House of Commons
Tuesday 12 June 2012
The House met at half-past Two o’clock
[Mr Speaker in the Chair]
Business before Questions
London Local Authorities and Transport for London (No. 2) Bill [Lords]
That the promoters of the London Local Authorities and Transport for London (No. 2) Bill [Lords], which was originally introduced in the House of Lords in Session 2007-08 on 22 January 2008, may have leave to proceed with the Bill in the current Session according to the provisions of Standing Order 188B (Revival of bills).—(The Second Deputy Chairman of Ways and Means.)
To be considered on Tuesday 19 June.
Canterbury City Council Bill
That so much of the Lords Message [21 May] as relates to the Canterbury City Council Bill be now considered.—(The Second Deputy Chairman of Ways and Means.)
To be considered on Tuesday 19 June.
Leeds City Council Bill
That so much of the Lords Message [21 May] as relates to the Leeds City Council Bill be now considered.—(The Second Deputy Chairman of Ways and Means.)
To be considered on Tuesday 19 June.
Nottingham City Council Bill
That so much of the Lords Message [21 May] as relates to the Nottingham City Council Bill be now considered.—(The Second Deputy Chairman of Ways and Means.)
To be considered on Tuesday 19 June.
Reading Borough Council Bill
That so much of the Lords Message [21 May] as relates to the Reading Borough Council Bill be now considered.—(The Second Deputy Chairman of Ways and Means.)
To be considered on Tuesday 19 June.
City of London (Various Powers) Bill [Lords]
That so much of the Lords Message [21 May] as relates to the City of London (Various Powers) Bill [Lords] be now considered.—(The Second Deputy Chairman of Ways and Means.)
To be considered on Tuesday 19 June.
City of Westminster Bill [Lords]
That so much of the Lords Message [21 May] as relates to the City of Westminster Bill [Lords] be now considered.—(The Second Deputy Chairman of Ways and Means.)
To be considered on Tuesday 19 June.
Transport for London Bill [Lords]
That so much of the Lords Message [21 May] as relates to the Transport for London Bill [Lords] be now considered.—(The Second Deputy Chairman of Ways and Means.)
To be considered on Tuesday 19 June.
Oral Answers to Questions
The Secretary of State was asked—
Clinical Commissioning Groups
This year, developing CCGs have delegated responsibility for more than £30 billion of local commissioning. Clinical leadership is using NHS resources more effectively, as part of improvements in care. In particular, we are seeing many improvements in community-based services—for example, a pulmonary exercise programme in Durham; a community spinal service in Reading; and a new musculoskeletal service in the Vale of York CCG.
I thank the Secretary of State for that reply. During the Easter recess, I helped to organise a number of health question times in my constituency, where we brought together the commissioning groups, doctors, people from acute hospitals and hundreds of interested constituents to talk about how we would improve local health care. The good news was that doctors and clinicians—
I am very grateful to my hon. Friend for demonstrating how these new developing relationships that CCGs and local authorities are creating with NHS providers and care providers are delivering improvements in care for the constituents we all represent. I urge other hon. Members to follow her example in stimulating exactly those relationships.
The CCG covering my constituency is interested in improving patient care by looking at new methods of contracting and management, but it has been told that it must use a clinical support service set up by the primary care trust, staffed by ex-PCT staff and most likely based in Birmingham, rather than south Warwickshire, at a cost of £4 million a year. Could the Secretary of State—
Yes, I can confirm that CCGs have the freedom to decide which commissioning activities they will do themselves and which they choose to secure from external organisations, thus enabling them to carry out their functions effectively. They can, if they wish, develop their own organisations and staff or contract with other organisations, and they are not required to contract with the commissioning support services hosted by the NHS Commissioning Board.
Yes, I read that letter this morning. Today, elsewhere in the House, the permanent secretary to my Department and the chief executive of the NHS will give evidence to the Public Accounts Committee on precisely that issue. In the context of doing so, they will demonstrate how we have continued over the past two years to achieve a substantial year-on-year increase in the number of patients with diabetes who are accessing best-practice services.
I welcome the successful development of clinical commissioning groups, but does my right hon. Friend agree that their success in refashioning care throughout the whole of the health and social care system will depend on close relationships not just in the health service but across into social care and the world of social housing, too?
I do believe that and the legislation requires it of clinical commissioning groups and health and wellbeing boards. The relationship being built up between clinical leadership in the NHS and democratic leadership through health and wellbeing boards is an instrumental part of delivering that integrated care.
No, I do not. The right hon. Gentleman might also care to note that the same survey demonstrated a lower level of satisfaction with the NHS in Wales than in England, but let us leave that to one side.
That survey of 1,000 people asked whether they were satisfied with the way in which the NHS was being run. I was not satisfied. We were in the midst of reform, and we are changing how the NHS is run. Government Members were demonstrating to the public that improvement is necessary and possible in the NHS and that we should not be satisfied with the situation. What is more interesting is that a survey of 70,000 people that we published today demonstrates that 92% of the public—an unprecedentedly high level—who received care from the NHS said that it was good, very good or excellent.
How out of touch can he get, Mr Speaker? I would have suggested some work shadowing on the NHS front line to get him back in touch, but I forgot that he cannot go into a hospital without a police escort these days. Let me tell him why satisfaction with A and E is down: he lowered the target and missed it repeatedly, leaving nearly a quarter of a million people waiting longer than four hours. Today we have found out why his waiting list statistics do not match people’s real experience: managers are changing clinical criteria and removing people from lists. If he wants to regain people’s trust, why not start today by ordering an immediate inquiry and ending this unacceptable practice of waiting list recategorisation?
I spend more time in hospitals than the right hon. Gentleman has hot dinners, I suspect—[Interruption.] The weekend before last, I spent two days in hospitals and I did not require any policemen to be there.
Let me make it clear. In A and E, we have 96.6% of patients being seen, treated and discharged within four hours. More to the point, the latest data on A and E show that the average time spent there came down from 57 minutes to 49. On the question of referral to treatment, we inherited more than 209,000 patients across the NHS who were waiting beyond 18 weeks for their treatment. According to the latest data, that figure went down by nearly 50,000. We are delivering for patients better and improving care. I wish the right hon. Gentleman would get on his feet—perhaps he will do it now—thank the NHS and congratulate it on the improving care, rather than trying to find the one thing wrong with it—
NHS Staff Redundancies
Audited 2011-12 figures on NHS exit packages, including redundancies, are not yet available. The data will be available in the summer, once the Department’s annual report and accounts are laid before Parliament.
The latest figures from the Department show that the cost of reorganising the NHS on Teesside is more than £50 million, including £9 million in redundancy payments to hundreds of staff who have lost their jobs. At the same time the Minister is demanding massive cuts of £40 million from the local hospital trust. Will he apologise to the people of Teesside for wasting their money and confirm that none of those made redundant will be re-hired in the new structures?
No, of course I will not. What the hon. Gentleman fails to recognise is that the NHS must continually evolve to meet challenges and that this is the best chance the NHS has to improve and drive up standards. What he fails to mention in his question is that the £1.2 billion to £1.3 billion cost of the reform will lead, between now and the next election, to £4.5 billion of savings, £1.5 billion every year thereafter until 2020, and every single penny of that money will be reinvested in front-line services.
We already know that this Government spent more than £168 million nationally making NHS staff redundant over 2010 and 2011, and more than £3.8 million in Tower Hamlets, where my constituency is based. Can the Minister tell the House how many of those staff were re-hired in the new system?
Yes, there have been redundancies in the NHS, but 15,500 managers and administrators have ceased to work in the NHS, where the savings are reinvested in front-line services. There are also 4,161 extra doctors, 934 more midwives and 151 more health visitors. That is where we are concentrating the money—more front-line staff, fewer administrators.
At a time when almost 4,000 nursing posts have been axed, the Sandwell and West Birmingham Hospitals NHS Trust is using unpaid jobseekers through the Government’s Work programme to perform duties such as collecting drugs and giving food and drinks to patients. Does not the Minister understand that whatever the good intentions of the scheme, most people will see this as staffing on the cheap, and that there can be no substitute for the necessary number of nurses and health care assistants in our NHS?
First, the shadow Minister is incorrect in the number of nurses who he says have left the NHS. The figure is nowhere near 4,000, as he mentioned—[Interruption.] It is 2,693. Secondly, he denigrates a scheme where people have the opportunity, through the jobcentres, to gain familiarity with the workings of the NHS so that they can take a view as to whether they want to invest their future talents in a career in the NHS. I should have thought that that was to be welcomed, rather than snidely denigrated.
Alcohol-related Hospital Admissions
4. What estimate he has made of the cost of alcohol-related admissions to accident and emergency departments in (a) England, (b) the south-east and (c) Reading East constituency in the latest period for which figures are available. (110317)
We estimate that alcohol misuse cost the NHS in England about £3.5 billion in 2009-10. The published estimate for the number of alcohol-related admissions was 1,168,300 in 2010-11. However, that is admissions to hospital. We reckon that the cost of alcohol-related accident and emergency visits was about £696 million in 2009-10.
As my hon. Friend is aware, the Government’s alcohol strategy proposes that more hospital staff have powers to fine troublesome drunks. Will she work with the Home Office to ensure that these fines are not just punitive, but work to recoup a reasonable part of the £700 million cost that she mentioned, so that A and E departments in places such as the Royal Berkshire hospital in my constituency can recoup some of that money?
Indeed, that is why we have a cross-Government strategy. We will be working with the Home Office and many other agencies and Departments to ensure that we deliver the savings. It is not just about the financial cost; it is also about the human cost. Identification, brief interventions and alcohol liaison nurses are all part and parcel of making sure that we reduce the harms of alcohol.
Again, the north-east tops the league of alcohol-related admissions to hospital. Availability, advertising and price all seem to be encouraging more and more people to buy more and more alcohol in supermarkets. When will the Government do something about the pricing and advertising of alcohol? In case the Minister is worried about the politics of this, she should know that she has the support of drinkers in Darlington’s working men’s clubs.
I can assure the hon. Lady that I am not at all worried about the politics of the issue. To ensure a brief answer, I refer her to the Government’s alcohol strategy, which mentions all those factors and draws attention to the substantial progress we expect to see on those figures.
I welcome the Government’s commitment to supporting GP screening for alcohol misuse, but given that less than a third of GPs use an alcohol screening questionnaire, and of those a third use them for an average of only 33 patients a year, how can the reformed national health service incentivise those GPs to ensure that they support early intervention and minimise alcohol harm?
Labour Members share the hon. Lady’s concern about the human, economic and public order cost of alcohol abuse. We understand that the question of a minimum price per unit, to which the Secretary of State is a belated convert, has gone out to consultation, but does the Minister recognise the need to align our minimum price with that in Scotland, because otherwise there will be problems with cross-border smuggling?
I can assure the hon. Lady that we will be talking with the devolved Administrations, and indeed all other agencies, and welcome any input on this. It is good to hear her welcome our strategy, and I am sure she will agree that the only way we can reduce alcohol harm is by working across Government.
The thalidomide grant is a three-year pilot, running from April 2010 until March 2013, to explore how the health needs of thalidomide survivors can best be met in the longer term and how such a scheme might be applied to other small groups of geographically dispersed patients with specialised needs. Officials have discussed the evaluation of the first year of the pilot with members of the Thalidomide Trust and its national advisory council and we await the evaluation of the second year.
The thalidomide grant was introduced by my right hon. Friend the shadow Secretary of State under the previous Labour Government and has been going on for many years. Can the Minister assure me that it will continue until a decision is taken on whether to carry on with the scheme beyond the pilot stage or to do something else?
My constituent Mr Joseph Bannon of Cleveleys, who is a thalidomide patient, has made clear to me the great importance of continuing the scheme. They are a declining group of people with increasing needs and any failure by the state to meet those needs would be absolutely unconscionable. Will the Minister reassure me that there is no prospect of that occurring under this Government?
What I can reassure the hon. Gentleman about is that the Government are carrying on with the evaluation. We are waiting for the evaluation of the second year to see how the scheme is working. The grant is not intended to meet all the additional costs that thalidomiders face. Aside from the grant, there are other sources of public funding and, of course, the funds that the Thalidomide Trust administers on behalf of those survivors of this catastrophe.
Health Outcomes (Cancer)
Our cancer outcomes strategy sets out the ambition to save an additional 5,000 lives every year by 2014-15, which would halve the gap in survival rates between England and the best in Europe. Looking further ahead, our aim is to have survival rates among the best. To realise our goal, we are acting across a broad front: raising public awareness of the symptoms of cancers and supporting GPs; extending screening and the introduction of flexible sigmoidoscopy; improving access to diagnostic tests; expanding radiotherapy; reducing variation in treatment; and improving quality of life for cancer survivors.
The important point about the extension of any screening programme is that it is based on evidence. The most recent review of cervical smear and screening campaigns took place in 2009, and on the basis of all the available evidence at the time the Government’s advisory committee on cervical screening concluded that it would do more harm than good to extend screening below that age, but it is a standing item on the committee’s agenda. It looks at any new evidence and will continue to do so.
I am afraid that I did not entirely hear the hon. Gentleman’s question, but it was about research, and the Government are certainly committed to substantial investment, working with partners to ensure that we have among the best research in the world so that we have access to treatments at the earliest opportunity.
Does the Minister agree with the recent report by the all-party group on cancer, which found that, if we are to drive improvements and outcomes consistently throughout the NHS, both the one-year and five-year cancer survival rates should be included in the NHS outcomes framework and in the commissioning outcomes framework?
My hon. Friend, who chairs that all-party group, met me recently to make those points, and as a consequence of that meeting and his excellent note of it I undertook to write to him in greater detail. He will understand that some of those issues go to the heart of data collection and to the quality of the data currently available throughout all cancer sites, and that is the reason why we may not be able to do quite what he wants at the pace that he wants.
On the day that the Government have confirmed that from October there will be a complete ban on age discrimination within the national health service, except when it can be objectively justified, the answer to the hon. Gentleman’s question is that the evidence used to determine who is eligible for a screening programme is the basis on which recommendations are made to the Government, and they will be extended in future.
I have not received any such representations. The Government’s evidence to the NHS Pay Review Body shows that market-facing pay has the potential to enable NHS organisations better to achieve their need to recruit and retain staff within the “Agenda for Change” framework for pay. The pay review body will take evidence from all parties and make its recommendations in July.
It can often be harder to work on the NHS front line in more deprived parts of our country, so would the Secretary of State like to join me on a busy Friday night in A and E in Stoke-on-Trent, where he can explain to the staff why their work is worth less than that of someone working in a more affluent part of the country?
I had the privilege and pleasure of visiting the University hospital of North Staffordshire about eight weeks ago. I very much enjoyed being there, meeting the staff, who I thought were doing a terrific job, and talking in particular to a substantial number of nurses. We did talk about that issue, and implicitly the hon. Gentleman is criticising the existing “Agenda for Change” framework, because there are high-cost areas in some parts of the country. The proposals and my evidence to the NHS pay review body do not recommend cutting anybody’s pay; they suggest that within the “Agenda for Change” framework we should extend high-cost areas.
I simply reiterate to my hon. Friend the point that I have already made. We are not proposing to cut anybody’s pay; we are proposing to give NHS organisations a greater mechanism through the “Agenda for Change” framework so that they can secure the recruitment and retention of staff. That is precisely the issue. Whatever their needs may be in terms of the recruitment and retention of staff, their pay should be better able to adjust to that.
Given the extent of social deprivation and the fact that £450 billion will be taken out of the pockets of people in Northern Ireland, particularly those on low incomes, will the Secretary of State confirm that there are no plans to introduce regional pay into the national health service in Northern Ireland during this parliamentary term or in future, as this would have a detrimental impact on the economy?
At the risk of repetition, let me say that in any part of the country NHS organisations, like organisations in other fields, should have the ability to set pay levels that reflect to a greater extent local labour market conditions and their need to recruit and retain staff. My hon. Friend will recall that a number of south-west trusts are looking at going down the path of setting their own pay arrangements. It was in fact the previous Administration who in 2004, under the “Agenda for Change” pay framework, gave trusts and foundation trusts precisely the freedoms that they are proposing to use, so I cannot understand how Labour Members can possibly object to those freedoms now.
The Secretary of State may wish to call this market-facing pay, but he has rather let the cat out of the bag with his previous answers. In fact, he has proposed lower pay for NHS staff in poor areas—a move that would create a deeply divided, two-tier NHS and undermine the NHS in the communities that need it most. We know that the Secretary of State does not take advice from medical professionals, but will he perhaps take some from one of his own Back-Bench colleagues, the hon. Member for Hexham (Guy Opperman), who said that
“someone working in the NHS in a deprived part of the North East probably deserves more pay, certainly not less, than a nurse in leafy Surrey”?
Will the Secretary of State commit today, yes or no, to withdraw these disastrous proposals?
If I may say so, I think that the hon. Gentleman wrote his question before he had listened to my earlier answer. I am not proposing to reduce anybody’s pay. It is very simple. The NHS Pay Review Body will have the opportunity to make recommendations. I gave evidence to it on the basis that we should retain a national framework for pay through the “Agenda for Change” framework. However, it is transparently the case that the “Agenda for Change” framework has not thus far enabled NHS organisations, as they say themselves, to adopt a pay structure locally which better reflects the market in which they are employing.
We are working directly with all NHS trusts to enable them to achieve foundation trust status—for the great majority, by April 2014. Achieving foundation trust status means that NHS trusts have achieved high and sustainable levels of clinical quality and financial governance.
It is possible that North Yorkshire and York primary care trust will this year declare a deficit based on inherited debt from the merger of PCTs several years ago. I am concerned that the new clinical commissioning groups might have to pick up that deficit. Will my right hon. Friend look at all the options to ensure that clinical commissioning groups can be given the best possible start by having a clear balance sheet?
No primary care trust should plan for a deficit in 2012-13. Primary care trusts carrying legacy debt into 2012-13 must clear it in accordance with the 2012-13 NHS operating framework. As at the end of 2011-12, the primary care trust my hon. Friend mentions had legacy debt that has been managed and absorbed locally by the strategic health authority. As at the end of 2011-12, the PCT is not forecasting any legacy debt.
No-shows and people failing to keep appointments in out-patient departments are costing Brighton and Sussex University Hospitals NHS Trust nearly £6 million a year. Does my right hon. Friend agree that this is extremely selfish, and would he propose sanctions on those who fail to show up for their appointments?
I am grateful to my right hon. Friend. I have no proposals for sanctions, but I commend to him and his trust the many mechanisms that are available, which they may know about, such as sending text messages to mobile phones. I have seen them in practice, and they do stimulate patients to attend their appointments and so reduce what has been an unacceptable level of non-attendance.
Substantial progress has been made through innovative approaches and improved risk management, leading to increased survival after fragility fracture, improved trauma care and better governance of hip implants. The latest results to December 2011 show improvements in patient reported outcomes for both hip and knee replacements.
Does my right hon. Friend share my concern about the significant increase in hip and knee revisions over the past five years or so? Does he support Professor Tim Briggs’ proposals to deal with that in his report, “Getting it right first time”, which is supported by all the professional associations and which NHS London is looking to adopt?
An increased number of hip and knee revisions is one of the consequences of an ageing population. I welcome Tim Briggs’ report, “Getting it right first time”. His recommendations are sensible. I am pleased to note that it has the support of the British Orthopaedic Association, as well as clinicians in London. It will help us build on the progress that is being made, to which I referred. The latest figures show that the proportion of hip fracture patients who receive all elements of the best practice tariff has risen from 24% in 2010 to 37% in 2011, and to 55% in 2012. That achievement has attracted international interest and is undoubtedly saving lives.
Public Health Outcomes
This year, we published our public health outcomes framework, which will last from 2013 to 2016. It sets out two high-level outcomes: to increase healthy life expectancy and to reduce differences in life expectancy and healthy life expectancy between communities. This is the first time that a Government have published a public health outcomes framework, and the first time that there has been ring-fenced money for public health.
On 31 July 2010, I smoked my last cigarette. Every day since then has been a struggle and I still consider myself to be a smoker. Will my hon. Friend outline for the House what support the hundreds of people in my constituency and the tens of thousands of people around the country who are in the same boat are getting to improve public health outcomes?
I heartily congratulate my hon. Friend on his considerable success, which he has put on the record. We have a number of initiatives, not least the NHS’s quit helpline. There has been a rise in the number of people phoning it and in the number of people who are attempting to quit. He is an example not only to his constituents, but to many Members around the House.
Quite literally, by putting it in a ring fence. That money can be spent only on improving public health among the local population. There are 66 supporting indicators in the outcomes framework. The money will be given to local authorities on the basis that they will make progress towards achieving those outcomes.
Clinical Commissioning Groups
The NHS Commissioning Board is responsible for considering applications from clinical commissioning groups to be established and for determining those applications. The process of authorisation is an important element of ensuring that CCGs are ready to take on their commissioning responsibilities. There are 212 aspiring CCGs that are preparing to apply for authorisation.
West Cheshire clinical commissioning group is making excellent progress towards taking control of all NHS services in April next year. It is one of the first wave to undertake the national authorisation process. When can first-wave groups, such as West Cheshire, expect to hear whether they have been successful?
I congratulate West Cheshire and other CCGs on the progress that they have made by aspiring to CCG authorisation. We expect first-wave applicants to be informed of the outcome of their authorisation applications by November. Once the outcome is known, the focus will be on ensuring a safe and managed transition from primary care trusts to CCGs on 1 April 2013.
Public Health Responsibility Deal
The responsibility deal has brought together 392 partners, a doubling in number since its launch a year ago. Working together, we have removed artificial trans fats in foods, reduced salt content, put calories on high street menus, improved alcohol labelling, set out ambitious future plans for calorie and alcohol reduction, promoted enhanced physical activity and strengthened employers’ support for health in the workplace. Transparent monitoring and evaluation are vital, and our partners’ assessment of the delivery of their pledges will be published on our website. We are making up to £l million available to fund an independent evaluation of the responsibility deal.
As I said to the hon. Gentleman, as part of the responsibility deal we are considering an ambitious programme of removing 5 billion calories a day from the diet in England. A range of programmes, such as behaviour change programmes and the reduction of saturated fats and sugars in foods by the industry, will make that happen. All those issues will be considered as part of how we can deliver that ambitious programme.
22. I congratulate the Secretary of State on yet another initiative that has helped to ensure that patients in England have a better standard of health service than their counterparts in Wales. What is his message to Welsh Members of Parliament who call on him to stop various reforms and expect him to impose the second-class standards of health service that we see in Wales thanks to the Welsh Assembly? (110337)
Yes indeed. There are serious public health challenges to be faced up to in Wales, and it would be much better if the Labour Government in Wales, instead of cutting the budget by 6.5% as they are planning to do, increased it in real terms as the coalition Government are doing in England.
The legal duties that we have introduced will ensure that health service commissioners have regard to the need to reduce health inequalities. The NHS and the public health outcomes framework will set out ambitions to reduce those inequalities in both health services and the health of the population. That is an ongoing area of work. We already have the indicators in the framework, but we also need the ambition to work on those inequalities.
Central Bedfordshire council has a number of public health challenges such as establishing health and wellbeing boards. Does the Minister agree that those challenges would be much easier to achieve and more effective if agencies such as social services, education services and others worked together? Are the Government doing anything to help facilitate that?
My hon. Friend is absolutely right that education, social services and health services need to be brought together. That is exactly why bringing public health into local government is critical. If we add to that list housing and local business services, we have the mix to turn around many people’s fortunes. Some of the 66 indicators in the framework are school-readiness, social connectivity, air pollution and chlamydia, and they will all require local government to work at every level with all agencies to reduce inequalities.
We are doing a number of things, and the most important is devolving responsibility for public health to local areas. It is clear that delivering improvements in diagnosis, outcomes and so on for people with pancreatic cancer relies on different actions in different areas. The important thing is to give local people the power and money to do what they know is right.
I am sure the Minister would agree that Newark hospital is performing outstandingly in stamping out inequalities. However, given the expansion of population in Newark that is expected by the end of the decade, will the Minister allow me and some of my constituents to meet her to discuss the inequalities we anticipate?
Resource Distribution Formula
14. What his policy is on the resource distribution formula for primary health care commissioners. (110328)
From 2013-14, the NHS Commissioning Board will allocate resources to clinical commissioning groups. The Health and Social Care Act 2012 contains the first ever legal duties on health inequalities for NHS commissioners and the Secretary of State. This applies to everything the NHS Commissioning Board does, including allocating resources.
Yes, I can give that assurance. I know this has been of some concern to the right hon. Gentleman and the north-east, but I can tell him that we are not planning to alter resource allocation to transfer funds from the poorest parts of the country. There is also no mandate to propose a formula based purely on age. As he may or may not know, although age is the primary driver of an individual’s need for health services, the most recent primary care trust formula uses a range of factors to determine fair shares, including the age structure of the population, levels of deprivation and the unavoidable costs in providing services between areas.
The last of those factors is relevant because community health care increasingly allows people to live at home for longer and to go home sooner after hospital admissions. However, that means that sparsity is a factor in the cost of providing health services in rural areas such as Wiltshire. Will the Minister therefore find a way of recognising that within funding allocations?
Yes. I hope I can reassure the hon. Gentleman. As he may be aware, the Advisory Committee on Resource Allocation is currently reviewing the formula by which funding is allocated. We await its recommendations and will look at them carefully before making any announcements.
The reason the funding formula is causing such concern in the north-east is that we have some of the worst public health outcomes in the country, including on obesity, liver disease, vascular disease and so on. Given that there is to be no change to the funding formula, why has the Faculty of Public Health said that the inequalities will get worse because of the reforms the Minister proposes?
No. I do not think the hon. Lady is right in that—[Interruption.] As she will appreciate if her hon. Friends on the Opposition Front Bench would just hush and listen for minute, there will be allocations for public health, but there will also be allocations for acute care in clinical commissioning groups. Those will be done to reflect the needs of areas up and down the country. No one area will be penalised at the expense of another. What is more, they will be done on the basis of independent advice, as I said to the hon. Member for Chippenham (Duncan Hames) in my earlier response.
As at 1 May 2012, 74 out of 80 local breast screening services had at least one digital X-ray set, and 53 were fully digital. All services must have at least one digital X-ray set in order to enter the breast screening randomisation project and extend screening to women aged 47 to 73.
I thank the Minister for his reply, but may I press him on making digital happen in my constituency? Where is funding responsibility in the new NHS for investment in new digital equipment and for making the switch? Does it fall 100% with the foundation trust wishing to be commissioned to provide the service, or with the body wanting to commission it, or—dare I say?—is there a third way?
There are three aspects to that question. The first is that we need to ensure that providers can purchase equipment at the lowest possible price. That is why NHS Supply Chain is making arrangements to ensure that digital mammography is available at the lowest possible price to providers through the various initiatives it is taking. The primary responsibility sits with the provider to provide the equipment against which they have been commissioned to provide services. Of course, in the specification it makes for the service, the commissioner will make it clear that digital is required.
My responsibility is to lead the NHS in delivering improved health outcomes in England, to lead a public health service that improves the health of the nation and reduces health inequalities, and to lead the reform of adult social care, which supports and protects vulnerable people.
The strategic health authority has ruled out the locally preferred option for the transformation of community health services in Milton Keynes. Given the Government’s commitment to localism and their preferred approach to the integration of services, will the Secretary of State look at this matter again?
It is for the primary care trust to appraise the options and decide which is best for local people. The SHA has a role in providing assurance in that process, but I would urge both the PCT and the SHA to ensure that they meet the test that we are looking for, which is that any decision must be in the best clinical interests of patients and must meet the views of clinical commissioners in the future and, indeed, those of the public, not least as expressed through the local authority. I would urge the PCT and the SHA to make progress on that, and, if it would be of any assistance to my hon. Friend, I would be glad if he were able to meet me, the PCT and the local authority to help to resolve the issue.
In their 2010 NHS White Paper, the Government promised legislation on a new legal and financial framework for social care. However, last month’s Queen’s Speech included only a draft Bill, on social care law alone. We cannot tackle the care crisis without tackling the funding crisis, so will the Secretary of State now agree to Labour’s call for legislation on a new system for funding social care in this Parliament? Yes or no?
The hon. Lady will know very well that last year we made it clear that we intended to publish both a White Paper on the reform of social care law and, alongside it, a progress report on the reform of the funding of adult care. We still intend to do both those things, and to do so soon.
T4. The Minister is aware that a form of postcode lottery operates in the provision of IVF treatment at the moment. Does she agree that the Health and Social Care Act 2012 provides an excellent opportunity to end this lottery and allow a more equalised approach to IVF treatment? (110342)
Yes, and may I commend my hon. Friend on the work he has done in this area? In the reformed NHS, infertility treatment services will be commissioned by clinical commissioning groups, with the NHS Commissioning Board providing oversight and support. That will include the provision of resources and tools to enable CCGs to collaborate to commission infertility services. We will continue to expect those commissioning infertility treatment services to be fully aware of the importance of having regard to the National Institute for Health and Clinical Excellence fertility guidelines.
T2. Speaking on 24 April, the Secretary of State indicated that the NHS distribution formula should no longer take account of deprivation. That would have cost Sheffield £73 million a year and benefited Surrey by £400 million. His ministerial colleague, the Minister of State, the right hon. Member for Chelmsford (Mr Burns), seems to have denied that that is the case. Will the Secretary of State therefore confirm that this is the Government’s latest U-turn? (110340)
No, I will do no such thing, because the premise of the hon. Gentleman’s question is completely wrong. I never said any such thing. What I made perfectly clear is that, as has been the case in the past, age will continue to be the principal determinant of health need, and therefore, by extension, that age will be the largest factor in determining the allocation of resources to the NHS. That was true under the last Government; it will continue to be true under this one.
T5. On 21 June, conscientious, hard-working doctors will be putting their patients before the British Medical Association’s ill-judged call for industrial action. Can the Secretary of State confirm to the House, however, how many surgeries, operations and clinics will be needlessly cancelled, and how much all this will cost the NHS? (110343)
I entirely understand my hon. Friend’s concern, and I applaud the way in which she has expressed it. The BMA’s proposed action could result in up to 30,000 operations being cancelled, as many as 58,000 diagnostic tests being postponed, and more than 200,000 out-patient appointments being rescheduled. I do not think that the House will understand why the BMA would risk patient safety in that way, when it knows perfectly well that its action will have no benefit and that we cannot now go beyond the basis for pension reform that has been agreed with the majority of the NHS trade unions, especially in circumstances in which doctors will continue to receive an extremely generous pension worth up to £68,000 a year at the end of their working lives. I think that the right hon. Member for Leigh (Andy Burnham) and I share the view that this is not a justified position for the NHS to take. The pension is intended to be a generous one. Through the negotiations with the BMA and the other trade unions, we arrived at a very generous pension scheme.
T3. Thanks to the staff at St Thomas’ hospital in London, and at Aintree in Liverpool, I have had excellent health care myself in the past three weeks, but, in order to build the morale of staff across the NHS, will the Secretary of State instruct all NHS trusts not to cut anyone’s pay? (110341)
I am glad that the hon. Gentleman has had excellent care; he might like to tell those on his own Front Bench about it, as they are constantly denigrating the NHS. I will simply reiterate what he will have heard me say previously, which is that I have made no proposals to cut anybody’s pay in the NHS.
The Department is currently reviewing updated lists of properties for proposed transfer. Thereafter, the boards of the sending and receiving organisations will endorse the transfers and give their final approval in the next few weeks to allow the legal transfer process and human resources consultations to commence. The legal transfer of assets to either NHS providers or NHS Property Services Ltd will take place on 31 March 2013.
T7. We have learned today that public satisfaction with the NHS has fallen dramatically. We also know that satisfaction with GP services has fallen for the second consecutive year, and that satisfaction with accident and emergency services is going down by 7% each year. The Prime Minister promised that the NHS would be his priority. Is it not about time that this Government lived up to that promise? (110345)
We have learned no such thing. Indeed, we published on the Department’s website today a survey that asked people who had been looked after by the NHS how well they thought their care had been provided to them. It showed that 92% of the patients said their care had been good, very good or excellent. In my view, that survey of 70,000 patients who had received care from the NHS completely trumps a survey that asked 1,000 people what they might have thought about the NHS in relation to the media activity that took place last year.
T8. The Cheshire and Merseyside treatment centre has been closed for just over a year, since the private sector contract let by the last Government expired. Can the Minister confirm that the centre is now going to be brought back into the NHS as a fully fledged part of the Warrington and Halton hospitals trust, and will he give me an indication of the time scale involved? (110346)
I am grateful to my hon. Friend for giving me the opportunity to explain that the NHS trust and the PCT have made plans for the building to be used by the Warrington and Halton Hospitals NHS Foundation Trust for orthopaedic out-patients and surgery. Those plans should enable clinicians to provide the NHS services needed by local people in much-improved buildings, and I understand that services will be recommenced from those buildings in weeks.
In written responses to questions about clinical commissioning groups, the Minister of State, Department of Health, the right hon. Member for Chelmsford (Mr Burns) incessantly replies—most recently on 18 April—that CCGs do not yet exist, so how can he offer assurances, as he has done today, that any real progress is being made by the CCGs, when they are currently being supported by PCTs? And will he explain his “now you see them, now you don’t” response?
I will tell the hon. Lady how we can talk about the progress made by CCGs—because we actually go and talk to them. I recall visiting the Blue Coat school in Merseyside a few weeks ago and speaking to the leaders of clinical commissioning groups—from Liverpool, Lancashire, Manchester, Warrington, Knowsley and St Helens—and many of them had 100% delegated responsibility for budgets this year. They explained to me the opportunities they were taking to improve the care of their patients by using that responsibility.
T9. Clacton was promised a new renal unit several years ago. While they are waiting, local people have had to travel long distances for treatment. I am due to meet the commissioning authority to discuss the endless delay. If it fails to make progress soon-ish, could I meet the relevant Minister and his officials to work out what we can do to prod the commissioning authority into getting a move on? (110347)
My hon. Friend will be aware—and, I am sure, will understand and support—the devolution of commissioning responsibilities locally. He is right to pursue the matter in the way he proposes. Over a number of years, including under the previous Administration, efforts were made to secure additional access to dialysis. For a long period, we in this country had lesser access to dialysis than in other countries—particularly when people were not only working but likely to be on holiday. I welcome the point my hon. Friend is pursuing and, when he has had his conversation locally, perhaps he would like to tell me the outcome.
As I am sure the hon. Lady is aware, we have proposed in the alcohol strategy to make sure that public health and other health considerations can be used in making decisions about licensing applications. This is what we have achieved from having a cross-government strategy and approach, moving public health responsibilities back into local government.
May I emphasise to my right hon. Friend the strength of local feeling in Milton Keynes that we should retain our integrated community health service, which has worked incredibly well and provides a good role model for elsewhere in the country?
I am grateful to my hon. Friend. The four tests for service change that we have set out—I think rightly—are not just about the tests that must be met before changes can be introduced; they also involve the same considerations that should drive the design of services. If local commissioners, the local authority and local people are supportive of a particular form of organisation, including community services, I would hope that that would provide the basis on which the design of services would proceed.
Last evening, I attended the launch of UKCK—a group of charities coming together to raise funds to purchase advanced radiotherapy equipment. Will the Minister explain why, despite his previous assurances, regions like the north-east are having to turn to charities to raise funds to buy this potentially life-saving equipment?
If the hon. Gentleman would like to supply me with the details of regions that are having to do that, I will certainly write to him on the matter. What we are doing is making an extra £750 million available to the NHS during this spending period to support the investment in radiotherapy services. I will certainly come back to the hon. Gentleman on his particular point.
In an Adjournment debate last year on the safe and sustainable review, the Minister of State, Department of Health, the right hon. Member for Chelmsford (Mr Burns) confirmed the minimum number of operations at 400 a year, saying that it was based on the level of activity needed to provide good quality care around the clock. Does he share my astonishment that the chairman of the joint committee of PCTs has said that he can give no assurance that that will be included in the final review? Does that not undermine this unhappy process?
My hon. Friend will be aware, as other Members are, that this is an independent review conducted by the joint committee of primary care trusts. On that basis, I will not comment directly on anything said in that context. I simply reiterate what was made clear in last year’s debate that the joint committee will not conduct its review solely on the basis of the options set out in its original consultation.
Regarding the answer given to my hon. Friend the Member for Leicester West (Liz Kendall), the Government did not promise to give us a progress report on funding, but to legislate in this Session to reform social care funding. Social care is now widely seen as being in crisis. When will the Secretary of State commit to acting urgently—because urgency is needed now—to tackle this crisis?
I must correct the hon. Lady. We did not say that we would legislate in the current Session. What we made clear was that we would publish a White Paper—which we will do—and that we would publish a progress report on funding reform. We were also clear—as we still are—about the fact that, as part of the coalition programme, we would act urgently, and we will continue to do so.
The Department of Health is to be asked to sign off the business case for the transfer of services from Lambert Memorial community hospital to the new extra care housing scheme—sometimes called an extra sheltered accommodation scheme—in updated community facilities. Will the Secretary of State give me a personal assurance that there will be no sign-off until the future of Thirsk’s community hospital is guaranteed for its current purposes?
I cannot give my hon. Friend that assurance, not least because such decisions are led locally by local organisations. However, if the tests for service change were not met and the local authority referred the matter to me, I would of course take advice through the independent reconfiguration panel, and consider it in the light of that advice.
Points of Order
On a point of order, Mr Speaker. During Health questions, I gave a figure for nursing redundancies. It would appear that the Minister of State gave an incorrect figure in his reply, inadvertently including midwifery and health visitor posts as well as nursing posts. If that is the case, may I please ask the Minister to correct the record?
I hope that I am not falling over, Mr Speaker.
It may be useful to the House if I correct the shadow Minister’s misapprehension. What I gave, and what I stand by, were the latest figures for full-time equivalents in the NHS work force. Since May 2010, the number of qualified nursing staff has fallen by 2,693. That is the figure I gave the shadow Minister, and it comes from the category in the work force statistics headed “qualified nursing staff”—[Interruption]—which includes, as the chorus are echoing, midwives and health visitors.
I am reassured that the Minister has not fallen over, and I think that we are all better informed. What we cannot have, and what I am sure no one would seek, is a rerun of Health questions, but we have been given that clarification, for which we are grateful.
On a point of order, Mr Speaker. Have you had a request from a Defence Minister to be allowed to come to the House to explain today’s contemptible announcement that 4,100 members of Her Majesty’s armed forces are to be made redundant, that about a third of the redundancies will be compulsory, and that about 2,900 will be in the Army? I should be interested to know whether any of those being made redundant are in 16 Air Assault Brigade, which is based at Colchester garrison. Little over a year ago, they were fighting in Afghanistan and putting their lives on the line. Is there to be a ministerial statement?
No, but, knowing the hon. Gentleman as I have for the last 15 years, since we entered the House together, I have just a hunch that this is a matter to which he will return, possibly with notable frequelarity. Regularity? Frequency? I am getting there. [Hon. Members: “A lot.”] A lot: indeed.
On a point of order, Mr Speaker. It would appear that this afternoon the right hon. Member for Doncaster North (Edward Miliband), the leader of the Labour party, accused the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown) of perjuring himself yesterday. Is it in order, Mr Speaker, for members of the Privy Council who sit in this House to make such accusations without explaining themselves to you or to the House?
I am not aware of any such accusation having being made. Immediately after the hon. Gentleman had raised his point of order, he sat down with a very bright grin on his face, so I shall take his remarks as having been made in a spirit of levity on which no further comment is required.
I beg to move, That the Bill be now read a Second time.
I am confident that everybody in this Chamber agrees that freedom of expression is the cornerstone of our democracy. In an open society, people should be at liberty to debate a subject without fear or favour, whether the matter be political, scientific, academic or anything else. That is how power is held to account, abuses of authority are uncovered and truth is advanced. But freedom of speech does not mean that people should be able to ride roughshod over the reputations of others without regard to the facts. Life and career can be destroyed by false allegations that go unanswered. The issue for our defamation laws is ultimately one of striking the right balance between protection of freedom of expression on the one hand and protection of reputation on the other.
I share the mounting concern of recent years that our defamation laws are becoming out of date, costly and over-complicated, and that they are at risk of damaging freedom of speech without affording proper protection. No one can be satisfied with a situation where the threat of lengthy and costly proceedings has sometimes been used to frustrate robust scientific and academic debate, to impede responsible investigative journalism and to undermine the good work undertaken by many non-governmental organisations. The practice of issuing gagging writs has been resorted to by many people over the years. I once had the privilege of receiving one myself from Mr Robert Maxwell, but we must make sure that the practice is not encouraged to spread further. Nor can it be a matter of pride when powerful interests overseas with tenuous connection to this country use the threat of British libel laws to suppress domestic criticism in cases of so-called libel tourism.
Turning to what is the most innovative and difficult part of the Bill, I am also very concerned that our current libel regime is not well suited to dealing with the internet and modern technology. Legitimate criticism sometimes goes unheard because the liability of website operators, as providers of the platform on which vast amounts of information is published by users, puts them in the impossible position of having to decide when to defend or censor information. Meanwhile, individuals can be the subject of scurrilous rumour and allegation on the web with little meaningful remedy against the person responsible. We need to refocus and modernise the system so that it offers effective protection, whether offline or online, both for freedom of speech and the reputation of those who have been defamed.
Those are the main reasons for the introduction of the Defamation Bill. It fulfils the commitment in the coalition agreement to review the law of libel while protecting legitimate free speech. It also, of course, draws heavily on the draft Bill published last year. I do not want to tempt fate, but I must say that I think that thus far producing a draft Bill and consulting has proved to be a very good way of proceeding on what could otherwise have been an extremely contentious issue.
The draft Bill benefited from detailed, and very helpful, scrutiny by a lot of interested people. We were particularly helped by the Joint Committee, and I am grateful to all who contributed to it, especially my old friend and colleague Lord Mawhinney and his fellow Lords for their extremely helpful contribution, which we have reflected in the Bill.
On the subject of that Committee, may I say that it was my experience—which I think was shared by others who served on it—that the attitude of the Minister, Lord McNally, especially in answering questions and being very open about what was in his mind and in the mind of the Department, was very useful? Such openness brings results.
I am grateful to my hon. Friend for those comments, because it is one of the ironies of this Bill starting in the Commons that the member of my ministerial team who has devoted the most time to producing it is unable to introduce it. My ministerial colleague, my hon. Friend the Member for Huntingdon (Mr Djanogly), will wind up this debate, and both he and I would acknowledge that our noble and right hon. Friend Lord McNally played a leading part in the whole consultation and scrutiny process.
Before I discuss the detail of the Bill, let me say that parliamentary debate always elicits a broad spectrum of opinion, and defamation reform is no exception. At one end of the range of views are still some who would like this country to move towards the United States’ model, with free expression always trumping other considerations and with little or no legal redress for those who have been defamed. I find that idea unattractive and think that the current process of American electioneering shows the dangers. The well-financed production of untrue or dubious personal allegations can be taken to great length if there is no adequate protection. At the other end of the range are a few people who think, particularly in light of recent media excesses, that we should teach newspapers a valuable lesson by encouraging anyone whose feelings have been hurt to sue them. I am not sorry to say that the Bill will disappoint those with either extreme of opinion, which I hope will be echoed very little by hon. Members on any Benches in this House.
I agree that no one wants to see the Americanisation of our libel and slander laws. However, the right hon. and learned Gentleman referred to Lord Mawhinney’s report and chairmanship of the Joint Committee. Lord Mawhinney made it very clear that access to justice was critical for the ordinary citizen. Does the Secretary of State agree with me that raising the “substantial harm” test raises the bar so high that the ordinary citizen will never go into the libel courts to defend themselves?
No; I shall try to address that issue throughout my remarks. The package that we have produced is aimed at reducing costs and producing more effective remedies for a wide range of people, as well as at reducing the burdensome cost for those trying to defend themselves against actions. I shall keep making remarks that address the hon. Gentleman’s concerns, because I am anxious to ensure that we are not making things more expensive or difficult for any litigant.
Our intention is to correct the worst excesses of our current system in which, particularly for the powerful and wealthy, the law makes it rather too easy to menace responsible publishers with libel proceedings. However, we do not want sensible mainstream reform to come at the cost of giving further licence to parts of the media to publish whatever they like without regard for the truth. Equally, we want to ensure—this is relevant to the point made by the hon. Member for North Antrim (Ian Paisley)—that it is possible for ordinary people to get a remedy, but only where their reputation has been seriously harmed. We do not want to open the floodgates to endless litigation in our courtrooms by people whose feelings have been hurt but who have not suffered any particular damage. Of course, the Bill is only part of the story. No doubt the conclusions of Lord Justice Leveson’s inquiry will inform broader reforms to press regulation in due course.
It seems that a person would be able to take action only if a single statement caused serious harm to their reputation, but it is usually the case that people find themselves being mercilessly bullied, harassed and hounded by newspapers over a long period. There might not be a single statement that would definitively destroy their reputation, but they nevertheless find themselves being dragged through the mud without there being any individual act meriting the kind of action that the reforms would allow. In those circumstances, what kind of defence would an individual have against a £100-million organisation that is committed to shredding their reputation?
I think the law of libel offers equal protection in both situations. One single statement can be very defamatory, but so can a series of statements as my hon. Friend rightly says. That has always been the case and I do not think that anyone has ever drawn such a distinction in the law of defamation. The test will be applied to the total conduct of which the plaintiff is complaining and against which he is seeking a remedy. I have alongside me my hon. and learned Friend the Solicitor-General, who used to practise privately in this particular field. He seems to agree with my judgment on this matter, so I think we can put that fear to rest.
Let me deal with the point made by the hon. Member for North Antrim, because the next part of what I have to say is very relevant here. As I have said, alongside the Bill we are seeking to bring about a significant reduction in the sometimes punitive costs in libel cases by introducing a series of procedural changes. Those changes come on top of the Jackson reforms—this involves the Legal Aid, Sentencing and Punishment of Offenders Act 2012—to the no win, no fee conditional fee arrangements. The reforms will reduce the burden on both plaintiffs and defendants and help to reduce overall legal bills, without preventing claimants with strong cases from finding lawyers to represent them.
Our first priority has been to reform the law so that trivial and unfounded actions for defamation do not succeed. Clause 1 therefore raises the bar, by a modest extent, for a statement to be defamatory by proposing that it must have caused or be
“likely to cause serious harm to the reputation of the claimant.”
That was carefully considered in consultation by a lot of respondents. Whereas the draft Bill sought views on a test of substantial harm, which was intended to reflect current law, the new clause drew on the views of the Joint Committee on the draft Bill and the balance of opinions received in the consultation by nudging the threshold up by a modest extent. It will be for the courts to determine, in the light of the individual circumstances of a case, whether the test has been met. However, we hope it will give more confidence to defendants in, for example, the sorts of cases brought against non-governmental organisations and scientists in recent years.
Alongside a stronger test, we also want to simplify and clarify the defences available to those accused of libel. As they stand, the defences are sometimes unnecessarily complicated and too narrowly focused on cases relating to mainstream journalism, rather than the online world, NGOs, academics, scientists and so forth.
Everyone wants a vigorous press commenting robustly on matters of public interest. Too much of our press, however, has sought to earn a living in recent years by destroying people’s reputations. Will the Secretary of State reassure the House that his new defences of “honest opinion” and “in the public interest” will not allow the likes of the Murdoch press to drive a coach and horses through any person’s private life?
I agree with some of what my hon. Friend says. No doubt we all get infuriated by much of what appears in the newspapers. I personally find that much of the popular press express views that I regard as ridiculous, right-wing and extremely annoying to my view of political debate, but it is important in a democracy that people such as me are subjected to that. Our test of whether we live in a society where free speech is allowed is whether we allow free speech to people with whom we disagree. That can involve matters of taste. Some of what my hon. Friend complains about concerns the ridiculous offshoots of the celebrity culture in which we now live. We can all freely express opinions about these things, but I would be hesitant indeed if any Government came to the House to legislate on such matters. In my judgment, if our press wish to be scurrilous and irresponsible, up to a point they are entitled to be so.
It must be a serious matter causing serious harm to their reputation. Most Members have things printed about them twice a week that cause them annoyance and which they would vehemently start arguing about if they had the opportunity to do so in front of readers. It is serious matters that must be subject to the serious process of defamation law in the pursuit of a remedy—a financial remedy, an apology or whatever—in a court of law.
Will the Secretary of State say a little more about this matter? He will understand that once the law is codified, judges will interpret what he has said. Does he recognise that for ordinary members of the public—for example, someone running a small business to whom harm can be caused if a local paper runs a particular story—what is serious is quite different from what is serious for celebrities and those in public life?
I agree. I stress that it will be for the courts to determine what amounts to serious harm in an individual case, but I agree that someone whose business is damaged—albeit by a local allegation in a local newspaper—could almost certainly demonstrate serious harm. Any citizen against whom a serious and unfounded allegation of personal misconduct is made will probably be able to demonstrate that it has done serious harm to his reputation. The hurdle is raised a little, but I trust that it will not bar any plaintiff who has had serious problems as a result of a publication.
I was moving on to deal with the defences. Clauses 2 and 3 replace the common law defences of justification and fair comment with new statutory defences of truth and honest opinion. These are areas where the law has become increasingly complicated and technical over the years. In our opinion, the revised approach should simplify the situation, ensuring that the defences are available without so many endless and costly disputes over detail and interpretation. Alongside the new defences of truth and honest opinion, we are introducing, for the first time, a statutory defence of responsible publication in the public interest. This is based on the common law defence that has been developed by the courts in recent years following the case of Reynolds v. Times Newspapers but expressed in clear and flexible terms. It provides a defence where the defendant can show that the allegedly defamatory statement is, or forms part of, a statement on a matter of public interest, and that he or she acted responsibly in publishing it.
The relevant clause identifies specific factors to which the court may have regard in deciding whether the defendant has acted responsibly, based on current case law. However, we do not want those to be interpreted as a checklist or a set of hurdles for defendants to overcome, and the list is intended to set out factors in an illustrative, non-exhaustive way so courts will retain flexibility. It is not our intention to change the Reynolds defence; we have sought to set it out in statutory form in a way that we hope will help.
I am listening carefully to what the Lord Chancellor is saying about the dangers of the non-exhaustive list setting a series of hurdles. Does he not think that a catch-all clause allowing the courts to look at all the circumstances of the case would cure that potential mischief?
As I said, we are not intending to fetter, as it were, the discretion of the court in the end to apply reasonable judgment to the particular circumstances of a particular case; this is meant to be illustrative. This is work that we have set out, and we will reflect on my hon. Friend’s point as we continue to scrutinise the legislation as it goes through this House.
Finally in this area of defences, we are extending the circumstances in which absolute and qualified privilege can be asserted. The defence of privilege is based on the principle that there are certain situations in which it is for the public benefit that a person should be able to speak or write freely, and that this should override or qualify the protection normally given by the law to reputation.
Clause 7 extends privilege to summaries of material as well as to reports and copies; broadens the international scope of the circumstances in which privilege applies; and clarifies that qualified privilege extends to reports of scientific and academic conferences and of press conferences. In a further important step forward for the protection of scientists and academics, clause 6 creates a defence of qualified privilege for peer-reviewed material in scientific and academic journals, as recommended by the Joint Committee on the draft Bill. The clause defines key elements of the peer-review process to ensure that publications with appropriate procedures will now be given the protection of this new defence.
All told then, I would argue to the House that the Bill is introducing sensible reform to protect freedom of expression by raising the bar for a claim and bolstering the defences available, with specific benefit for scientists and journalists. But we want to go further in some of the main areas of public concern, in particular by addressing libel tourism, which has sometimes caused damage to this country’s reputation around the world, as we are normally regarded as advocates of freedom of expression, in particular. Relatively few foreign libel cases ultimately end up in a British courtroom, but I am concerned by the use of threatened proceedings by wealthy foreigners and public figures to stifle investigation and reporting. Clause 9 addresses the issue in a measured and proportionate way, although it has had to be drafted to avoid any conflict with European law. It clarifies that a court will not hear a case against someone who is not domiciled in the UK or an EU member state unless satisfied that England and Wales is clearly the most appropriate place to bring an action. It should help ensure that powerful interests around the world will not so easily be able to use British justice to gag their critics —a move that I hope will be welcomed across the House.
I appreciate the Secretary of State’s generosity in giving way on this point. He said that our courts are becoming—or could become—a laughing stock as regards libel tourism. Does he not agree that if someone is libelled or slandered by a British person or a British publication, the victim of that libel or slander has the right to seek remedy in this jurisdiction given that they have been victimised by that publication? Indeed, the accusation of libel tourism amounts only to about a dozen cases over past years and it really is not as big a problem as some people are suggesting.
I did not say that I thought our courts would be a laughing stock; I think that our libel and defamation laws are rather good and that is no doubt one reason people try to access them. We are trying to improve them. I do not think that our standards of justice are being hurt, but different societies will form slightly different judgments of where the balance lies between freedom of expression and giving a remedy to people who are defamed. I have already said that the United States of America, which resembles this country in some ways, takes a very different view of what is actionable and defamatory if it is produced in that country.
The problem arises when people come to this country because our system is more generous to their point of view to bring cases that have little or nothing to do with the United Kingdom. I give the example of a Saudi business man, say, threatening an American publication with an action because of an article that has had tiny circulation in the United Kingdom. That is a hypothetical case, but the Saudi would be using the nature of British law to threaten a publication in an entirely different jurisdiction. That is the evil we are trying to address. We are not trying to stop British publications being sued by anybody who can come here and show that we are the right jurisdiction.
I again appreciate the Secretary of State’s generosity. The Saudi gentleman does not exist, as the Minister has said, so let us consider the cases that do exist. A governor of the state of California sued a British newspaper because it carried inaccuracies about him and sued the publisher of a British book that claimed he was a Nazi sympathiser. Other prominent individuals come to this country who have been seriously slandered by publications; surely they have the right to seek a remedy here.
If anybody is defamed by a publication in this country or wants to act against a defendant who is domiciled in this country, they will be able to bring an action. I do not regard that as libel tourism. The problem arises when two people in the same country start suing each other because half a dozen copies of some foreign language publication have in theory been available on some bookstall in London and this jurisdiction is chosen to try to get a remedy. I hope that what we have done will ensure that people with powerful interests around the world will not so easily be able to use our courts.
Can the Secretary of State confirm that the Saudi business man almost certainly exists? The Rachel Ehrenfeld case was heard in this country when there was no connection other than the 23 copies of her book that were sold, yet it resulted in the passage of the Libel Terrorism Protection Act in New York. It is a mark of shame against this country that New York state thought it necessary to pass an Act specifically aimed against this country.
I made my remark about the case being hypothetical to avoid being drawn into arguments about that case, which is rather familiar to people who know this subject. There are arguments about how far the plaintiff had connections with this country and a reputation here, but as it happens I was producing the example of a Saudi and an American purely hypothetically and I do not think I should get drawn into the merits of a past case. My hon. Friend, who is an expert in this field, rapidly understood why those particular nationalities had leapt to my mind when I gave the example.
Alongside these adjustments in the law to help support freedom of expression, I want to ensure that effective remedies are available for those defamed. Often what most concerns claimants is not financial compensation, but meaningful public clarification that a story was wrong. We have therefore included provisions in clause 12 extending existing powers to enable the court to order publication of a summary of its judgment. Parties will be encouraged to reach agreement, where possible, on the contents of the summary and issues such as where, when and how it is to be published. However, in the absence of agreement, the court will be empowered to settle the wording of the summary and give directions on those other matters.
In addition to protecting freedom of expression and reputation, the Bill seeks to modernise the law. Our biggest difficulty has been in relation to the web, the internet and so on. Currently, website operators are in principle liable as publishers for everything that appears on their site, even though the content is often determined by their users, but most operators are not in a position to know whether the material posted by their users is defamatory or not, and very often, faced with a complaint, they will immediately remove material. The Government want a libel regime for the internet that makes it possible for people to protect their reputations effectively, but which ensures that information online cannot be easily censored by casual threats of litigation against website operators.
I broadly support the Bill, especially clause 5, which the right hon. and learned Gentleman is explaining. Can he give any comfort to the parents of Georgia Varley, a Liverpool youngster who was tragically killed and whose family and friends set up an RIP website, which trolls then used to abuse and disparage her death in a sickening and vile way? Can he outline specifically the proposals to tackle such abuse by internet trolls who hide behind the anonymity of a computer to abuse those remembered on RIP websites?
I cannot possibly comment on an individual case and individual possible action. I anticipate that the difficulty may be that the defaming of a deceased person always gives rise to questions of whether any action is possible. Trolling is an extremely unpleasant, curious activity which some very nasty people appear to be going into. There have already been quite a lot of prosecutions for trolling, but we think the public are entitled to proper protection against it.
Our proposed approach, under clause 5, will provide website operators with a defence against libel, provided they follow a procedure to put complainants in touch with the author of allegedly defamatory material. This will strengthen freedom of expression by ensuring that material is not taken down without the author being given an opportunity to defend it. Conversely, it will strengthen protections by enabling people who have had their reputation seriously harmed online to take action against the real author and bring proceedings against them if the matter cannot be resolved by other means.
This is indeed a complex issue. Can the Justice Secretary confirm that this is an optional defence and that web operators would be entitled not to follow those regulations and not to use the defence, and that they would still be covered by the defences available under the e-commerce directive if they so chose?
That is entirely correct, but of course those web operators would also be vulnerable to possible action because they had not availed themselves of the process, which would give them one way of proceeding if they chose to do so. We are not replacing other remedies which might well be available against a publisher who took no steps to inform the defamed person of where the defamatory matter was coming from.
It will be very important to ensure that these measures—clause 5 and those associated with it—do not inadvertently expose genuine whistleblowers, and we are committed to getting the detail right to minimise that risk. We will continue to consider that and eventually some of it will have to be covered by regulation.
Concern has also been expressed about the impact of the current law on secondary publishers more generally, including booksellers and newsagents. In accordance with our aim of ensuring that secondary publishers are not unfairly targeted and action is taken against the primary publisher wherever possible, clause 10 removes the possibility of an action for defamation being brought against a secondary publisher except where it is not reasonably practicable for the claimant to bring the action against the author, editor or commercial publisher of the material.
A further related proposal to modernise the libel regime is the introduction of a so-called single publication rule. Information online can be copied instantly, stored indefinitely and accessed long after physical forms of publication, yet the current regime allows additional claims for such cases of “republishing”. The proposed rule seeks to reconcile the need to protect individuals from repeatedly having to face the same defamatory comments with the need to avoid open-ended liability for publishers when old material is accessed years later, which has the potential severely to inhibit freedom of expression. Therefore, the Bill includes a provision that will prevent an action being brought in relation to publication by the same publisher of the same, or substantially the same, material after a one-year limitation period has passed.
Agreeing a libel regime fit for the realities of the 21st century is not straightforward, but these steps constitute sensible reform to ensure that freedom of expression and protection of reputation are possible both online and offline. Modernisation, however, must also extend to the cost and length of libel cases, which are increased in current law by the presumption of jury trial. I am normally a strong defender of the principle of jury trial in criminal cases and always have been—I assure my right hon. and hon. Friends and everyone else that my political arteries have not suddenly hardened and affected my views on that.
In practice, jury trials have been infrequently used in libel cases in recent years and the majority of cases are now heard by judges alone. I believe that it makes sense to recognise that reality in law by discontinuing the presumption of jury trial, which in this case has become a kind of noble fiction that creates real practical problems for one or other of the parties. It greatly increases the cost and time taken in defamation proceedings, which can be done deliberately to advantage one or other of the parties in negotiations and bargaining. Many basic legal issues that could otherwise quickly be sorted out by a judge sitting alone, such as deciding the meaning that allegedly defamatory material can have, cannot be resolved until full trial, whether or not a jury is ultimately used. That causes unnecessary delay and expense, to everyone’s detriment.
Recognising that judges should normally rule on libel cases is also part of the wider package of procedural proposals, to which I referred a few minutes ago, that we are taking forward alongside the Bill to help reduce costs and encourage settlements. It goes hand in hand with a new preliminary procedure that we are developing to resolve key issues, such as meaning, at as early a stage as possible. Of course, there might remain occasions when jury trial is appropriate, so the Bill retains the court’s discretion to order that when it considers it appropriate to do so.
A great deal of the argument in defamation action often turns on preliminary points, such as whether a particular statement is capable of having the meaning that one of the parties attributes to it. It is much easier if a judge can deal with those preliminary matters so that the whole thing does not have to go to a full trial. Also, there is absolutely no doubt that a great deal has to be done to explain to a jury what this particularly difficult area of law is all about. The whole thing takes longer—it has to when 12 lay men and women are hearing it—which adds to the expense. Not only does that add to the costs and delays when somebody is involved in an action, as I have said, but because they sometimes threaten bringing claims before they go to court, once we start getting into the costs that might be involved in a jury trial the threat is made much more substantial by holding all this—
Yes. I have been listening to the right hon. and learned Gentleman with great interest and respect for the best part of a quarter of a century, as he knows, but the Secretary of State is a compulsive “swiveller”. Whenever he is intervened on by one of his right hon. or hon. Friends, he invariably swivels round. But the rest of the House does not want to lose him; we are hanging on his every word.
I, like my right hon. and learned Friend, am hoist with two petards: one is my belief in the principle of jury trial; the other is the practicalities that he quite rightly outlines. What I want to understand in his description of the Bill is under what circumstances a jury trial will be triggered. What are the criteria that will trigger a jury trial instead of a judge-only trial?
The decision is deliberately left to discretion, so in the end an experienced judge will have to decide whether a case is suitable, but one can conceive of a few exceptional cases whereby the whole thing depends on a question of the veracity of two teams of hard-swearing witnesses, and whereby the judge is persuaded that, because of the particular nature of the case, he would be helped by the judgment of a range of men and women, from a variety of backgrounds, who would bring their collective wisdom to deciding which side to believe.
That is simply one off-the-cuff example which comes to my mind, but if the whole thing turned on an elaborate argument about the application of the defamation laws to the particular circumstances of the publication of a scientific journal, for example, that would be a wholly unsuitable case to leave to a jury, and the whole thing would take longer and cost a lot more, even if the jury got it right in the end. That is the problem we are trying to address.
I agree strongly with that extremely good point. The more these things can be dealt with by way of a preliminary judgment by a judge, the more settlements we will get, because sometimes the whole thing really turns on one point, which can be dealt with much more quickly if a jury is not involved.
I think I had better conclude, because I have taken—as I usually do—quite long enough.
This Bill is, in our opinion, a sound piece of modernising reform that we have approached in a balanced way. We have sought in particular to defend the interests of free debate. Accordingly, the Bill contains a range of measures which will greatly strengthen the environment for open and robust scientific and academic debate, including measures to apply across the piece, such as the introduction of the serious harm test, the simplification and clarification of defences and a single publication rule, together with specific ones, such as the extension of qualified privilege to peer-reviewed material and to reports of scientific and academic conferences.
I believe that this package of measures rebalances the law in a fair and effective way so that free speech is not unjustifiably impeded and debate about issues of public importance is able to thrive, while still providing appropriate remedies for those who have been defamed. It also updates the law for the first time to address properly the most pressing challenges raised by the internet and social media in relation to defamation. I commend it as a sound, reforming Bill.
I tempted fate earlier, and the Solicitor-General, my hon. and learned Friend the Member for Harborough (Mr Garnier) and I will tempt fate again, because we believe that the process of producing a draft Bill and getting this far has produced a quite extraordinary degree of consensus that I, for one, would not have thought possible to achieve when we first embarked on modernising the law on defamation. So little interest has been attracted abroad that even the media, which one would have thought would be obsessed with the issue, are paying little attention to the debate.
There is still a debate to be had, and this House will demonstrate its usefulness in scrutinising the legislation, just as the Joint Committee on the draft Bill has shown what can be achieved in consultation so far, but I hope that in the end we will continue to command cross-party support in our efforts to address long-standing weaknesses in our defamation regime, and I commend the Bill to the House.
We welcome a Bill that seeks to modernise our outdated libel laws. The Bill is very much built on the groundwork done under the previous Government. Indeed, all three main political parties included in their manifestos a commitment to reform our defamation laws. I commend the Justice Secretary for his speech and for taking so many interventions, which means that my contribution will be a lot shorter than it otherwise would have been. The House is in a position of near unanimity in supporting the principle behind the Bill, and we will support the motion to give it a Second Reading.
I will deal specifically with the clauses in the Bill shortly. First, I would like to put on record the thanks owed to a number of key people and organisations who helped to get us where we are today, and whose further help we will need over the coming period to improve the Bill further. I am sure that the whole House will join me in expressing our appreciation to Dr Simon Singh, whose experiences of struggling with unbalanced and outdated defamation law stimulated a coming together of many scientists, academics, science campaigns, and national academies and institutes. We need to ensure that the threat of libel proceedings is not used to frustrate robust scientific or academic debate or to impede responsible investigative journalism.
The Libel Reform Campaign, in which Simon played a key role, has also driven forward the work on defamation reform. Having met people involved in the campaign on a number of occasions, I know just how determined they are to achieve the task they have set themselves. All the constituent members of the campaign—Sense About Science, English PEN and Index on Censorship—deserve praise for their hard work and determination in keeping the pressure on us here in Parliament to sort out our antiquated libel laws. Their petition of 2010 gathered more than 50,000 signatures of support—testament to the success of their campaigning and the level of support for what otherwise might be seen as a minority issue.
I pay tribute to my right hon. Friend the Member for Blackburn (Mr Straw) for the work that he did as Justice Secretary in the previous Labour Government. It was he who established the working party that started on the task of updating our libel laws. Indeed, that group led the groundwork for this Bill. His approach of working in a collegiate and non-partisan manner was instrumental in all three main parties committing themselves to completing the task started under his watch. Without him, the Bill would not be here today.
The right hon. Gentleman is right to direct the House’s attention to Simon Singh and others. If he will allow me, I would like to commend the evidence given to the Joint Committee by the editors of Nature and the British Medical Journal. Will he also allow me to add the name of Dr Peter Wilmshurst, who faced an unending campaign from a foreign manufacturer of bogus products? We should also remember that the Trafigura case was not just about libel. A lot of others in the media ought to learn to pile in behind people. If they think that their claims are right, they should help to expose the people who are taking these kinds of actions, who would then be laughed out of them.
I associate myself completely with the hon. Gentleman’s comments. I will come to Dr Wilmshurst, the cardio surgeon he mentioned, shortly.
I pay tribute to the work done by the Joint Committee that considered the draft Bill under the chairmanship of Lord Mawhinney. I will come later to some of the excellent conclusions reached by the Committee, some of which have not been adequately addressed in the Bill. I also recognise the hard work of Lord Lester in his original private Member’s Bill.
Finally, I pay tribute to this Government for running with libel reform despite a change of Administration. New Administrations do not often stick with plans that are not wholly their own; this one has. This is not a partisan issue but a problem that needs rectifying. I commend the way in which the Government have gone about doing so and the pre-legislative scrutiny that has been carried out. I commend the Justice Secretary for taking on the baton of reform and ensuring that time was made available in this Session for a Bill to be brought before us.
Time in this House is precious, and using that time for legislation should be done only when there is a clear and demonstrable problem that needs new laws or a change in existing laws, especially when the subject is uncontroversial. Our libel laws deserve this attention, and it is right that we seek to update them. Libel laws were first established in statute through the Libel Act 1843. Since then, only limited changes have been made through the Defamation Act 1952 and the Defamation Act 1996. The law on defamation has primarily been developed by judges via case law.
As with many elements of our legal system, legislating on defamation is about calibration. We must calibrate correctly the balance between freedom of expression and the protection of reputation. Freedom of expression is one of the essential foundations of a free and open democratic society: citizens must be free to express their opinions and views on issues, people and organisations. However, there are limits to the freedom to express opinions. Freedom of expression does not trump everything else. Indeed, in the Human Rights Act 1998, it is a qualified right. It must be balanced against the impact that the expression may have on the reputation of those affected. That is obvious.
The besmirching of reputations without supporting evidence, perhaps for vindictive reasons, is something that society should rightly guard against. That is why we have defamation laws. They are a deterrent against the unwarranted or vindictive expression of opinion, and provide recourse for those who have suffered damage to their reputation. Exactly where the line is drawn between what causes injury to reputation and what is simply the expression of free opinion is not clearly defined, nor could it be. There will always be the need for discretion at the interface of those two opposing tenets.
That said, there has been growing concern in recent years that our libel laws have not kept pace with the changing nature of society. Some have expressed concern that the balance has become too tilted towards protecting reputations, at the expense of free speech, leading to a chilling effect whereby the legitimate right to speak freely and openly is inhibited or discouraged by the threat of legal sanction. Others are worried that England and Wales have become a destination for libel tourists because our perceived claimant-friendly environment attracts litigants who are unwilling or unable to pursue cases in Europe or the USA. Technology, through the expansion of the internet, has transformed the way in which comment and opinion are disseminated in a way that the world has never before witnessed.
Our overriding objective must be to ensure that people from all backgrounds have access to the legal system, should they be genuinely defamed. The chilling effect is underpinned by the system appearing to be out of reach for many people. We therefore risk a dangerous skewing of the balance away from freedom of expression and towards those seeking to protect reputations. The Defamation Bill should leave us with laws that are clearer and more proportionate.
I will now discuss specific provisions of this relatively short Bill, which contains only 16 clauses. Clause 1 will introduce the hurdle of “serious harm” and states that a statement does not defame
“unless its publication has caused or is likely to cause”
serious reputational harm. That is sensible. That hurdle is intended to prevent mundane actions that can cost considerable amounts of time and money to head off. We want to discourage trivial claims.
However, how does “serious harm” differ qualitatively from harm? On that, the Bill is not clear. My right hon. Friend the Member for Tottenham (Mr Lammy) has illustrated some of the problems. Case law refers to a “threshold of seriousness” in determining what is defamatory. To provide genuine protection against trivial cases, we need greater clarity. Otherwise, vexatious claims will not be tackled. The Law Society, of which I am still a member, is concerned that this higher hurdle is likely to inhibit many people in making valid attempts to protect their reputation. That is one issue that I hope the Committee will clarify when the Bill moves upstairs.
This matter was raised with my right hon. and learned Friend, the Secretary of State by the hon. Member for North Antrim (Ian Paisley). Does the right hon. Gentleman agree that the measure of serious harm for a corporation or large profit-making body should be very different from that for a small company or less well-off individual, and that as a result the provision should act as a deterrent against big companies using libel laws as a bullying mechanism?
As the right hon. Gentleman will know, the Joint Committee looked into that issue and wanted a first hurdle before a corporation could sue. The Government decided not to accept that recommendation. He raised the example of corporations. The use of defamation laws by corporations has a chilling effect, especially given the inequality of arms. I am sure that that issue will be teased out and clarified in Committee, given the expertise that it will have.
As has been said, clauses 2 to 7 set out the defences that will be available to a claim for defamation. Some simply replace and codify common-law defences, while others provide new defences. I wish to touch on some of those defences.
Clause 4 is intended to address responsible publication of matters of public interest, the so-called Reynolds defence. That is a defence of responsible journalism in the public interest. The clause will abolish Reynolds and codify the factors that a court may consider when judging whether a defendant has acted responsibly.
I am aware that some groups, including the Libel Reform Campaign, are unhappy with the clause, believing that the Government have not gone far enough, that the defence is too time-consuming and expensive, and that it is unreliable because defendants are often required to clear a series of complex hurdles to gain legal protection. They also believe that it will simply freeze the Reynolds defence at the current point in time. There is genuine concern that subsequent case law may develop based on what is in the Bill. Would a “son of Reynolds”, as it were, be in the best interests of our defamation laws? We will need further debate and discussion on that important issue, and I look forward to that in Committee.
As has been said, clause 5 is intended to address defamation involving websites. It creates a new defence for operators of a website when a defamation action is brought against them in respect of a statement posted on that website by a third party.
Despite what the Secretary of State said earlier, only a handful of people have been convicted of trolling. It is difficult to prosecute, because of the gaps in the relevant legislation, the Telecommunications Act 1984 and the Communications Act 2003. Does my right hon. Friend believe that clause 5 will do what it is intended to do and discourage and deter people who post sickening messages on RIP websites?
I thank my hon. Friend for giving the important and outrageous example of people being trolled. It is worth saying for clarity that the clause deals only with defamation cases. I would not want the public to think that it was a panacea for all sorts of outrageous behaviour that takes place on the internet. He is right to remind us that other legislation, including criminal law, needs to be updated to allow authorities to take action against those who troll against innocent victims. We are all aware of the case of our colleague, the hon. Member who had outrageous words said against her, leading to a successful prosecution. If there is a lacuna, it needs to be filled, but we should be clear that clause 5 deals simply with cases in which a defamation claim is made.