health Minister—Stafford is of key interest to all people in Staffordshire, and above all to everyone in Stafford—I have been closely involved with events since the damning report into the hospital, as have my hon. Friend and the Leader of the Opposition. We must remember that at the heart of the issue is the avoidable deaths of up to 1,200 people. Each of those deaths leaves family and friends with a heavy burden of grief, which is only intensified by the serious questions that need answering. Furthermore, the deaths can only be indicative that many hundreds more patients did not receive the treatment that they deserved and that they rightly expect in our NHS. Before going any further, therefore, we must take a moment to remember all those who have suffered and those who continue to suffer because of the failings at the Mid Staffordshire trust.

Although that need not be a party political matter, sadly there is a choice. The Government are unwilling to have the bright glare of a full public inquiry shine on that appalling scandal, and I pay tribute to my hon. Friends the Members for Stone (Mr. Cash) and for South Staffordshire (Sir Patrick Cormack) and to our party’s candidate for Stafford, Jeremy Lefroy, who have campaigned hard for a public inquiry. The Conservatives supported such an inquiry and continue to do so, but the Labour party, including the hon. Member for Stafford (Mr. Kidney), who is now a Minister, opposed it. Jeremy Lefroy has worked hard, along with Cure the NHS, a coalition of deeply concerned people, to call the Government and local bodies to account.

Under existing legislation, the Secretary of State can by order transfer the property and liabilities of the trust back to himself, among other bodies, so there is already a process of de-authorisation. The Secretary of State’s hubris lies in one sentence of his letter on the amendments, which states:

“Whilst we have a rigorous system of authorisation, we have no corresponding process to de-authorise.”

Could this set of late amendments be a cloak to cover the embarrassment of the Secretary of State and Ministers? Is it, at best, window dressing or, at worst, an attempt to shut the stable door after the horse has bolted? To decide whether the new clause has any merit, we have to examine not only the effect, but the motives that lie behind it.

The simple fact is that the problems at Mid Staffordshire were not the result of a failure by Monitor or, in fairness, by the Secretary of State in his informal oversight of the trust. They were almost entirely due to existing problems in the trust that were ignored during the so-called “rigorous system of authorisation” and the flawed policies of the Government that put targets and bureaucracy before professionals and patient care. The Minister may have quoted the findings of the Colin-Thomé and Alberti reports, but, as has been shown in this Chamber and elsewhere, those reports are both flawed. Neither is independent of a civil service that has seen the chief executive of the Shropshire and Staffordshire strategic health authority become the chief executive of the NHS.

The subsequent chief executive of the West Midlands SHA, Cynthia Bower, has become the chief executive of the Care Quality Commission. She raised mortality rates only once in her routine briefings to the board, and only in relation to the Healthcare Commission’s announcement of its intention to investigate Mid Staffordshire in March 2008. On that occasion, she stated that

“there appeared to be nothing to indicate that anything out of the ordinary was taking place on mortality”.

Board minutes show that performance is consistently measured in terms of meeting Government targets on waiting times and finance, and that the chief executive officer’s briefings invariably focused on the latest strategy from the Department of Health. Neither report interrogates the Government’s target culture, explains why the National Patient Safety Agency failed to alert anyone at any level about the high mortality rates or addresses the impact of the cull of the independent—and thus trusted—community health councils in favour of the in-house NHS patient and public involvement forums. Nor do they scrutinise, beyond the warmest and most meaningless words, the ability of local involvement networks, or LINks, to combat such problems in future. We pressed that point, to no avail, in Committee.

Neither do the reports explore the fear culture that silenced nurses at the trust, which was almost the most unfathomable aspect of the episode for anyone who understands nurses. Neither report looked at the impact on the trust of trying to comply with the European working time directive nor examined the role that practice-based commissioning, a flagship Government policy, played in divorcing GPs from the secondary care that their patients were receiving.

Most worryingly, neither report explained why the trust got through the so-called rigorous authorisation process. The House will know that the Secretary of State alone can authorise a foundation trust. He takes advice from the applications committee, but he is not obliged to follow its advice. However, the Secretary of State’s predecessor has not apologised for the decision in this case, or explained where the process went wrong.

There are other, potentially suspect, motives. The response to the consultation states that

“some concerns were raised about the use of a public confidence test when the Secretary of State is deciding whether to request interventions. Monitor does not believe the test is appropriate, feeling it risks dragging the Secretary of State into any situation with media interest. Others are concerned that this could risk intervention being based on media perception rather than evidence.”

This is not the first time that we have seen the Government make public relations the prime motive for policy. Within this Bill, the regulatory impact assessment on trust special administrators lists in its summary that the first key non-monetised benefit is “maintaining public confidence”, and suggests that a public perception that nothing was being done could be damaging to the organisation. The first considered monetised cost is, tellingly, “public perception/media handling”.

Why is the new clause flawed?

I see some merit in some of the points that the hon. Gentleman makes, but I do not understand why he seeks to exonerate Monitor from criticism. It was entirely concerned about finance, not about the standard of patient care.

I am grateful to the right hon. Gentleman for that, because my answer to his point enables me to say, first, that I am not aware of any evidence that Monitor was informed by the Care Quality Commission and, secondly, that our argument is that Monitor should be strengthened. That would have enabled it, had it been told, to take appropriate action. Despite the denial, in terms, in the Secretary of State’s letter, our concern is that what may lie behind the new clause and the Government’s amendments is a cooling-off of their enthusiasm for the foundation trust model and its independence. We therefore want to ensure that that is made clear, although I suspect that that might be more welcome to the right hon. Gentleman than to those on his Front Bench.

There has been a good deal of discussion about the Mid Staffordshire NHS Foundation Trust, although I do not intend to go down that route now. However, in the context of the points made about Monitor, does my hon. Friend accept that some of us believe—I have said this in a reply to a letter that I received from the Minister—that although there is a case in certain circumstances for the Secretary of State to put pressure on Monitor, there are also occasions on which he should completely override it and take the powers to himself to take the necessary action to disband a trust? That may not be what my hon. Friend wants me to say—I am not sure.

What my hon. Friend is seeking, from those on both sides of the House, as well as from all those who have any responsibility for ensuring that the architecture is robust enough to deal with the sort of problems that arose so tragically for his constituents, is that there should be an ability, with information and evidence, for early intervention and then immediate action, which would enable somebody to have the powers to get the thing under control before it is too late. That must ultimately be the lesson. The question therefore must be: what is the best architecture for achieving that? Towards the end of my contribution I will say why we have proposed our new clause 11, which may help my hon. Friend to understand why we have proposed what we have proposed.

I want to be clear about the hon. Gentleman’s answer to the hon. Member for Stone (Mr. Cash). Does he believe that if the situation was very serious, there should at some stage be the ability for de-authorisation, so that the Minister could intervene and take control in order to deal with the problems that had arisen?

We have been clear about the position, which is that if there is a serious failure, there must be the ability to make an early intervention. Broadly, in our view Monitor ought to be the body that can put in new management quickly and take the necessary powers, but under the Government’s approach, Monitor has ultimately been a financial regulator rather than the overall regulator. That is why we have urged the Government to increase Monitor’s powers, which would give it the retained independence.

Let me move on. The Government’s proposal has compromised the independence of foundation trusts and given the Secretary of State more incentive to meddle in them and potentially to play politics with them and the NHS. As even the response to the consultation document admits, Monitor expressed concern that, as framed, the proposals in the document did not adequately reflect the principles of Monitor’s independence or of transparency. In addition, foundation trusts disagreed or strongly disagreed with the proposal, arguing that the process of de-authorisation would be detrimental to patients, staff and visitors. Some FTs questioned what the removal of FT status would achieve, considering the existing mechanisms to turn around hospital performance.

As an aside, in the rushing through of the legislation, it has not been possible to see the responses to the consultation, only the Government’s collation of them, which does not aid transparency. We have to ask: what have they left out? We are entitled to know.

We could ask why the Secretary of State is pushing what some have described as reactionary legislation. What is clear is that it does not appear to be about patient care. That is why the shadow Secretary of State said that there was a big question mark over wanting to bring everything back under the Department of Health, as though it might be any better than Monitor at doing something about such problems or anything else that might have been proposed, because the only direct parallel from which we can draw evidence of a similar situation is Maidstone and Tunbridge Wells NHS Trust. Despite what the Minister said, the Department did nothing when the trust came under its gaze. There is therefore a real absence of confidence that the Department stands any chance of being any better at dealing with the processes. The question therefore has to be how we strengthen Monitor and the other processes.

The impetus behind the new clause is clear from its wording, which includes phrases such as

“the regulator must consider these matters (among others)…the way it”—

the trust—“is being run” and

“the Secretary of State may request the regulator in writing to consider exercising its power to give a notice”.

The new clause reads very much as though it has been written not by a lawyer, but by somebody who has PR concerns in mind. We need to be very careful about that.

I have listened with great care to what the hon. Gentleman has said, but I am still not sure what the answer is to the question that the hon. Member for Stone and I have asked. Is there no circumstance in which de-authorisation should take place and the Minister should be able to intervene? If so, there would be a complete absence of parliamentary accountability even in the most extreme cases. Is that the hon. Gentleman’s position?

I am very concerned that the Minister is framing his question on the premise that we can allow things to get as far as failure. If there is failure, there is already, as I have described, a de-authorisation process in place because there are already powers to distribute the assets and liabilities. The whole point is to bring about early intervention to prevent the circumstances at Maidstone and Tunbridge Wells and at Mid Staffordshire from arising and to ensure that we can put new management in quickly and early in the process, instead of having to wait until there has been a failure. At that point, all that one will be doing is looking at the past, rather than taking the early action that is required to address the problems. That is why my party has made an alternative proposal.

The problems that manifested themselves at Mid Staffordshire will be solved only by stripping distorting targets out of our NHS, bringing back a strong patient voice that can speak truth to power and strengthening commissioning at the local level. The Conservative party has pledged to do all that—indeed, we pledged two years ago to do so. By using the wrong sledgehammer to crack the wrong nut, the Secretary of State has shown that he does not have what it takes to do the right thing by our NHS, the professionals and patients in it, and the people of Stafford.

We therefore offer new clause 11. I was grateful to the Minister for saying that he broadly welcomed it, that he understood what lay behind it and that it was a fair attempt to ensure that we had in place something on which we could agree. It would ensure that Monitor and local commissioners and authorities had early notification of any special investigations that the Care Quality Commission was undertaking, including into foundation trusts, so that speedy action could be taken where necessary, and that includes replacing the management.

That is the first part of the answer. The Minister keeps trying to drive the idea that the Government have the only concept in town and that they have a full de-authorisation procedure, but they have not proved that they have a rigorous enough authorisation procedure—if they had, Mid Staffordshire would not have got through the process. Moreover, a de-authorisation process assumes that something has to have failed, but we propose that we should get in early enough to prevent things from going wrong in the first place.

The answer must be to strengthen Monitor, which has been one of the most effective regulators, not to divert power from it. However, the real problems would be very much helped by having something along the lines of the autonomy and accountability Bill that we have placed on the table and asked the Government to take up. We have offered it to the Government countless times, and with the Queen’s Speech coming up, they will perhaps take this last opportunity to do the right thing. On that basis, I commend new clause 11, but my colleagues and I are not persuaded that the Government have made their case on new clause 12.

I will be fairly brief. To sum up, I have no problem with the general aim of the new clause, but I have some regrets about the lack of time to look at it properly to check whether it does what it says on the tin. However, I appreciate that the timing of the consultation meant that it was not possible to introduce anything any earlier.

Some of the criteria appear to have been plucked out of the air and the Secretary of State appears to have some wide-ranging powers to hire and fire, but I am not clear whether those are different from the powers currently in place. There is also the question of whether 14 days is the optimum length of time for Monitor or any alternative regulator to provide sufficient good-quality information.

The consultation originally proposed seven calendar days. As the hon. Member for Eddisbury (Mr. O'Brien) pointed out, we have seen only the edited highlights of the consultation, but the document itself said that the majority of respondents favoured a longer time. There is some flexibility, as the Minister acknowledged that the time scale could be extended, but according to the consultation document a number of people suggested having a short period for the initial response and a longer back-up period if more detail were required. The actual length of time is not specified, so the concern is that this must be got right—otherwise, there will be a tendency to keep kicking the issues into the long grass. I would like an assurance that that cannot happen.

The main gap that is still to be plugged has been mentioned. Tempting as it is to kick around the Staffordshire football again, we have a great deal of business to get through, so let me make just one point here. Mid Staffordshire was given foundation trust status, so there is either something wrong with the process that awarded that status, given what we know was going on in the background, or something wrong with Monitor.

The hon. Lady was on the Committee that looked at the Mid Staffordshire issues in one, albeit too short, sitting. Does she recall that Mr. Bill Moyes took part in the final meeting when trust status was being conferred? Forty-nine questions were put at the meeting, and I think I am right in saying that 38 of his own criteria, laid down as chairman of the meeting, were on finance and governance and not about patient care. That is the key problem. The hon. Lady is right on her first point.

I thank the hon. Gentleman for that intervention, which relates to my next point. The process of awarding foundation trust status or the old three-star ratings seems to be based on financial information. I never thought that I would regard my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris) as a soothsayer, but I did when I looked back at what was said when we debated the Bill that created foundation trusts. My hon. Friend asked the then Minister, the right hon. Member for Barrow and Furness (Mr. Hutton):

“What does the Secretary of State do when a hospital with a three-star or two-star rating is subject to a scandal”?—[Official Report, 7 May 2003; Vol. 404, c. 730.]

Unfortunately, the Minister was very unhelpful in his summing up and he seemed to think that my hon. Friend was speaking complete rubbish. It is easy to dismiss remarks, buy my hon. Friend was obviously making very prescient comments.

It has been clear throughout—the current Secretary of State for Health was, I think, on the Health Committee at the time—that the three-star trusts usually gain that status because of financial issues. If finance is put alongside quality ratings, there is often a mismatch. I agree entirely with all those who have said in today’s short debate that quality is being sacrificed at the altar of financial probity. We cannot separate the two, because quality is something that should not be allowed to drop under any circumstances. My original question about whether the process or Monitor were at fault remains pertinent, as there has clearly been a lack of liaison and a lack of attention to aspects other than financial ones.

The Liberal Democrats will not oppose new clause 12. Although there is some regret about the fact that it has appeared so late in the day, I think that ultimately it is a good thing. It will allow more transparency and make decision making more accountable, and that can only be good.

The hon. Member for Cannock Chase (Dr. Wright) is having to chair a meeting of a Committee of the House, which is why he is not present now. He did intervene briefly earlier.

I must make it plain that since 1997, fewer of my constituents have gone to Mid Staffordshire hospital than before. Before the new Stafford constituency was created in 1997, when I represented the whole of South Staffordshire, a very large number of my constituents received excellent treatment in the hospital as it was then. I echo what was said earlier by my right hon. Friend the Member for West Derbyshire (Mr. McLoughlin), our Chief Whip, who cited the excellent treatment received by his late mother before she died in that hospital.

The hon. Member for Stafford (Mr. Kidney)—I am delighted to see him on the Front Bench—my hon. Friend the Member for Stone (Mr. Cash) and the hon. Member for Cannock Chase now have far more constituents treated at Mid Staffordshire than I do, but I have nevertheless heard a number of very distressing stories. What happened at Mid Staffordshire was deplorable and inexcusable. All that concerns me in the context of this brief debate—and I will be brief—is that it must not happen again, but if by any unfortunate chance it does, there must be a mechanism to deal with the situation expeditiously.

Mid Staffordshire should never have become a foundation trust, and after it became one, it was judged according to the wrong criteria. We were taken by surprise when it was revealed just how dreadful some of the treatments had been, how shoddily managed the place had been, and what a disgrace to the national health service it was. That should not happen in a civilised country.

I am grateful to the Minister of State and the Secretary of State—as well as their predecessors—for the readiness with which they have discussed these matters with Staffordshire Members. I am grateful, too, for the keen and real interest that they have taken in these matters. I do not doubt for a moment that in presenting the House with the new clause, they are trying to ensure that a terrible disaster like the one at Mid Staffordshire does not happen again.

As I said briefly to the Minister in an intervention, what worries me is that the process that is being proposed is extremely cumbersome, and I doubt whether it can produce the sort of expeditious result that my hon. Friend the Member for Stone and I both want. I would much prefer—my hon. Friend made the same point in his intervention—a quick mechanism allowing the Secretary of State, with whom the buck always stops, to intervene very quickly. When something like the Mid Staffordshire disaster comes to light, there should be no opportunity for long discussions and debates about who does what and all the rest of it. There should be an instant opportunity for dismissal, and for taking over management before anyone else dies or is treated in the inhuman way in which, sadly, so many patients were treated at Mid Staffordshire.

When some time ago the Minister discussed with us—and the Secretary of State—his wish to introduce a mechanism to take away trust status, all of us around the table responded very positively. However, I am not entirely persuaded that the mechanism that he is proposing now will be as effective and expeditious as I would like it to be. Like him, I sincerely hope that what happened at Mid Staffordshire will never happen anywhere else, but human beings are fallible, and it could happen. If it did, I would want a lightning reaction; I would want the culprits to be got rid of, because at the end of the day all that matters is the quality of care that our constituents, wherever they live, receive in the hospital to which they have had to be taken. The tragedy of Mid Staffordshire is that the people who placed their trust in the medical care of that institution were in many cases terribly let down—not in every case, but in many, many cases. That must not happen again. One reason why people did not have too many fears was the fact that this institution bore the flagship label of a foundation trust, and yet never was any flagship holed below the waterline more often.

I just hope that the Minister can reassure me; and because this should never be a party political matter, I would like him to enter into conversations with the shadow Secretary of State and other colleagues on my party’s Front Bench to see if we can come up, even at this very late stage, with a solution that is acceptable to all of us, and one that can persuade all of us that there is indeed a remedy if disaster strikes again.

I very much agree with what my hon. Friend the Member for South Staffordshire (Sir Patrick Cormack) has just said, and I am very glad that he agreed with some of what I said in an earlier intervention. I also agree with my hon. Friend the Member for Eddisbury (Mr. O'Brien) that we want effective early intervention; I think we are all agreed on that.

I am also very happy to pay tribute to the Minister and the Secretary of State for the manner in which they have looked at this issue in Mid Staffordshire with both some of my colleagues from Staffordshire and me personally on a number of occasions. If I may say so without implying any disrespect, they have dealt with this matter far better than their predecessors; that is my frank opinion

This is a huge issue, and it is about lessons to be learned as well as what actually happened. As I said in my intervention on the hon. Member for Romsey (Sandra Gidley), I am sorry that the Select Committee gave only one sitting to these major issues—although we do now have the Francis committee. As my hon. Friend the Member for South Staffordshire said, the real problem arose in the granting of trust status in the first place, and, as I pointed out in my intervention, that was largely because the chairman of Monitor was present at that meeting and gave clear criteria. I have seen the minutes, and I have handed them over to the Minister—not that he needs me to hand them over to him—because it was astonishing that the Monitor chairman laid down criteria for finance and governance, and that was followed up by a number of questions that showed that that was the primary concern. The consequence was the Healthcare Commission report, and now what the Care Quality Commission is saying as well.

I want the current inquiry under Mr. Robert Francis to be as successful as possible, but both the Secretary of State and the Minister know that I have grave reservations about whether it can achieve its objectives. I still profoundly believe—I am glad that my hon. Friend the shadow Secretary of State is present because we both know this, as does my hon. Friend the Member for Eddisbury—that it is essential that we have a full public inquiry if the consequences of this latest inquiry under Mr. Robert Francis do not work out. This all started with a failure of Monitor, and we must have a full public inquiry if the results of this inquiry are not successful.

I must tell hon. Members that only last week I received yet another letter from a constituent—I have passed it on—about a grandfather who died in the most appalling circumstances, and that demonstrates that things are not going as well as they should in this hospital. The Secretary of State may not recall the letter immediately, but it is with him. I am profoundly concerned about merely leaving these issues to Monitor. As my hon. Friend the Member for South Staffordshire said, this is very convoluted stuff; I have no doubt that many lawyers have sat down to plough through the relative powers and functions of Monitor and the Secretary of State, and are seeking a way to get the right result, by nudging rather than by pushing or, indeed, by having things taken over. This situation would have been a lot more straightforward if we had been given a straight answer to the straight question that I have put so often: why cannot the Secretary of State take for himself powers—like special measures in schools—to override everybody in the interests of the health of our constituents?

I share my hon. Friend’s view that restoring public confidence—on the face of it, that is the Government’s intention—can now be done in Staffordshire only on the basis of an independent and public inquiry. We are committed to that. However, he must recall that the problems—the quality issues—at Stafford hospital started not with foundation status, but before that. They had started over a considerable period of time when the trust was an NHS trust under the scrutiny of the strategic health authority and the Department of Health, directly under the scrutiny of the Secretary of State. As the events at Maidstone and Tunbridge Wells told us, the Secretary of State’s direct line of sight to hospitals does not mean that the Secretary of State knows what is going on and is doing anything about it; we have seen too many instances of that.

I hear with great interest and respect what my hon. Friend says, but I must mention that in this particular case there is a connection involving Mr. David Nicholson, who was the chairman of Shropshire and Staffordshire strategic health authority at the time that is being described. Subsequent appointments followed and he moved seamlessly up through the ranks to become the chief executive of the national health service. I shall not go into some of the more recent commentary that I have seen in the newspapers, but I must repeat a point that I have made on the Floor of the House and in other contexts: the problems do go back, but the real issue is that there is insufficient power for an override. Although Monitor and a degree of regulation can be in place, swift and last resort action can best be undertaken by the Secretary of State.

I am passionate about this subject and deeply concerned about the effect it has had on my constituency. I shall bring my remarks to a close simply by saying that a lot of the problems that arise—we will see how the Francis report goes—relate to gagging clauses. This week, I have been in communication with a number of people, and I must say that gagging clauses on those who want to blow the whistle should be banned. The trouble with the Act that enables whistleblowing to take place—the Public Interest Disclosure Act 1998—is that it is not working. Gagging clauses should be banned by law; they should be made unlawful. It would be extremely helpful if the Minister could refer to that matter, because many of the problems that have accumulated result from people not coming forward. However, in the last resort the Secretary of State has to carry the can.

On the last point that the hon. Gentleman made, I should mention that I was the Minister responsible for the passing of the disclosure Bill; the hon. Member for South Staffordshire (Sir Patrick Cormack) was also involved, having many years ago promoted it. We secured an amendment—a change has now been made. It instructs chairmen of tribunals, even where there is a gagging clause or someone withdraws the complaint, that the matter has to be submitted to the regulator. I suggest that the hon. Member for Stone (Mr. Cash) contacts the relevant Minister of State at the Department for Business, Innovation and Skills to ensure that that is being applied. The reason for the provision was to try to prevent people from using gagging clauses or other mechanisms to prevent this type of information from coming out via the tribunal system.

I am extremely grateful for that intervention and I hear what the right hon. Gentleman says with great interest. I had heard of that, but great ingenuity is being used by certain trusts—not just Mid Staffordshire but other trusts of which I am aware—that are using their lawyers and their medical establishment effectively to bypass and shut out consultants—in some cases, as many as 20-odd. I am concerned about that. It is no good having good intentions in an Act if the provisions can be bypassed in the way that they are being bypassed at the moment. I would have thought that it was Monitor’s job, and that of the Secretary of State, to deal with that. Will the Minister please take note and get rid of these gagging orders, ensuring that there is no way that the gagging clauses can be used to bypass whistleblowers?

May I begin by responding to the three hon. Gentlemen who represent Staffordshire seats—in particular, I acknowledge the Under-Secretary of State for Energy and Climate Change, my hon. Friend the Member for Stafford (Mr. Kidney), who has been present during this debate? The contributions that we have had from Staffordshire Members have been excellent and have reflected the enormous local concern about Mid Staffordshire. I appreciate and am grateful for the kind comments of several Opposition Members about the way in which the Secretary of State and I have dealt with these matters.

We need to ensure that the deplorable and inexcusable situation, as it was described by the hon. Member for South Staffordshire (Sir Patrick Cormack), does not arise again. We need to ensure that the Care Quality Commission, which is an organisation that has recently been set up, has the power to look at trusts. We also need to ensure that Monitor is much more aware than it has been in the past of the problems that might arise with regard to various foundation trusts and that we have a process that will enable Monitor to de-authorise.

The hon. Member for South Staffordshire asked whether the process was fast enough. The time scale is 14 days. A number of parties are involved and we think that it is right that they should be able to express a view and that an investigation should be conducted. The process looks more cumbersome in legislation than it would be in practice. Our aim is that this should be a fairly brisk process and that everyone should know publicly what the time scale is. The Secretary of State should publicly make a request and there should publicly be a response within 14 days. There is potential to extend that time frame if necessary and if investigations need to be conducted for a longer period. I hope that I can reassure the hon. Gentleman that we recognise the need for expedition and would seek to ensure that we can deal with matters as quickly as is reasonably possible.

The hon. Members for Stone (Mr. Cash) and for South Staffordshire both want the Secretary of State to be able to intervene much faster. There seems to be a difference in opinion from those on their Front Bench. I can detect no wish from their Front Benchers for the Secretary of State to take the powers to intervene. The Front-Bench view seems to be that this should be dealt with by Monitor. That seems to me to be a difficult position for them to take, because the amendments give Monitor the power to de-authorise.

I was struck during the speech made by the hon. Member for Eddisbury (Mr. O’Brien) by the fact that he seemed to think that the insolvency regime—an entirely different regime that has nothing to do with problems such as those that we faced with Mid Staffordshire—somehow already provides powers. It does not. It does not provide powers to intervene. As Ministers, we were not able to intervene. Monitor was. It has extensive powers but the problem was that in this case there was an issue with the way that it was dealt with. Public confidence was not restored by bringing in a full-time chief executive quickly—

I hear rumbles from a sedentary position as the hon. Gentleman asks why no one asked Monitor to do it. There were considerable discussions between us and Monitor, which led to the appointment of the new full-time chief executive. Those discussions went very well. Monitor listened to the points of view that were expressed through Government and Opposition Back Benchers who represent the area, and who said, “Look, we need more action.” At that stage, Monitor thought that it was all right, but it accepted after discussion that it needed to act more effectively, and I am pleased that it could do so.

May I deal with the points made by the hon. Member for Romsey (Sandra Gidley)? Lessons need to be learned, and she rightly suggested that in future Monitor needs to assess problems properly if there is a foundation trust application. She wondered, too, whether 14 days was the right period. If we have discussions with Monitor, we can extend that period if a longer investigation needs to be conducted, so I hope that I can reassure her on that matter. She rightly expressed concern about the timing of some of this, but the long vacation intervened and various other processes meant that we had to act and we were able to undertake a full, proper consultation.

May I respond to the points made by the hon. Member for Eddisbury (Mr. O'Brien)? First, George Alberti and Dr. David Colin-Thomé conducted investigations and there are reports on this. Robert Francis is producing a report, which we hope will enable us to look at the more local issues. We need a rigorous process, and with the various reports that have been produced, we have covered it. The hon. Member Eddisbury appears to have no real wish for the Minister to be able to intervene, even in the most dramatic circumstances, which is not a tenable position for those on the Opposition Front-Bench to take. It is very much at odds with that taken by the Staffordshire MPs, who want to see a circumstance, at least in extremis, in which Ministers can intervene and take action.

I am concerned about the position that the Conservative Front-Bench team have managed to take, which is at odds with the way in which most people would want cases such as the situation in Mid Staffordshire to be dealt with. It undermines, too, in an extreme situation the whole principle of parliamentary accountability. Ministers must be able to come to the Dispatch Box and say that they would take the required action if they needed to do so. Monitor can make a decision in such cases to de-authorise where necessary. To refuse Monitor that power would mean that Members of Parliament would not have the level of accountability that they needed, but that seems to be the position that the Conservatives—at least, their Front-Bench team—have taken. I am glad to see the Staffordshire Members in the Chamber, because Members from all parties share the view that we need a much more effective legal system in place to deal with such situations in future.

Question put, That the clause be read a Second time.

New clause 12 read a Second time, and added to the Bill.

New Clause 13

Private patient income of mental health foundation trusts

‘(1) Section 44 of the National Health Service Act 2006 (c. 41) (private health care) is amended as follows.

(2) In subsection (2)—

(a) after “not greater than” insert “— (a)”;

(b) at the end insert “, or

(b) in the case of a mental health foundation trust designated under subsection (2A), that proportion or 1.5% if greater.”

(3) After subsection (2) insert—

“(2A) An authorisation of an NHS foundation trust which was an NHS trust must designate it as a mental health foundation trust for the purposes of this section if it appears to the regulator that it provides goods or services only or mainly for the prevention, diagnosis or treatment of any disorder or disability of the mind or for the benefit in any other way of people suffering from a disorder or disability of the mind.”’.—(Mr. Mike O'Brien.)

Brought up, and read the First time.

With this it will be convenient to discuss new clause 10—Private health care—

‘(1) The National Health Service Act 2006 (c. 41) is amended as follows.

(2) In section 44 (private health care), after subsection (4) insert—

“(4A) The Secretary of State may by regulations make provision for exceptions to be permitted to the restriction mentioned in subsection (2) subject to the principle that any such exception must in all the circumstances be in the interests of the National Health Service.

(4B) The regulations may specify such other principles and conditions as the Secretary of State may consider appropriate.”’.

Somewhere or other, hon. Members may well have heard me do so, as the hon. Gentleman says from a sedentary position.

The aim of the new clause is to enable a designated mental health NHS foundation trust to earn up to 1.5 per cent. of its total income from income that it derives from private charges. The clause also contains a definition of mental health foundation trust for this purpose.

In the course of the Bill’s passage through the House, we have had several debates on the private patient cap. That debate was, I understand, reflected in the other place, too. The Government recognise the various concerns that have been set out, both here and in the other place, about the issue. We understand some of the frustrations that have been expressed. However, securing a consensus on an alternative approach is not easy. People have differing views about the private patient cap. Some say that there should not be one, some say it should be at zero, and there are a variety of views in between. We take the view that the way the system operates now is not the way we want to see it operate. It is not fair. We concede that argument immediately.

There is a strong case for reform, but let me be clear: the Government are committed to maintaining and strengthening the protection of NHS services for NHS patients first, while allowing NHS foundation trusts a degree of flexibility to operate effectively in the best interests of patients and communities, and in the context of evolving health policies. The Government are committed also to a full review of the patient cap—based upon those principles. We want to ensure that any private money that goes into the health service is directed in the best interests of the patients and the NHS as a whole.

Evidently, reforming the rules so that they are fair, logical and work well is far from straightforward, and opinion about how the cap should be reformed is, as I have said, very divided. Any new approach should therefore be developed in partnership with the NHS and other key stakeholders to ensure that it is pragmatic, workable and achieves our fundamental purpose without any unintended consequences.

The Government are already committed to a full review of the cap, following the conclusion of the judicial review of the current legislation. However, I can confirm today that we will bring forward that review process to start as soon as possible, within a month. It will begin with a call to the NHS and other key stakeholders for evidence to inform the review, and it will seek feedback by January. To review the policy effectively, we will approach our stakeholders throughout the NHS—the people who operate by the current rules and who would put any future new arrangement into practice. Our aim, therefore, is to undertake a very fast review, to give people the opportunity to put in their various submissions and to look to come to a conclusion early in the new year. We expect that the policy review will begin in the new year and report to Ministers in the spring. By having a meaningful and considered review, the Government will be able to undertake a consultation on options for the best and most appropriate solution that we can act upon at the earliest available opportunity.

Some Members of this House and of the other place will be keen to see action sooner, and I understand that view. We are committed to reforming the rules, but equally we cannot risk a repeat of the situation with the existing legislation, whereby we introduce new legislation without, first, a proper and full engagement with the NHS as a whole.

After various discussions on a previous occasion, a compromise was reached. At the time it looked like a relatively fair compromise, and perhaps it was, at the time, but it subsequently developed a number of anomalies that spread, and now the compromise is not working in a way that anyone would regard as entirely satisfactory.

Our debates here and in the other place have highlighted a specific and immediate concern, however, for mental health NHS foundation trusts—all of which for historical reasons have a 0 per cent. cap. They have no ability to access any private income at all, and they have no flexibility to earn private income and thereby support their NHS service users.

We have received representations about how 0 per cent. caps constrain the ability of trusts to develop a broader range of innovative services and to support key facets of Government policy on health and well-being—for example, by providing specialist help for back-to-work schemes or employees at risk of mental ill health. Some mental health foundation trusts might want to work with private services that aid employees in private sector organisations, or help people who want to get back to work. Such a trust is currently able to provide assistance and medical advice, but not to accept any remuneration for doing so. That work could, however, be in the interests of its recipients and in the long-term interests of the NHS, because it could help with some of the mental health problems in society as a whole. If we allow some private income to be earned, we may be able to find ways for mental health trusts to do much more with the private sector. The current situation denies trusts the opportunity to enhance care to their NHS service users, and that concerns us.

The measure is therefore an attempt not to move the private sector artificially into the NHS, but to ensure that the NHS is able to earn private income to provide services to parts of the private and voluntary sectors, to work with other Departments and to ensure that we work with those private sector organisations with which other Departments work. The situation was not anticipated when the Health and Social Care (Community Health and Standards) Act 2003 was put in place, but, pending the review of the cap for all NHS foundation trusts, the new clause will establish an interim solution. If we enable a cap of 1.5 per cent. for those trusts, high-performing providers of NHS mental health provision will have room to innovate and to support the development of further high-quality services for the NHS.

I stress that today’s proposal is an interim measure. Our review of the cap will seek to address the wide variation in cap levels that exists between NHS foundation trusts, and to establish a uniform test or set of principles that can apply equally to all NHS foundation trusts. Let me be clear: today’s new clause applies only to mental health foundation trusts and those that become such trusts in the interim. As part of a wider review, we will look more broadly at the way in which the whole foundation trust area would operate, the range of private caps and how they ought to be reformed to bring about a much fairer situation.

We agree that private patient activity should be used to improve the service for NHS patients; that private income should subsidise NHS care and, therefore, be used to improve and widen services; and that NHS foundation trusts must above all preserve and promote the values of the NHS. Our review will consider those points. In other words, private patient income should be deployed for the benefit of the NHS and NHS patients. Our aim is not that the measure be a way for NHS hospitals just to earn some private income; there will have to be a purpose, and that will have to be taken into consideration. Our review will in part consider how that has developed.

New clause 10, which was tabled by the hon. Members for Eddisbury (Mr. O'Brien) and for Hemel Hempstead (Mike Penning), would introduce a clause that was added in the other place but removed in Committee. We removed the clause because we believed that it offered the wrong solution, even though it was seen as an interim measure. Allowing exceptions only introduces further uncertainty for the NHS and will simply lead to more claims of unfairness. As I recently said, if such exemptions were allowed there would be many debates. We must try to avoid setting up a system in which we create even more unfairness.

Our view is that the Conservative proposals would lead to greater unfairness. An exemption-based proposal would not remove the cap’s underlying rule for the vast majority of NHS foundation trusts—that their private income should be restricted to levels set in 2002-03. A level playing field would not be fundamentally achieved at all; it seems to me that we would just produce greater unfairness and concern.

Any regulations created using the powers in new clause 10 are likely to provide only for a simple exemption from the cap. If the new clause were accepted, some trusts would, apparently, get an exemption from the cap. How far would they raise their private patient income? That, it would appear, would be entirely for them. I am not sure that Conservative Front Benchers are proposing such a measure, but perhaps they are—it is not clear from their new clause what they are proposing. I look forward to the contribution from the hon. Member for Eddisbury setting out what they are in fact proposing.

If the cap were entirely removed from some trusts, they would have no obligation to deploy their money for the benefit of the NHS or NHS patients, and the deployment of NHS resources to bring in private sector money could not be monitored or overseen—the Opposition new clause would, apparently, not allow that to happen at all. However, the Government’s proposals for a policy review would, I hope, pave the way for a long-lasting legislative change in the future. The Government’s new clause offers a pragmatic solution to the immediate concerns highlighted by hon. Members and those in the other place regarding NHS mental health foundation trusts, in respect of which we accept that there is an issue that needs to be dealt with now.

It is very unlikely that most mental health trusts could breach the cap, even if they tried, within the next year or 18 months; raising such income would require a very significant effort. New clause 13 gives those trusts the freedom they need. They can engage with the private sector when that is in patients’ interests, and they can ensure that they deploy effectively the resources they earn from that. Combined with the Government’s commitment to bringing about a review of the cap as soon as possible, the new clause provides a clear way forward on addressing the practical difficulties of the cap while maintaining its core principles.

New clause 13 is a welcome concession resulting from pressure put on the Government, not least by the official Opposition in both Houses. However, it does not go far enough. It amends the National Health Service Act 2006 to allow mental health trusts to get 1.5 per cent. of their income from private care. It leaves all other foundation trusts with the proportion from the base year. As the Minister said, new clause 10 is our reintroduction of the original amendment from the other place; it would allow the Secretary of State, by regulation, to allow foundation trusts an exception to the restriction on private income outlined in the 2006 Act.

With the lead from the very top, in the form of my right hon. Friend the Member for Witney (Mr. Cameron), we on the Conservative Benches are committed to our NHS as a high-quality service, free at the point of need and open to all. The public have seen and can see our commitment. I am grateful for new clause 13 because it shows that the Government recognise that private income for NHS foundation trusts does not undermine the principles of our NHS. The Minister made that point himself.

The history of the cap was best summed up by the former Labour Minister, Lord Warner, who said in another place that it was “anachronistic” and

“sops to parts of the Labour party”.

It was introduced as a concession to get foundation trusts past the Government’s reactionary Back Benchers; Lord Warner said explicitly that he repented his sins over that issue.

Limiting foundation trusts arbitrarily to the proportion of private-to-public income that they received in the base year is inequitable. The base year was 2002-03, the year before the first foundation trusts were authorised. For some foundation trusts, the limitation means 30 per cent., and for others, 5 per cent.; until now, it has meant 0 per cent. for mental health trusts. Worst of all, the limitation prevents many specialist hospitals, such as Great Ormond Street, from becoming foundation trusts.

As Labour Members know, private income for NHS foundation trusts is not about rewarding shareholders, partners or staff, but about generating income that can benefit the patients—the vast majority of them NHS patients—of the hospitals. Labour Members might not take my word for it, but this is what their own former Minister, Lord Warner, said about private income:

“it is potentially a source of income for trusts that they can use for the benefit of NHS patients”—[Official Report, House of Lords, 6 May 2009; Vol. 710, c. 656.]

On Third Reading, he went on:

“We are moving into a financial climate where the NHS...will need every penny that it can get to meet public expectations”—[Official Report, House of Lords, 12 May 2009; Vol. 710, c. 936.]

The limitation also impacts adversely on UK plc, hampering our provision of health care to non-UK residents, and on our research base, which is dependent on funding.

The hon. Gentleman appears to endorse Lord Warner’s position that the money derived from private patient income should be deployed in the interests of the NHS and NHS patients. Does he in fact endorse it?

That is the whole point of involving private income. As the Minister would be the first to admit, to some degree the issue is a matter for the foundation trusts. As he knows, under the current arrangements for private patient income, those who are not necessarily NHS patients are being treated in NHS facilities. The answer is not as black and white as the Minister might wish it to be, but I have given the right answer even according to his Government’s policies. I have simply recycled for the right hon. and learned Gentleman what is going on under his policies.

I am one of the reactionary elements in the Labour party who opposed the measure—and I am proud of it. Does the hon. Gentleman not agree that the only justification for private income in these circumstances is if it is net private income, and if treating such patients costs the national health service less than the income that it receives? Is it not true that for many years under a previous Tory Government, treating private patients was a net loss to the national health service?

I suspect that the right hon. Gentleman is drawing on questionable figures—and, possibly, prejudice. I do not have anything immediately to hand that would enable me to counter him. His first point is, effectively, correct: it would only make sense for the governing body of a foundation trust to make sure that the organisation made a net gain. That would be the incentive in any event.

Private income can also be used to make new services viable. A foundation trust might want to open what would need to be a 20-bed maternity unit, but public demand might, for example, fill only 15 beds while private demand might fill five. With the cap in place, that foundation trust could not set up the unit. The trust might want to build a new hospital, offer laser dermatology or provide another technology such as new cancer care services, but with the cap in place, it could not. The trust might also want to buy out private providers—that should get a cheer from Labour Members. However, with the cap in place, it could not.

The real question, which should be in the minds of Labour Members and of the whole House, is what proportion of a foundation hospital’s income may be from private work before NHS patient care begins to suffer. That is the question posed by the self-declared reactionary, the right hon. Member for Holborn and St. Pancras (Frank Dobson). When the issue is put in those terms, it is clear that no one here can answer the question precisely; in many ways, the question is a false correlative. There is no absolute point at which NHS patient care suffers. The suitable balance of public and private work clearly varies from hospital to hospital, which is why taking the base year is arbitrary and unjustified. Furthermore, there is a raft of other ways in which foundation trusts are kept accountable so that they are not short-changing NHS patients for private work: through Monitor, terms of authorisation, the mandatory services schedule, contract variations with PCTs, boards of governors on significant decisions, asset-disposal locks and consultation.

The problem with new clause 13 is that it retains the arbitrary nature at the heart of the problem, and limits the raising of the cap to mental health trusts only. Why has the Minister chosen 1.5 per cent. when some hospitals get as much as 30 per cent. and many as much as 5 per cent.? For mental health trusts, the figure was nil, so 1.5 per cent. is of course an improvement. However, if, as I would argue, one were to apply the principle across the board to include children’s hospitals such as Great Ormond Street, it would be vital to recognise that 1.5 per cent. is no less arbitrary than the other number that has been picked, and the hospital should receive recognition for what it is achieving. Can the Minister clarify where in legislation a mental health foundation trust is defined, because that has been difficult to find for registration purposes?

By failing to address the vagaries of the cap across the rest of the foundation trust sector, the Minister has committed to preserving the unfairness. As a result, the amendment is confused. Why is he not lifting the cap on Great Ormond Street? Is he saying that the care of people with mental illness is more important than the care of children? I hope not, and I do not believe so. By preserving the unfairness, the amendment fails to deal with the problem even-handedly and lets down some of the most needy patients in our NHS. We are therefore minded not to support it, but we cannot put at risk the small benefit to mental health trusts. Therefore, with all that on the record, we will abstain.

It is interesting to note, as a matter of process more than anything else, that the Minister said that the pursuance of a judicial review of Monitor’s permissive interpretation of the legislation—ignoring, for instance, income from joint ventures and arm’s length companies—was a reason not to do anything about the issue in Committee. We are now dealing with the remaining stages of the Bill on its final day in this place, and that judicial review has not yet been concluded. Why is the Minister bringing this measure forward now, whereas previously the review was an excuse for not doing so? I hope that he will give us a justification for that.

Before I sit down, it is my pleasure and privilege to welcome the new hon. Member for Norwich, North (Chloe Smith) to her first debate.

Most of my comments have already been outlined by the hon. Member for Eddisbury (Mr. O'Brien), so I will be brief. As he said, in the other place the Opposition inserted a clause to enable the Secretary of State to make exceptions to the private patient income cap for foundation trusts. The Conservative amendment seeks to reintroduce that measure, and had it been put to a vote we would have supported it. It is a shame that the Government removed the clause in Committee, but the reasons for that have been outlined, and at least we got a commitment to a review, which I welcome. The Minister outlined the process, but it would be helpful if he could be a little clearer about the time scales involved, because this could be one of those things that is kicked into the long grass and forgotten about once the impetus of the Bill is no longer with us.

I welcome new clause 13 in some ways, because it helps mental health trusts, which are completely hamstrung at the moment. Many of them, including my local trust, have innovative ideas about things they want to do and services they want to provide that are add-ons rather than taking anything away from existing NHS patients. However, what puzzles me is why the amendment applies only to mental health trusts: why not have a wholesale move to a minimum of 1.5 per cent., or whichever was the rate at transfer? A small number of foundation trusts have a cap of less than 1.5 per cent., and they will be feeling aggrieved that they are missing out—that they have seen others gain something that will enable them to provide new services while they are still stuck in the same shackles. Why did the Minister not take the opportunity to be a little bolder and introduce a level playing field of a 1.5 per cent. minimum for everybody whose cap was beneath that? Was it simpler to take this measure only for mental health trusts, or was there a reason why it could not be done for the other foundation trusts? I share the sentiments expressed by the hon. Member for Eddisbury, in that I would not want mental health trusts to lose out, but it is a shame that an opportunity has been missed.

Let me first deal with a couple of the points raised by the hon. Member for Eddisbury (Mr. O'Brien). I thank him for his indication that Conservative Front Benchers will abstain on this measure. We accept that this is an interim solution. We acknowledge that there are problems and unfairnesses in the way that the cap currently works, with some trusts able to have large amounts of private income and others seriously restricted.

However, it was clear that in the area of mental health there was a major problem that was interfering with the development of public policy, encouraging trusts to engage with other providers to ensure that mental health issues were better addressed. I do not dispute that areas within acute trusts and other parts of the NHS have problems, but given the strong level of concern on both sides of the argument, and the fact that there was clearly a level of unfairness in the current system, we needed a proper engagement with this. It would have been easy to come up with an across-the-board solution, but the end effect would probably have been the creation of as many anomalies as we had solved. We took the view that there was clearly an issue with mental health trusts and that we could justify 1.5 per cent. on the basis that it was unlikely, given the sheer scale of the engagement, that most mental health trusts would be able to develop, within a year or 18 months, the level of private sector income that would hit that cap.

We are looking to have a review within a relatively short time; I have just announced that I have brought it forward. We want to resolve the policy clearly with as much of a consensus as is likely to be possible. I say that knowing that there are people with very strong, well-argued, coherent views, and those who have views of a similar kind on the other side of the argument. We need to ensure that there is an ability to work through the iterative process so that the debate comes to as much of an understanding and resolution as possible.

We also need to add to the equation the question of the purpose of such private income. Is it for the benefit of the NHS and wider health care, or does it just bring in some extra money which some boards may well feel it would be nice to have? We must have a clear view about that. As part of the review, I am seeking to flag up the fact that private patient income must be used for a purpose. I do not want it to be a long review—it should be fairly brisk so that in the spring we can come out with a clear view of the outcome of this debate.

Many people are concerned that we could go back to the old days when private patients seemed effectively to be subsidised by the NHS. Will the review include mechanisms to ensure that the full costs of any in-house private patients are recovered and charged properly, so that we do not have such subsidising of the private health care system again?

The hon. Lady makes a very good point. We do not want private patients to be significantly subsidised by NHS taxpayers. The aim is to ensure that we make a proper examination of the issue and come up with a set of principles that we can apply to foundation trusts, and perhaps the whole NHS, so that there is a clear view of what the objectives are. We do not want to restrict innovation, and it is important that we have the ability to develop new ways of providing services and looking after public health in general, both mental and otherwise. We therefore need to consider how the matter should be developed.

My point is a combination of what the hon. Member for Romsey (Sandra Gidley) asked and what the Minister said in reply to her. The quicker the process by which the full range of tariff implementation can take place, the better it can assist us, because that will set out much of what we need to establish to ensure that there is not inappropriate cross-subsidy. People will be well aware of what the true cost is, so they can be sure that there are mechanisms in place for that.

That is a fair point, and I acknowledge that we will need to consider tariffs and how services are provided and should be developed in future.

I was asked a couple of questions. The hon. Member for Romsey (Sandra Gidley) asked about the process that will take place. The timetable is that the call for evidence will begin within the next month, and the Department will seek feedback by the end of the year. A policy review will begin in the new year, which we expect to report to Ministers in the spring, and a formal Government consultation presenting the options for the most appropriate solution will then be brought forward. In due course, it will be for those dealing with the matter to bring forward legislation, and I look forward to doing so.

The hon. Member for Eddisbury asked me about the lack of a definition of a mental health foundation trust. He said that he had looked for it, but it is actually in the new clause. He is right that there is not a proper definition elsewhere, so we have included it in the new clause. I hope that he will see that a trust is included if

“it appears to the regulator that it provides goods or services only or mainly for the prevention, diagnosis or treatment of any disorder or disability of the mind or for the benefit in any other way of people suffering from a disorder or disability of the mind.”

That is the definition that he seeks.

The hon. Gentleman asked about the judicial review. Our view was that it would be better to delay our review of the matter until after we had seen the view expressed by the courts. However, lawyers consider such things with a degree of care, and I have done so and taken the view that the courts would actually want to know how the Government propose to deal with these issues. I believe that it would therefore assist the courts if we set out how we propose to do so, so that the fact that we are conducting a review can be taken into account in any judgment that they reach in due course in relation to the judicial review. He asks whether we have changed our mind: yes, we have. Have we considered the matter again? Yes. Have we taken the view that we can go ahead with the change now? Yes, we have—I have taken advice from those who advise us and taken the view that we can move forward. [Interruption.] It was a lawyer’s examination of the issues, to reach a sensible conclusion based upon the evidence.

I am grateful for the indication that Conservative Members do not intend to oppose the new clause, and I hope that we will have the support of the Liberal Democrat Front Benchers.

Question put and agreed to.

New clause 13 accordingly read a Second time, and added to the Bill.

New Clause 14

Payments in respect of costs of optical appliances

‘Section 180(2)(c) of the National Health Service Act 2006 (c. 41) (payments in respect of costs of optical appliances for persons aged 60 or over) is omitted.’—(Mr. Mike O'Brien.)

Brought up, and read the First time.

With this it will be convenient to discuss Government amendments 38 and 39.

The new clause is designed to correct a drafting mistake that was made in the Health Act 2006, which is now consolidated into the National Health Service Act 2006. I understand that the error was spotted by officials on 8 September this year, and the new clause makes no change in policy.

Since the introduction of the optical voucher scheme in 1986, Government policy has been that eligibility for NHS optical vouchers should be targeted at children and those who are in receipt of a qualifying income-related benefit or need a complex optical appliance. Those eligible for help on low-income grounds include those aged 60 or over. The change introduced in the Health Act 2006 seems mistakenly to have extended eligibility for optical vouchers to all people aged 60 or over, regardless of income. That was not referred to in the explanatory notes to the Act, and it was not the subject of an impact assessment or consultation. It was a mistake made during the process of preparing the draft Bill.

Before Opposition Members have fun with this—I would expect no less—I remind them of the minor fact that although it is true that Ministers at the time did not spot that the wording was wrong, neither did either Opposition party’s Front Benchers, so let us not be holier-than-thou about this. We accept that there appears to have been a drafting error. There seems to have been some lack of clarity in the Department of Health’s instructions, which led to a mistake in drafting that was never picked up in this place or the other place. The new clause simply corrects that error and reinstates the legislation that reflects our long-standing intention and policy, including at the time of the Health Act 2006—to maintain entitlement unchanged.

No one eligible for an optical voucher before the mistake was made is affected by the new clause. Our view continues to be that help with the cost of optical appliances through the NHS voucher scheme should be targeted at those most in need, and that that represents the best use of NHS funds. That view predates our Government and has continued, by and large, under this Government.

Would my right hon. and learned Friend concede that the person doing the drafting might even have benefited from the optical appliances that the vouchers supply?

I dare not concede that. Our draftsmen do an excellent job, and we certainly do not want to upset them. My guess is that there was just a lack of clarity in some of the instructions that were sent over. It is difficult to be clear about why the mistake originally arose, but arise it did. By the way, we spotted it, and we are dealing with it now. People aged 60 and over are eligible for NHS-funded sight tests in view of their increased risk of eye disease, and that will continue. There are conditions in relation to the application of the rules. Our policy is unchanged and the new clause merely corrects an error in the legislation.

The Minister is right—we might have a little fun, but only for a few moments because I do not want to delay matters. I thank him for the letter of 2 October to my colleague, informing the official Opposition that the Department had found the mistake—three years after it was included in the measure; the Minister forgot to mention how long it had taken. However, he is right that the provision was not intended to be in the 2006 measure—I have looked through the work that took place long before I joined the Front Bench to ascertain how the Bill went through. He should be commended on his intention to continue the previous Conservative Government’s work on optical vouchers.

I noted the Minister’s comment that the shadow Secretary of State had taken part in proceedings on the Bill and that perhaps he should have picked up the mistake. Not quite as many lawyers work for Her Majesty’s Opposition as for the Department of Health. While we are having a bit of banter, let me point out that the hon. Member for Lincoln (Gillian Merron), now a Minister in the Department, was the Whip on the Bill. One therefore wonders whether the Bill that we are considering today, about which she may comment—she served on the Committee—has had the same sort of scrutiny that took place in 2006.

After that bit of banter, we accept that a mistake was made three years ago and that the Government are changing the legislation at the first opportunity.

I have little to add. I had spotted the flaw that neither Ministers nor the Opposition teams found. It made me wonder whether we had inadequate time for scrutiny. Bills are heavily timetabled in Committee nowadays and clauses often do not receive the attention that they perhaps would if we had a little more time.

I am amazed that the mistake took three years to come to light. However, I have a question for the Minister. Should I advise my mother, who is over 60 but currently does not qualify for free spectacles, to get out there quickly and get her vouchers before the changes come into force?

The policy remains exactly as it was. The best advice for the hon. Lady’s mother is that the NHS has rules, which it has applied and will continue to apply. If her mother qualified previously, she qualifies now. If she did not qualify previously, she does not now.

Order. I suspect that the Minister was not responding to an intervention, but summing up the debate.

Question put and agreed to.

New clause 14 accordingly read a Second time, and added to the Bill.

New Clause 1

Purchase of tobacco on behalf of children

‘After section 7(2) of the Children and Young Persons Act 1993 (c. 12) (sale of tobacco, etc. to persons under (eighteen)) insert—

“(2A) A person commits an offence if he buys or attempts to buy tobacco on behalf of an individual aged under 18.

(2B) Where a person is charged with an offence under subsection (2A) it is a defence that he had no reason to suspect that the individual was aged under 18.

(2C) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.”.’.—(Mike Penning.)

Brought up, and read the First time.

With this it will be convenient to discuss the following: new clause 4—Purchase of tobacco on behalf of children—

‘After section 7(2) of the Children and Young Persons Act 1933 (c. 12) (sale of tobacco, etc, to persons under (eighteen)) insert—

“2A Purchase of tobacco on behalf of children

(1) A person commits an offence if—

(a) he buys or attempts to buy tobacco on behalf of an individual aged under 18, or

(b) where he is a member of a club, on behalf of an individual aged under 18 he—

(i) makes arrangements whereby tobacco is supplied to him or to his order by or on behalf of the club, or

(ii) attempts to make such arrangements.

(2) A person (“the relevant person”) commits an offence if—

(a) he buys or attempts to buy tobacco for consumption on relevant premises by an individual aged under 18, or

(b) where he is a member of a club—

(i) by some act or default of his, tobacco is supplied to him, or to his order, by or on behalf of the club for consumption on relevant premises by an individual aged under 18, or

(ii) he attempts to have tobacco so supplied for such consumption.

(3) Where a person is charged with an offence under paragraph (1) or (2) it is a defence that he had no reason to suspect that the individual was aged under 18.

(4) A person guilty of an offence under this subsection is liable on summary conviction—

(a) in the case of an offence under paragraph (1), to a fine not exceeding level 3 on the standard scale, and

(b) in the case of an offence under paragraph (2), to a fine not exceeding level 5 on the standard scale.”’.

New clause 6—Disclosure of tobacco industry promotional and research activity—

‘(1) The Secretary of State shall make regulations to require a business which in the course of its activity sells a tobacco product or causes one to be sold to disclose details of its marketing and research activities.

(2) Disclosure shall consist of but is not limited to—

(a) the total amount spent on distribution, advertising and selling costs deducted from corporation tax;

(b) distribution costs;

(c) promotional allowances at retail;

(d) competition prizes at retail;

(e) tobacco display gantries at retail;

(f) speciality item distribution;

(g) brand development;

(h) packaging design;

(i) online marketing activity;

(j) advertising in specialist trade press;

(k) corporate social responsibility activities;

(l) market research;

(m) product research; and

(n) any other marketing and research activity which represents more than 5  per cent. of the total spending by the business.

(3) The Secretary of State shall make regulations to require disclosure of information and results from all market research and scientific research conducted by the businesses specified in subsection (1) in relation to tobacco products by type of product.

(4) The Secretary of State shall require all information required by subsections (1) and (3) to be submitted on a quarterly basis by businesses specified in subsection (1) and shall, within three months, publish a report aggregating the data.

(5) A person who does not comply with regulations under this section shall be guilty of an offence.

(6) The provisions of section 13 (Enforcement), 14 (Powers of entry, etc), 15 (Obstruction, etc of officers) and 16 (Penalties) of the Tobacco Advertising and Promotion Act 2002 shall apply to this section.’.

New clause 7—Restrictions on tobacco packaging—

‘Within six months of the passing of this Act, the Secretary of State shall set out guidance for consultation with appropriate stakeholders on regulations prohibiting or restricting the use of logos, colours, brand images or promotional information on tobacco packaging other than brand names and product names displayed in a standard colour and font style.’.

Amendment 1, page 23, line 31, leave out clause 21.

Amendment 16, clause 21, page 24, line 15, at end insert—

‘(2) No offence is committed under section 7A if—

(a) the products are displayed at a place where tobacco products are offered for sale,

(b) the display is of one packet only of each tobacco product which is offered for sale,

(c) the display is no greater than 1.5 square metres in size, and

(d) the display complies with such requirements as may be specified in regulations.’.

Amendment 2, clause 22, page 26, line 3, leave out ‘may’ and insert ‘shall’.

Amendment 4, page 26, line 4, after ‘prohibiting’, insert ‘in certain circumstances’.

Amendment 5, page 26, line 4, leave out ‘or imposing requirements in relation to’.

Amendment 6, page 26, leave out lines 6 to 10.

Amendment 17, page 26, leave out lines 7 to 10 and insert—

‘requirements as to the location of any automatic machine for the sale of tobacco which would prevent access to, or purchase of, tobacco by any person aged under 18.’.

Amendment 7, page 26, line 12, leave out ‘or requirement’.

Amendment 8, page 26, line 13, leave out ‘or requirement’.

Amendment 9, clause 23, page 27, line 12, leave out ‘may’ and insert ‘shall’.

Amendment 10, page 27, line 12, after ‘prohibiting’, insert ‘ in certain circumstances’.

Amendment 11, page 27, line 12, leave out ‘or imposing requirements in relation to’.

Amendment 12, page 27, leave out lines 15 to 19.

Amendment 18, page 27, leave out lines 16 to 19 and insert—

‘requirements as to the location of any automatic machine for the sale of tobacco which would prevent access to, or purchase of, tobacco by any person aged under 18.’.

Amendment 13, page 27, line 21, leave out ‘or requirement’.

Amendment 14, page 27, line 22, leave out ‘or requirement’.

It is a pleasure to take this element of the Bill through its final stages.

I was a proud member of the Select Committee on Health that pushed the Government from a partial ban on smoking in public places to a full ban. I did not think that anyone should be protected under the legislation on a cherry-picking principle. It should be one rule for all or not at all. I was therefore pleased that the Select Committee, after taking a lot of evidence, reached conclusions that meant that an amendment was tabled and, on a free vote, the House came to a sensible decision.

Unless things have changed since the debate began, I am sad that the two main Opposition parties have a free vote this evening, while the Government party does not. That is a shame. It is an issue of conscience—[Interruption.] No, the Government party does not have a free vote—Labour Members can ask the Minister. Some selective voting by Labour Members may happen, but the Government will oppose the amendments and that is a shame.

It is all the sadder because the evidence is ambiguous. There is no decisive evidence to compel Ministers and Labour Members to vote the same way.

That is a sensible point. We did not force any votes in Committee because we wanted the House to have the opportunity to express a view and did not want to constrain the House. I said to the Minister in Committee that the evidence appeared to be selective. I understand where it came from; I have nothing but admiration for Cancer Research UK and Action on Smoking and Health—ASH. I have worked with them in the past and will continue to do that. However, it is a Minister’s job to examine all the evidence so that legislation is evidence-based.

I am sure that my hon. Friend is also particularly sad because the group of amendments affects businesses in all our constituencies and it would therefore be good to see Labour Members standing up for their local companies, especially in difficult economic times.

The important point is that the businesses to which my hon. Friend refers are operating legally. We are considering a legal product. I am sure that many hon. Members would like it to be illegal, but it is not. While it is sold by businesses legitimately, fairly and legally, they should not be persecuted. That is my view and my reason for tabling the amendments.

There are four new clauses and a raft of amendments and I shall try to speak about as many as possible, but without taking up too much of the House’s time because it is important that hon. Members vote on as many as possible. The Opposition are looking to press new clause 1 and amendments 1 and 2 in particular to a vote.

I find it strange that the Government have not accepted the substance of new clause 1 and tabled such an amendment themselves. Raising the smoking age from 16 to 18 had broad support throughout the country, levelled up our legislation with that of many of our European colleagues and friends, and made it similar to that for alcohol. Yet while it is understandably illegal for someone to proxy-purchase alcohol and pass it on to a minor, it is not illegal to proxy-purchase cigarettes and pass them on to a minor. I do not understand that. If the measure is to protect young people, and I genuinely broadly support it, I do not understand why new clause 1 is not accepted, especially given the evidence from the manufacturers themselves that 89 per cent. of young people who smoke buy cigarettes from or are given them by another person outside a legal shop premises.

I have no truck with tobacco manufacturers. They know—I have said it publicly—that I would be happy if they went bust tomorrow morning. I do not like tobacco products, but while they are legal, legal businesses, which do not break the law, should have every opportunity to sell them and not be penalised.

The hon. Gentleman refers to outlawing proxy purchases of tobacco. However, we have a parallel regime for outlawing proxy purchases of alcohol, which has proved extremely difficult and costly to enforce and has not been especially successful. Why does he think that tobacco would be different?

There are two things to say about that. First, unenforceable legislation is bad law and, secondly, the alcohol legislation is being enforced, particularly in the constituency of my hon. Friend the Member for South Cambridgeshire (Mr. Lansley).

I do apologise—it is being enforced in Cambridge, where partnerships have worked together and driven down the amount of alcohol being drunk on the streets, particularly by young people. It can be done, if there is a will. I know the hon. Member for North-West Leicestershire (David Taylor) very well. We do not want young kids to buy tobacco from, or to be given tobacco by, an adult who is making an illicit earning by doing so.

The shops, of course, are doing their best. They are asking whether people are 18 years old, and when someone proves that they are, they can buy the tobacco and sell it on. That cannot be acceptable, and we do not accept it with alcohol. If the hon. Gentleman is right, the Government need to get a grip on alcohol legislation. The key point is that the Government did the right thing by raising the age to 18, but they have not done the right thing in their proposals. That is the reason for new clause 1.

The crux of amendment 1 is the evidence that the measure in the Bill would massively affect businesses in this country at this very difficult time—that was raised by my hon. Friend the Member for South-West Norfolk (Christopher Fraser). Is there sufficient evidence to ban displays at the point of sale, which will affect people’s businesses? I have looked long and hard for evidence from around the world that the Government’s proposals are sufficiently evidence-based, but I do not think that they are. I am sure that the Minister will refer to the experiment in Canada. When the measure was introduced in one state, there was a drop, but in states where it was not introduced, there was also a drop. What is the evidence base from that?

The other thing that worries me about the evidence base, particularly Professor Hastings’s evidence, is that it is based on what people are likely to do rather than on what they have done. I am sure that we have all been canvassing quite a lot lately and knocking on doors. If every single person who said, “Yes, I will vote for you Mike—that is my intention,” did so, my majority would be about 10 times greater than it is. We all know about people stating their intent, but surely the evidence base for the Bill should be what people have done. We do not have such evidence.

My hon. Friend is typically making a powerful case. I was a retailer for 12 years before entering Parliament, and I can tell him that tobacco is not an impulse purchase in the way that cream cakes are, yet the Government are treating them the same way. People walk past cream cakes and think, “Oh, I might try one of them, they look quite nice,” but they do not do the same with tobacco. Tobacco is not an impulse purchase, so does he agree that it should not be treated as such?

I completely agree with my hon. Friend, as does the evidence from across the spectrum. At the moment, we do not have the recommendations from the Government, or know what they are likely to do or how they will interpret the measure. They are as yet unavailable, so we are going to be voting this evening on measures in the Bill the impact of which we do not directly know. We were promised those details early in Committee and last week. Will the Minister tell us where they are?

The hon. Gentleman may be aware that the regulations were published earlier today, before the debate commenced. Indeed, they were e-mailed to all Members of Parliament and are available in the Library and the Vote Office.

Does that not tell us everything about the Government? It is like, but this is such an important issue. Businesses and Members of Parliament needed to know about the regulations weeks ago, not on the day when we are debating the Bill. We will be voting this evening on the future of the local stores and businesses in our constituencies, and I am disappointed in the Minister. I think she had every opportunity to bring that information forward.

I hope that hon. Members are aware that we have involved many retail organisations in the development of the draft regulations. It is not always the case that regulations are produced before a Bill is debated—far from it. Ideally, I would have liked to see them earlier, but we are ahead of time on many other provisions.

There is a saying that goes, “When you get in a hole, stop digging.” The industry, which sells a legal product, is very worried. It has been calling for some time for the regulations to be published so that it can find out exactly what is going on.

Does the hon. Gentleman find it astounding that the Minister thinks that publishing the regulations this afternoon is acceptable when, as the hon. Member for South-West Norfolk (Christopher Fraser) rightly observed, the retailers are going to suffer? They needed to see the regulations before we started the debate, but they were published merely hours before it began.

This is exactly what the retailers were asking me earlier today and what we were asking last week: “Where are they?” They wanted to know what the impact on them would be and the size of displays.

Let us have an argument about process because there is no substance. I am listening to the hon. Gentleman. If he is right that there is no argument about tobacco being an impulse purchase, why is he so bothered about display at point of sale being banned? The evidence is that the tobacco companies take great comfort from the displays and the advertising they do at point of sale, and in the fact that it influences young people. If he believes that the measure would damage the retail trade, why does he not address that point?

I am concerned about having good law—a law that we can enforce and one that does not have a disproportionate impact on people who are going about their law-abiding trades. That is my point.

Looking carefully at and reading the evidence will show us that what the hon. Gentleman just said is fundamentally wrong. The evidence tells us that most children—we are talking about under-18s—do not purchase cigarettes in a shop. There is evidence of vending machine use, which I will come to in a moment, but most people are given tobacco or purchase it from an adult. There would be no impact from the measures. That is the evidence.

Further to the point made by the hon. Member for Montgomeryshire (Lembit Öpik), the Association of Convenience Stores has said that the display ban could cost each store a minimum of £1,800, or even as much as £5,000. That is far too high for a store to bear in these economic times. I am sure that my hon. Friend will agree that those same store owners are scrupulous about how they sell such products, because they would not be in trade if they did not do it properly.

My hon. Friend’s point is absolutely crucial. Those store owners do not know exactly how much the measure will cost them, because until this morning we had no idea what was going on. If a shop sells cigarettes to an under-age child, it should be warned, then it should receive a written warning, then it should be three strikes and out. Local government already has those powers. That process happens in some parts of the country, but it should be enforced throughout the country.

My hon. Friend makes a very powerful case, and I share his abhorrence at the prevalence of smoking. However, the Government’s proposal would have implications not only on the capital cost to retailers, as was outlined by my hon. Friend the Member for South-West Norfolk (Christopher Fraser), but on their revenue. The measure would enforce continuing annual losses of trade. Many of the small confectioners, tobacconists and newsagents rely on tobacco sales for something approaching 30 per cent. of their turnover. The significant loss of turnover resulting from the display ban would put many of those shops out of business when the economy least needs to lose local community shops.

My second, related point, is that making tobacco an under-the-counter product will increase the propensity of illegal products being sold through other outlets, which will lead to a substantial reduction in Government revenue.

If the hon. Gentleman will bear with me, I need to make some progress, and I want my Back-Bench colleagues to speak on this matter, because it is very important.

The amount that such retailers take in revenue is not the only important thing: the footfall is also important. I would have thought that the Government, who are trying to find extra income and who are today selling off some of the nation’s assets—we would agree with some of their measures, but they are having a one-off sale—would have considered why they are losing more than £3 billion in duty on black market and counterfeit cigarettes, and white imports.

I am extremely grateful that my hon. Friend touched on that point. As Chairman of the Select Committee on Northern Ireland Affairs, I know what a terrible impact such activity has had on Northern Ireland. It is not only a question of revenue lost. The illicit cigarettes that are sold are frequently highly toxic—far more toxic than the orthodox product.

Three aspects of illicit tobacco worry me. The first is the duty that is not paid and the loss of income. Secondly, we have no idea what counterfeit cigarettes contain. I support the amendment on the contents of cigarettes, but we know nothing about those that are made in some dodgy shed in a field and then imported into this country. The third aspect—and I saw how prevalent it is when I went to a football match at Watford the other day and saw the discarded packets—is the so-called white products, which look like legitimate products, but are made in the eastern bloc and are brought into this country for about 25p a packet and sold on. The people who sell those cigarettes do not care who buys them. One in five cigarettes sold in this country is sold on the black market. Why do we not attack that market? Why is it not a criminal offence to sell such cigarettes? It is an offence under customs legislation, but the police are not interested because it is not a recordable offence. Why not? We should drive this practice out of the pubs, clubs and markets of this country.

On a point of order, Mr. Deputy Speaker. Earlier, the Minister assured the House that the draft regulations were now available in the Library and the Vote Office. I have just been to both, seeking copies, and they are not available. It is in any event extraordinary that the Minister did not have the courtesy to distribute the draft regulations to the shadow Minister. I request an adjournment of this debate, pending the production of these regulations.

I am afraid that I cannot acquiesce to the hon. Gentleman’s final request. It is important that the necessary papers are available before a debate takes place. I am sure that Ministers will have heard what the hon. Gentleman has said and will instigate inquiries—as will I—into the exact position.

I was slightly surprised when the Minister said earlier that the regulations were available in the Library and the Vote Office, because such documents would usually be laid on the Table. In this case, they were not laid on the Table, which is why I mentioned that to the Minister. She should be embarrassed, because this debate is about people’s livelihoods, and the impact assessments would allow Members to take a view on how this legislation would affect businesses in their constituency.

I would also have thought that the Government would have had some comment on nicotine replacement therapy, its cost and how we can make it more available. Once people are addicted to nicotine, it is difficult to give up. The Government have myriad different programmes for smoking cessation, most of which I support, but the best approach is to address nicotine addiction. There must be ways to put nicotine replacement therapy closer to the consumer—perhaps in the stores that would be damaged by this ban. If nicotine replacements were put next to cigarettes in shops, they would be available if people decided that they wanted to break their addiction and give up cigarettes. I am told by retailers that they are not allowed to put nicotine replacements next to cigarettes because the tobacco manufacturers say that that is not acceptable. That is wrong. Nicotine replacements should be available next to tobacco products, at a comparable price.

We have been talking about the regulations, which are not yet available, but that may be an academic exercise. Am I right in thinking that after the general election, if the Conservatives form the next Government, those regulations will never be implemented?

We have said that nobody with any sense thinks that squeezing this important debate into a tiny section of the Report stage gives it the importance it deserves. We want to see a free vote across the House and proper time given to debating this important issue of how we stop youngsters starting to smoke without completely destroying the corner shop.

My hon. Friend refers to the free vote that we expect later this evening—certainly on this side of the House—but that does not address the issue of what will happen if the Bill becomes law in this Parliament. Will an incoming Conservative Government implement those regulations or will they accept the will of Conservative Members and reject them?

We will always accept the will of the House. The draft regulations are not due to come into force until 2011, and the election will take place long before that. This House will take a view before the regulations come into force. It is as plain and simple as that.

Evidence shows that one way in which young people gain access to cigarettes is from vending machines—although I do not know how they afford the cigarettes, because they are hugely expensive. I was in a local pub and a young guy came in during a quiz night and bought a packet of cigarettes from the vending machine—16 for £7.20—and scuttled out of the door before anyone could stop him, and we have all seen the DVD on the issue produced by ASH and Cancer Research UK. However, there are simple ways to stop young people using cigarette vending machines without destroying the income that pubs get from vending machines or restricting access to a legal product for people aged over 18.

Last week, I stayed in the Jury Inn hotel in Manchester and a little sign on the vending machine said, “If you wish to purchase these products, please come to the bar and prove that you are 18”. Once that has been proved, the bar staff zap the machine and it works once. The Government should make proposals to address the vending machine problem without destroying a legal way to purchase cigarettes. That would make a dramatic difference. The biggest difference would be made by addressing the black market, rather than by picking on shopkeepers who are running legitimate businesses but happen to sell a product that some people do not like.

No, I am about to conclude my remarks.

If the Government were serious, they would have waited for the evidence on point of sale. They would also support new clause 1, which would make it a criminal offence to act as a proxy in the purchase of tobacco, and amendment 2, which would protect more children by closing the vending machine loophole.

New clause 6 would require the public disclosure by tobacco companies of details of their marketing activity and research, and their scientific research. We must bear in mind the fact that everything that tobacco companies do is designed to maximise the sale of cigarettes. In the case of scientific research, they have a long track record of denying the conclusions of other people’s scientific research, trying to introduce uncertainty about that research and trying to mislead the public.

When, after the seminal research by Sir Richard Doll, it became clear to anybody who cared to listen that smoking kills, the immediate response by the tobacco industry was to say, “Oh no, it doesn’t.” Then the tobacco industry did its own scientific research, which concluded: “Yes it does,” but it still continued to deny it.

Then when people outside the tobacco industry proved scientifically that nicotine was addictive, the tobacco industry said, “Oh no it isn’t.” Then the industry did its own research, which proved that nicotine was indeed addictive, but at that point the industry did not just continue to deny it. Rather, being the evil people that they are, those in the tobacco industry increased the proportion of the addictive part of nicotine in their cigarettes, so that they became more addictive than they were beforehand.

Then the tobacco industry started promoting low-tar cigarettes, but when people outside said, “No, they aren’t better for the health of people who smoke,” those in the industry said, “Yes they are.” Then it did its own internal scientific research, which proved yet again that the people outside the industry were right: low-tar cigarettes were no more healthy or good for smokers than the worst of them.

Since then, the industry has been promoting all sorts of allegedly scientific surveys and pseudo-research. It has paid its way into scientific publications, hiring scientists and doctors who, for the money it has paid them, have been willing to perjure themselves and say that cigarettes are not dangerous. As far as the scientific side of things is concerned, one of the tobacco industry’s objects has always been just to create as much controversy as it can and to cast doubt on the plain and simple fact that smoking kills roughly half the people who take it up.

When we come to promotional activity—the industry’s scientific research is of course related to this—one cannot fault the tobacco industry for not having long-term thinking. There is evidence from tobacco companies’ internal documents going as far back as the 1970s that they were asking themselves, “How do we fight off the evidence of harm that tobacco does to people?” and, “How do we promote cigarette sales when advertising is banned?” There are legions of documents—generally speaking, they were revealed as a result of legal cases in the United States—that show what the tobacco companies have been up to.

There has not been so much evidence here in the United Kingdom, but the situation is probably best summarised by Mr. Geoff Good, which is an odd name under the circumstances, of Imperial Tobacco, who, referring to the Tobacco Advertising and Promotion Act 2002, told a meeting in London in 2006:

“In this challenging environment, the marketing team have to become more creative.”

He would have been more accurate if he had said “even more creative,” because the industry has been getting more and more creative over the decades. The industry has promoted point-of-sale displays and sales through vending machines, and it has moved into massive promotional activity in music venues that are attended by young people.

No, I will not give way. Other people want to speak.

Hardly anybody takes up smoking as an adult. Smoking is taken up by children or those in their late teens. Recently at the O2 Centre in Greenwich—as I understand it, O2 is not one of the oxygens, but it ought to be some chemical reference—there was a tented area that was dedicated exclusively to the promotion of cigarettes. People have been going round bars in the north-east of England with illuminated trays and illuminated young women carrying them, and a similar approach has been taken on the beaches in Brighton. Those involved have been dishing out free cigarettes to British holidaymakers in Spain to ensure that they remain addicted.

People say, “Oh, these visible displays have no impact,” but let me quote from a Philip Morris official who said fairly recently:

“The more visible our products are to consumers, the more sales we make.”

It is no good Opposition Members saying, “Oh, there would be a damaging revenue cost if the displays were banned.” If there were a revenue cost, it would mean that the ban was working. However, the industry claims that the ban would not work, but if it would not work, why is it going on about it?

The other point is this. I have every sympathy with the small shopkeeper, but we are not talking about small shopkeepers; we are talking about some of the biggest multinational corporations in the world. The hon. Member for Hemel Hempstead (Mike Penning) said that he would like to see them go bankrupt, but they are a long way short of being bankrupt. They are rolling in money. If the small shopkeepers need help to pay to get rid of displays, they should ask the big bosses—the tobacco barons—to pay up the money and help them to conceal those displays.

The right hon. Gentleman is making some excellent points. He mentioned that half the people who take up smoking will eventually die from it, but has he made any estimate of the number of children, who are now taking up smoking in far too great a number because of the availability of cigarettes, vending machines and suchlike, who will eventually die from this filthy habit? He is making some superb points.

Roughly speaking, around half the people who smoke die, one way or another, as a result of being smokers.

Then we have had the effort by the tobacco industry to get into what might be described as tobacco-branded accessories, which involves selling something that looks like Marlboro or Lucky Strike, which promotes the image and the brand. All I can do is quote probably the last ever words that Robert Kennedy said that were worth recording before he was assassinated. He was visiting the cardiothoracic unit at a hospital and he said, “I guess this is real Marlboro country.” And it is: that is what the tobacco industry does.

Just to help my right hon. Friend with the figures, 120,000 people die each year from smoking-related diseases, which is about 400 a day—the equivalent of the number on a jumbo jet falling out of the sky. That is the number of young people whom the tobacco companies need to recruit just to maintain the level of smokers in our society.

I think that I was the first ever person in the House to point out that the tobacco industry needs to recruit 120,000 new smokers a year to make up for the ones it kills in that year. We have to remember that, because the tobacco companies will be standing still if they only get an extra 120,000 new smokers.

Interestingly enough, when the right hon. Gentleman became the Secretary of State for Health in 1997, sitting on his desk would have been a report by Goddard, as well as a separate one by Smee, commissioned by the Department of Health into the effects of advertising and display bands. They said that it seemed clear that tobacco advertising and retail displays had no effect on youth smoking initiation in the late 1980s. That was what was sitting on the right hon. Gentleman’s desk. Why do we not have that evidence before us, so that we can have a balanced debate?

The Smee report did say what the hon. Member for Hemel Hempstead (Mike Penning) said, but it also said that people smoke or not depending on whether they have positive or negative attitudes to cigarettes. Surely advertising gives them positive ones.

I thank my right hon. Friend.

My new clause 6 would force the tobacco industry to disclose all the information about its scientific and market research. At present, the people with a duty to promote public health, which includes the Government—and, one would hope, the Opposition—as well as Parliament, are continually playing catch-up with the latest scam that the tobacco industry has come up with.

Tonight, we have measures to try to cope with vending machines and displays, which are increasingly used for promotion. I propose that we allow people and organisations with a duty to promote public health to get ahead of the game. If we are to do that, we have to recognise what the tobacco companies really are. It is no good pretending that they are anything else—they are merchants of death. That is not an exaggeration.

No, I shall not.

On 7 July 2005, five suicide bombers committed a monstrous outrage in this city. Most of the people who died were killed in the two outrages in my constituency. Fifty-seven people were killed. On an average day in this country, the tobacco industry kills more than 257. It did not just do that on 7 July 2005, but on every day of the year, and it continues to do it. That is the scale of the problem that we face. Smoking is the principal source of avoidable death in this country, and anybody who takes the issue seriously should support anything that we can do to combat the promotional activities of the tobacco industry.

I am concerned for the little corner shop, but I am also concerned for the lungs of everybody who goes into it and of those who do not go into it. That is why, although my proposal is not popular with some people, I hope that it will have the Government’s support. Someone has mentioned my time as Health Secretary, and I proposed to the then Prime Minister that we introduce a similar measure, but he refused to do so. However, I am still sticking with it and I hope that the House will stick with it. I hope that we will continually expose just what the tobacco industry is up to in its efforts to make profits at the expense of the health of the people who use its products.

The Liberal Democrats have tabled new clauses 4 and 7, but I want to start by talking about new clauses 1 and 4. Before I do, however, it might be worth clarifying one point. The Minister said that all Members of Parliament had been e-mailed the tobacco regulations. I have just checked my e-mail, and they were sent at 4.15 pm. Bearing in mind the fact that we all thought that the debate would start at 3.30 pm, it really is unacceptable that the e-mail was sent out after the planned time for the start of the debate. That gave us no chance to incorporate any comments that we might have had on the regulations. I do not know whether that was a result of the Minister’s direction, or lacklustre behaviour on the part of Department of Health officials. Perhaps the Minister can clarify whether that was when the e-mail was supposed to go out.

Order. I am reluctant to intervene on the hon. Lady, who is talking about e-mails, and they are of course important in this day and age, but the key places for these regulations to be, I am afraid, are in the Library and the Vote Office, and they are still not there at the moment.

Thank you for that clarification, Mr. Deputy Speaker. I was just elaborating on the Minister’s comments.

New clauses 1 and 4 have the same ends—to bolster this rather feeble legislation and to make it into something a bit more meaningful. We are used to eye-catching initiatives from the Government, but the tobacco display ban is probably the first example of a non-eye-catching gimmick. The ban is a gimmick, and I speak as someone who regards themselves as a bit of a tobacco health fascist. I do not like the tobacco industry. I do not like anything it stands for. I have seen at first hand what tobacco has done to close relatives. One has only to go out the back door of any hospital to see people who can hardly walk but who have managed to stagger outside for their life-destroying cigarette. There is a problem.

Ultimately, however, I am also a scientist and a Liberal, and we are talking about an adult product. The ban has been touted as a means of reducing smoking among the under-aged. If I felt for one moment that it would do that, I would support it, but it does not, so I will be supporting provisions to remove it. As I said, we are talking about an adult product that is sold to adults.

It is rather disappointing, therefore, that the Government resisted attempts to introduce amendments in Committee to ban proxy sales of tobacco. A variation on new clause 1 was tabled in Committee, but the Minister rejected it. She outlined some interesting statistics from a tobacco smoking survey carried out in 2006—before the age for smoking was increased. She referred to 11 to 15-year-olds, 34 per cent. of whom bought from a shop, a fifth of whom were given cigarettes by friends, a tenth of whom were given them by family members and 18 per cent. of whom often bought them from other people. She claimed that the Conservative provision we were speaking to would not solve the problem, and she cited a number of incidences in which the proposed law could not be used.

I therefore drafted new clause 4, which is based on the legislation that the Government use to prevent proxy sales of alcohol. This may be naive of me, but I assumed that the alcohol legislation is fit for purpose and that the Government would want to support a provision based on their legislation on another issue. The only reason not to support new clause 4 would be a lack of Government will to tackle the problem of proxy sales. I am told that even the tobacco retailers would not object to a provision along the lines that I propose. Whatever we might think of the product, a vast majority of retailers want to be responsible retailers. On this occasion, therefore, I hope that the Minister will not reject my proposals, because there would seem to be no reason to do so.

New clause 6 is an interesting provision, which would ensure disclosure of tobacco industry promotional research activity. We have just heard an impassioned speech by the right hon. Member for Holborn and St. Pancras (Frank Dobson), which clearly explained the reason behind the new clause. In 2000, the Health Committee produced a report that set out in great detail some of the methods used to promote and increase tobacco sales. The current Committee, in its inquiry on alcohol, has uncovered similar devices and actions, which are quite shocking. Other supporters of the new clause will probably regale us with more detail, and I shall leave that to them so that more people have time to speak.

I hope that commercial confidentiality is not thrown at us as a reason for not introducing my proposal. Unless information has to be provided in a very short time span, commercial confidentiality is simply not an issue. There is no detail about time scales in the legislation, so they will presumably be left to regulations. It might be helpful if any Members who are still to speak in support of the provisions could set out a time line for how they perceive the proposed openness working in practice.

New clause 7 is an attempt to go further into the issue of plain packs. In Committee, I introduced an amendment that would require all cigarettes to be sold in plain packs. That may have been a little bold for some, and I would probably be a little inconsistent if I demanded an evidence base for a display ban when there is little evidence base as yet for plain packs. However, I instinctively feel that they must be a good idea because the tobacco manufacturers seem to hate the idea with a passion.

New clause 7 requires the Secretary of State to consult stakeholders within six months of Royal Assent on regulations for the restriction or prohibition of branding on all tobacco products, thus potentially providing the first opportunity to introduce plain packaging for tobacco products anywhere in the world. It is now recommended as an issue for consideration under guidelines for the World Health Organisation’s framework convention on tobacco control—and I am sure that hon. Members will be aware that the UK is a signatory to that accord.

We need to put the new clause into the context of the health arguments and how the tobacco industry has systematically utilised and evolved the tobacco packet with the very intention—deliberate or otherwise—of undermining the regulations that sought to inform people and protect them from tobacco. We know that smoking kills one in every two of its long-term users and that smoking is an addiction of childhood, with 80 per cent. of smokers having started by the age of 19. There is also a crucial health inequalities aspect to smoking that cannot be ignored. We know that smoking is the single most important factor in health inequalities and accounts for half the difference in life expectancy between social classes 1 and 5, which is very disheartening. I shall return a little later to the role of tobacco packaging in exacerbating health inequalities. First, I would like to address the tobacco control context surrounding the new clause.

The Tobacco Advertising and Promotion Act 2002 prohibited the vast majority of tobacco advertising, promotion and sponsorship, which meant that the rules of the game had changed. The tobacco industry was forced into thinking how it could be a little cleverer and refine how it interacted with its users and potential consumers. One of the prime mechanisms for interacting with consumers is now through the cigarette packet itself, which is effectively used as a badge product. Although smokers may not be familiar with the concept of cigarette packets as badge products, they will be more familiar with the notion that the tobacco industry is seeking to evoke—that their brand of cigarettes reflects their identity, personality and character.

Given such priming to personalise a smoker’s relationship with the brand they smoke, it is not surprising that most adults exhibit strong brand loyalty. More than 90 per cent. of smokers have already decided which brand to buy before they walk into a shop. The tobacco industry is aware of what it is doing. A Brown & Williamson employee stated in 1995 that

“if you smoke, a cigarette pack is one of the few things you use regularly that makes a statement about you. A cigarette pack is the only thing you take out of your pocket 20 times a day and lay out for everyone to see. That’s a lot different than buying your soap powder in generic packaging.”

That may well have been before mobile phones became the accessory to have, but this issue is worrying from a health inequalities perspective. Roper and Shah found that children, particularly those from deprived backgrounds, are especially attracted to tobacco brands. Once again, the supposedly glamorous issue of smoking is being supported through a branding infrastructure.

Since 1998, the tobacco industry has sought to increase the number of brands, with the dual purpose of increasing their impact through taking up more space on the shelves while also increasing their share of the market. Benson & Hedges, for example, has increased its brand family from four in 1998 to 12 in 2008. Another function of branding is to distract from the health warnings on cigarette packets. Since January 2003, all cigarette packets have had to include a written health warning and, by 1 October 2009, a picture warning. One might wonder about the tobacco industry’s response. Well, some brands actually incorporate the colours of the health warnings into the design of the pack.

It is of course illegal for tobacco manufacturers to say that their cigarettes are “low tar” or “light” or imply that they are less harmful than other brands. The fact remains that cigarettes contain more than 80 cancer-causing substances. Now the manufacturers use the branding and colour scheme of the pack to imply distinctions, through colours such as silver and white. For example, research by Ann McNeill at Nottingham university and other partners found that

“products bearing the word ‘smooth’ or using lighter coloured branding mislead people into thinking that these products are less harmful to their health”.

Let me provide a practical example in case anyone does not believe me. This research found that

“compared to Marlboro packs with a red logo, cigarettes in packs with a gold logo were rated as lower health risk by 53 per cent. and easier to quit by 31 per cent. of adult smokers”.

Consumers are deliberately being led to make distinctions between products that are essentially identical and, crucially, do not have any differential health benefit or impact.

What could be the impact of plain packaging on tobacco products? Well, it would deglamorise them. Studies by Wakefield et al have found that plainer tobacco packaging can make the product seem “dull and boring”. Indeed, without all the branding, what do these packets become? They become simply containers of tobacco products, rather than a brand for a smoker to build a relationship with. Such a move would be seriously fought by the tobacco industry, and it is already on their radar.

The hon. Lady is talking persuasively about the effect of packaging and how it influences people. Ann McNeill and others have said that it is precisely the “power wall” of display that influences people, yet the hon. Lady is against doing anything about that.

The difference is that tobacco is an adult product, so there is no reason not to display it. I shall come on to that issue later. There would not necessarily have to be a display ban here, as the new clause might make the display much less attractive by making the package less attractive. There are examples of packages designed to attract women, who may like the package because it is sparkly and attractive, so they want to get their hands on it. This links in with addiction, as these types of packet are attractive in a way that the plain packets are not.

I am going to carry on as I have almost concluded my remarks.

The argument against plain packs is that they make it easier to counterfeit tobacco products, but it is difficult to distinguish between counterfeits and existing packs in any case, and there are covert markings on most packs, which could be incorporated into the plain type. The new clause is designed to ask the Government only to consult on the matter and properly to investigate it. It does not force them to adopt the proposal; it only asks them to give serious consideration to it. If we truly want to address the problem, we need to look at a range of solutions.

Amendment 1 would leave out clause 21, which introduces the display ban. I have already commented that tobacco is an adult product. I have seen no convincing evidence that this provision will reduce under-age smoking. Under-age smokers get their cigarettes mainly from other sources. If the Government were serious about cutting off supply to younger people, they would support one of the proxy sales amending provisions.

The impact on retailers was mentioned as an important consideration, but many retailers I have spoken to view it as almost inevitable that with stronger and stronger smoking control measures, their sales will drop. They fear that the drop will be sudden, although I am not entirely convinced of that. Not all retailers feel the same way, however. It was interesting to receive an e-mail from someone who had recently visited Ireland, where he saw the impact of legislation. He felt that the legislation had forced small retailers to think creatively about other products they could sell to increase footfall.

Does the hon. Lady accept that a figure of between £1,850 and £5,000 is far too much for a small retailer to bear?

In some cases the costs are borne by the tobacco manufacturers. I think there is some evidence that the figures we were given originally showing the impact on small retailers were lower than the real figures. There is a fair amount of disinformation.

Let me read out what the gentleman to whom I referred said. Members can make up their own minds about it, but I thought he made an interesting point. He said, “There are very small margins on tobacco products in the UK and Ireland, yet they currently take up a lot of display space in most shops. Banning displays would create a level playing field and mean that I could use that display space for healthier products which will give me a healthier profit.” I thought that a very enlightened attitude, but it brings me back to the cream cakes. Sadly, healthy products are not necessarily that “must have” purchase. They may not be an impulse purchase, but people do not go out of their way to acquire them.

Amendment 16 seems to make a compromise by allowing a smaller display. I find that an interesting proposal. It treats the product as an adult product that people can still buy without restriction, but it minimises the impact of the display from the manufacturer’s point of view.

I am grateful for my hon. Friend’s provisional support for the amendment. Does she agree that it resolves the issue raised earlier about “power walls”? If the allocation is 1.5 square metres and that is it, the power wall argument is dissolved, with no loss of the civil liberties and the economic potential that newsagents are still worried about losing.

I agree. I felt that the amendment provided a very neat compromise. It would be interesting if we could put it to the vote, because it would potentially keep those on both sides of the argument happy.

None of us has any problem with indications that tobacco is available as a lawful product. What we are all against are indications that it is an attractive product, and amendment 16 goes some way towards addressing that. Does that not go to the heart of the matter?


I hope the House will excuse me if I say a little about vending machines. I have tried to be brief in dealing with matters raised in other amendments. A significant proportion of children buy their cigarettes from vending machines, and here the Government have again been very timid. No other age-related products can be sold in the same way. I shall leave it to those who tabled the amendment to present their arguments, but there is widespread support for the banning of such vending machines, and I feel that the Government are behind the curve in this respect.

Amendment 17 supports a sentiment first expressed by my hon. Friend the Member for Leeds, North-West (Greg Mulholland), who suggested on Second Reading that a compromise might be to restrict vending machines to premises to which only those over 18 had access. I am not sure how practical that is—I do not know whether clubs for over-18s can employ 16-year-old cleaners—but it is an interesting attempt.

The Government have chosen a single eye-catching initiative in an attempt to show that they are doing something about tobacco control. They have chosen the wrong measures, however, and I hope they will listen seriously to what is said about some of the amendments tabled by both Opposition and Labour Members, which in my view would do much more to control tobacco use than the path they have chosen to pursue.

I owe the House an explanation. Because of the complexity of some of the new clauses and amendments that we are discussing and the overlap in what we are attempting to achieve, I shall pursue amendments 5 to 8, relating to clause 22 and England and Wales, and amendments 11 to 14, relating to clause 23, which deals with Northern Ireland. I am assured by my ministerial colleagues that if the amendments that I am pursuing are accepted, that will ensure that cigarette vending machines are put out of order for good to help to protect the future health of our children. I ask all Members not to find a way of frustrating the will of the House, but to find a way of ensuring that future generations of children do not die unnecessarily as a result of cigarettes purchased from vending machines.

On 8 June, on Second Reading, I presented what I considered to be an evidence-based and compelling case for an outright ban on cigarette vending machines. I implored my right hon. Friend the then new Secretary of State

“to be brave and not to take heed of those who claim that this would be a regulation too far.”—[Official Report, 8 June 2009; Vol. 493, c. 604.]

I hope that that is exactly what he and his colleagues will do in the Lobby tonight.

My amendments test the resolve of the House in attempting to close an outrageous loophole in safeguards intended to prevent tens of thousands of children from illness and premature deaths in the years to come. We require the Secretary of State to regulate to prohibit the sale of tobacco from vending machines. Why do we need to do more? Smoking is an addiction of childhood, not an adult choice. Members may come here tonight and argue that it is to do with adult choice, but it is no such thing. More than 80 per cent. of people who start smoking before the age of 19 are hooked by then, and each year in this country people start smoking when they are as young as 10 or 11. Each year, 340,000 children in Britain start smoking, and are addicted well before they reached the age of 19.

However, it is not just a question of addiction. Members spoke earlier about the human carnage. Each year, the industry secures more than 100,000 new recruits who are not adults but children as young as 10. If the industry is to survive, it must replace the adults whom it kills—and it can do that only by replacing them with children. Tragically, year after year in my constituency and in the north-west of England as a whole, 14,000 of my fellow adult citizens die prematurely. People my age and younger will never see their children leave school, and will never see their grandchildren grow up. Why? Because they became addicted to smoking as children, and lose their lives because of it.

Tobacco is still the only product in Britain that can be sold legally which routinely, as a matter of course—daily and recurrently—kills and injures its consumers. Do not tell me that we cannot have choices! For too long the choices have been left in the hands of the tobacco industry, and they all end up as one choice: for families to watch debilitating diseases overcome their loved ones. My friend John Tiernan, who was diagnosed with cancer of both lungs at the age of 30, started smoking at 11. By the age of 31 he was dead, leaving a widow and two young children. John is not unique as a friend. We all have friends and family members to whom similar things have happened.

Smoking is the biggest health inequality indicator, accounting for 50 per cent. of the difference in life expectancy between working-class and middle-class citizens. Why? Because of its deleterious effects on our constituents.

I am well aware that there is no problem that the right hon. Gentleman does not think can be solved by the nanny state, but if he is so passionate about the issue, why has he not tabled an amendment to ban smoking altogether rather than using the guise of restriction? Why does he not have the courage of his convictions, if that is what he really believes?

If the hon. Gentleman is such an apologist for the tobacco industry, perhaps he would like to apologise to the House for the most distasteful remarks I have heard in the Chamber in 23 years. When we are trying seriously to defend the interests of young children from the effects of tobacco smoking, all that the hon. Gentleman can produce is a quip which is not worthy of response other than this: I have given you 100,000-plus reasons why every year we should ensure that this product does not get into the hands of our children. I will give you 340,000 reasons—

Order. I am sure that the right hon. Gentleman remembers the correct way in which to address other Members.

I realise that I should not use the word “you”. I could call the hon. Gentleman “comrade”; I could call him “the best of mates”. I could call him a host of things, but I thought “you” was as neutral a word as I could use in the moment. I do apologise, however. I am making this point to the hon. Gentleman: learn and grow up. He should realise that today in his constituency he has constituents who are dying prematurely because of the tobacco industry.

Yesterday, I attended a conference of 100 young people in Chester, many of them smokers. They took a vote and they asked me to tell the House tonight. Nine out of 10 of them voted to have a strict ban on vending machines. Young people are speaking up and speaking out, and two thirds of smokers argue that there should be a ban on vending machines. Why? Because vending machines are almost exclusively used by children.

Vending machines are a danger; they are a loophole. This country rightly took the decision to secure a rise from 16 to 18 years for the age at which children and young adults can buy cigarettes. There is a reason for that: by the age of 19 more than 80 per cent. of young people who have started smoking are addicted to smoking. Yet that ban has been undermined by the industry through the use of vending machines. Children use these machines on a daily basis in disproportionately high numbers; tens of thousands of children, some as young as 10 and 11, are using vending machines, when the overwhelming majority of this country’s citizens say young people should not be able to buy cigarettes until the age of 18. Vending machines are not just a loophole; they are a death trap to the next generation of young people, who will be captured by an industry that needs them to replace the adults it is already killing on a daily basis.

I ask my colleagues to support the amendments. I could say much more, but other Members wish to speak so I will let later contributors add to my remarks. The evidence is overwhelming: if we do not get rid of vending machines some people will consistently undermine the 18-years-of-age ban. We know from all the professional surveys done so far that in pubs, clubs and wherever else vending machines are located, people as young as 11, 12, 13, 14 and 15 can access those machines with impunity. Therefore, the only safe way of dealing with this issue is to ban vending machines once and for all, and with this ban we will take another step down the road of making Britain a smoke-free nation. With that, tens of thousands of our fellow citizens will be able to grow up, see their children and grandchildren grow up, and see their grandchildren’s children be the best they can be. If that is all we can do in this House tonight, please let us do that; let us save the next generation of children from diseases of the heart and cancers. We owe that to them; let us vote for this measure.

I intend to speak only briefly as I know that other Members want to contribute and time is limited. There are a few points I want to make however, largely in response to the points made by the right hon. Members for Holborn and St. Pancras (Frank Dobson) and for Makerfield (Mr. McCartney) who were basically prime advocates of the nanny state, which has done so much damage in this country over many years.

The sanctimonious tone of the right hon. Member for Holborn and St. Pancras was rather hard to swallow as he was part of a Cabinet that decided to make an exemption on tobacco advertising for Bernie Ecclestone. There was the right hon. Gentleman saying he was speaking up for the poor and that he has something against all these big, nasty, wicked rich people, when in the past he languished in the Cabinet having defended the interests of one of the richest people in the world. So we do not need to take any lectures from him about rich people benefiting from tobacco marketing.

Well, I am glad that the right hon. Gentleman is happy with his position at the time on that issue.

The point here is twofold. The right hon. Gentleman’s argument about the misery of tobacco contained one fatal flaw, which is that tobacco is bought by adults. It is a product for adults; that is the law in this country. He does not seem to agree with the concept of choice. Many Labour Members seem basically to have the mindset that they have come into Parliament to do one thing and one thing only: to ban everybody else from doing what they themselves happen not to like, rather than to allow people a free choice and to make up their own minds.

Does the hon. Gentleman not accept that one person’s choice to smoke affects other people’s choice not to smoke? One person’s freedom stops at my nose when it comes to smoking. Although in this instance we are concerned particularly about young people, does he not accept that one person’s choice affects others’ freedoms?

No, I do not. We are getting slightly off the mark here, but the hon. Lady has the freedom to take her nose somewhere else if she does not like what she is smelling. That is the whole point of freedom and choice.

We have heard from the right hon. Member for Holborn and St. Pancras that he is the friend of the small retailer, and that he thought that the only people who would suffer from banning the display of tobacco at point of sale would be those in some of the biggest companies in the world. As somebody who worked for one of those big, nasty supermarket chains for 12 years before entering Parliament, I can tell him that cigarette sales are a very small proportion of their income and certainly a very small part of their profit margins. The proposal will not have any major impact on Tesco, Asda or any of the other companies that he seems to have in his firing line. The people who will be fundamentally affected are small retailers. The big supermarkets can afford to change their displays and the way that they display products. It is the small retailer who cannot. I hope that the right hon. Gentleman does not go around pontificating to his small businesses on how he is so supportive of them and wants everybody to shop at their local shops, when he is trying to introduce a measure that would do more damage to small newsagents than anything else he could imagine.

Adding to that observant point, does the hon. Gentleman agree that, as the large retailers can afford to change their displays and small retailers cannot, those who are addicted to tobacco will be driven to larger shops not just for their cigarettes but for other things as well, therefore achieving exactly the opposite of the intention of the right hon. Member for Holborn and St. Pancras (Frank Dobson)?

Further to that point, such small shops are very often in villages in constituencies such as mine, where the local services such as post offices have gone and they are therefore the last port of call for villagers to buy what they require. If they go out of business as well, the villages will die.

My hon. Friend is absolutely right.

The main point is that this should not be billed as the tobacco display restriction or ban. The Government should be promoting this measure as, “We think the public are thick” because in effect they are saying that people will buy cigarettes only if they are on display and that they will not buy them otherwise—that if they are on display people will think they therefore must be an attractive product and will buy them. That is a completely false premise. People have a choice as to whether they want to buy them. I am perfectly prepared to trust my constituents to make these decisions for themselves. I trust them to be able to decide for themselves whether they want to buy a packet of cigarettes. They do not need the Government telling them what they can and cannot do, and what they can and cannot see when they go shopping.

This is the nanny state gone mad. Everything that the Government do always has at the back of it this: that they know better than the public who elected them. I do not see why they have such little faith in the public when they stand for election hoping that people will choose who to vote for, yet they cannot even allow them to make a choice as to how they buy a particular brand of product. On every conceivable level this proposed ban is wrong, because it goes against the principle of individual responsibility, free choice and people making their own decisions, and it will have a very bad effect on small shops.

The hon. Gentleman began his remarks by saying that he accepted that smoking should be an adult pastime. Does he accept that banning cigarette machines may push consumers from that unsupervised sale towards a supervised sale in small shops, and that therefore the only people who would be deprived of the chance of buying them would be the under-age children who should not be buying them in the first place?

No, I do not accept that because, again, the premise is wrong. That basically presumes that everybody who buys cigarettes from a vending machine is a child, but that is clearly palpably ridiculous.

I might add that we were talking about the future of local shops, but one other serious issue we ought to face up to is the problem of local pubs. Many local pubs have gone out of business over the last few years, not least because of the ban on smoking supported by so many Labour Members who have helped the small pubs in their local communities go to the wall. About 50 pubs a week are closing down. Lots of Labour Members doubtless argue that they want their local pubs to thrive, but taking the vending machines out of pubs—places that, again, are largely inhabited by adults—will not make a blind bit of difference to under-age smoking and will have a huge impact on local pubs.

The purpose of these bans might be to deter under-age smoking, but does my hon. Friend agree that the main responsibility for ensuring that children do not smoke lies with their parents? They should know where their children are, what they are doing and how much money they have to spend unsupervised.

I have great respect for my hon. Friend’s opinions and on that, as on so many other things, I agree with her entirely. The whole principle of the nanny state is wrong, but even if one were to think that it is a good thing, one would find that in other countries such a ban has been shown not to have the effect that the Government would like it to have. For example, after years of decline in the level of under-age smoking in Canada, among 15 to 19-year-olds smoking has remained the same or has increased in five of Canada’s eight provinces since the ban was implemented. Whereas there had been a fall in the number of young people smoking in Canada before the ban, in five of the eight provinces there has since been either no reduction or an increase. This measure has been shown not to work.

In Ireland, the introduction of a ban has only made the black market worse; for the first time in Ireland, illegal products have been found in traditional retail outlets. That evidence from so close to home surely shows that these concerns are justified and should be taken seriously. Even if one accepts that telling everybody what they can and cannot do, where they can and cannot shop and what they can and cannot see is a good thing, this ban has been shown in other countries to be a complete waste of time. This measure is a perfect example of the Government thrashing around to try to do something—to look as if they are doing something—even if what they do will make no difference or do great damage to local businesses and shops.

The right hon. Member for Holborn and St. Pancras made the point that the tobacco companies would be able to pay for all the changes required by retailers in their shops, but I must tell him that in Ireland that is not the evidence from most retailers. Well over half the retailers there got zero help from the tobacco companies to pay for their displays and some 75 per cent. of the smallest shops of all—newsagents—had to pay the full cost themselves. There is no evidence that all these costs will be met by the tobacco companies.

The hon. Gentleman makes my point: the people running the tobacco companies, who are fabulously wealthy, both individually and corporately, are a set of greedy, grasping people who have no concern at all for the small retailers who sell their product. If they did care about them, they would be willing to make all the necessary changes.

It is not sensible, in the current climate, for any Member of Parliament to accuse anyone else of being greedy and grasping; I am not sure that there would be much public support for an MP calling anybody else that in the current climate. The right hon. Gentleman criticises tobacco companies for being wealthy, but they have lots of money only because they have sold legitimate—legal—products to people who have bought them as a result of their own choice. He might not agree with people’s decision to smoke—I do not smoke and I do not particularly like going into smoky places, but I believe in freedom of choice—but they should be respected if they decide to spend their hard-earned money on cigarettes. If that is what people wish to do, they should be free to do so—they do not need him lecturing them.

The hon. Gentleman has said much about the nanny state and he has said that there is no problem with smoking, full stop, because it is legal. If he believes that, why does he not have the courage of his convictions? Why does he not start smoking and see where he gets to?

I knew it was a mistake to give way to the right hon. Gentleman and I shall treat that intervention with the contempt that it deserves. This issue is all about choice. I choose not to smoke but I perfectly respect people who choose to do so, because that is their choice. He has just proved to me what I said from the word go: that he comes into Parliament to try to ban everybody else from doing all the things that he does not like. That is not a good basis on which to pass laws.

I shall conclude my remarks, because I know that others wish to speak, but I urge the House not to allow yet another triumph for the nanny state and for intolerance. I have seen such triumphs time and again since I was elected. If Labour Members want to ban tobacco altogether—that seems to have been the basis of their argument—they should at least have the courage to come to this House to argue for what they really believe in and face the consequences. They do not do so because they are scared of public opinion on that issue and instead come along with weasel tactics in order to try to stop people from doing something that they do not like. To be perfectly honest, I have had enough of this nanny state and I hope that the House will show tonight that it has too.

I have listened closely to the debate and know that all hon. Members want to prevent young people from taking up smoking and to support smokers who want to quit. Clearly there are differing opinions about how we best do that, but the case for action, to which this Bill gives effect, is compelling. We know that smoking is the single biggest cause of preventable illness and premature death in England. Smoking kills more than 80,000 people each year—that is the equivalent of wiping out nearly the entire population of Durham, and it is more than the number who die from suicide, alcohol, road traffic accidents, illicit drugs and diabetes combined. Smoking is the primary reason for the gap in life expectancy between rich and poor. The Royal College of Physicians tells us that smoking is positively associated with more than 40 diseases, and the list continues to grow. We also know that in 2007, nearly 200,000 children between 11 and 15 were already regular smokers. Some two thirds of current and past smokers say that they started smoking regularly before they were 18.

The measures contained in the Bill are part of the wider fight against smoking. Since 1997, the Government have banned tobacco advertising, raised the age of sale to 18 and introduced hard-hitting picture warnings on cigarette packets. Research shows that the decision in 2007 to go smoke-free is now supported by more than 80 per cent. of the population. Since 1997, our actions on smoking have resulted in 2 million fewer smokers—that is a 25 per cent. reduction. In the past decade, more than 70,000 lives have been saved by local NHS stop smoking services, yet about one in five people still smoke, with the highest concentration in the most disadvantaged communities and groups.

Is my hon. Friend aware of the concerns of the NHS in Stoke-on-Trent, particularly in respect of the very high number—the figure is well above the national average—of 11 to 16-year-olds who classify themselves as regular smokers? Does she agree that it is right that this Government should do all they can to reduce smoking, including among young people, and that we must go even further than the measures in the Bill?

I agree with my hon. Friend that we should do all we can. A consultation that we undertook last year attracted almost 100,000 responses, and I shall be publishing the new national tobacco control strategy later this year. I am sure that my hon. Friend and her constituents will be interested to see what is in it.

Amendment 1, as tabled by the hon. Members for Hemel Hempstead (Mike Penning) and for Eddisbury (Mr. O'Brien), would prevent the prohibition of tobacco displays. Since clamping down on advertising and marketing, the tobacco industry has found other ways to recruit new smokers, including the promotion of tobacco at the point of sale. We have seen larger displays, illuminated cabinets, branded clocks and locked towers, which serve no practical purpose, other than promoting sales.

Evidence backs our focus on ending tobacco displays, as demonstrated by a letter in The Times today in support of the provisions in the Bill, backed by the British Lung Foundation, the British Heart Foundation, Cancer Research UK, the British Medical Association and Asthma UK. It states:

“There is strong evidence—backed by the World Health Organisation and other leading medical experts—that these measures will help to stop children smoking.”

I will take some interventions, but perhaps it would be helpful if I set out a few more points that I think will help the debate.

This morning, I received a letter from my counterpart in the Irish Government, who wanted to make it clear that the introduction of similar measures on display in Ireland was successful: no prosecutions have been carried out, compliance has been good and there is no evidence of any increase in illicit cigarette sales. In fact, initial results from research on the impact of the Irish legislation are striking. They show that since the law came into effect in July, public support for tobacco control has grown from 56 to 68 per cent., far fewer young people recall seeing tobacco packs in shops, and the number of under-age people who thought they could successfully buy cigarettes decreased from a third to a quarter. Point-of-sale advertising directly affects young people’s smoking. Studies show that tobacco marketing generates new smokers, that young people are receptive to tobacco advertising and that promotion undermines the efforts of those who want to quit.

I appreciate that there has been much debate about the evidence to justify removing displays, which is why I invited all hon. Members to the meeting I held earlier so that we could hear from experts what the peer-reviewed evidence shows. I am confident that there is convincing publicly available evidence—from Canada and Iceland as well as from Ireland—to justify removing tobacco displays. Cancer Research UK, in summarising much of the relevant publicly available evidence, tells us that there is clear evidence that

“tobacco point of sale has a direct impact on young people’s smoking”


“Among established smokers, point of sale does not facilitate brand stimulates impulse purchases and undermines efforts of smokers to quit.”

The hon. Lady has stated that the Government hope that they will deter young people from taking up smoking, the logic being that a young person will see a tobacco display and as a result will be encouraged to smoke. If that is the case, why has the Department of Health’s recent consultation on this issue ensured that youth smoking and tobacco advertising are not linked? There is no mention of it.

I am surprised that the hon. Gentleman makes that point. Perhaps he will be interested in the tobacco control strategy, which will be published later this year. It will make great efforts in this regard.

The Government strongly believe that we have a responsibility to do everything we can to prevent young people from becoming addicted to smoking and to support those who quit. However, I understand the concerns that have been expressed about the impact on small businesses in particular, which have recognised that sales are declining and that they must prepare for a future where tobacco sales are severely limited. We have been working closely with retail bodies such as the Association of Convenience Stores and the British Retail Consortium to develop the draft regulations and cost-effective practical solutions. I have been glad to meet the National Federation of Retail Newsagents and the Association of Convenience Stores, and I have listened to their concerns so that we can work together.

I thank my hon. Friend for the presentation that she arranged at lunchtime where ample evidence was displayed. A number of my hon. Friends attended, but not one Opposition Member did. Their protestations about there being no evidence are rather lukewarm. I found it more persuasive when I visited a constituent of mine, an independent retailer called Mr. Mahesh Patel, yesterday. He says that he welcomes the ban. He does not believe that it is costly and believes that it gives opportunities. As an independent retailer, he fully supports the fact that the Government are taking these measures.

I thank my hon. Friend’s constituent for his support. This measure provides some opportunities that we have perhaps not heard much about.

The regulations are flexible and light touch rather than proscriptive. Perhaps I can reassure colleagues. Indeed, something did go amiss and a box of the consultation documents is sitting in the Vote Office. Unfortunately, no one realised that that was what the box contained. It seems like we have had a bit of a day of things that should have arrived at a certain time not doing so. However, the documents are certainly there.

Let me make it clear that retailers will be free to cover tobacco products as they see fit, provided that they cover the tobacco they stock. Examples of possible solutions can be seen in the material that I have circulated to Members.

Was the Minister as shocked as I was by the deliberate exaggeration of the costs that we heard from the Opposition early on in the debate? To put a few doors on displays and flaps on shelves surely costs only £100 or £200. We have heard estimates of £10,000 or £1,800. Those figures are designed to frighten newsagents and others. It cannot be true, and I hope that she will lance that particular lie.

I would always rather deal in facts. My hon. Friend is quite right about the reality of costs. The estimate from Canada that we are using is something in the order of £450, but that includes fitting and shipping. I would expect to see British innovation and I would also expect the solutions, which are completely flexible, to be used first by the larger shops, so that the smaller shops will be able to benefit from them.

The Minister says that she has consulted the National Federation of Retail Newsagents. She will know, therefore, that its national president, Suleman Khonat, has said that many international cases show that removal has no effect. He also said that it will have a damaging effect on business. Has she considered the proposals in amendment 16? It seeks a compromise of a maximum surface area of 1.5 square metres for the advertising of cigarettes and tobacco products, therefore overcoming the problem of the power wall while at the same time respecting the almost insuperable costs that have been associated with many small newsagents’ shifting to the new regulations, which, I stress, none of them have seen, I have not seen and most Members of this House have not seen.

I have of course considered amendment 16, tabled by the hon. Gentleman, and I hope that he will not press it to a Division. Display, partial or full, constitutes promotion and allowing any display, as permitted by that amendment, would effectively allow tobacco promotion to continue.

Let me attend to more of the concerns—

I will give way if my hon. Friends give me a moment.

It has been suggested that removing the display of tobacco would impact on business by reducing footfall trade—that is, the sale of other items to customers who come to buy cigarettes. By definition, by the time that a customer is in the shop their foot has already fallen. Of course, the provisions in the Bill will apply equally to all tobacco retailers.

I was able to visit Ireland with Action on Smoking and Health just before the new law was introduced there. Does my hon. Friend agree that it has been introduced in a pain-free way, that most of the costs have been paid by the tobacco manufacturers and that businesses have not suffered?

I attended a meeting with the Porthcawl cancer research campaign. The group gave me a petition collected from across the town, which said very strongly that people wanted the removal of tobacco advertising displays from our shops. It felt very strongly—it consisted of a group of smokers, ex-smokers and non-smokers—that the temptation was there, especially for young people, and that is something that we must remove.

I am grateful for my hon. Friend’s support on that point.

We are particularly aware of the way in which the economic climate has affected small business, which is why we will not commence this legislation until 2011 for larger stores, and 2013 for smaller shops. We understand, too, that smaller convenience stores replace their tobacco gantries every five years or so, and thus for many of them changes could be made in the normal cycle. I want to reassure the House, however, that we will keep implementation under close review, and we will monitor levels of compliance and the effect of the policy.

We are working hard to support the convenience store sector, recognising that local shops are at the heart of our communities and can support our public health aims. For example, the “Change 4 Life” scheme, which brings fresh fruit and vegetables to the fore in the most disadvantaged communities, has been so successful that some shops have chosen to fund themselves to join in. There is an opportunity for retailers to become an active part of a movement for better health, and I therefore urge the hon. Member for Montgomeryshire (Lembit Öpik) not to press his amendment.

New clauses 1 and 4 deal with proxy purchasing. We all agree that reducing children’s access to tobacco is a priority, and I very much appreciate the intent behind the new clauses. However, creating an offence for proxy purchasing of tobacco would be difficult to implement and enforce. The new clauses would require proof of intent at the point of purchase, and proof of a young person asking an adult to buy tobacco on their behalf.

Will the hon. Lady allow me to make the case?

That evidence would be needed to secure a conviction. While there has been a proxy purchasing offence for alcohol since November 2005, it is a difficult offence to prove, and the Home Office accepts that it is not being enforced as rigorously as we would like. I would also hesitate to place a new requirement on local authorities that would require them to observe shops and customers without significant benefits being achieved. Better enforcement of existing legislation is likely to be more effective than adding another offence that is difficult to enforce.

I would also like to make a technical point about the wording of new clause 4, which appears to have been lifted directly from the Licensing Act 2003, and speaks of members of clubs and tobacco consumption “on relevant premises”. We know that smoking inside premises open to the public, including members’ clubs, is no longer permitted under smoke-free legislation, so the wording will not work for the purpose for which it is intended.

Purchasing tobacco with intent to supply young people is only one small part of a wider, more complex problem. Children are given cigarettes that have not been specifically purchased for them, they pass them on to one another at school, and they get them from vending machines. Our new tobacco control strategy will set out our plans to tackle this complex problem. I can assure hon. Members that if it becomes clear that legislation would prove to be beneficial, I would indeed seek to make the case.

Is the Minister saying that the Government’s legislation on alcohol proxy sales is ineffective? Perhaps she could tell us how many prosecutions there have been if she is indeed saying that the policy has been such a failure that she cannot introduce similar mechanisms for tobacco?

As I have said, the Home Office has acknowledged that the legislation has not been as easy to enforce as it would like.

The principle is exactly the same, and an identical piece of legislation has been proposed this evening. The 2003 Act is working, particularly in Cambridge, to which I alluded earlier. Where there is the will—people actually want to do it—it can be done. Running away from the fact that this is going on is not the answer.

We are not running away—we are saying that we are going to do better. I want to assure hon. Members that I very much understand the problem at hand. I urge them not to press their new clauses, and I look forward to the new tobacco control strategy, which will be far more comprehensive.

The provisions in the Bill seek to restrict or ban tobacco vending machines. The question before the House is how far it wants to go and how fast. These are finely balanced considerations which reflect the strength of feeling on this issue. To clarify, amendments 2 and 9 would compel the national authorities of England, Wales and Northern Ireland to make regulations on vending machines under clauses 22 and 23. It is not possible to accept amendments 2 and 9, which would change the wording from “may” to “shall”, as the word “shall” would place a legal obligation on the appropriate national authority to regulate. The adoption of regulations would be subject to parliamentary approval. If Parliament or the relevant Assembly refused to approve any regulations that were laid, the appropriate national authority would be faced with a continuing obligation to try and make regulations, knowing that Parliament is unlikely to approve them. That would create legal uncertainty and the prospect of continuing legal challenge for not having made regulations.

Amendments 4 and 10, too, would create legal uncertainty, as the circumstances in which the powers could be used in those amendments are unclear. Amendments 17 and 18 seek to restrict the location of vending machines to areas used by over-18s. In practice, matters are not so straightforward, as places that are for over-18s in the evening may be open to young people during the day. The remaining amendments tabled by my right hon. Friend the Member for Makerfield (Mr. McCartney) and by the hon. Member for Colchester (Bob Russell) would seek an outright ban on vending machines in England, Wales and Northern Ireland. The Government remain seriously concerned about young people accessing tobacco from vending machines. Currently they are the usual source of cigarettes for 10 per cent. of 11 to 15-year-olds who say they smoke.

We have heard a range of arguments about how far we should go to control access to vending machines. We know one thing for sure: the evidence for action is clear. The Government believe that we can place requirements on vending machines that will be effective, proportionate and deliverable in preventing under-age sales and balance the views of all concerned. However, I ask right hon. and hon. Members not to press amendments 2, 4, 9, 10, 17 and 18. On the remaining amendments, I note that my right hon. Friend may wish to test the will of the House.

New clause 6, tabled by my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson), would compel the Secretary of State to require all tobacco companies to release information about their marketing and research activities. I appreciate the sentiment behind the amendment, but before the Government could implement such a measure, we would need to consider carefully the burdens placed on business and Government alike, confidentiality, proportionality and, most importantly, its effectiveness. On balance, we cannot accept the amendment, so I ask my right hon. Friend not to press new clause 6.

New clause 7 would compel the Secretary of State to consult on the introduction of plain packaging requirements or restrictions on the branding on packaging. I have sympathy with the aims of the amendment. We have already stated that the Government will continue to keep tobacco packaging under close review. There is emerging evidence that branding and design of tobacco packaging may increase brand awareness among young people. The new strategy on tobacco control will consider a range of options for protecting children and people who smoke from misleading or promotional messages and packaging, and we will ensure that the evidence, which is still wanting, on plain packaging is further developed. On that basis, I ask the hon. Member for Romsey (Sandra Gidley) not to press new clause 7.

The Government remain committed to cutting preventable death and disease from smoking. I sincerely hope that the votes tonight will back us up in our efforts.

We could have done with a lot longer this evening to debate these amendments and new clauses, but the crucial thing is that the will of the House is tested.

Question put, That the clause be read a Second time.

Clause 2

Duty to have regard to NHS Constitution

I beg to move amendment 19, page 2, line 3, at end insert

‘and the core principles of the NHS.

(1A) The core principles of the NHS are that—

(a) the NHS provides a comprehensive service, available to all;

(b) access to NHS services is based on clinical need, not an individual’s ability to pay;

(c) the NHS aspires to the highest standards of excellence and professionalism;

(d) NHS services must reflect the needs and preferences of patients, their families and their carers;

(e) the NHS works across organisational boundaries and in partnership with other organisations in the interests of patients, local communities and the wider population;

(f) the NHS is committed to providing best value for taxpayers’ money and the most effective, fair and sustainable use of finite resources; and

(g) the NHS is accountable to the public, communities and patients it serves.’.

With this it will be convenient to discuss the following: Amendment 15, page 3, line 6, clause 3, leave out subsection (2) and insert—

‘(2) The Secretary of State must undertake a short review of the NHS Constitution within the first two years of operation and, thereafter, at least once in any period of 10 years the Secretary of State must carry out a full review (a “10 year review”).’.

Amendment 20, page 4, line 9, clause 4, at end insert—

‘(1A) The Secretary of State must revise the NHS Constitution in the light of relevant findings of the Care Quality Commission or the National Patient Safety Agency.’.

Sadly, because of the Government’s raft of new amendments, we are rather pressed for time, so I shall be brief.

The purpose of amendment 19 is simple: it is to put the core principles of our NHS on to the statute book. As a concession to the Government, we offer them the core principles as they have most recently drafted them. The constitution itself has been not been considered by Parliament despite the fact that changes to it will be made by regulation, and it has been signed in a private ceremony by a Prime Minister who pledged to return power to Parliament. [Interruption.]