That the Bill be read a second time.

My Lords, the Bill contains important measures to increase the quality of NHS care, to raise the performance of NHS services and to improve public health. I welcome the opportunity to set out the purpose of the Bill and the policies behind it. I also look forward to the contributions of noble Lords and I am sure we will have a lively and informed debate. I know that the Bill will benefit from the careful and expert scrutiny it will be given in this House.

The key purpose of the Bill is to underpin the commitments set out in High Quality Care for All. My aim in that report was to set out a vision for an NHS sustainable in the 21st century—an NHS that gives people more information and choice, works effectively in partnership and has quality of care at its heart. I am proud that the next-stage review captured the views of around 60,000 people. This breadth of interest is a testament to our collective sense of pride in the National Health Service. The Bill will implement those measures in my report that require legislation. Just as importantly, it will help to embed the overarching theme of my review: that our approach to healthcare should be based on a drive to improve quality. From measures to improve performance and accountability to those that will improve quality of life and the personalisation of care, I believe that the Bill will help to foster a culture of quality in our health service for patients, the public and our staff, regardless of background and circumstance.

To set the context, it is worth reflecting briefly on the purpose of my report. There is a role for the Government in defining and communicating a vision of quality for the NHS, in setting priorities and ensuring clear rules to tackle unacceptable performance. However, it is only by freeing up clinicians, managers and service users that we can really drive up the quality of care. I intended my report to be an enabling report, setting out the national policies that will empower clinicians, patients and the public to drive the changes that are needed locally. In the same way, I believe that this will be an enabling Bill, one that empowers clinicians, patients and the public to improve health—a Bill built on strong local involvement and engagement.

I turn now to the specific provisions in the Bill. Part 1 sets out the framework for the new NHS Constitution. As noble Lords will be aware, the final constitution was published on 21 January, along with the handbook and other accompanying documents. It is this constitution to which the clauses refer. The Bill creates a new duty on all NHS bodies in England, as well as Monitor and the Care Quality Commission, to have regard to the constitution in their decisions and actions. The same duty applies to primary care services and providers of NHS services from other sectors. These bodies will all need to be able to demonstrate that they have given proper consideration to the constitution in their decisions and have very good reasons for any departure from it. The Bill also creates a new duty on the Secretary of State to review and republish the constitution every 10 years, to review the handbook to the constitution at least every three years, and to report on the impact of the constitution on patients, the public and staff.

The Government carefully considered a number of approaches to the constitution. Options ranged from setting out detailed provisions in primary legislation to no constitution at all. The risk of the former is a rigid legislative framework in which complex decisions about NHS care become the prerogative of the courts. The risk of the latter is a missed opportunity. The approach taken by the Government will empower patients, the public and staff without creating a “lawyers’ charter”. The constitution is separate from the Bill and sets out for the first time and in one place the rights to which we are entitled and the pledges which the NHS commits to deliver. It sets out the responsibilities which patients, the public and staff owe to each other to ensure the NHS operates fairly and effectively.

The constitution also creates three new rights: to make choices about NHS care and the information to support those choices, to recommend vaccinations, and to expect local decisions on the funding of drugs and treatments to be made rationally following proper consideration of the evidence. I have been surprised at how much I have learnt from seeing these set out clearly in a single document. In an NHS where care is increasingly personalised, where the pace of change is rapid and where we draw on the expertise of organisations from small charities to large foundation trusts, I believe that there is a value in articulating these commitments in one place in securing the NHS for our future.

Clear, transparent information on quality has the potential to drive improvement. It enables clinical teams and managers to understand where and how to change what they do, empowers patients to make informed choices about their care, and increases accountability. Chapter 2 of Part 1 will place a new duty on all providers of NHS services to produce quality accounts, starting from April 2010. Building on close work with the NHS, quality accounts will include both nationally comparable and local data. They will provide information on safety, experience and outcomes in relation to clinical services, making this available to all, to inform how we develop our services to the highest standard. This is a tremendous opportunity to generate a cultural change in how the NHS understands and drives the quality of services to make a real difference to patient care.

The NHS of the 21st century will be one that puts people and their needs at the centre. My review showed clearly the importance that we place on care that is personal to us, and our desire to have greater control and choice over the services that we use. Drawing on our experience in social care, Chapter 3 of Part 1 legislates to enable the making of direct payments for health services. These are one means of offering people a personal health budget. We are working with the NHS, local authorities and other partners to design a pilot programme to test different approaches to personal health budgets. We want to understand the circumstances and conditions for which they are most effective and to ensure that we design appropriate safeguards.

I believe that the potential for personal health budgets, including direct payments, is significant. The opportunities they present are exciting. For instance, they could be a powerful tool to address inequalities in the health service. However, I also recognise that this is new territory. We need to weigh carefully the benefits of personalised health services against ensuring that the comprehensive NHS we all value so highly is not undermined. Regulations under the Bill will limit the use of direct payments to pilot schemes initially so that we can test our approach.

Chapter 4 of Part 1 gives the Secretary of State a power to make payments as prizes to promote innovation in relation to health services. I know from speaking to stakeholders that the NHS is recognised as a leader in the development of innovative techniques and technologies, but the adoption and spread of these new ideas is variable. Innovation prizes will reward those who have excelled and encourage others to do likewise, helping to foster a culture of innovation in the NHS.

Part 2 focuses on policies to improve the performance and accountability of NHS services. The majority of hospitals and trusts are performing well, providing high-quality services to patients and managing resources effectively. Where they are not, a series of local interventions is available to improve performance. However, in the rare cases where a challenged trust fails to turn itself around—despite commissioners, strategic health authorities and, in the case of foundation trusts, Monitor intervening—it is important to have clear processes to resolve that failure. The regime for unsustainable NHS providers, as set out in Chapter 1 of Part 2, is, in practice, the very last step for a provider which has been subject to previous actions aimed at recovery.

As a practising surgeon, I am aware that the reasons why providers or services may fail are complex. However, I am also acutely conscious that such failure has an unacceptable impact on the quality of care provided. In the rare circumstances where all else has failed, we need to ensure that there is a clear and transparent process to take these difficult decisions. The Bill provides for the appointment of a trust special administrator to take control of the provider, consult on the next steps and make recommendations to the Secretary of State on its future. These measures will protect patients and staff, and underpin the NHS performance framework and the NHS foundation trust regime.

Chapter 2 of Part 2 extends to strategic health authorities and other NHS and relevant health bodies powers for the Secretary of State to suspend public appointees. Currently, if a concern arises, the options are to allow an individual to continue in their role, to seek a resignation or to terminate the appointment. The new powers will allow time for a considered investigation, strengthening the way in which the healthcare system holds its leaders to account.

A personalised NHS goes hand in hand with a focus on the prevention of ill health, with individuals supported in making healthy choices. Part 3 of the Bill sets out measures to take forward the Government’s aim to reduce the incidence of illness and death caused by tobacco, and in particular to reduce the number of children and young people who take up smoking. As a result of government action, we now have the lowest smoking rates in England on record—one of our proudest achievements. However, smoking remains the main cause of preventable morbidity and premature death in this country, accounting for 87,000 deaths a year in England alone. It is the primary reason for the gap in healthy life expectancy between rich and poor.

The Bill makes provision for removing displays of tobacco products. It also provides powers for the Secretary of State to control the sale of tobacco products from vending machines, so that only people aged 18 or over can use them; or, ultimately, to prohibit such machines outright. I am aware that some noble Lords have expressed concerns about whether these measures are proportionate in current circumstances, and about the impact that they might have on small retailers. The Government also recognise that, despite the harm to health, some adults will choose to smoke. However, we have an important responsibility to enable and empower young people to make informed and healthy choices. The Government have consulted extensively on these proposals, and rigorously reviewed the evidence base.

Implementation of these proposals will be pragmatic and subject to further consultation. Measures on display will not come into force until 2011 for larger shops and 2013 for smaller businesses. This will allow smaller retailers time to adjust and refit their shops when old gantries would anyway need to be replaced. Restrictions on vending machines will come into force in 2011, and their effectiveness in reducing underage sales will be reviewed over at least two years to see whether a full ban would be necessary and proportionate. The proposals in the Health Bill form part of the Government’s new tobacco control strategy, which will be forthcoming this year. I know that there are a range of views, which I am sure we will debate fully.

Part 3 contains a number of other important measures, including new provisions to require PCTs to undertake assessments of pharmaceutical needs locally. We will reform the current control of entry system, replacing that test with new powers for primary care trusts to commission providers based on those local needs assessments. Along with new powers for PCTs to address poor performance and to provide local pharmaceutical services, the measures in the Bill will encourage pharmacies to strive consistently to provide the highest quality services. They will also enable PCTs to shape primary care services as a whole around the needs of their populations. Not only will these measures ensure community pharmacy services are brought within our world class commissioning programme, they will also help to secure pharmacy's place in the programme that I set out in High Quality Care for All.

Part 3 also extends the remit of local government ombudsmen to deal with complaints from those users of adult social care who arrange to pay for their own services. This is in direct response to the views of this House during the passage of the Health and Social Care Act 2008. I am delighted that we have been able to bring forward these measures at the first legislative opportunity.

Finally, Part 3 corrects a gap in the current legislation to enable Her Majesty’s Revenue and Customs to continue to share anonymised and aggregated information on GP and dentist pay within the UK health departments. This information is fundamental to the pay system for both professions and our proposal is to have the support of the relevant professional bodies.

The Health Bill includes a number of important measures to embed quality at the heart of the health service. It empowers clinical teams and managers to drive improvement in NHS care; it enables us to take more control over our own health and well-being; and it introduces measures to improve the performance and accountability of key NHS services. I look forward to further discussions as the Bill goes through the House, and to an informed, interesting and, above all, high-quality debate. I commend the Bill to the House.

My Lords, I believe in the National Health Service. I married into it, my family have worked in it, and I use it regularly. I also recognise the aspirations that the Minister voiced when he introduced the Bill and all the work that he has put in since he took up his current position. Nevertheless, since the Bill’s primary purpose—it is certainly the primary purpose of Part 1—and driving force is to create a new constitution, attached to which are “quality accounts” which by any yardstick are a huge new bureaucratic dimension, it is highly questionable whether it will be of any benefit to patients. I agree that Part 2 contains some useful provisions but question why those cannot be dealt with by regulation. Part 3, which has been flagged up as involving public health, seems to be driving only on the smoking front, ignoring totally the impact of obesity and alcohol on young people.

I shall deal first with the constitution. Ten years ago, the Government argued that they were ahead of other countries,

“in developing an integrated national strategic approach”

to many of the problems facing the health service, not least, at that time, MRSA. However, the Government were more interested in strategies and targets than results. The constitution attempts to set out the rights and responsibilities of our healthcare system, which has, as some would say, muddled through for the past 60 years. But there is a clear implied warning in the constitution: that those in our society who adhere to unhealthy habits, be it smoking, alcohol or obesity, may be refused NHS treatment. I think that that is morally outrageous and legally dubious, especially as it is all retrospective. It could never happen in the normal commercial world, where contracts are legally binding.

What is the reality of this so-called constitution? It is far from short: at 48 pages, it is longer than the constitution of the United States. It does not offer the certainties that an average person would expect. It is really just declaratory and not legally binding. What hope does it offer practically? Let us take the example of MRSA, on which we have the worst record in Europe. We have a legally binding hygiene code and advice and guidance from the Chief Medical Officer but that is being ignored and flouted. How will the constitution solve that or other problems?

The Minister mentioned the patient’s voice, but what do we find? Even the new Care Quality Commission has already had its wings clipped. There is great play about quality accounts—a meaningless concept which does not exist in normal commercial life. In any case we already have a whole raft of performance reviews, assessments and other forms of checking on performance. There is a terrible danger that it will be no more than box-ticking.

The basic structure is not stable even now. We have gone almost full circle, back to the structure as it was in 1997, when we had eight regional health authorities. The number of health authorities was increased to 28 under this Government, but now we are back to 10. In 1997 we had GP fund-holding, but then non-market-oriented primary care groups took over. We then had partially market-oriented primary care trusts. Now, we have practice-based commissioning—which sounds very similar to GP fund-holding. All that is against the background of the four systems that we now have in England, Wales Scotland, and Northern Ireland. I hope the Minister will give us a definition of what “Britain” is in relation to those four areas.

It is sad that the Swedes, in recent research done by Health Consumer Powerhouse, have found that our National Health Service rates 17th in the whole of Europe. We face no real increase in expenditure and capital projects being cut back. We also have the handicap of NICE. It is too slow, too cumbersome and not transparent. It duplicates the work of Scotland and uses the wrong models. It means that patients in our NHS get new products more slowly than anywhere else in Europe.

It is true that there are excellent reports as well, such as that of Mike Richards. That is good—but they are still not really acted on. I am sorry to complain to the Minister, but I wrote to him on 21 November with a particular case arising from Mike Richards, and I have not even had an acknowledgment. I will put that on the board again for the Minister.

The whole pharmaceutical area, which is usually ignored by the Government, is now in a mess. The proportion of the NHS budget set aside for drugs is falling. The PPRS contract was broken. We have more counterfeit drugs in this country than we have had since the NHS was started. We have more and more online uncontrolled drugs. We have the National Health Service buying the cheapest it can possibly find, with little control over poor bioavailability. We have evidence of research going overseas. And there is now a real risk of shortages—I mean this seriously—because the blanket 5 per cent cut that the Government have demanded, allied to the fall in the price of sterling, has created an incentive to export medicines from this country.

I nearly forgot: mixed wards are back on the agenda. I have asked the Minister two Questions on that topic; both times he refuted the need for mixed wards to be removed, and now the Secretary of State announces, outside Parliament, that they are back on the agenda. They will be removed, he says. Perhaps in his wind-up the Minister will tell us what the new definition of “mixed wards” is.

Lastly, at the same time as the Bill is going through, health budgets are to be reorganised yet again. That means more delay and more upheaval.

I turn to Part 3 and the anti-smoking dimensions that allegedly come under public health. There is nothing on obesity, which affects some 60 per cent of our children, nor on alcohol abuse, which affects 10 per cent to 20 per cent of our children. The provision focuses solely on the 6 per cent of our children—which is still too many—who smoke. Against that background, it is surprising that you get bizarre occurrences such as that in the north-east, where there is a booklet now on how to use cannabis. It tells you about rolling cannabis and what the experiences of it are. On page 14 of this 20-page booklet, it finally mentions that cannabis is an illegal substance.

Why do I speak up as I do, as a non-smoker not owning any tobacco shares? Because tobacco, whether we like it or not, is a legitimate product. It is not the role of government in a democratic society to hound those who wish to enjoy tobacco and want to make a living selling it.

The issue is young people. The whole industry supports the reduction in the numbers of young people smoking. It is a product for adults and it may shorten people’s lives. But when one looks at the obituaries of those who went through the last war, they all seem to have been 90-plus. And if passive smoking were really as dangerous as it is described, most of us in this Chamber would have been long gone.

With 6 per cent of young people smoking—the figure is coming down and we congratulate everyone involved who provided education to make that happen—these proposals, if they were sensible, would be supported by all of us, I suspect. But they are not. The Minister mentions consultations. There are not as many as he suggests in terms of the proportion of people involved. Evidence from abroad is, sadly, distorted by the Government. The economic effect on small tobacconists’ shops is totally ignored. You can go into any small tobacconist’s shop, today or tomorrow, and you will see a huge sign saying that it is illegal to sell to under-18s—“No ID, no sale”. But we should remember that cigarettes make up 25 per cent of the turnover of a small tobacconist’s business.

What purpose is there in putting cigarettes under the counter, restricting consumer choice? You cannot even see the pack warnings if they are underneath the counter. The alterations will cost a couple of thousand, not the £500 that the Government indicate. Why do the Government not understand the real world? Putting those packs under the counter will simply result in a huge increase in illegal importation. Already 27 per cent of cigarettes are illegally imported, and it costs this country £3 billion to £4 billion in lost revenue. There is talk of blank packs, but the Government cannot infringe the intellectual property rights of legitimate products.

I shall be moving amendments in Committee, and I just hope that the Government will listen this time. My forecasts on the previous tobacco Bill were too modest. Those provisions have had a huge impact, not on a reduction in smoking but on a whole way of life with regard to the numbers of people employed and the enjoyment people have from a British pub. They have resulted in more smoking at home. Let us contrast that with what happens on the continent, where they have been a lot more sensible in allowing smoking rooms with air conditioning. Here, the existing legislation is not being enforced, with regard to proxy buying, for example, and support is not overwhelming for these proposals. The economic and social adverse effects are far greater than the tiny perceived gains.

My Lords, I have struggled for quite a while to find an opening line, which is always terribly important when you are speaking in this House. The best that I can come up with is that the Bill is paved with good intentions, as was the road to hell. The Bill is certainly full of good intentions, but I am not quite sure, because of its lack of detail and rather nebulous quality, just where it will lead us. I suspect that it will depend hugely on secondary legislation and regulations that will be published later. I must express my irritation and reservations on that count, because we have so little input into that part of the process.

Something is glaringly obvious in the constitution section. The Minister reminded me of it when he said that the future of the NHS depends on local involvement and engagement. Indeed it does, so why is there no mention of local authorities or local government, particularly social services provision, in the Bill? The constitution for the NHS is all very well, but I thought that we were heading towards joined-up care for patients. I thought that we wanted health and social care to be as one. Having a constitution just for the NHS, without any mention of what is probably for most people an even more important part of their care, is a very sad omission. I hope that we can address that during the Bill’s passage through this House.

I am also concerned about legality. The rather beautiful Handbook to the NHS Constitution says in its overview—it does not have a page number—that this,

“empowers staff, patients and the public by setting out existing legal rights and pledges”.

Why then are the Government not afraid of legal action if certain rights are not fulfilled? For example, page 38 of the handbook talks about the right to be treated with dignity and respect, but I refer to the remarks of the noble Lord, Lord Naseby, about mixed-sex wards. If I go into hospital and find myself surrounded by male patients all behaving badly, as men always do, is that not abuse of my dignity and respect and could I not sue the health service for not having regard to it? I probably could and so I am quite worried. That is just one example, but the same probably applies to access to records and to the safety of our records. I have never understood why patients cannot hold their own records. Whether the health service has them or not, why cannot we be the owners of our own records? It is our body; they are our records. Why cannot we be responsible for them?

There is also the right to choose. I was extremely sad to see that, under the right to choose which service we would like, maternity services are not to be included. We have heard so much in recent years about the right to choose birth at home, birth on birthing stools, birth in water, birth in the air, birth wherever you can think of it; we have this right to choose how we wish to give birth to our babies, but apparently it is not to be included in the rights.

Another point on the constitution is that there is a missed opportunity under the obligations section. I have always felt that somehow in this country the NHS has allowed people to hand over their bodies and their health to the health service; it is no longer their responsibility because, whatever they do, the NHS will put it right. We could have had a stronger feel to the obligations. The handbook talks about taking responsibility for,

“your own, and your family’s … health and well being”.

Yes, but perhaps there should also be warnings, not that the NHS will not treat you but that your treatment in the NHS may be delayed if you are too fat, if you are a heavy smoker or if you drink too much and have a hobnail liver. These things could have been pointed out under obligations.

Vaccination of children is great hobbyhorse of mine. In many countries, children are not allowed to go to state schools unless they have been vaccinated. I do not see why that could not have been in the section about patient obligations. We are losing our herd immunity in this country. That is very dangerous and very worrying and we should do something about it.

The idea behind quality accounts is wonderful. I know that in many trusts clinical teams already look at their work, evaluate their work and are prepared to report on the outcomes of their work. However, we must be distinct about this. I am not clear whether the clinical teams will produce the quality accounts, whether the trusts will publish them or whether the primary care trust as commissioners will publish them on what has been going on in its area. The handbook says that these accounts will be on display. Will we have a little display chart in every ambulance and every clinic saying, “Breast cancer for this team is nil per cent survival”? Of course, that is totally impossible, but it is a bit scary if we are going to have these things on display without any explanation for the patient.

I am worried that these accounts will be used as league tables or ultimately as targets and that people will try to choose because of the results. What about value added? We do that in school league tables. What about the clinical teams that operate on less healthy patients because they feel that they must, compared with the clinical teams that may choose the patients who will give them the best outcome? I am concerned about that.

I am also concerned that a new management line will be set up. Having worked in the health service for more than 30 years, I can see a director of quality looming on the horizon, with sub-directors, managers, managers’ PAs, teams and ladies with clipboards—in the last trust in which I worked, they were referred to as the “country casuals” and went round assessing, evaluating and counting; they were not very popular. It would be a waste of health service money if we were to set up another management line within each trust.

There is so little detail in the section on personal budgets that I can hardly comment. Will patients be able to top up? Will there be a list of approved services where they can purchase their care? I presume that we will have to await regulations for the detail, but where is the evaluation of the direct payments that have been made in social care in recent years? Who will evaluate any pilots? What say will this House and the other place have on the regulations on personal budgets, which are terribly important, as they represent a drift towards a totally new system of delivering healthcare in this country? It is important to do it slowly and carefully to see where we are going.

What a wonderful idea the innovation prizes are. I conjured up last night an image of a young Mr Darzi on the podium receiving his innovation prize, weeping with joy and lost for words. However, there is no detail. We must be very careful that the prizes go to the right people. I shall not enlarge on that, but we must be very careful.

Last but not, I suspect, least in this debate is the contentious issue of tobacco. To declare an interest, I regard myself as a smoker. I smoked; I have not smoked for decades; but I know that if I had a cigarette, I would become a smoker again. Therefore, I welcome any attempt to prevent me from seeing the things, hearing about them, being tempted by them or being put in a place where others are smoking and I might feel the urge again. I welcome any initiative. I declare that interest because it is very important.

I regret that we do not have any comprehensive strategy for reducing the damage to health caused by smoking. It seems that we have just put a few measures on advertising and display in a Bill. I have certainly received more briefings on this issue than on anything else in the Bill. It raises huge passions, as we have already seen. It is a missed opportunity.

My party and I support most of the measures in the Bill. The proposal on vending machines is pointless. I can well remember as a student trying to find late at night the vending machine that still had some Embassy tipped in it. They were the most revolting things, but if you are addicted to smoking, you will smoke anything in the end. Vending machines surely have to go. They should not be anywhere. I am a little concerned about the effect on small businesses if they are not allowed to display cigarettes. I agree that there must not be advertising displays, but if there were no cigarettes on display, would it not lead to a culture sous table, with one getting one’s cigarettes when the man has his back turned or when the policeman has gone out of the shop? I do not like the feel of that. It is not an adult way of dealing with the issue. However, I am sure that we shall spend a lot of time in Committee debating the purchase of tobacco.

To end on a contentious note, the missed opportunity here is in how we treat all drugs. Tobacco and alcohol are far more damaging than, for instance, cannabis, which has just been moved into class B. I cannot understand the thinking in this country—and the West generally—on drugs and how we should use and control them. It is a missed opportunity not to set up a royal commission on all drugs, including alcohol, tobacco and all currently illegal drugs, so that we can assess the harm that they do to individuals, the cost to the health service, the damage to society and, in the case of illegal drugs, the damage worldwide to other countries’ economies and crime rates.

This is an interesting Bill. The more one looks at it, the more interesting it gets. I am sure that it will get more interesting in Committee and I look forward to tonight’s debate.

My Lords, it gives me great pleasure to take part in the Second Reading of the Health Bill. Last year I had the pleasure of taking part in several of the working parties. I realise how much work has gone into the Bill and offer my congratulations to the Minister for the way that he has led this work and got us to the point where we have enabling legislation before us. At the same time, there will be areas, as has already been pointed out, that will be discussed fully and taken into account. I speak as a retired nurse and a former chairman of an NHS trust. Noble Lords will be familiar with my saying on every occasion that I rise to my feet that I am passionate about improving the delivery of care and reaching high-quality care, summed up in the review as an improved clinical outcome, improved safety for a patient and an improved patient experience. The Health Bill encapsulates the principles by which this can be achieved.

As the Minister said, there is evidence of excellent practice in the NHS, but I regret that there are still areas where poor practice is in evidence. It is essential that these areas are eradicated so that the public can feel assured that not only will clinical outcomes and safety be of the highest standard but patients will experience the highest quality of care and compassion at the most vulnerable times in their lives. We may feel that all is well with clinical outcomes and safety, but we know from various reports that all is not well in some circumstances. I was amazed in the last few weeks, when listening to the radio and reading the newspaper, by an edict about checking theatre instruments and swabs before completing an operation. I could name many former theatre superintendents who would turn in their graves if they had witnessed this edict. It is as though it were necessary to remind everyone in the operating theatre to check the number of instruments and swabs. This principle has been the bedrock of working in theatres. To have to be reminded of this again is surely to go full circle.

There is also the issue of trying to reintroduce protected meal times, when the ward is closed while the patients are prepared for their meal, supervised, assisted and given supplements if necessary. This is followed by a rest period, leading to good clinical outcomes and safety in preparation and serving, thus preventing infection and improving patients’ experience as they enjoy their meal.

We live in a world of constant change, and one can hear the cynics saying that this is yet more legislation that will cause further changes for an already overstretched staff. However, there are always patients or clients who require treatment and care, which need constant review and vigilance to ensure that appropriate high-quality care is delivered with compassion.

I support the principles behind the NHS Constitution, which sets out the rights, pledges and responsibilities of patients, members of the public and staff by law. However, there is a question over how effective this will be with just the phrase “duty to have regard to”. The Royal College of Nursing also supports the NHS Constitution concept but questions the fact that there is no statutory definition of duty to have regard to and no sanctions where there is no enforcement. I support the Royal College's view; all healthcare professionals are subject to a code of conduct set by the regulator, with sanctions. Would the Minister consider this point? I know that Her Majesty's Government do not wish to be prescriptive in legislation, but without such a definition the constitution may not be effective in its intent.

My second point relates to the bodies listed as having a duty to have regard to the constitution under Clause 2(2). I note there is no mention of education and training institutions. While I expect that subsection (3) covers these, I stress the importance of listing education and training institutions. The NHS Constitution is a foundation building block, and it is necessary that everyone is aware of it, especially when they begin as a student and all through their professional career development. I fervently believe in the correlation of theory and practice; there have been many instances in which a wide gap has emerged between the educational establishment and the practice area. I know that the Minister took account of this in his review and work is continuing on implementing changes, but inclusion of education and training institutions in subsection (2) would underline the importance of the part they play in ensuring that the NHS Constitution is understood and complied with.

Clause 3 relates to the review and revision of the NHS Constitution. Could representatives of the staff organisations and unions be included in the list of consultees? I am saddened that throughout the Bill there is an omission of the role of informal carers, of whom there are 5 to 6 million in the country. I am engaged as a formal carer at the moment. They play an important part and need mentioning.

The introduction of quality audits is a very welcome step forward. Much work has progressed in the past year to define methods of measurement, and their inclusion in this legislation emphasises the importance to everyone of measuring and recording delivery of care. I began this afternoon by emphasising my passion for improving the quality of care, and quality audits certainly represent a major step forward. However, while these audits go a long way towards focusing attention on the quality of care, it could easily become a tick-box process without addressing the fundamental issue of the care and compassion required for patients. This is not easily measured and, therefore, not recorded, but it is very much part of the patient experience. It is fundamentally a matter of attitude and having respect for patients’ dignity and their often hidden anxieties at a most vulnerable time in their and their families’ lives. Addressing this issue is fundamental to high-quality care and requires sufficient resources in workforce supply, allowing time not only for tick-box recording but also for the compassion and support required. This is not easy to put into legislation but requires a culture change, from the trust board members and the authority down to the front line of delivery of care, to ensure a full understanding of the components of high-quality care. When good governance is in place, it usually indicates a high quality of care and great patient satisfaction. I hope that in some way this culture change can be achieved, in the interest of making quality audits more than a tick-box exercise.

I trust that the Minister will view these recommendations as a constructive and helpful way to carry out further consideration. I look forward to taking part in further stages of the Bill.

My Lords, I must admit that I was tempted to set aside my speech after listening to the noble Baroness, Lady Tonge, and get into a dialogue with her about what, from my experience as chair of Barnet and Chase Farm Hospitals NHS Trust, I think really happens out there. However, I have prepared for this debate and worked very hard with people inside my own trust to make sure that I get the important points over. More importantly, my noble friend Lord Darzi is well equipped to respond to the points made.

In my NHS trust, we have already been looking at the quality agenda under the title Getting to grips with the 2009-10 Quality Agenda. Before I move on to what that looks like, I want to congratulate my noble friend on his first piece of legislation going through this House. I welcome the opportunity to contribute to the debate and to hear his thinking, particularly about Chapter 2 of Part 1, which deals with quality accounts, to which I will address myself today.

Last year, 2008, was a year of ideas, concepts, initiatives and proposals, particularly in London and specifically in the quality agenda. The challenge for provider trusts, PCTs and the NHS is to agree how we may turn these often embryonic concepts into an agreed framework to direct, monitor and achieve our shared objectives. The NHS Next Stage Review, High Quality Care For All, by my noble friend Lord Darzi, published in June 2008, contained a number of new concepts and definitions that set the scene for the 2009-10 quality agenda. The report gave a commitment to place a legal requirement on providers to publish information on the quality of their health services in a quality account. In doing so, they must ensure accountability to users of our services and support clinicians, commissioners and patients in driving forward improvements. We can only do that if everyone supports us. Quality accounts meet the clear and consistent message that we hear more and more often: people want to have more control over their health. Having information means being in control.

Quality has been defined in three components: patient safety, effectiveness of care and patient experience. Therefore, it may reasonably be proposed that the quality account should reflect those three components. Such a consistency of structure would contribute to another proposal, that there should be a clear commitment to bring clarity to quality, a phrase often used in my own trust. Specifically, measured and published quality data should be accessible to a wider audience—to the stakeholders, including, most significantly, patients, potential patients and their carers.

In the Department of Health publication High Quality Care for All—Measuring for Quality Improvement: the Approach, principles for change are given to guide the implementation of the new quality initiatives by the Department of Health, SHAs, PCTs and trusts such as mine. Those quality initiatives are co-production, subsidiarity, clinical ownership and leadership and system alignment. While each of those principles is most apposite for the introduction of quality accounts, I wish to draw special attention to system alignment.

The Barnet and Chase Farm Hospitals NHS Trust has a well developed model of clinical governance that is quite specific in the expectation that clinical teams will collect and publish internally data that relate to clinical outcomes. That includes corporate standards, mortality, a risk-adjusted mortality rate, healthcare-acquired infection rates, venous thrombo-embolic events and surgical site infections. We also require that a minimum of five locally agreed outcomes are devised and data collected by each clinical department. That is happening in real life.

The second aspect of our clinical governance model is to systematically record the published advice that supports the evidence based on the specific areas of clinical practice such as NICE and NCEPOD in addition to the reviews and audits already carried out. This work could provide not only a basis for data collection, but a wide and varied source of clinical initiatives in the quality outcome measurements applicable, I think, to the quality accounts.

My trust is also developing a patient safety strategy, which is in its final draft form and has been consulted on throughout the trust. It will be presented to the Governance and Safety Committee at its next meeting. The information coming from this tool fits ideally with what will also be required in a quality account. I hope that my noble friend agrees.

The suite of initiatives that will complete our quality agenda for 2009 is the Patient Experience Strategy, which is entering its second highly successful year in Barnet and Chase Farm. This strategy is based on eight campaigns, each with between six and 19 subprojects. They include: getting the basics right—providing the best possible care for our patients; safety first—preventing accidents and keeping patients safe; keeping clean and preventing infections; dignity in care—making sure that our patients are treated with dignity and respect; dignity in death—caring for our patients with kindness and compassion at the end of their lives and supporting those they leave behind; and food for life—delivering the best food and nutrition to our patients. I participated some time ago in the debate led by my noble friend opposite on the quality of food and how that has been dealt with, which is a key issue for us. In addition, there is the important issue that first impressions last—people will recall lots of things that have happened to them, but they will remember and repeat to all their friends the first thing that happened to them when they entered hospital.

In recommending the legislative basis for the requirement to present quality accounts we should ensure that they are built on the firm foundations and previous investments that the NHS has organisationally made in safety, efficacy and patient experience. We should require that our systems are aligned; I am sure that my noble friend will convince me that that will be the case.

We may ask why Barnet and Chase Farm Hospitals NHS Trust agrees that quality accounts are important. I will tell you why. Quality accounts will inform patients, carers, managers and clinicians of the overall quality of our hospital. This will make our local services more accountable to patients and the public, who will have the clearest and most detailed information they need to make choices about their care and to demand the best-quality services. As I stated earlier, quality accounts will ensure that providers of NHS healthcare will focus more on quality improvements as part of their core function and help clinicians to benchmark their performance to support PCTs and SHAs in receiving information that they can use to monitor our performance.

I seek assurance from my noble friend in two areas. The first is that adequate time will be devoted to the preparation and dissemination of the promised guidance. If accounts are to be presented for the financial year 2009-10, data collection must logically begin on 1 April 2009—in 55 days. My second concern is that we should maintain the concept of an account, and not by default allow this to be reduced to a conventional report on quality. As a noble friend said, that would be ticking boxes. The concept of a quality account is clearly based on a financial analogy. However, what is simple in finance may prove to be a challenge in the expression of quality metrics. There can be no direct equivalent of a balance sheet, although measurement against a benchmark or improvement against a baseline measurement would allow for the expression of the quality measure as a percentage. To complete the statement of account a budget will have to state the expectation against which the actual achievement is then compared—a target of which I am very fond.

I say to my noble friend that the value of this initiative will be diminished if this unique presentational device is not fully utilised. It has certainly captured the imagination of the clinicians with whom I regularly discuss issues. I have this week, as one would expect, been doing that in great detail and obtaining clinicians’ understanding and belief about what should come from this initiative. Clinicians with whom I have discussed this feel that it will far better facilitate the involvement of the public. They will then understand the concept of balancing an account, as they would with anything else in their lives, and therefore more readily hold their local provider of healthcare, including our trust, to account.

We are keen to ensure that quality provision determined by us has regard to guidance issued by the Secretary of State for Health and that it is compliant with all registration requirements.

Our clinicians and managers are already working towards what a quality account will look like. They suggest that the key to this process is an agreement with the commissioner of services about the areas where improvement is required. The trust must then be allowed to work out an improvement proposal and suggest this to the PCTs, which will monitor both the project and the expected final outcome. That is the only way in which we will have a substantive measure of how much we are improving and what value our patients are getting. This, we feel, would be a very appropriate interpretation of the proposal of my noble friend Lord Darzi and would demonstrate co-production, subsidiarity and clinical leadership, as recommended in the DoH guidance.

In conclusion I say that, patients and the public deserve the best quality services, and not just clinically; more importantly, they deserve a service that respects them and recognises them as people whom we want to care for and treat in a dignified manner. If we get these aspects right, we will deserve to be their “hospital of choice”. Co-operation in ensuring that they have the information they need to make this decision will be our focus from now on, and we will feed this into quality accounts.

My Lords, I declare an interest at the outset as I work in the National Health Service. Before saying anything else, I pay tribute to the many thousands of other people working for the NHS who have kept it going over the past few days of intense weather. The schools may be closed but the hospitals and surgeries are open, and the doctors and nurses, support staff, ambulance services and those who are often forgotten—the managers—all deserve a considerable vote of thanks from this House and, indeed, from the nation as a whole.

I have some first-hand experience of what is being achieved because I am chairman of the Imperial College Healthcare NHS Trust. This is the partnership between Imperial College, one of the finest research universities in the world, and the union of the former Hammersmith and St Mary’s hospital groups. It is, I think, one of the most exciting initiatives with which I have been connected and a very important initiative in the National Health Service. That brings me to my first point related to the Bill.

We were delighted last year by the references to academic health science centres in High Quality Care for All, from which the Bill is derived. However, as an institution that aims to become one of the first academic health science centres, we feared that progress towards designating them might not be possible until the Bill was on the statute book. I am therefore delighted that that is not the case and that the procedures for the designation of these centres have been launched and are in progress while the Bill is going through its parliamentary processes.

The aim of an academic health science centre, towards which we are already working, can be simply stated. It is to improve patient care by closing the two gaps in the translational research pathway identified in the 2006 Cooksey review of UK health research—namely, the translation of basic and clinical research into ideas and products, and the translation of new medical advances into everyday practice.

To achieve that, we at Imperial College Healthcare NHS Trust have adopted a unified executive structure of a type common in many other countries but unique in this one. One individual, Professor Steve Smith, heads both the faculty of medicine at the college and the hospitals, and there is a corresponding degree of integration of appointments and work programmes below him. Other potential academic health science centres have adopted different models, but we all share the ambition to provide and stimulate far reaching improvements in the country’s healthcare.

In that connection, I welcome the provisions in the Bill for quality accounts, as did the noble Baroness, Lady Wall. The National Health Service needs more objective and transparent criteria against which to judge performance and outcomes. Above all, quality accounts will enable patients and carers to make informed judgments about the absolute and relative performance and standards of those responsible for providing healthcare in all its many forms. Clinicians and those involved with them already have that information. Quality accounts will give the rest of us access to that knowledge. The result will be to put upward pressure on standards. The best clinicians are always anxious to learn from the success of others, and quality accounts will provide an additional stimulus to that process. They will also help boards and senior management to focus more effectively on quality improvement. For this reason, and because of the pressure from better informed commissioners, the allocation of resources will be improved. At a time when the availability of resources is likely, for obvious reasons, to be very restricted, that is an important attribute of which we should not lose sight.

I am glad to see from the supporting documents issued with the Bill that it is the Department of Health’s intention to involve representatives of patients in developing detailed proposals for quality accounts. I believe there is more to healthcare than medical and nursing care. How people are treated as clients and customers as well as as patients is important. As the noble Baroness, Lady Wall, said, they need to be treated as individuals and accorded respect and dignity. They deserve that as of right, and I emphasise that point, but it is also true that the better their patient experience—to use the jargon phrase—the more likely people are to have confidence in the medical and nursing care and treatment they receive. For that reason, I chair the patient experience committee in my trust because I believe it should be at the centre of the trust’s activities.

I shall conclude with a few brief remarks on other aspects of the Bill. I welcome the constitution. I do so not just because I agree with its contents and think that it is clear and well written, but because I think that those who sniff at it and say that there is nothing in it that is particularly new or that we did not already know are on the wrong track. Codifying can be a useful exercise in making people aware of the values, rights, duties and purpose of the National Health Service. It can provide a basis on which relations can be conducted and the values shared and understood. I was interested to hear the Minister say that, in looking at the codification, he found that he had learnt things that he did not know before. He has vastly more experience of the National Health Service than I do, but if a man of his experience can find that he has learnt from studying the constitution, that shows the potential it has, through the simple process of codification, to increase understanding of what underlies the service, of what the relationship between the different parts of it should be, and of the relationship between those who provide healthcare and those who receive it. It is basically a good thing and I welcome it.

I am also pleased that the Government are willing to adopt the essentially Conservative idea—conservative in the party-political as well as the philosophical sense—of direct payments. Much will depend on how the initiative is implemented and what it covers. I shall watch with interest to see how that is done, but it is an important development and I believe that many people in this country will benefit from it.

Finally, I say a word in praise of innovation prizes. Their introduction is very much in line with best management practice in the private sector to encourage, identify and reward staff who come forward with ideas. Although people are already willing to come forward with ideas, prizes such as those will help to encourage that process. The fact that those who come forward with ideas that are adopted receive prizes will generate publicity, which will encourage other people to come forward. I certainly look forward to many people in Imperial College Healthcare winning prizes, but I am sure that there will be many other winners in other trusts—I hope including in that of the noble Baroness.

My Lords, I hope that the noble Lord, Lord Darzi, will forgive me: weather conditions make it difficult for my personal assistant to attend me late at night and, as my direct payment does not run to danger money, I will have to leave before the end of the debate.

I welcome the opportunity to participate in this debate. I shall confine my remarks to Chapter 3, which concerns the piloting of direct payments, with which I have had great experience and obviously have an interest as a direct payment user for many years.

One of my first visits to your Lordships' House was in 1993, to hear the noble Lord, Lord McColl, move the Second Reading of the Disabled Persons Services (No. 2) Bill. During his speech, the noble Lord spoke of Mrs D, whom, he said, was,

“young and married. She works as a training director and pays taxes. She receives a cash payment from her local authority, makes her own personal assistance arrangements”,—[Official Report, 21/4/93; col. 1644.]

and contributes very effectively. Sixteen years later, Mrs D is very happy to be a Member of this House and to be speaking in this debate.

The Bill tabled by the noble Lord, Lord McColl, which was of such foresight, passed all its stages in this House but did not survive in another place. However, it loosened a nut and the result was the Community Care (Direct Payments) Act. That Act is one of the reasons that I can be here today. Direct payments in healthcare could have a similarly life-enhancing effect on many more people.

I know that many people are wary of direct payments. They were when they were introduced into healthcare and social care all those years ago, and I am hearing all the same arguments again. It is like Groundhog Day. It is a big cultural shift from “the doctor knows best” to “the patient may know better”. To ease that anxiety, I look to the noble Lord, Lord Darzi, to take full account of the Welfare Reform Bill, the Putting People First concordat and the cross-government independent living strategy, all of which are at different stages of developing personal budgets. All three have direct implications for direct payments in health. The healthcare pilots must learn from the developments in these other areas and join up health budgets seamlessly. You cannot do it if you do it alone. People do not want their lives to be fragmented across different funding streams, organisations and policy aims, but this is happening.

The Minister will know that the Welfare Reform Bill had its Second Reading in another place last week, and that Chapter 5 of that Bill specifically refers to giving disabled people and those with long-term health conditions a “right to control” their support arrangements, which may be in the form of a direct payment or choice and control over existing services. It is essential that the Minister and officials at the Department of Health and the Department for Work and Pensions co-operate closely with one another at this stage. Certain health budgets could be effectively deployed by service users to help them to enter and to stay in work or to keep them active in the community.

I have an example. I am currently in contact with a young disabled woman who requires personal assistance throughout the day. That assistance is funded through a direct payment and an ILF grant. She also needs regular physiotherapy, but that is designated as healthcare. She finds it very difficult to access a service that fits into her working life. She would like to purchase a service that is flexible enough to come to her place of work in the lunch hour, but no service is flexible enough to do that, so there is no physiotherapy. If we had a health budget, not only could she only catch up with her work but she would probably get her bonus target at the end of the week. This woman does not want to go to an agency for the support that she needs at work, to another agency for the support that she requires at home, and to another for the support that she needs to meet her continuing healthcare requirements.

As someone who has lived and breathed direct payments in social care for several years, including serving in the cross-departmental task force that brought them into force, I thank the Minister for the commitment in the Health Bill to involve charities and the private and voluntary sectors in the pilot schemes. Experience in social care has demonstrated that, although the benefits of direct payments are immense, so too are the risks, especially for individuals who are yet unused to choice and control. The temptation to play it safe by sticking with existing services, even if they are inadequate, will be strong unless individuals know that they have access to impartial support. Such support is best provided by peers who have similar experiences, such as those in centres for independent living in social care. The Department of Health and the DWP’s Office for Disability Issues are doing much work to develop user-led organisations—they call them ULOs—and I hope that the Minister will ensure that the direct payments that are mooted in the Bill gain from this approach.

Finally, I should like to give a brief example of how direct payments in healthcare could have made my life a lot easier last year. As I am unable to move unaided, I sleep on a ripple bed, which prevents me developing pressure sores. The mattress developed a serious puncture. It had been good for years and years, and I used to mend the holes with a puncture repair outfit from the bicycle shop, but eventually the mattress had had it. I went on to the internet and found an exact replica costing £200, and I did this to save the PCT time and effort. But the PCT insisted on sending out a district nurse to reassess me, even though I gave an assurance that my condition had not changed, and that the mattress was only a replica. But it was not to be. Instead, there followed a series of very costly visits.

The first involved a 16-page questionnaire. My pulse was taken and I was asked how many times a day I go to the loo. I am not sure what that had to do with the bed, but there you go. The district nurse asked if I had a pressure sore, and of course I said, “No, I use a ripple bed”. She replied, “Oh. In that case, you don’t need a ripple bed and I can’t give you one”. I pointed out that the reason I did not have pressure sores was because I used a ripple bed. It is called prevention. The district nurse then told me that I would need to see the tissue viability nurse—it is getting good—as she was not authorised to give me a replacement mattress. Exasperated at having to take another day off work, I agreed to a second visit.

The more expert professional on the second visit assessed me, looked at the 16-page form and said that I needed a super-duper, extra-thick air mattress costing £3,000. It was not what I wanted, not least because it would raise me a foot above my husband in our bed. To that the nurse retorted, “But my patients don’t sleep in double beds”. I thought that that would be tricky for our marital relationship. The nurse then said, “Anyway, take it or leave it”. I said that I would take the air mattress, sell it on eBay, and use the cash to buy a lifetime’s supply of ripple mattresses. At that, the nurse went back to the office and the PCT relented. I am happy to inform the Minister that I have saved the NHS £2,650.

My Lords, it is a great pleasure to follow such a useful, moving and amusing speech. On behalf of the whole House, I thank the noble Baroness for her contribution.

Although the Bill is entitled “Health Bill”, the first two parts are concerned with improving the arrangements for the administration involved in running the National Health Service and the delivery of care and only the first section of Part 3 is concerned with health itself by reducing the damage caused by tobacco products. Later I shall concentrate on that part, but first I have a few comments on the earlier sections.

First, I refer to the constitution. Of course, it is right that there should be a document stating the basic principles of the National Health Service and what patients and staff should expect from it. I have looked through it and could not find a paragraph describing the refusal of treatment to patients who did not follow healthy lives, as the noble Lord, Lord Naseby, who is not in his place, mentioned. I am sure that it is not there. It is rather remarkable that the NHS has run for 60 years without such a guide. As an aside, I add that the whole country has run for a millennium or so without a constitution. In the NHS, we have understood and largely kept to Aneurin Bevan’s basic tenets that it should be free at the point of use, paid for out of general taxation and available to all, regardless of wealth, race or religion.

Nevertheless, my friend and former colleague Julian Tudor Hart’s inverse care law still applies in many places, despite the often complex funding formulae that have been designed to rectify it. That is why it is good that the constitution states that the NHS,

“has a wider social duty … to pay particular attention to groups or sections of society where improvements in health and life expectancy are not keeping pace with the rest of the population”.

Because deprived people have a higher burden of disease, both acute and chronic, than those who are better off or better educated, their care costs are higher. The distribution of healthcare resources does not yet reflect this, despite much work having been done on the funding formulae to which I alluded. I know that my noble friend and the Secretary of State are aware of this and will support continuing measures to take these issues into account. However, a criticism of the Bill regarding the constitution is that accountability for ensuring that its requirements are carried out is weak and lacking in detail. Paragraph 7 states:

“The Government will ensure that there is always a clear and up-to-date statement of NHS accountability for this purpose”.

Perhaps my noble friend can outline how that statement of accountability will be translated into action, as I cannot find it in the Bill.

Let me say a word about pilot schemes for direct payments. Nothing that I say can possibly compare with what the noble Baroness, Lady Campbell, has just said. The precedent has been set by direct payments for social care, but I can see all sorts of difficulties and potentially a rapid exhaustion of any NHS funds granted in this way if patients are to pay for private medical care through direct funding. However, there is provision in the Bill for regulations to control the amount of funding and how it is used. My noble friend could perhaps briefly describe how these regulations will operate.

Page 8, line 16 of the Bill requires pilot schemes to be reviewed after a specified period. Who will carry out that review? Will it be done by an independent body using scientific methods of investigation? If the results are negative, will the scheme be dropped or modified? In the past, lessons from pilot projects, if carried out at all, have sometimes not been followed up, or a project has carried on regardless without a full assessment.

Like other noble Lords, I think that the plan to award prizes for innovation is a good one and is itself innovative. Can my noble friend give any details, as other noble Lords have asked, on how the scheme will operate, or will this be left to the advisory committee that is to be created? Will my noble friend say approximately what resources will be made available?

I turn to the tobacco section of the Bill. As one who has seen first hand the devastating effects of smoking tobacco products, I am very pleased that the Bill carries forward the legislation that the Government have already put in place to curb and control their use. As the noble Lord, Lord Krebs, said last week in the debate on choice and equality, smoking levels have fallen significantly in recent decades, partly as a result of legislation in both Houses of Parliament. However, they have fallen much less in the less well off and less educated section of the population. Among that group are subgroups with very high levels of smoking. Some studies have found levels of 70 per cent almost the norm among women in certain deprived so-called sink estates. Many of them may wish to give up, but they regard it as the one small luxury available to them in a debt-ridden and stressful life. Of course, it exacerbates their debt and may contribute to their depression. The measures in the Bill will not greatly affect hardened smokers such as them; they will continue to go to their local tobacconist and give him their custom. They would get what they wanted even if tobacconists were banned; they would get cigarettes from men in white vans, perhaps. I shall talk more about them in a minute.

In order to keep its sales up, the tobacco industry needs to recruit new smokers to replace those who die or quit smoking, whose numbers are increasing thanks in part to the work of Parliament—I refer here not to the number of those who die, but to those who quit smoking. Children go into retail tobacconists in large numbers because those shops also sell sweets. In those shops, cigarettes are often colourfully and prominently displayed on gantries, which seem to have got bigger since the advertising ban and are often placed close to chocolate and sweet displays. Obviously, children are interested in these displays and will want to sample the wares so attractively presented. The Bill gives plenty of time for tobacconists to prepare for the removal of the displays. The measure is considered and sensible.

The restrictions in the Bill on the placement of vending machines are a start. However, 12 to 16 year-olds have great cunning and skill in finding their way through adults-only rules and in going to places where they are not supposed to be. The answer is to ban cigarette sales from vending machines altogether, as some other countries have done. There will be amendments to this effect in Committee. Along with every public health body in the country, I think that we should take the opportunity that the Bill provides to go one step further and require all tobacco products to have plain paper wrapping, though perhaps with the health warning preserved. I shall back amendments to bring this about.

Finally, I would like my noble friend to tell us what additional measures the Government are considering to counteract the possible effect that this legislation might have in increasing the smuggling of cigarettes. The situation is bad as it is; we do not want it to get worse, whether the smugglers use white vans, family cars, boats or aircraft. It is already a big problem that threatens to diminish the effectiveness of tobacco control measures such as those in this Bill.

This is a useful Bill that deserves the support and scrutiny of your Lordships’ House.

My Lords, I want to concentrate in my contribution today on quality accounts; but before I do, I would like to “hover my helicopter” over the other bits of the Bill.

The NHS constitution—well, what is there not to like? I do not quite share the enthusiasm of the noble Lord, Lord Tugendhat, who—if he will allow me to say so—is a mere toddler in NHS management terms. Those of us who have been in it a long time know that the NHS produces these documents quite regularly. As many will remember, 10 years ago we had the Patient’s Charter. Whatever happened to the Patient’s Charter? We will watch the NHS constitution with interest but some scepticism.

I welcome the measures on smoking; I think that they will be fine, and a good contribution. I would like to hear more detailed evidence in Committee about the efficacy of the measures but, on the whole, I support them.

I very much welcome the new complaints system for self-funders in private care. Ministers promised that they would introduce this and we are extremely grateful for it. The pilot schemes for personal health budgets, which we heard wonderfully described by the noble Baroness, Lady Campbell of Surbiton, have the potential to be more far-reaching in personal healthcare than we are likely to see in the immediate future. I very much welcome the development potential of these pilot schemes.

Overall, I welcome the quality accounts. I declare my interests as a board member of Monitor, the independent regulator of foundation trusts, and as a former academic clinician and NHS manager. Foundation trusts, which I shall call FTs, comprise more than half of all trusts, including mental health trusts and ambulance trusts, and will eventually encompass all trusts—even, I hope, academic health science trusts—that survive our assessment process.

Greater transparency on quality of care will increase public accountability and require boards to pay greater attention to the quality of care that they offer to patients. For too long, the quality of clinical care has taken a back seat to finance in board discussions. Quality should be at the heart of the board’s agenda, and the board should be leading quality improvements within its organisation. These accounts will help to redress this balance, and over time we should strive to ensure that quality reporting has the same rigorous standards as are currently applied to financial reports. In doing so, we will need to develop tools and language so that directors and non-executive directors can be as comfortable discussing quality with clinicians as they are in discussing balance sheets with the finance director. We are not there yet.

Monitor has been working with the Government and the Care Quality Commission to introduce a quality report into this year’s annual accounts for FTs to be published in the summer. It will be publishing a document shortly for consultation, and I hope that foundation trusts will provide a wealth of experience on which the Government will be able to draw when framing the detailed regulations.

Given this commitment to the concept and the adoption of quality accounts, I am disappointed to have to raise some concerns about the detailed drafting of the Bill. I hope to persuade the Government to stick with the Minister’s commitment in his own report on the future of the NHS, which stated that providers would have to publish quality accounts,

“just as they publish financial accounts. These will be reports to the public on the quality of services they provide in every service line, looking at safety, experience and outcomes”.

That, in my view, means measurable and auditable. If we leave trusts to self-certify their own quality, we will get the same creative nonsense as we have seen in some of the self-reported standards submitted to the Healthcare Commission. Much of it will be PR guff and self-delusion. We have often seen that in documents issued by trusts claiming that they are expert in some field. We need numbers. Quality accounts need audit and comparability, and I include mental health services in this as well. I look forward to hearing the noble Baroness, Lady Young, on this issue. I am sure that she will have clear notions on how we can take forward the quality issue.

There is another problem. As drafted, the Bill fails to recognise the local accountability of NHS foundation trusts to their governors, and national accountability to Parliament. Nor does the Bill recognise the existing reporting arrangements for FTs, so it risks duplication and confusion.

FTs are required by statute to present their annual report and accounts to their governors at an annual general meeting. That is central to the concept of local accountability. They are also obliged to lay their annual accounts before Parliament. The Bill ignores these existing requirements and requires quality accounts to be sent to the Secretary of State. It also allows for strategic health authorities to require FTs to correct their quality accounts, even though FTs are explicitly set free from the direction of the SHA and the Secretary of State. Surely that approach undermines the autonomy of FTs and the concept of independent regulation. As a former chair of a strategic health authority I can also say that these arrangements will distract SHAs from the crucial job they have of getting PCTs into shape and developing the commissioning function. The recent Health Select Committee report reminds us how far SHAs still have to go in this area without them acquiring more responsibilities for providers, beyond those that they already have to prepare them for foundation trust status.

These concerns could easily be addressed. The requirement to produce quality accounts could be integrated into the existing accountability and reporting arrangements without damage to any of the objectives for quality accounts. I would like to see an approach where the Secretary of State required the independent regulator to integrate quality accounts into the reporting regime for FTs so that one set of accounts covered both quality and finance. Bringing those two aspects of performance together is the only way in which we will ensure that trusts are publicly accountable for their performance.

I recognise that some of these concerns could be addressed in regulation, but the governance arrangements for FTs are set out in primary legislation and that is where this valuable change to the governance arrangements should also be set out. Quality is so important. This is the beginning of a long journey, and I would not want to see it subverted into the PR exercise that it can so often become in the NHS. Let us have an auditable account alongside the financial accounts.

Does the Minister envisage that there may be some flexibility in the drafting of the final regulations, and indeed the final Bill, to take account of some of these overlapping accountability arrangements, which are rather confusing for at least half the trusts in this county?

My Lords, I am slightly nervous about standing up, after what the noble Baroness said about the clarity of my thoughts. I will have a go at being clear. I declare an interest as chairman of the Care Quality Commission, which in 55 days—I also thank the noble Baroness for having calculated that figure—on 1 April becomes the regulator of quality of care across healthcare and social care in both the public and private dimensions.

I am a great fan of the NHS Constitution; it is vital that users, carers and their families have a right to quality. I hope that we can make the constitution not just an ephemeral thing that we will look back on in 10 years and say, “Whatever happened to it?”. The regulator, the Care Quality Commission, can play a role in that by monitoring independently whether the constitution is being embedded across the National Health Service, whether it is being used in producing results and whether the public are finding it useful. The commission will want to contribute not only to the implementation of the constitution but also to the 10-year review that is provided for in the Bill, as well as the three-year review of the constitution’s handbook—the instructions on how to do it—which at the moment the Bill does not give the commission a role in. We are keen to see a change there.

I, too, believe that quality accounts are a useful addition to the field of quality in the NHS. It is terrific to arrive as the quality regulator at a time when the next-stage review of the noble Lord, Lord Darzi, has really swung the focus of the National Health Service on to quality as the organising principle.

What is happening is quite interesting. There is now a huge range of initiatives as people respond to the report. Providers are beginning to think about how they can focus on quality; world-class commissioning is focusing on issues of quality; the performance management system and the performance framework through the strategic health authorities and the Department of Health are focusing on quality; the professions, in the work they are doing on service accreditation and revalidation, are focusing on quality; and the Care Quality Commission, as the regulator, is focusing on quality. It is great to have all those initiatives, but they need to be aligned and brought into some relationship with each other to make sure that they are reinforcing each other rather than cancelling each other out.

To give an example, health service providers will be publishing their quality accounts annually from July 2010. The Care Quality Commission, as the regulator, will be publishing its first verdicts on the quality of care of providers as part of a process of bringing into registration for the first time all the NHS from 1 April 2010. So within three months there will be two pronouncements on quality, from the providers and the regulator. As the regulator, we will also be publishing on an annual basis a periodic assessment of the quality of care offered by providers. Those three sets of accounts of quality must all be brought together in some way, otherwise we will overload the system and confuse the public. If the public receive a number of different versions of the quality of care being provided by their local hospital in very quick succession, they will ask what on earth is going on. So alignment, which I gather is the technical term being used in the department, is essential.

A number of noble Lords have made the point that the public need to be able to understand quality accounts. I am very much of that view. The trial runs I have seen so far are great for the nerdy cognoscenti of quality but not much cop if you are a local user trying to understand what they are all about. We need to decide what quality accounts are there for. Are they there for individual trusts and providers to benchmark themselves against others? Are they there for clinicians to review their own quality? Or are they there as a statement to the public of the quality and services that they are entitled under the constitution to expect? If it is the third point, they need to be readily understood by the public and to be clear and simple. They also need to be reliable. I share the concerns of the noble Baroness, Lady Murphy, about validation of quality accounts.

I come from a regulatory background, in environment. It used to be quite entertaining, if not sad, to watch the creativity that individual plcs put into their annual environmental statements. They were exercises in airbrushing out the things that they got completely wrong and talking up the things they had achieved. None of them was comparable, none of them was comparable between companies nor, indeed, comparable across years, so that you could not track a company’s progress in its environmental performance. We run the risk of that happening if we do not have a very good system of auditing quality accounts, much as financial accounts are audited by auditors. Who should do that I do not know. There is a provision in the Bill that the Care Quality Commission can notify a provider of the odd error or omission which it happens to note as it passes by on its regulatory role. However, that does not seem hugely comprehensive. I would be grateful if the Minister could explore how independent validation of quality accounts could be achieved.

I was going to talk about piloting direct payments but I fall back in admiration of the magnificent exposition by the noble Baroness, Lady Campbell of Surbiton, of exactly how direct payments can enable and empower people to make sensible choices. One note of caution—I am sure the noble Baroness will tell me later that she heard all this before, when the issue of personalised payments in social care was introduced—is that the experience from the pilots and the subsequent implementation of social care is showing that, for some users of care, personal payments are a godsend, particularly for younger physically disabled users of services. Indeed, it would be a brave person who would deny the noble Baroness, Lady Campbell of Surbiton, with all her resourcefulness, her personal payments.

An elderly person with dementia or a person with learning difficulties would need quite a lot of intermediary support to use personal or direct payments effectively. There will need to be clear thought about the role of regulation in this area as we see organisations growing up as intermediaries which may be there with a commercial purpose and a wider range of innovative provision which does not fit neatly into the current management control of the NHS.

There are real issues, therefore, but I will not hinder the wish of the noble Baroness, Lady Campbell of Surbiton, for direct payments to be available to those people who can use them as well as she does. It is great to see her back and in good health.

Trust special administrators is a “consenting adults in private” issue. You have to be an NHS organisational nerd to get excited about it, I am sure. If trusts are failing on quality rather than on financial grounds, I would anticipate that the regulator would need to be involved in advising on the decision. At any rate, once the new registration system is in place for NHS providers from April 2010, any reconfiguration of services under the special administration heading would need to be re-registered with the regulator. That cannot automatically be assumed. The long list of organisations which the Secretary of State must consult, contained in the Bill’s proposed new Sections 65B, 65D and 65P to the National Health Service Act 2006, does not include the Care Quality Commission as the regulator which needs to re-register services. I hope the Minister will consider whether that omission is to be remedied.

I welcome the extension of the powers of the Commission for Local Administration in England to cover complaints about privately arranged or funded social care. I have one plea across health and social care. We are seeing a reshaping of the complaints process within the National Health Service. We are seeing changes in the responsibilities of various ombudspersons. The complaints processes and system are still pretty complex for the average user to penetrate. I do hope we can press the Minister to get a clear exposition of exactly how the wider complaints process in health and social care will work for the future and how it can be readily understood by the public, and that all those involved in the complaints process can help to promulgate information widely across the public domain.

On tobacco control, I read one of those heart-stopping statistics recently that nearly 20 per cent of 15 year-old girls smoke. We should take all possible measures to reduce the risks that people face from smoking at an early age. I support the “point of sale” measures in the Bill but I would like it to go further, including full removal of tobacco-vending machines, which is where many young people get their cigarettes. I would like that to be not just a possibility in the Bill but for it to be done from the outset. The Bill should also include enabling powers to introduce plain packaging for all tobacco products. Both those remedies—removing vending machines and introducing plain labelling—would be in line with the World Health Organisation’s recommendations. Vending machines have already been removed in more than 22 European countries, so we are not exactly in the vanguard. Simply having an enabling measure in the Bill is not sufficient. I shall press the Minister to go further in Committee.

Last but not least, I was a little distracted when I suddenly heard the noble Lord, Lord Naseby, who is no longer in his place, say that the Care Quality Commission had already had its wings clipped. He lives in the next village to mine, and we are both near-neighbours of the Royal Society for the Protection of Birds, of which I am an ex-chief executive. The Care Quality Commission has not already had its wings clipped—as an expert on ornithology, I can vouch for that. Indeed, we are flapping with vigour in preparation for taking off on 1 April to ensure better care for people.

My Lords, I broadly support the Bill, although I believe that there are one or two areas where minor amendments would avoid potentially damaging unintended consequences. I come to the issue of quality accounts as chairman of a provider trust and must in that sense declare an interest.

I want first to welcome the proposal for an NHS constitution, although I wonder whether the references to patients’ rights will in every case be pertinent. Will it lead to cynicism when patients realise the status of those rights? The constitution states clearly:

“All NHS bodies and private and third sector providers supplying NHS services will be required by law to take account of this Constitution in their decisions and actions”.

I happen to support that wording. The NHS is being realistic about those rights and whether they can be challenged, if necessary, in the courts. That is important. I was pleased that the Minister gave us an assurance that this will not be a lawyers’ charter. However, rights generally imply that you really can make a challenge if they are not properly acknowledged and that, if necessary, you can take a challenge to the courts.

Ministers may want to think about the precise wording in one or two cases. Some of the rights are quite straightforward, but others could lead to a lot of problems. I suppose that I have in mind rights to treatment and drugs recommended by NICE and, in particular, from my personal experience, rights to NICE-recommended psychological therapies. I know that those therapies are available in some trusts, but they are most certainly not available in all. If I were a patient and read that I had a right to those treatments, I would want to challenge any decision to deny them to me.

I welcome the provision for handling complaints about privately arranged and funded adult social care. This will protect many frail, elderly people who, as we know well, do not have access to an independent complaints process. However, I endorse the point made by the noble Baroness, Lady Young, about the importance of the system of being accessible and simple. From my long experience in complaints processes, notably in relation to the police, I know just how complicated these matters can become without anyone intending that to happen.

On prizes for innovation, I am sure that the Minister is well aware that the NHS already has an elaborate and rather splendid system of prizes for innovation, leadership and all sorts of other wonderful achievements. Indeed, I recently had the privilege of watching one of my staff collecting the national prize for leadership within the NHS. Will the Minister explain how the new prizes for innovation might relate to the existing system? I am sure that it has all been thought about, but it is not clear to me.

I now come to the quality accounts. Again, I welcome the Government’s intention to require all providers of NHS care to provide quality accounts as well as financial accounts. However, as it stands, the innovation will cut across the accountability framework of foundation trusts, as the noble Baroness, Lady Murphy, said. I am sure that that is not the intention of Ministers. When reading the Bill, one has the impression that the drafters were simply not aware of foundation trusts. However, with minor amendments the Bill could take account of the very constructive reporting arrangements and accountability to local communities introduced by the Government for these foundation trusts, as the noble Baroness, Lady Murphy, mentioned. In particular, there is Monitor’s role in ensuring the efficient and effective financial operation and governance of foundation trusts. There is also the creation of boards of governors, the majority of whose members are elected by the local population. They ensure that the boards of foundation trusts are accountable to their local communities. I say from tough experience that these boards of governors are rigorous in representing their communities; they probe our board—and, I am sure, other boards—deeply if it is not providing the quality of service that the community expects.

I will explain why I, as a service provider, am so concerned about this issue. I speak as one with experience of the rigorous Monitor regime for approval as a foundation trust and of the transformation not only of financial management but of the quality of services to our users achieved through that approval process and subsequently under the Monitor reporting regime. In my experience, these improvements are achieved, as they have been in my own trust, largely through the changes to the board that Monitor requires. We changed our chief executive officer and pretty much the majority of our non-executive directors and brought in much tougher and far more professional people who could challenge the executive directors. It is through the transformation of boards that Monitor, up and down the country, has secured tremendous achievements in the quality of service provided to users.

The Bill requires quality accounts to be sent to the Secretary of State and allows strategic health authorities to require NHS trusts to correct their quality accounts. Again, this would make no sense in the context of foundation trusts. Those trusts no longer report to the Secretary of State or to the strategic health authorities. Instead, as I have said, they report to Monitor and to Parliament. Logically, the quality accounts should be presented by foundation trusts to boards of governors, which will certainly want to see them, and to Parliament, along with their annual reporting accounts. They should also be presented to Monitor with their financial accounts, thus enhancing local and national accountability. As a chairman of a trust, I would welcome that.

In conclusion, this is a helpful Bill, which, with minor adjustments, will enhance the services provided to patients by the NHS.

My Lords, I appreciate the wise contributions of the three noble Baronesses who preceded me; what they said has much resonance for me. Many important aspects of healthcare are brought together in this Bill, but I will concentrate on three topics: first, the NHS constitution, particularly paragraph 3, which describes the commitment to the promotion of research and teaching; secondly, the innovation fund; and, thirdly, the amendment to tobacco legislation.

The constitution is obviously a valuable document in that it places several responsibilities on the service and sets out clearly what patients should expect from it. The Bill is meant to enshrine this in legislation, at least in part. While it describes how the constitution should be revised and how often it should be updated, it is a little short on setting duties. As the noble Baroness, Lady Emerton, and the noble Lord, Lord Rea, said, it is less than clear how a duty to have regard to the constitution will be fulfilled. It seems that the main requirement is for trusts to publish information about the quality of their services in certain unspecified “prescribed information”.

I will focus on the part of the constitution that refers to research and teaching. I hasten to express my interests as scientific adviser of the Association of Medical Research Charities and as an ex-clinician and researcher. The constitution is helpful in that it outlines the fundamental part that research plays in the NHS now and for the future and how important it is that patients be given the opportunity to take part in research relevant to them. The fact is that our future health and well-being are heavily dependent on research and teaching now. That makes economic sense, too. The recent study commissioned by the Academy of Medical Sciences, the Wellcome Trust and others measured the economic returns in productivity and productive life gains from research and showed that for every pound invested we get 39p a year every year thereafter from it. That is not a bad investment.

Research is well worth while and sits right at the heart of any service that aspires to high quality, but it is unclear how the NHS will ensure that patients are made aware of the need for research and its importance to them. Past experience suggests that NHS trusts are unlikely to give that a high priority in their busy agendas. The noble Baroness, Lady Wall, told us of the pressures on trusts. In Chapter 2 of the Bill, trusts are given the duty to report on the quality of their service. However, unless the requirement is strengthened, it is likely that research will be slid over. It will be important to include in the prescribed information under Clause 6(3) the requirement to describe how research and teaching are being fostered, how patients are being informed of research, the opportunities for them to be engaged in it and the ways in which data about them can play such an important part in research. Today is not the time to discuss the value of patient data to medical research, save to say that we desperately need to solve the dilemma of how such research can be done while at the same time preserving patients’ confidence in trusts. The whole issue of consent will have to be solved; it has remained a serious problem, despite so many efforts to resolve it for so long.

I shall now comment briefly on the innovation fund described in Chapter 4 of Part 1. This seems an excellent idea on the face of it, as it will capitalise on the large number of bright and enthusiastic men and women in the health service who have already introduced many innovations. These have often worked well in the local environment but may not have received much publicity and have not spread across the service because of that. This fund should help to spread innovations more widely. Details are scanty, however, and two aspects of the scheme bother me.

First, on the cost, the Explanatory Notes suggest that £5 million will be made available, of which £1 million will be for administration. That is 20 per cent on administration, which is far too high. Any grant-giving body that I have been associated with would never support such high administrative costs. They should be cut. The second anxiety is the idea, also in the Explanatory Notes, that an expert panel will devise the challenges that those in the service will follow. That is quite the wrong way round. Innovation is a grass-roots activity. The people on the ground should be innovating. Expert panels should be making judgments on whether the proposals put to them are really worthwhile innovations; they should not be innovating from on high. I hope that that will be looked at again.

I very much appreciate the Government’s efforts to strengthen the anti-smoking legislation. I am very supportive of the measures to restrict advertising, but I wonder whether we can go further and restrict the point-of-sale displays. That is already done in a number of other countries and is, apparently, effective. I am struck, too, by the arguments made to me about doing even more than is proposed in the Bill by removing vending machines altogether. It is unclear to me how it will be possible to keep an eye on vending machines, as is proposed in the Bill, so that children will not be able to sneak in. I just do not think that that will work. I am not at all sure why someone who wants to buy cigarettes cannot get them from the innumerable outlets where they are for sale. We do not need vending machines for the necessities of life such as food, so why for cigarettes? These machines are for instant gratification of an immediate need felt when a smoker passes one. We would be better off without them and I hope that we can strengthen the Bill by getting rid of them.

My Lords, I also welcome the Bill. Obviously, it could have contained everything else—obesity, alcohol, in fact the world—but we often say to the Minister that we do not want more legislation. If we look around us and see the ads on television, we can see that the Government are doing a great deal about lifestyle in some of their advertising and other work, and I commend them for that. I am grateful that the Bill concentrates on the tobacco issue. In the view of some noble Lords, I am notoriously responsible for the amendment that stopped smoking in the Peers’ Guest Room. With the noble Lord, Lord Faulkner of Worcester, I introduced the two London and Liverpool Bills that pressed the Government onward and upward to introduce their total ban Bill in the other House. I obviously felt that I should come and speak about these issues in relation to children and this Bill. I will say a few words about two other issues, but I will mainly concentrate on that.

Again, I congratulate the Government on progress already made on the smoking agenda and the impact that they have already had on the health of the nation. We must all welcome the news that prevalence fell in 2007 among all adults in England to 21 per cent in routine groups and 28 per cent in manual groups. But the Minister also told us that, from numerous surveys, 87,000 people a year continue to die from smoking-related diseases. Progress is welcome, but more needs to be done, particularly in the most deprived areas of the country, where rates can be as high as 50 per cent. Among children, it is estimated that 340,000 under the age of 16 try smoking and more needs to be done to discourage them from the habit. Four out of five smokers start before the age of 19. It is also estimated that there are currently more than 190,000 child smokers between the ages of 11 and 15 in the UK. Those are the ones whom the tobacco industry has already hooked and whose future health is in danger.

I am quite sure that almost everyone is united in seeking to protect children from smoking and from second-hand smoke. I work for an organisation called Little Hearts Matter where we are doing everything possible to give a quality of life to children born with heart defects. It grieves me deeply that we have children born with healthy hearts and organs and we are failing to protect them from smoking and the damage that it will then do to these healthy organs in the future. To address those problems, a number of leading charities including Cancer Research UK, the British Heart Foundation and Ash have joined together, and I endorse the thrust of their aims that there should be a strategy to include measures to protect children from tobacco marketing by prohibiting the display of tobacco products at the point of sale.

We have heard much about that and I will not repeat what has already been said, but I will simply say that being alert to this debate and entering my local post office at the weekend, I was utterly struck by the array of beautifully designed, brightly coloured packets facing me—I had several children standing around me—and next to them was the sweet counter. The associations that are being made early are quite clear. I could not see what difference it would make to have them under the counter or in white packages except to prevent children finding these things attractive in the future.

Prohibition of point-of-sale displays has been implemented in nearly all provinces in Canada and has formed part of a range of tobacco control measures. These steps have coincided with a drop in smoking prevalence rates among 15 to 19 year-olds from 22 per cent in 2002 to 15 per cent in 2007. The Republic of Ireland will be bringing in a prohibition on point-of-sale displays later this year, and Scotland is considering a similar measure. I hope that the Government will not be left behind, but will keep themselves at the forefront of their previous work in terms of tobacco by making us another country that implements this vital health measure.

However, I am pleased that the Government are considering the needs of retailers, particularly small shops, by allowing a proportionate time to implement the measures. I hope that the Government will set a firm timeline, from consultation to the laying of regulations, to enable all parties to plan ahead effectively to implement point-of-sale restrictions.

Tobacco companies greatly value the marketing potential of point-of-sale displays and pack designs, even despite the introduction of health warnings. For example, Japan Tobacco International is marking the launch of a new, redesigned pack for its Benson & Hedges brand by holding a competition for retailers, featuring a grand prize of a store refit worth some £40,000. A spokesman for Japan Tobacco International was quoted in a retail news source as saying:

“The new pack designs for Benson & Hedges represent a very important chapter in its 130-year history”.

Last autumn, the company also put out a special edition of its Benson & Hedges Gold brand with a modified pack design. In the media reports about the promotion, the company’s spokesman said that the special edition’s,

“striking designs will only serve to further enhance retailers' profits with their eye-catching appeal”.

As yet, no country in the world has taken steps to introduce plain packaging for tobacco products. While the Government are committed to study the packaging issue, I urge them instead to take decisive action in this Bill and commit to giving the Secretary of State an enabling power to introduce plain packaging.

I am also pleased that the Government have recognised the problem caused by tobacco vending machines, but I am disappointed that Ministers have stopped short of prohibiting them entirely. I spend a good deal of my time with young people, and I reiterate the point made by the noble Lord, Lord Rea, that they have tremendous ingenuity in acquiring things that are prohibited by adults if they have any capacity of access. The Bill would require the introduction of some sort of system to prevent young people using the machines; I would like that. LACORS—the Local Authorities Co-ordinators on Regulatory Services—said that, in recent test purchases, young people were able successfully to access 41 per cent of vending machines. I do not believe that a successful method can be found to prevent usage by under-18s. Instead, the Government should move to prohibit immediately the sale of tobacco vending machines to block this channel of tobacco from reaching children. I will support any amendments to this end.

I turn now to personal health budgets, on which I have rather a different view from my noble friend Lady Campbell. She has most delightfully, and with her usual eloquence, spoken about their benefits. I urge the Government to think carefully before they take a step in that direction, and to ask some questions. Will they support conditions within certain criteria? I can see how they might support my noble friend’s ripple bed, but will they include those with multiple needs such as learning difficulties, as the noble Baroness, Lady Young, said? How will that work for children or young people who are still in the care of parents but are able to express their own views on their treatment?

There are specific issues around managing a budget on behalf of someone else, and Sense, the charity working for deafblind people and those with other multiple disabilities, is concerned about this. After all, some—in my experience, many—disabled people who receive direct payments for social care have found it difficult to obtain enough resources to meet their assessed needs. I speak from personal experience of caring for a cousin with Alzheimer’s, as well as experience gained as chair of the charity Livability. What will happen to their healthcare when the money runs out? Will they have to top it up, and what will this do to the principles of the health service? Although I concede that there might be benefits, even before the pilots go out, I hope that the department will look at these very serious questions.

Finally, I want to say a word about the constitution, which I think needs to be broken down into its constituent parts. I would like the parts that relate to patients to be easily accessible to them when they go to a hospital without the need to have all the other parts, although the other parts could be accessible if they wanted them. I am very pleased to see within the list of responsibilities the need to ask patients’ nearest and dearest about organ donation. If there is one thing that could increase the health of the nation substantially, it is ensuring that we have all spoken to our nearest and dearest about organ donation and filled in the proper form.

I welcome the Bill but I know that there will be some detailed debates and many amendments in some areas.

My Lords, I begin by declaring my interest as an honorary vice-president of the Muscular Dystrophy Campaign and as someone with that condition.

I enter this debate with great trepidation, surrounded, as I am, by so many experts in the health field. I shall confine my brief remarks to the part of the Bill concerned with direct payments, and, in doing so, I shall probably echo what many other speakers have said, particularly the noble Baronesses, Lady Campbell and Lady Howarth.

The proposal to pilot direct payments, which would give certain patients the right to choose the NHS services they need, is welcome. Indeed, it could transform the lives of people living with complex, multi-system disorders, many of whom are not receiving the care that they require. Campaigns by the Muscular Dystrophy Campaign, for example, have shown that the NHS is currently failing many patients with rare and complex conditions who either have to pay for these services privately or go without. I am talking here about services such as specialist nursing care, physiotherapy, hydrotherapy, and speech and language therapy. A shocking example of the lottery in provision in different areas of the country is the case of boys and young men with Duchenne muscular dystrophy. If they are able to access the right specialist care, which means receiving home ventilation and specialist multidisciplinary care, they might have a life expectancy of almost 30, whereas if they do not have access to such care, life expectancy could be nearer 18.

While I am mentioning Duchenne muscular dystrophy, I must mention the next speaker, the noble Lord, Lord Walton of Detchant, who is one of the great pioneers of research into Duchenne. I pay tribute to all that he still does to help the Muscular Dystrophy Campaign.

A less dramatic example than Duchenne is that of a patient with congenital myopathy whom I heard about at lunchtime. She was experiencing problems with her neck and was given three very useful sessions of physiotherapy. On asking for just one more session in three months’ time, she was told, “We don’t do that”.

Welcome though the pilots in direct payments are, it is very unclear, as has already been mentioned, how they will work in practice. Perhaps the most crucial question of all is whether the supply of services will match the demand. If physiotherapy and even hydrotherapy are to be funded, for example, how will these services be commissioned?

Another key question is how they will work when emergency or intensive care is necessary. For neuromuscular patients, this may be during chest infections or after spinal surgery. Another question is what will happen if a physiotherapist, funded by a patient using direct payments, calls in sick. Will cover be provided or not? I gather that under the direct payments for social care, that would not be the case.

Another area of concern is the inflexibility of patients not being allowed to part-fund their care—in other words, no top-ups from their own resources. This seems extraordinary. Under the Motability scheme, for example, people receiving higher rate DLA mobility allowance can make a down-payment for a suitable vehicle, which is then funded through a leasing system out of their DLA benefit, thus mixing their own resources and state support. I shall be interested in the Minister's comments on this.

Will the Department of Health draw on the Scottish experience in the pilots? In Scotland, community healthcare has been included in some social care individual budgets following guidance from the Scottish Executive endorsing a holistic approach. In Scotland, the NHS has power to make direct payments to local authorities, and health and social care funds can be pooled. The guidance states:

“While health care remains free at the point of delivery, best practice will still allow health boards to share funds with their local authority partners to provide joint care packages that cover both social and health care needs”.

So far, so good, but the Scottish system excludes some vital services: for example, direct access to a consultant; oversight by the assistive ventilation nurse team; physiotherapy; and provision and maintenance of equipment. If direct payments in England are to be used in a similar fashion, they will be of limited benefit for people with rare and complex neuromuscular services.

I now turn to one of those services that in some areas the NHS would normally fund, but which is often denied for one reason or another to those with muscle disease. That service is hydrotherapy, and this is where I mount my hobbyhorse for a few moments. Hydrotherapy is a tremendous help to those with limited mobility and strength. It allows patients to take vital exercise in a warm and supportive environment, which would be much harder to do on land, thus increasing their overall well-being; and it allows patients to do something for themselves, with many of them saying they feel the benefit for days afterwards. However, even if a suitable hydrotherapy pool can be found for patients with long-term neuromuscular conditions, they are frequently limited to six to eight sessions and then discharged. They usually cannot be referred again for between six months and a year. Even more seriously, many NHS hospitals see hydrotherapy as a luxury they cannot afford, even though studies carried out in the UK have shown that it can be a cost-effective way of helping patients to improve their overall quality of life, especially when combined with land-based physiotherapy. If services are to be funded on the basis of clinical need, who determines whether there is a clinical need for a service, such as hydrotherapy, for very specific conditions where there is definitely benefit to the patient? I shall be interested to hear the Minister's views on this particular service, which I threaten to raise again at another time so that the whole subject can be explored in more depth.

Finally, will the Minister ensure that his department draws up the vital regulations for these pilots in full consultation with service users, and will he please ensure that the House sees the draft proposals before the Bill completes its passage?

My Lords, I am most grateful to the noble Baroness, Lady Thomas of Winchester, for her kind words. I must declare an interest as a life president of the Muscular Dystrophy Campaign and as a former professor of neurology and practising neurologist. In general, the Bill should be welcomed. Last year, we celebrated the 60th anniversary of the inception of the National Health Service. At that time, in a debate in this House, I said that in the past 12 years I had lived through some 14 reorganisations, large and small, of the National Health Service and that the last thing it needed was more reorganisation. Having said that, I congratulate the noble Lord, Lord Darzi, on the major initiatives and the originality of the review he has undertaken which, in many respects, have led not only to changes in the NHS but to the Bill.

Having said that, when I began to read the NHS Constitution, I felt more than a twinge of concern because, as the noble Baroness, Lady Murphy, said, the Patient's Charter, published 10 years ago, sank virtually without trace, and no one remembers much of what it said. The United Kingdom does not have a written constitution. I recall a very well attended lecture by a colleague of mine who was a professor of law in Newcastle. He gave a lecture on the law of conspiracy and, at the end, he said: “My only conclusion can be: common law 2, statute law 1, after extra time”. The thought of having more constitutions imposed on the NHS caused me some concern.

However, having read and studied it, I think that it is to be commended. The safeguard we have is that virtually everything that it includes has been enshrined in previous legislation; there is nothing new and restrictive about it. I was concerned by the remark in the handbook, which the noble Lord quoted and was referred to by other colleagues, that there is no appetite for a lawyer's charter, and that the consensus based on taking note of and having regard to the constitution must not lead to litigious individuals in society feeling that they can, because of the rights enshrined in the constitution, sue the health service for failure to fulfil those rights. I hope that the Minister can explain how he believes that that can be fulfilled.

As many others have said, quality accounts are an excellent idea. I remember that we produced quality accounts in my former department and other departments in clinical medicine with which I had an association. One of the major tasks of the Care Quality Commission under my noble friend Lady Young will be to ensure that they are examined and analysed in detail. My only concern about the production of quality accounts is to some extent raised by the problems that have occurred in the higher education sector where, over the years, universities have been required to produce quality assessments of their teaching and facilities. Sometimes in university departments, the production of those figures has been extraordinarily burdensome.

I said in a debate in this House last year that one problem that I had noticed in the NHS over the past 10 to 15 years was the continuing introduction of new regulations and new methods of assessment to such an extent that the NHS was being beset by an intolerable quangocracy. I am concerned about the burden of data collection in the quality accounts. I should like to be assured by the Minister that that will not add a major administrative burden that may distract staff, particularly in the clinical field, and divert their attention away from their primary concern of patient care. It would be helpful if he could tell us what redundant, intrusive and superfluous procedures resulting from other quangos in the NHS can be abolished to make it more appropriate for the material on quality accounts to be collected and analysed. That is important.

Direct payments are an interesting development. Like everyone else, I was moved and much informed by the speech of the noble Baroness, Lady Campbell. I see no problem in how such accounts could be used and administered by health authorities and primary care trusts. That could be carefully controlled. What concerns me a little, however, is the idea of giving them to individual patients. It would be most helpful if the Government could indicate when the regulations controlling that activity are likely to be presented for consideration by the House. When are the pilots likely to be embarked on? I commend the principle of the public-private mix and recognise the great benefits that may, in certain circumstances, be derived by an individual with such a personal account from being able to purchase services from the private sector. However, I would be concerned—here I speak as the former chairman of your Lordships’ Select Committee inquiry into complementary and alternative medicine—if certain aspects of complementary medicine, not those that have been shown to be of patient benefit, but certain so-called disciplines of no proven value, were to be purchased by an individual using such a personal account. What safeguards might be introduced?

The idea of innovation prizes is sensible. Again, I declare an interest as a past president of the Royal Society of Medicine. This morning I attended a meeting there about a major programme on innovation in medicine being developed in collaboration with the Department of Health. That is a very exciting prospect, because it is bringing together professionals innovating in a very broad field of medical activity. That development is greatly to be welcomed. The idea of producing prizes for innovation is excellent. I was not certain about the concern expressed by the noble Lord, Lord Turnberg. The idea of having an expert panel set up to assess the innovations and choose those who are to be given the notable rewards is excellent. I declare an interest by saying that I would not enjoy being on that expert panel; it will be an extremely difficult task to fulfil.

I turn to trust special administrators. All of us who have worked in the health service have seen over the years the tortuous procedures and snail-like processes that have been used to remove trust administrators or chairmen in the very rare instances where the performance of the health service body concerned has proved to be inadequate. Are we thinking about a similar procedure by calling in an administrator in the same way as a failing company in danger of going into liquidation calls in administrators? What kind of person will be nominated as a trust special administrator? Will it be a judge, a noted lawyer, a senior doctor, a senior nurse, or an administrator? I would love to know the Government's ideas about the people who may be invited or nominated to fulfil that exceptionally burdensome task.

After reading the Bill, there were times when I wondered whether that was not too much of a task for an individual and whether a tribunal, including, as a matter of course, an individual with health service experience, would not be a better arrangement. Again, I look forward to hearing from the Minister about the proposals. I am glad that the 2008 regulations, which have been carefully framed, ensure that those procedures would be used only sparingly and after all other relevant procedures had been exhausted.

A lot has been said about tobacco control, and I do not propose to go into detail, except to say that I warmly commend the idea of removing tobacco products from display at the point of sale and the idea about vending machines. However, I am not enthusiastic about having tobacco products wrapped in paper that does not identify the nature of the content, if only because it might then be extremely difficult for people, once they had got through all the barriers, to identify which tobacco products contained higher levels and which lower levels of nicotine. That is an important issue that needs to be looked at.

In passing, the proposals for pharmacy are admirable. I spoke just a couple of weeks ago in this House about the crucial importance of continuing the doctor-dispensing practices. That has been accepted, and I hope that no barriers will be put up against the possible introduction of new practices with similar facilities. I agree entirely with what has been said about the complaints procedure in adult social care and the crucial importance of having a mechanism that looks at private facilities.

What the noble Lord, Lord Turnberg, said about research is absolutely crucial; everyone who has worked in medicine, medical research and clinical practice knows that today’s development in basic research brings tomorrow’s practical development in patient care. I warmly commend the NHS proposals to introduce the academic health science centres. I know full well that other medical schools such as my former school will compete with distinguished places such as Imperial College London, with which the noble Lord, Lord Tugendhat, is connected. I only hope that several of these centres will be established throughout the country, because their potential benefit to the future of patient care is substantial.

Finally, the noble Lord, Lord Turnberg, is the chairman of the Association of Medical Research Charities. Are the Government satisfied that the charity research support fund, which was established to replace money that had been lost under the former dual-support system between the health service and the universities, is adequate to cover the cost of the fundamental needs of these research programmes? Many of us do not think that that fund is adequate.

My Lords, I always have two main interests in any health Bill in your Lordships’ House. My first interest is as a long-time and long-term patient of the NHS; I owe my life to it and am grateful to it every day. My other main interest is as someone who has spent a great deal of her working life trying to get the NHS and other care services to be more focused on patients and users, and in that regard your Lordships will not be surprised to know that I welcome this Bill very much. However, I have several other specific interests to declare in relation to issues that I want to raise today. I am chair of the Council for Healthcare Regulatory Excellence, chair of the Specialised Healthcare Alliance and vice-president of Carers UK.

From the point of view of patients, the constitution is an extremely welcome development, which will have far-reaching effects by putting privacy, dignity and cleanliness at the heart of care and giving patients a better understanding than ever before of their rights and responsibilities. Because it is based on existing legislation, it may be vulnerable to change under different Administrations. Consistency is of the utmost importance from the point of view of patients, so we shall have to ensure that the constitution is an enduring document. The commitment to review the handbook every three years to take account of policy developments is therefore very important.

As we introduce this important new development, the Government will have to ensure that the principles outlined in the constitution fit broader NHS policies. There is a considerable overlap between the goals of the constitution and those of the regulation of health professionals. It is important to ensure that the rights and responsibilities of NHS staff, as laid out in the constitution, work in harmony with and not in opposition to the standards of the regulators of the health professions.

During the consultation phase last year, the Council for Healthcare Regulatory Excellence expressed concern that there were potential inconsistencies between standards and the guidance issued by professional regulators to their registrants and the responsibilities described in the constitution towards confidentiality and access to records. The council is pleased that these have been addressed in the final document, but we must ensure that the professional regulators and the CHRE are involved in subsequent revisions of the handbook and the constitution.

The status of the handbook is also of concern to the Specialised Healthcare Alliance. There is, I am pleased to say, a paragraph on page 15 about the existence of specialised services, but it seems to limit the alliance’s concern to a small number of people who are suffering from rare conditions. As specialised services account for 10 per cent of NHS expenditure and many hundreds of thousands of patients who are often in the most extreme need, as the noble Baroness, Lady Thomas, has reminded us, this is inadequate recognition and needs to be amended.

So far as patients are concerned, the Bill requires the Secretary of State to publish a report every three years on how the constitution has affected patients, staff and members of the public. As others have said, however, it does not provide any details about how this will be assessed or how the effectiveness of the constitution will be evaluated. I hope that, as the Bill proceeds, we will receive more details about this. We also need to work a little more on patient choice. There is a lot of emphasis in the Bill on patients’ duties, but patient choice is not given sufficient prominence.

The Bill also requires that patients and the public are consulted during each review of the constitution, but it does not make that requirement for the reviews of the handbook. I am not sure that the public will be able to understand the meaning of the rights and pledges in the constitution without the aid of the handbook, so consideration will also have to be given to public/patient involvement in regular reviews of the handbook. I will make specific suggestions about consultations in a moment.

I draw your Lordships’ attention, as other noble Lords have done, to a serious omission in the constitution. Given the increasing overlap between health and social care and the fact that most patients do not know where one ends and the other begins—why should they?—it is an anomaly that there is not one mention of social care in the constitution and no equivalent constitution for social care. If the Government are committed to providing a seamless service, we will have to address this omission.

The constitution sets out a number of responsibilities that patients and carers have towards the NHS. Carers—there are 6 million of them, as I am glad to say other noble Lords have reminded us—argue that they are going above and beyond their responsibilities, as set out in the constitution, by already providing more than £87 billion of care, which is the same as the value of the NHS when that was calculated. The constitution states that it is a patient’s responsibility to attend appointments and screenings and to register with GP practices. For some carers to be able to do this, social care needs to work proactively.

Carers UK has provided me with several examples of carers having been unable to attend routine screenings, register with GP practices or attend follow-up appointments for cancer because they have been unable to secure the right social care services to do so. One woman has been unable to attend a check-up since she had bowel cancer eight years ago, because the screening was likely to leave her incapacitated for several days and she could not get care for her husband to cover that period. Health bodies must be encouraged to work proactively with local authorities to ensure that carers can fulfil what the constitution sees as their responsibilities towards their own health and well-being.

A further concern is that, although Clause 3 requires the Secretary of State to consult patients, staff, service providers, members of the public and,

“such other persons as the Secretary of State considers appropriate”,

in the regular revision of the constitution and handbook, there is no specific mention of consulting carers. Carers must be recognised in the Bill as key stakeholders in the provision of healthcare services, and health bodies must be given similar duties to consult, involve and generally have regard to carers alongside patients, users and the public.

Many carers are also patients and will therefore have rights in this regard, but they interact with the NHS often solely as carers and must be specifically consulted as such rather than under the catch-all term “the public”. They often play a vital role in mediation, advocacy and negotiation in helping patients to access services, and their lives are influenced considerably by the quality and accessibility of services. The constitution should reflect the reality that patients and service users exist not in a vacuum but within families, many of which provide high levels of care. I am pleased to say that health and social care policy is finally recognising that carers should be seen as partners in care. We should not let them down by denying this special and important recognition.

I turn finally and briefly to personal health budgets and direct payments. These will enable patients to purchase their own services in the same way as the model used in social care for some time, which could make a real difference to people who receive continuing care and those with complex health and social care needs. However, several issues need to be resolved, such as how personal health budgets that are used to buy care from unregulated providers will be policed. If that can be done, will some of the conflicts to which I referred earlier in relation to regulation also arise here? In particular, it is essential that we heed the lessons learnt in the social care field so far as direct payments are concerned. I hope that these will be apparent from a full evaluation of the pilots, but we can do no better than listen to the noble Baroness, Lady Campbell, on this issue.

My Lords, I know that this Bill comes to us with the best of intentions and, indeed, I agree with some parts of it, particularly those mentioned by the noble Lord, Lord Walton of Detchant, who is always absolutely fascinating to listen to, both because of his knowledge and because we respect him so much. However, I put down my name to speak because of my great concern about the clauses on tobacco.

I should like to make it quite clear that I do not smoke. I have not smoked a single cigarette in my life. I claim no virtue for that, although when I was growing up everybody smoked. It was just that I hated the smell and the look of cigarettes, so I have never had anything to do with smoking and I can say truly that I loathe it. I rejoice when people stop smoking and I cheer when youngsters do not start. I am 100 per cent in favour of unceasing teaching about the dangers of smoking. So far, I am absolutely with the noble Baroness, Lady Howarth of Breckland. Although she is not in her place at the moment, I cannot forbear to congratulate her on still having a local post office. Thousands and thousands of us have no such advantage.

Smoking is a perfectly legal pursuit. To make it illegal to see what people can legally buy is, I think, the nanny state writ large. Lawmaking is rarely easy. There is no shining path along which Bills can be driven without there being objects and principles that clash head-on with each other. Those principles will arise whether we like it or not and there are always difficult decisions to be made. We cannot pretend that a principle does not exist if it is slightly inconvenient to the passing of a certain part of a certain law. After all, one man’s human rights can very easily be another man’s denial of human rights. In this regard, we are considering legal steps to deny freedom of choice and freedom to act legally. I simply cannot swallow that. I believe passionately in freedom under the law. Surely the hallmark of every civilised state in the world is the freedom for people to act in accordance with the law as they wish. I believe so strongly in that principle that I would go to the stake for it. However much I desire to see people, especially young people, not smoking, I simply cannot sacrifice the principle of freedom under the law.

As I have said, I am a firm advocate of the use of teaching to influence people and I would greatly regret it if that changed. It seems that smoking has reduced in this country not as a result of what Governments have done over the past 10 years but because more and more information has come out about how desperately dangerous it is to smoke and because so many people have seen loved ones in their own families and circle of friends die. Looking back, they can see that, yes, they did smoke, which undoubtedly was a contributory factor to their death. Had they not smoked, perhaps they would still be alive.

I am bothered by the suggestion that cigarettes should be sold in plain packets free of wording. You cannot have a plain wrapper with writing all over it, so bang goes another effective method of ramming home the message that jolly well should be rammed home. For the life of me, I cannot see the sense in suggesting that cigarette packets should be plainly wrapped and kept under the counter when it is perfectly legal to have them. For goodness’ sake, let us give people the facts and let them make up their own minds. It is also very odd suddenly to say that cigarettes should be produced and sold in plain packets while at the same time the manufacturers of everything else sold in packets or jars, from soups to cough pastilles—anything that we buy in the supermarket—must put what is inside that packet or jar on the outside. Apparently, that is not to be the case for cigarettes. It is going to change and I simply cannot understand why.

I found some confusion between proposed new Sections 7A and 7B in Clause 19. New Section 7A(1) states:

“A person who in the course of business displays tobacco products, or causes tobacco products to be displayed … is guilty of an offence”.

But Section 7B states:

“No offence is committed under section 7A if—

(a) the tobacco products are displayed in the course of a business which is part of the tobacco trade”.

I thought that that was slightly odd until I read it through carefully. I presume that it means that if you are selling hats, handbags, china or anything other than tobacco, you must not display tobacco advertising or tobacco products. But why on earth would you want to? That puzzles me. Why would you want to put up an expensive display about cigarettes if you are selling other things?

Further down this page of the Bill is material that would be splendid for a comedy sketch: you must not display unless someone aged over 18 asks you to display, in which case you can display. Can you tell by the requester’s appearance how old they are? There are more bits about that and it gets still more complicated. It is okay to display if someone aged over 18 asks you to, but if someone under the age of 18 comes into the shop, what are you to do? Do you shove the packet of cigarettes under the counter or put a cloth over it—now you see it, now you don’t? The next bit says that if the displayer thought that the said person was over 18, then it would probably be all right. But I am not sure, because then we go on to how it shall be decided why or if the displayer thought that. What steps had he taken to discover the truth? Had or had he not “exercised all due diligence” in reaching that conclusion? My word, we are into heavy weather here.

Finally, we turn to what “a requested display” means. The poor person D with the mysterious age mentioned in the Bill—we do not really know whether he is 18 or under 18, and it has to be proved—must have asked to buy a tobacco product, which surely he would not have done if he had gone out to buy a hat or a handbag. This is a contorted part of the Bill, to which perhaps some amendments will be tabled in Committee. It calls for a few.

The Government want to make smoking illegal but they dare not do so. There is a rather unpleasant element: one of the reasons why they do not want to is that they get a lot of money from smoking being legal. They are quite prepared to rake in the money with one hand—all Governments have done this—and put down firm rules about smoking on the other. That is a difficult concept to accept. The Government dare not make it illegal to smoke, so they want to make it as difficult as they can to do so. It is a denial of people’s rights to live freely under the law, according to the law, and to do what they wish to do, which is what happens in a free country.

To say that the Bill wants more choice in the NHS belies its contents because of what I have just said. However, there is merit in the Bill. For instance, we learn that the NHS constitution will put privacy and dignity at the heart of care. I am all for that. Some noble Lords will know that I have made a fuss about that for a long time. But will all those good words translate into a promise that cannot be fulfilled? Earlier in the debate, it was mentioned that we still have mixed wards. I have campaigned against mixed wards for a long time, as they contravene a person’s right to privacy and dignity. I have asked many times about that.

On one occasion, the Minister on the Front Bench told me that 93 per cent of all people going into hospital went into segregated wards. That is wonderful, I thought. Then I made my own inquiries and found that the only reason why the Minister could say that was that a great many wards had been redesignated and called something else. They were mixed wards but they were called assessment wards. It is all right to be in a mixed assessment ward because it is not called a mixed ward. That is really playing with words. If that is the only way forward, the constitution will not provide what it says is intended.

On that point, we have to recognise that dignity is enormously important, particularly for elderly people, who have so much dignity stripped from them when they are in hospital. It is still not fully recognised within our hospitals how many elderly people detest being called by their Christian names by people who are young enough to be their grandsons and granddaughters. Those people may be important medical doctors or consultants, but this is not something that the older generation can accept easily. I should have thought that that would be an easy way to permit a patient to have dignity. I beg the Minister to take that on board, because it means a lot to elderly people who are in hospital.

To be told that we are no longer able to contemplate segregated wards, as we were quite recently, worries me a lot. Does that part of the constitution mean that we will be able to segregate, as we have been promised so many times? While we still have mixed wards, patients will have neither privacy nor dignity.

Finally, will the Minister say what Clause 17 on page 22 means? Am I correct in deducing that it relates to the suspension not of consultants and hospital doctors but to non-medics only? I have worried about suspension of hospital doctors for many years. I have a thick file of doctors who have been suspended unfairly. I once introduced a Bill about that. I take it that Clause 17 refers only to non-medics. Is the Minister confident that the present system of dealing with the suspension of hospital doctors is fair and acceptable to the medical groupings, given that the situation has been so sad and bad in the past?

My Lords, because of my great age, I first came into the health service a long time ago, when it first started. I worked in many hospitals and clinics. I even gave up time to sit on a district health authority in order to do something about an aspect of the hospital that I was not happy with. I appreciate this large step forward in the history of the health service and congratulate my noble friend Lord Darzi on the very hard work that he has put into the proposals. I shall confine my remarks to the provisions on the prohibition of tobacco displays. In doing so, I declare an unsalaried interest as chairman of CitizenCard, a not-for-profit, proof-of-age card scheme. It is one of many.

CitizenCard was founded in my former constituency of Newcastle-under-Lyme in the late 1990s following the Government’s decision to crack down on sales to children of alcohol and tobacco as well as gambling and other restricted products. A coalition of retailers and manufacturers launched this leading proof-of-age scheme with a generous endowment from British American Tobacco and now with funding from Camelot, Ladbrokes, Somerfield, the Association of Convenience Stores and the National Federation of Retail Newsagents—a good collection of hard-working and well-thought-of people. I am pleased to say that we expect soon to have issued more than 2 million cards, a large number of which will have been issued free of charge to young people through local authorities and schools. It is proof, if proof is needed, that traders and young people understand the age restriction laws that are in place and the need for an acceptable proof-of-age system to protect children and retailers alike.

Because of my chairmanship of the committee, I am aware more than most of the cost incurred and efforts made by the industry and retailers to keep within the law. Indeed, we spend many hours and much money spreading the word. We obey what the Government have told us to do. However, I know that the Bill will have a major impact on our courts. Retailers, such as corner shops which are already struggling to survive, will find it very hard to implement the provisions. The Government’s proposal to remove tobacco products from display—by covering the existing display gantry with a Venetian blind or curtain which will be raised or opened when a customer is being served, in an effort to hide these products from young people—is complete and utter nonsense. Such actions are bound to give more prominence to the selling of tobacco—fascinating to children as forbidden fruit—and cause stress and irritation to shopkeepers and customers alike, resulting in further encouragement of the illicit trade in tobacco, more small shops closing, and more jobs lost—a lot of jobs lost.

Do we never think of jobs when we think of health—other than jobs in the health service? When people lose their jobs, as we are discovering now, the stress puts them back into the health service; it does not take them out, as some of these proposals seem to suggest. Is that what we want? Do we want to bully adults into feeling guilty, giving as our excuse the protection of children? Or is it just an excuse to stop adults smoking, which, after all, is legal?

Why does the Bill not make it illegal for adults to buy tobacco for use by children? This would be really useful, and would protect the shopkeeper and the child. Why is it not in the Bill? Everybody would back it; that I do know. What will the Government do about the large black market in tobacco? That is where the children are getting their tobacco. They may tell you differently, but I have spent a lot of time in pubs, talking to young people every weekend in my former constituency, and I have heard things that the Bill does not take into account at all. There are things that can be done. They will be supported by the trade and by shops. They will be supported by tobacco manufacturers. However, putting even more pressure on shopkeepers is not one of them.

I have never smoked. However, when I see what we have done to people, driving them out onto the streets to indulge in something that is legal, and from which my Government obtain a large amount of money, I am sorely tempted to join them, to show solidarity by doing something that I never thought I would want to do, namely take up smoking. You can pass as many laws as you like, but you have to take people with you. To shove things in their faces and down their throats, saying, “You cannot have this, you cannot have that”, is not the way forward. Do it gently. We have made progress in the health service over the years, gently, by introducing things step by step. Take it easy; people will come with you. Do not try to force them. Remember what happened with prohibition in America.

My Lords, today the quality of contribution from what has been called the “mobile Bench” has reached new heights with the speech of the noble Baroness, Lady Campbell, which I regret that I have no hope of emulating.

The Minister and Government are to be warmly congratulated on their initiative in producing the first NHS Constitution. I welcome the single source of clear information about what citizens can expect from the NHS, and what the NHS should expect from its staff and from the people who use its services. The constitution has the potential to empower both patients and staff to drive improvements in the service. I look forward to it securing for the NHS an even firmer position as the UK's best loved public service, and one of the most significant achievements of any Government.

However, I support many organisations that have suggested that the constitution be given more backbone. Both RADAR and the National Council for Independent Living have argued for a more explicit statement in the constitution of Disability Discrimination Act rights, to ensure that the NHS is fully accessible to disabled people as equal citizens, with equal rights to use healthcare services. I welcome this proposal, which would send a clear signal to all healthcare providers that more of the same is not acceptable under the constitution.

Damning reports, such as Mencap’s Death by Indifference, have shown that people with learning difficulties and people with mental health problems have been denied equal access to healthcare. In its formal investigation into primary healthcare services, the Disability Rights Commission found that primary care trusts were failing to make “reasonable adjustments” to provide accessible services for disabled people, as required by the DDA. Reasonable adjustments include, for instance, the need for information to be made accessible. In 2004, the Guide Dogs for the Blind Association found that 95 per cent of visually impaired people never receive health advice, letters or prescriptions in the format that they need. The RNID has shown that one in four deaf or hard of hearing people has missed an NHS appointment because of poor communication. I ask the Minister to look again at the draft constitution and to make a clear statement of disabled people's rights under the DDA to ensure that all citizens have equal access to the NHS.

I greatly welcome provisions in Chapter 3 to pilot direct payments in healthcare services. This is an immensely positive commitment from the Government. The National Centre for Independent Living has stated that direct payments,

“have delivered higher user-satisfaction, better outcomes and often greater cost-effectiveness”,

in social care. There is no reason to suspect that the same cannot be achieved from the NHS—except that a much greater culture change will be required from the NHS than was needed from social care professions, because user independence is not one of its top values. Research on direct payment programmes in the social care sphere has identified ignorance and confusion among healthcare partners as factors impeding greater user independence. This challenge needs to be recognised and addressed from the outset if direct healthcare payments are to work effectively for service users.

The guidance for the pilot schemes makes it clear that direct payments will be given in accordance with a care plan only after an assessment of needs by the PCT, or by another organisation acting on its behalf. The problem is that PCTs have insufficient knowledge of specialist healthcare conditions. Does the Minister agree that it should be a requirement on PCTs to include specialist advice in creating care plans for people with specialist conditions and more complex cases? I declare an interest as someone who has been spinal cord injured for more than 40 years, with increasing pressure-sore problems. Two years ago, I had an inflamed bursa—where a pressure area tries to protect itself—that was misdiagnosed by my GP practice as an abscess. Fortunately, despite being urged by her colleagues to cut it out, which would have made my skin viability much worse, the GP decided to treat it conservatively, and I spent more than two months confined to bed on successive high doses of antibiotics before referring myself to my spinal unit, where it was immediately diagnosed correctly. I am now told that my PCT will be charged £500 for referring someone to the spinal unit, which will certainly deter it from doing so. Does the Minister agree that specialist input needs to be a requirement for developing a direct payment care plan if scarce NHS resources are not to be misused and wasted?

I welcome the provisions in the Bill to enable the involvement of voluntary sector organisations in providing assistance to people who will use direct payments in healthcare, and I declare an interest as an officer of HAFAD, my local user-led disability organisation, which provides direct payments support. The legal obligations on direct payment users to act as responsible employers mean that it is a false economy, and totally counterproductive, to expect people to manage them without adequate support. This is too often the case, and it is vital that access to support, advocacy and information be a requirement of the NHS pilots.

As the Bill progresses, I hope that the Government will clarify how the direct payment approaches in social care, welfare reform and now healthcare are being interconnected across departments, so that we do not just create new silos of funding and more bureaucracy and service duplication. Unified funding streams for public service support for disabled people will be one more step along the road to fulfilling the Government's aim of independent living for disabled people. A fully integrated system of individual budgets, underpinned by rights to choice and control spanning all public service support and specific enforceable entitlements, is the purpose of the Disabled Persons (Independent Living) Bill introduced by my noble friend Lord Ashley of Stoke, which will receive its Second Reading later this month. I hope the Government’s Health Bill and its provisions for rights, choice and control will succeed in taking one more step in its direction.

My Lords, I believe that there are some good aspirations and proposals in Parts 1 and 2 of the Bill to which I can give my cautious support. However, I have some concerns over quality accounts which, I believe, will involve the setting up of new management lines within each trust. I agree with other noble Lords that this could become just another box-filling exercise without any meaningful benefit. I agree with the noble Baroness, Lady Emerton, who was concerned that care and compassion does not appear to be included in the assessment exercise.

Before moving to Part 3, I should declare my interest as an occasional cigarette and cigar smoker and a member of the Lords and Commons Cigar and Pipe Smokers Club—unpaid. It may come, therefore, as no surprise when I say that Part 3 is the point at which I begin to despair. My noble friend Lady Knight made an excellent speech on this subject—indeed, it was a speech I wish I could have made—and I fear that there may be some repetition in what I say.

There comes a time when a line needs to be drawn in the sand beyond which the Government’s ever more encroaching nanny state should not be allowed to pass. That time is now. Of course we all know that smoking is not good for you and I agree that children under the age of 16 should not be encouraged to purchase tobacco products, but I am as certain as I can be that the proposals in the Bill are not the right way to achieve that. After all, have we not already opened children’s eyes far more to smoking by banning its use indoors in all public places? You now see far more adults smoking in the streets because of the ban—and where do children play? In the streets and in open spaces. Therefore to make it illegal to have so-called gantry displays of tobacco products in retail premises will have a negligible impact on children’s awareness of smoking.

What will this banning of displays do to help make us all good citizens? Absolutely nothing. It will simply encourage the trade in illegally imported products, as the noble Baroness, Lady Golding, said. This is already reducing the Government’s tax take by some £4 billion a year.

We should also consider the hard-pressed businessmen who run corner shops and village shops. We already know that village pubs and post offices are under threat, with 34 pubs closing each week at the last count. Not only will the proposals in the Bill put further strain on these shopkeepers, who derive some 35 per cent of their turnover from the sale of tobacco products, but it will also put an even greater temptation in their way to sell illegally imported products on which they can achieve a far higher profit margin.

There is also the question of health and safety at work. Shopkeepers will be forced to bury their heads under the counter or search behind some screen or Venetian blind, which they will have to open and shut like some Punch and Judy show, to obtain products which the purchaser quite legally wishes to buy. Not only will this undoubtedly lead to repetitive strain injuries and back problems, the burden of which will fall on the National Health Service, but it will also make these shopkeepers vulnerable targets to thieves and criminals, who will be tempted to shoplift or to have a go at the tills in shops. It will leave them much more vulnerable to this kind of attack and to pretend this is not the case is nonsense. Sadly, we all know that in a recession or depression the incidence of this kind of petty crime increases.

I hear siren voices on the government Front Bench saying that the Bill will not come into effect until, I think, 2013. Perhaps by then we shall be back in a benign period of economic growth, a hope devoutly to be wished. However, in reality, it does not matter when these regulations come into effect—the result will be the same.

I believe that the Government are guilty of schizophrenia on this issue. As has already been said, tobacco is a legal product. The Government receive around £10 billion per annum from the industry; it is a substantial contributor to the public coffers. Presumably the money is much needed in these straitened times when hundreds of billions of pounds are going out to shore up our financial institutions.

By enacting the legislation, the Government will guarantee for themselves reduced revenue and an increase in unlawful behaviour, be it through illegal imports or something worse. It will serve only to increase the interest of the young in tobacco products. Taking them off display and making shopkeepers furtively scrabble about under their counters will elevate cigarettes to a kind of banned substance and, as we all know, this will only increase certain people’s determination to get hold of some.

My advice to the Government is to remove Part 3 from the Bill. Sadly, I am sure that this will not happen, so I say to noble Lords of a like mind that we will have to gird ourselves up for the later stages of the Bill.

My Lords, I declare an interest as a member of the Equality and Human Rights Commission and a vice-president of Age Concern.

I share the widespread support for the NHS constitution. I believe that it provides the prospect of a quality standard that patients will be able to expect from the NHS and, most importantly, a degree of redress when that standard is not delivered. I have, however, chosen my words of welcome carefully and used the phrase “prospect” rather than “guarantee” of quality standard. I should like to draw the Minister’s attention to the many concerns shared by a number of organisations that what is proposed does not go far enough, particularly for older people, carers and those with multiple health problems.

The pledge to equal treatment for all patients is welcomed by older people, patients’ and carers’ groups and consumers generally. I echo the words of the noble Baroness, Lady Murphy, in welcoming the measures to improve in particular the situation of self-funders in purchasing care, and also the moving addresses by the noble Baronesses, Lady Campbell and Lady Wilkins, on direct payments. These provisions are overdue and necessary and I welcome them. However, I also echo the words of caution of the noble Baronesses, Lady Young and Lady Howarth, about direct payments, particularly when they are applied to vulnerable and frail people. We must be aware of the dangers of abuse, in particular financial abuse, by carers and relatives as well as by professionals. Unfortunately, that is not as rare as we would all wish.

For too long, older people, in particular, have suffered a great deal of discrimination in healthcare. I fear that the pledge in the Bill will become a meaningful reality only when it is taken together with provisions that I hope we shall see in the forthcoming Equality Bill, which will make such discrimination unlawful at last. It is wholly unacceptable in the 21st century for healthcare to be rationed or for access to services to be denied solely on age. Indeed, according to research carried out by Help the Aged, 77 per cent of members of the British Geriatrics Society would support the introduction of legislation against age discrimination in the NHS. If the professionals responsible for healthcare for older people believe that this longstanding sore in our healthcare policy is wrong then I suggest that we, as parliamentarians who have already agreed that discrimination is unacceptable in British society, have a duty to ensure that it is effectively addressed where it remains.

I hope that the newly announced dementia strategy, together with the Bill, will improve the situation of those suffering from that terrible disease. There are many examples that we can use as evidence of discrimination, when the disease is poorly diagnosed and treated and when the patient’s needs are often treated as social rather than making the NHS responsible for the services that are provided. If I fracture my hip, some of the pre-operative and post-operative treatment that I will need is social in character, but the NHS will take responsibility for providing it. In my view, that is discriminatory.

The principles in the constitution are a worthwhile attempt to crystallise overarching expectations of the NHS and NHS-funded providers. Those expectations must meet reality. I have already stressed the importance of a service for all based on clinical need and sound diagnosis and prognosis, irrespective of age. For older people, I would also quote two other aspects of NHS provision that are already problematic and must be addressed: foot care and dentistry. The former is a service that older people need more than the young, but its provision is patchy. Dentistry is an aspect of care that in recent years has proven difficult for the NHS to provide, not just for older people but for patients of all ages. I hope that the Government will be able to reassure me that what they are now proposing will indeed deliver the services needed by patients across the age range but particularly by older people, and that everyone will be made fully aware of their rights and of how to access effective redress if the medical care they need is not provided for them.

I turn to quality accounts. In 2007 the Joint Committee on Human Rights, following its inquiry into the human rights of older people in healthcare, demanded nothing less than an entire change in culture to protect the human rights and dignity of older people in the NHS. The Bill could go some way to meeting those demands but only, as many noble Lords have mentioned, if “dignity” is included as a specific domain within quality accounts and if the needs of older people, rather than targets that fit into speciality or organisational boundaries, are at the heart of the reforms. The same principles apply to maternity care where quality of care, not necessarily waiting time or throughput, should be the focus of the service.

Lastly, I turn to the proposals for personal health budgets. There is widespread concern about aspects of those proposals, not least that there must be proper evaluation of the pilots before the concept is rolled out across the country. We must be sure that payments actually cover the costs of patients’ assessed needs and that the system will work for people who have multiple and complex needs. Many older people have a wide range of physical and mental health problems and they are worried that the proposed new scheme will not address all their needs. Carers are concerned that the proposals might add to the already significant burdens that they face, and people with a range of disabilities need to be reassured that their often individual requirements will be met. In all cases, once a thorough assessment has been made of a person’s needs, the funding of that assessment must be transportable if that person decides to move to a new area of the country, often to be with relatives in line with their human right to family life.

My Lords, the National Health Service is a great service, but it is 60 years old. I have previously called for a royal commission on the service, but that has been refused. Perhaps with the constitution we have the next best thing, in what is a centralised health service. I hope the constitution works, although in parts it has a whiff of regimentation about it—probably the last thing you want in a health service.

My first comment about the constitution relates to page 13 of the handbook to the constitution, which says this:

“What this right means for patients … NHS services are generally provided free of charge”.

That is the wrong message. They are not provided free of charge; they are paid for in advance. The cost to each person is quite high at £1,700 per annum, which means that a family of four pays on average £6,800 per annum for the NHS.

That’s wrong.

My Lords, that is for a family of four. Four times 1,700 is 6,800, I believe. The service is paid for and people ought to know that they are paying for it, not be told that it is free of charge. If we are going to get pressure for better services and better administration, people should know how much they are paying. It is about time that we gave serious consideration to showing on people’s payslips exactly what they are being charged—in other words, a health contribution.

I agree with the noble Baroness, Lady Knight, that patients should be treated with courtesy and respect. She is right that when people of an older generation go into hospital they expect to be treated with dignity; they should be called “Mr” or “Mrs” and not by their Christian name—their first name, rather—without their consent. I have had a lot of complaints about that, and it is time that that was understood in hospitals.

The same goes for mixed-sex accommodation. In 1995 this House passed a Bill to outlaw mixed-sex accommodation. I moved it, as a matter of fact, and it went through this House without dissent. Fourteen years later it has still not been got rid of. I welcome the announcement, although not in this place or the other place, that the Secretary of State is going to take stern action to see that mixed-sex accommodation is phased out, but he then went on to threaten those hospitals that do not do it with having money withdrawn from them. That means money withdrawn from patients—absolutely the wrong thing to do. He should say that if they cannot do it themselves, the Government will bring in another trust to manage that particular trust or hospital. I hope that that will be considered instead of penalising patients by withdrawing financial support.

We have promises of continuous improvements in the National Health Service. I hope that that will continue in spite of the economic and financial difficulties we have. It is essential that some services, anyway, are improved. I also hope that the operation of the EU working time directive, which restricts hours worked to 48 per week, will not adversely affect the work of doctors, nurses and other staff in the National Health Service. Perhaps I could have that assurance from the Minister.

How are patients to be informed properly of their rights? That needs further consideration. They need to know their rights; they should be informed of them when they go into hospital, if not before. Perhaps, generally, the population should know anyway.

Part 3 of the Bill covers the prohibition of tobacco displays in shops and on the internet. That really is going too far. Such a provision ought not to be in this Bill. This is a health Bill, and restraint of trade ought to come under another department, perhaps the Department of Trade and Industry, or whatever it is called these days. This is a restraint of trade; it is preventing purveyors of tobacco displaying their wares. If you did that in any other industry which poses health problems, you would be getting rid of a lot of food, for example. We have heard a lot of talk about sweets and chocolate. They would be banned. You would not be able to display them to children in case their teeth were damaged or there was some other complaint. Would McDonald’s be able to display or advertise its products? You could go through everything and, before very long, nothing would be on display because of being dangerous in some way.

This is yet another witch hunt against smokers and the people who provide tobacco products. There is a huge risk, as we have already heard, that many small shopkeepers will be put out of business. The legislation reaches a new height of authoritarianism by banning shopkeepers from displaying their wares. There may be a hint of racism about this, as well.

Oh!

Yes, my Lords, a lot of small shops are run by people from the Commonwealth who provide a good service throughout the country, which might not be provided otherwise, to help the country and help families. We ought to take all these things into account when we consider banning the display of a legal substance. As we have heard, these provisions will also encourage sales of illegal cigarettes and rolling tobacco.

This nasty piece of legislation, wrapped up as a means of discouraging children from taking up smoking, will not achieve its objective. The greater the temptation and the greater the danger perceived by young people, the more they want to do it, just for the hell of it.

The noble Baroness, Lady Howarth, who is not in her place, referred to the health aspects of smoking. She said that there were 87,000 deaths from so-called smoking-related diseases. Most of those deaths did not involve people who smoked. Some 75 per cent of those people never smoked in their life. We have to put that figure into perspective. There are 620,000 deaths per annum; as a proportion of that figure, so-called smoking-related deaths make up only 14 per cent. So there are 533,000 deaths from other causes. Furthermore, most deaths from so-called smoking-related diseases occur among people over 65; indeed, a big proportion of those people are over 75. When we talk about the health aspect, we really should put it into its proper perspective.

We shall be debating these matters in Grand Committee, when we will be able to explore them in more detail. However, I am most concerned and unhappy about a Bill of this importance being relegated to Grand Committee. It should be taken on the Floor of the House. I made Independent Labour representations about it to the usual channels, but of course they have not taken any notice. I made representations to both the Leader of the House and the Leader of the Opposition to say that I, along with a lot of other people, was unhappy that this Bill should not be taken on the Floor of the House. But I have no doubt that the Grand Committee will be well attended and that we will have great debates there. Perhaps we can make some decent amendments so that smokers and those who sell and provide this service are not victimised further.

My Lords, I have great admiration for the hard work that the noble Lord, Lord Darzi, has undertaken with his review and reports, resulting in this Bill. I welcome the constitution and its accompanying handbook, and the fact that the Bill ensures that every organisation and staff member working with or on behalf of the NHS will have to adhere to them. Will the National Health Service’s contractual arrangements with the private sector also have to adhere to them? I hope so.

It seems wise that the constitution will not be reviewed more than once every 10 years. There have been so many changes to the National Health Service that people working within it so often say, “Not change again!”. I am pleased that the constitution puts responsibility on patients too. When patients miss appointments without a good reason and do not call to cancel, it is deplorable.

There has been considerable interest in the Bill from many organisations. As a long-term supporter of the National Health Service, I have some questions for the Minister which I hope he will be able to answer. I consider two of the most important aspects of healthcare to be good quality of care and safety. I am sure the Minister will agree with me on these points. I am exceedingly pleased that they are in the constitution and the handbook. However, what will happen if staff do not adhere to good quality of care at ground level with the patients? Let me give your Lordships three examples. Since Christmas, three patients were to be transferred from Scarborough hospital to Bridlington hospital. One of the patients was over 90 years old and the others were also elderly. The transfers were to take place at 10 am. In the end they were transferred at midnight. They found Bridlington hospital cold. The food was cold, the patients got confused and the staff were found to be chatting round the nursing station and not caring for the patients.

Recently, another elderly patient of 93 had a fall and was taken for an X-ray to Scarborough hospital. It was found she was only bruised and shaken. At 3 am she was told to go home. There was no transport so an elderly nephew had to fetch her and drive her home at 3 am. On a third occasion an elderly man had a fall and it was found he had serious cancer of the bladder and had to have an emergency operation. As there was no available bed on a ward, he had to stay in a holding ward in A&E.

I am told there are real problems in Scarborough and Bridlington hospitals and, when I heard of these incidents which have occurred since the Healthcare Commission’s worrying report, I thought I would ask your Lordships if you thought this was treating the elderly with dignity and good-quality care. I thought it worth mentioning in the hope that there will be some improvements. These were only three cases told to me personally. How many more have there been, I wonder?

I quote from the Handbook to the NHS Constitution, on page 14:

“You have the right to expect your local NHS to assess the health requirements of the local community and to commission and put in place the services to meet those needs as considered necessary”.

The NHS provides access to “specialised services”. I declare an interest—of course, unpaid—as president of the Spinal Injuries Association. A short time ago I met the doctor in charge of the intensive care unit at the Royal London Hospital. He told me he had five tetraplegic patients who were on respirators and waiting to be transferred to a spinal unit where they have specially trained staff but there were no beds. His beds were being blocked. This is a very serious matter and everyone concerned is most frustrated. Some of the spinal beds in the specialist units are also being blocked as some of the patients do not have suitable housing and their home circumstances mean they cannot be discharged.

The spinal consultants and the Spinal Injuries Association agree it is essential to enable optimum access. A national bed bureau should be set up, both for first-time admissions and urgent readmissions, like pressure sores. One can have as many constitutions written down as the Government like but if the NHS cannot deliver, which is the case with spinal injuries at the moment, the constitution will be worthless. I hope the Minister will look into this urgently.

I agree so much with the statement in the handbook:

“Quality of care is personal to each individual patient—you have the right to high-quality care that is safe, effective and right for you”.

It would be impossible for me not to mention the importance of page 28 of the handbook, which says:

“Requirements are also made clear in the duty to provide and maintain a clean and appropriate environment for healthcare, as set out in the Code of Practice for the Prevention and Control of Healthcare Associated Infections”.

The Healthcare Commission should be congratulated on what it has done, but it is an ongoing challenge as staff can so easily get lax. I hope, therefore, that the Care Quality Commission will have this as its top priority.

I am pleased that the constitution encompasses the recommendations of Professor Mike Richards’s review, Improving Access to Medicines for NHS Patients, which ensures that NHS care is not withdrawn from patients who choose to purchase private drugs. This was so cruel; you will do anything to relieve suffering and prolong life when that is wanted.

It may be because I am a canny Scot that I have some reservations about direct payments for the health services. The Department of Health’s own 2006 White Paper Our Health, Our Care, Our Say unequivocally ruled out direct payments. I believe in the founding principle of the NHS that care should be free at the point of need. It has been the envy of many countries. Could direct payments become something like managed care in the USA? Could it lead to means-testing? Could there be greater barriers to services for those who most need them? What happens if the money runs out? What happens if the patient spends it on non-healthcare? What happens if the patient has a long stay in hospital and does not use it? What happens if other family members make use of it and make the patient hand it over? Would it not become a bureaucratic nightmare? What safeguards will there be? How will the pilots be chosen? I hope the Minister will be able to answer some of these questions, as many noble Lords have asked the same.

I would be grateful if the Minister would explain how the innovation prizes will work. How will they directly benefit patients and the public? Will they be like merit awards or will they be like targets?

I have always known how dangerous smoking is and it has been a great relief to now have so many places smoke-free. With this Bill before us, I have been surprised how much material your Lordships have been sent from all sides of the smoking or non-smoking lobby. I welcome the Government’s initiative to try to prevent young children smoking. It is worth repeating that each year in England deaths attributable to smoking total more than suicide, road traffic and other accidents, diabetes, drug and alcohol-related deaths put together.

I would like to query one of the ideas, which is to remove the brand names from the packets. Will this not make it easier for the evil market of counterfeit cigarettes, which seem to be a growing problem? Some young people seem to like to challenge anything which seems to harm them and it is awful to see such young children smoking.

I welcome the fact that people who pay for their social care will have the right to complain to the ombudsman. They can be just as much as risk as anyone else. I look forward to the Minister’s reply.

My Lords, it is a real pleasure to follow the noble Baroness, Lady Masham of Ilton. I think that I speak for all your Lordships when I say that it has been a great privilege to be able to listen to speeches not only from her but also from my noble friend Lady Wilkins and the noble Baroness, Lady Campbell of Surbiton. We are fortunate to have them present when we debate health issues and to hear their powerful and effective speeches. I intend to speak on the subject of tobacco control and the Bill’s related measures. In doing so, I declare an unpaid interest as a trustee of Action on Smoking and Health and as a patron of the Roy Castle Lung Cancer Foundation.

Like most other speakers, I warmly welcome what the Government are proposing in the Bill. I congratulate them again on securing such overwhelming popular support for the measures that were taken in the Health Act 2006 to protect workers and non-smokers from the dangers and discomfort of second-hand smoke. It is perhaps hard to recall now what it was like to have a drink in a pub or a meal in a restaurant in a smoky environment, and it is great that one country after another around the world is following the lead that we in the British Isles set—I say the British Isles because Ireland was first and Scotland was second—in passing comprehensive legislation.

Since the publication of the tobacco control White Paper, Smoking Kills, a decade ago, progress has been remarkable. Your Lordships will recall that it started in this House, when we passed the Tobacco Advertising and Promotion Act as a Private Member’s Bill in 2002, which brought the vast majority of tobacco advertising and sponsorship to an end. That legislation in addition to a wide range of stop-smoking services and the subsequent measures in the Health Act 2006 have succeeded in persuading 2 million fewer people to smoke compared with 10 years ago. Millions of people are now protected from exposure to second-hand smoke in the workplace, and in the first year since the introduction of the smoke-free legislation, many thousands more smokers have given up the habit. So this is clearly the right moment to consider how we can build on that progress and address the need to tackle the problem of children and young people thinking about starting to smoke. That is behind the measures in the Bill, which I hope will be part of a wider tobacco-control strategy.

Let us be clear what we mean by this. Every day, hundreds of children try smoking for the first time. Eight out of 10 smokers become addicted before they turn 19. As other speakers have said, smoking remains the single biggest preventable cause of death, killing more people than alcohol, obesity, illegal drugs and road accidents put together. This debate is about protection—the protection of children and young people from a deadly addiction. One in seven 15 year-olds is a regular smoker. As we know, since the introduction of the Tobacco Advertising and Promotion Act, the tobacco industry has worked hard to produce smarter and innovative measures to target and recruit “new customers”. One example of this is tobacco point-of-sale displays which have become more elaborate and eye-catching.

I am delighted that the Government have based their proposals in the Bill on research. Some of the most important research has been carried out by Professor Gerard Hastings, director of the Centre for Tobacco Control Research. He investigated the complex relationship between tobacco marketing at the point of sale and young people’s intention to smoke. He found that:

“In 2006, almost half—46 per cent of UK teens—were aware of tobacco marketing at point of sale”.

Moreover, the likelihood of a young person stating an intention to smoke may increase by 35 per cent with each brand that they can recall having seen at the point of sale.

Bans on point-of-sale displays have been introduced in a number of jurisdictions. A useful case study is Iceland, which introduced a ban on point-of-sale displays in 2001. The result, which is contrary to the misleading briefing sent to some noble Lords by the Tobacco Manufacturers’ Association, is that prevalence in 15 to 16 year-olds dropped from 18.6 per cent in 1999 to 13.6 per cent in 2003. This rate of drop was twice the rate of decline in the prior four-year period. There is similar evidence from other countries. I am sure that the Minister will be able to elaborate on that when we discuss these issues in Committee.

Can the Minister outline how it is intended that trading standards officers will be involved in the enforcement of the point-of-sale legislation? When the Criminal Justice and Immigration Bill was debated last year in this Chamber, the Minister committed to giving to Parliament a report on the effectiveness of orders in preventing under-age tobacco sales. Will he monitor the enforcement and impact of the prohibition of point-of-sale displays and in due course report back to Parliament?

I turn briefly to tobacco smuggling, to which a number of noble Lords have referred and which resulted in an estimated £1.7 billion loss of revenue to the Exchequer in 2006-07. The supply of cheap illegal tobacco is severely undermining other tobacco control measures. I would welcome comments from the Minister on how trading standards officers will play a part in enforcing the age restrictions and can be empowered to play a greater role in tackling smuggling. The case for a positive licensing system, where each local authority is required to keep a list of all retailers and establishments which sell tobacco and apply for a licence, is very strong. It would be a proportionate measure to tackle smuggled tobacco. Local authorities are already obliged to keep a list of all establishments that sell fireworks and alcohol. Why is there not a similar case for selling tobacco? If the Government are serious about taking action against smuggling, why not give our trading standards officers the strongest framework in which they can operate?

We must remember that the personal cost of smuggling is very large: 22 per cent of all UK smoked tobacco products are smuggled. If we were to eliminate it, the result could be a 5 per cent reduction in tobacco consumption, which in turn could lead to 4,000 fewer deaths each year in the longer term.

As the Minister said at the beginning of our debate, there are no UK-specific laws which govern the use of vending machines. While only 1 per cent of all cigarette sales are from tobacco vending machines, there is a disproportionate number of sales to under-18s. An estimated 17 per cent of 11 to 15 year-olds who regularly smoke get their cigarettes from vending machines.

A recent test-purchasing survey by the local government regulatory authority, LACORS, to which the noble Baroness, Lady Howarth, referred earlier, found that, on average, young people were able to buy cigarettes from vending machines on more than four in 10 occasions. Indeed, a number of councils reported that test purchases by young people failed to be prevented on any occasion. It is clear, therefore, that young people obtain their cigarettes from tobacco vending machines and that the current voluntary restrictions on their location do not guarantee protection for young people.

I know that the Government are thinking in the short term of age-proofing the machines. I hope that that they will not; I hope that they will go for an outright ban from the beginning, because age-proofing was tried in Japan and did not succeed in preventing young people buying tobacco. It would make much better sense if they were taken out of establishments or converted to sell other goods rather than tobacco.

Several noble Lords have referred to something that is not in the Bill, namely a provision to force the industry to introduce plain packaging. My view is that that would reduce the appeal of cigarette packets to young people. Again, if we look at Professor Hastings’ research, we find that the proportion of young people who are aware of new pack designs increased from 11 per cent to 18 per cent between 2002 and 2006. The Government are already committed to further research; I know that they have already carried some out into the impact of plain packaging. I wonder whether my noble friend will, in Committee, consider taking advantage of this Bill by giving the Secretary of State an enabling power to introduce plain packaging at a later date when more evidence is available. We need to bear in mind that the WHO framework convention on tobacco control has agreed guidelines which define retail displays, vending machines and tobacco packaging as forms of advertising and promotion. It would seem sensible for us to fall in line with what others are doing.

Finally, I remind the House that the measures on tobacco control proposed in this Bill are overwhelmingly popular with the public. Over 50,000 people signed Cancer Research UK’s “Out of Sight, Out of Mind” petition calling for the prohibition of tobacco point-of-sale displays and tobacco vending machines and the introduction of plain packaging. Over 80 per cent of the 96,000 responses to the Department of Health consultation also supported these proposed measures. I wish this Bill well and believe that it will make an important contribution to reducing the number of children and young people who take up smoking, and thus further significantly improve public health.

My Lords, I take part in today’s debate on this Bill with a degree of trepidation. As a resident of Scotland, I am more likely to use the services of NHS Scotland, for which I have the highest possible praise, although my wife and I have recently had superb service from accident and emergency departments in two London hospitals.

My opening remarks refer to subjects that are not mentioned in this Bill. During the passage of the last Health Bill, I tried hard, and with a degree of support throughout the House, to secure an amendment to put the full price of prescribed drugs on the medication itself. I intend to introduce a similar amendment to this Bill. Patients would be encouraged to finish their full course, thus saving repeat prescriptions. I have always felt strongly that all prescription drugs ought to have their full value clearly printed on them, so that patients know exactly what they are getting for their prescription charge. One must not forget that many prescribed drugs are outstanding value for money. Sadly, I must declare an interest as a diabetic. As such, I am exempt from prescription charges, but I greatly welcome the relief that has recently been awarded to those with such long-term illnesses as cancer.

I turn now to health insurance, which is, I accept, a controversial subject. In order to further reduce waiting lists and the heavy load on the National Health Service, I have long advocated that insurance health premiums ought to be allowed against income tax. Private health insurance is a very large proportion of annual expenditure for those who opt for it, particularly if a wife and children are also involved.

I am also particularly concerned about car parking charges at National Health Service hospitals, especially for lower-paid members of staff. In many cases it is almost unviable for them to go to work at all. Many patients attending accident and emergency departments have no idea how long they will be hospitalised and are often dismayed to find that they have been fined on returning to their vehicle. This must be terribly morally wrong. I intend to table an amendment that I hope the Government will feel is reasonable and, indeed, sensible. One has only to look at hospital car parks at weekends to realise how easy it is to park, compared to a weekday. Sadly, this must show how top-heavy the management of the National Health Service has become.

I declare an interest as an ardent member of the Lords and Commons Pipe and Cigar Smokers’ Club. During the passage of the Health Bill in 2006, I tabled an amendment that would have prohibited the sale of all tobacco products. My views on smoking are well documented in Hansard. I believe strongly that Her Majesty’s Government are being incredibly hypocritical towards those who smoke. If we are not meant to smoke, we should not be able to buy tobacco in the first place. Her Majesty’s Government must make up their mind as to whether tobacco is a legal product. If it is legal, the sellers must surely be allowed to promote what they have to sell.

Many noble Lords have mentioned smuggling. The figures that I have researched most carefully show that the amount lost to the Treasury as a result of smuggled tobacco is £3.8 billion. I repeat that figure: £3.8 billion. In these times of economic downturn, I cannot understand why every effort is not being made to correct this situation. Perhaps the Minister can explain what action is being taken, or what measures the Government are prepared to take, to recover this huge—I emphasise that—amount of lost revenue. Here, for once, I agree with the noble Lord, Lord Faulkner of Worcester.

I now turn specifically to the tobacco provisions of Clauses 18 to 22. They do not, as other noble Lords have mentioned, have a rightful place in this Bill. The purpose of the Bill, so wisely and eloquently expressed by the Minister, is principally to legislate for aspects of the next-stage review of the National Health Service. The tobacco provisions are about the environment and conditions for the sale of tobacco products at retail level, from supermarkets to small shops. The provisions in this Bill that ban tobacco product displays are purely consumer protection measures, just as is the Tobacco Advertising and Promotion Act 2002, which these provisions amend. They should be elsewhere and should not have been injected inappropriately into this Bill. The noble Lord, Lord Stoddart of Swindon, made these points with his usual vigour.

These proposals make no legal sense. Under the Bill, it will be an offence to display a product that it remains entirely legal to sell. As other noble Lords have said, this simply cannot make sense. One must not forget that it undermines the rights of commercial freedom under Article 10 of the European Convention on Human Rights and, indeed, is contrary to the principles of free movement of goods already enshrined in Article 28 of European Community treaty. The Department of Health claims that the purpose of the display ban is to reduce smoking among young people, and I fully support this commendable objective. However, the evidence that the department cites in support of a ban is weak, inconclusive and unconvincing. I am sure that the evidence can be well and closely scrutinised in Committee.

I am at least as concerned about how the Department of Health, in its report on the consultation undertaken on its proposals, has played down and diminished the effect that its proposals are likely to have on small-scale retailers. Those retailers are typically small businesses serving a local community. They are invariably family businesses. They are certainly not familiar with responding to government consultations, particularly when those consultations are not produced in their mother tongue, as was the case in this instance. It must not be forgotten that 76 per cent of these small businesses are owned by people from Commonwealth countries. The Bill will saddle them with a whole new raft of regulations on display, on how to deal with and serve their smoker customers, on signage and on how they must indicate prices to their customers. For them, the one-off and continuing costs of complying with the regulations will be unreasonable and completely unjustified burdens, as the noble Lord, Lord Naseby, said.

In the case of the smoke-free provisions of the Health Bill in 2006, the Department of Health predicted that there would be increased trading and profitability. The real impact, evident well before the current economic depression, was precisely the opposite, with businesses actually closing down. The last smoking ban has already claimed the jobs of 44,000 people in the pub industry. It is feared that, if these proposals become law, a further 59,000 jobs will be in jeopardy. I have no faith in the department’s predictions of the outcome of its display ban. I would rather put my faith in those small retailers; after all, they are at the coal-face of the retail industry. I have talked to many of them in recent days. They know why children smoke, even if the Department of Health does not; it has nothing whatever to do with displays of tobacco products in their shops. They are in the front line of denying access to tobacco products by the underaged. They should not now be burdened with regulations serving absolutely no necessary purpose. The noble Baroness, Lady Golding, made that point with her usual great clarity.

Many communities in both urban and rural areas have already lost their local pub and their post office. Surely it is madness now, particularly in this economic climate, to strangle the small community shop with red tape. The Government claim that they support small businesses, while they are spending billons of pounds bailing out failed financial institutions and supporting major industries. I believe most strongly that they need to demonstrate their support for small businesses by removing this display ban completely from the Bill. I look forward to the Bill’s further stages.

My Lords, I speak on this occasion in support of the Bill. I am particularly delighted that my noble friend the Minister, an acknowledged expert in his field, is here today to bring such important health and social care measures before this House. The renewal of the National Health Service under this Government continues. I pay tribute to all those who work so tirelessly in the NHS. It is right that the NHS should now seek formally to engage with its patients, staff and the general public to secure the service for generations to come. I also support proper supervision of the pharmaceutical market and cannot fail to support any efforts made to improve adult social care, which for many of us is a subject close to our hearts, as each of us have been touched by caring for relatives. However, I must strike a note of caution and question why Part 3 on tobacco is before us at all.

I am a fervent supporter of this Government and believe that we have the leadership that will see us through difficult economic times. I know that we all look forward to an early economic recovery, but I question why we are debating issues today that will not, for sound economic reasons, become effective until 2011 or 2013. I am not a smoker, I hold no brief for the industry and I am not concerned that a legitimate business should be legitimately regulated. However, I am seriously concerned about the economic, social and, indeed, human impact of smuggling and trafficking. That is what causes me to take an interest in Part 3 of the Bill.

Noble Lords will be aware of my interest in the most appalling aspect of smuggling—people trafficking. Organised crime uses whatever means it can to fund these vile crimes. Criminals use illicit trade to fund this activity. Tobacco smuggling is, sadly, an important aspect of this trade. If we are to focus on tobacco, it is time to legislate to eliminate the illicit trade. Part 3 of this Bill will adversely affect UK manufacturing businesses. It will endanger the small shops that are the centre of each of our communities and it will fuel the illicit trade, yet it seems that there is no convincing evidence that it will improve public health or stop young people gaining access to tobacco products. Youth access controls have to be carried out by precisely the retailers whom this Bill seeks to punish. That is aside from the increasing number of young people who buy their tobacco from illegal sources, sometimes unwittingly buying a counterfeit product. I am not convinced that the Government have the evidence base to act or that they have considered all the options. I note that there were three options in the original consultation paper on tobacco control, yet there are only two in the published impact assessment. Why has the second option of restrictions rather than a ban been discontinued?

We are too quick to ban things before considering how restrictions might achieve the desired effect without the unintended consequences. If there is evidence that advertising and promotion of tobacco products at the point of sale are so attractive to youth that they are a public health menace, we have a duty to act now, but even then we should always look to the easiest legislative route. I fear from everything that I have read about this issue and from all that I have heard today that the case for the ban of the display of tobacco products has not been made. I fear that the consequences of this proposal will be the loss of small shops and an increase in the already large illicit market for tobacco products, with no proven health benefits.

We have a duty to analyse the evidence and on that basis to reach sound conclusions. I do not believe that the evidence is there and I feel that we are sending the wrong message to the country by adding even more burdens on small shop keepers. Why do we seek to allow the Secretary of State to ban something now, when the Government have already acknowledged that this should not become fully effective until 2013? In the interests of good government and given the lack of evidence and clearly difficult economic consequences, I believe that we should remove Part 3 from the Bill. I suspect that the Government have existing powers under the Tobacco Advertising and Promotion Act 2002 to ban display. If they can demonstrate that this constitutes advertising in shops, there is no need to introduce yet more powers in this Bill.

I have been contacted, as I suspect have many noble Lords, by many different interest groups on this Bill, some seeking to suggest amendments and even to go further by amending the Bill to ban branding altogether. I warn noble Lords that that would be a further step on to dangerous ground. British brands are an exceptionally important part of our economy and any move to destroy them in any field must be resisted. This House should defend British intellectual property, not consider ways in which to undermine or destroy it. We need to regulate legitimate businesses in a fair and appropriate manner. Evidence must guide the formation of policy. We cannot ignore the already burgeoning illicit market and we must not do anything that causes it to grow. Indeed, we should redouble our efforts to seize illicit products and prosecute those who perpetrate this trade. We should not be considering ways to punish those who, every day, have to make decisions about the age of their customers and effectively police existing laws. We should be considering means by which to help them, to enforce the law and to do all that we can to reduce youth smoking. The measures in the Bill do not seem to me to do that.

My Lords, it is extraordinarily difficult for me to know where to begin, so I think I will begin with the noble Lord, Lord Darzi. He is a mister. If he were not a noble Lord and you were to write to him, would you put an “Esq” on the back, because he is “of Denham”? I will begin with Denham. I must declare an interest because if you do not these days you may get into trouble—people will think that you have none. My first interest in this goes back to my great-grandfather who had a house at Denham. He was the first person with a dairy herd to isolate tuberculosis and to keep badgers out in defence of his property, which upset many people. I have always been interested in tuberculosis, and in bugs and viruses. I found that I had the weakest of all things—a weak stomach. Whenever the food was bad, I was sick, but I have never spent a day in bed in my life. The Saudis once suggested that I should be appointed royal taster.

I thought that we were here to debate making people better, keeping them well and letting them live longer. We seem to have somehow lost our way. I now return to one of the noble Lords on my own Bench, my noble friend Lord McColl. He is a doctor and a great man and does a lot of good around the world. In my days in the Middle East I often wondered why people lived so long. Ayatollah Khomeini’s father was meant to have died at 123. I was told that Gaddafi’s father had died at 106. I asked the noble Lord, Lord McColl, “You were sometimes in Africa. Were you ever in Libya?”. He was not really interested in talking to me because he was talking on a much higher level, but he said yes. I said, “Would it be possible that Gaddafi’s father could have lived to 106?”. He said, “Yes, I think I last operated on him when he was 103, but I'm not sure whether it was lunar or solar”.

That for me was almost as great an event as when the noble Lord, Lord Darzi, saved the life of the noble Lord, Lord Brennan, and the most reverend Primate the Archbishop of York was praying on the other side. I can say this because the noble Lord said that it was public property. He turned afterwards to the most reverend Primate and said, “I won”.

Those were great events, but the speech of the noble Baroness, Lady Campbell of Surbiton, was also great because it made me think. The problem facing us is bureaucracy. We have potentially the most powerful health unit in the world. It accounts for somewhere around 12 per cent of GDP. It was 8 per cent of GDP but GDP has fallen so quickly. The one thing that we have in this country which employs a lot of people is the health service. I must declare an interest. My uncle, my brother-in-law, my sister’s husband and a nephew all worked in it and I have a great respect for it, but not for the bureaucracy. In this country, we have things that we have forgotten about. We need to be able to research, diagnose and then treat. We need to know what it is we are seeking to diagnose and treat.

In all the time that I have been involved in building hospitals, my favourite appointment was when I was director for many years of the oldest healthcare company in the world—Terme di Porretta near Bologna. We built healthcare centres in places as old as Roman times—for example, in Zarka Majin, in Jordan, where Herod beheaded John the Baptist. We studied where the pharaohs were and we believed in the mind and the body. It was almost “physician heal thyself” in that the body will heal itself.

In this country, we have some of the best research in the world. Unbeknown to many of you, we are almost the most successful pharmaceutical country in the world. We export somewhere around £12 billion a year and have a turnover of £20 billion. We employ 72,000 people and the production per person in the pharmaceutical or healthcare sector is higher than in any other sector of the industry in the world. Also, the R&D in pharmaceuticals is greater by far than even defence. Here we are, one of the leaders in Europe and a net exporter when, at the moment, we have a deficit in visible exports this year of maybe £100 billion. The health service is employing 1.2 million people. It employs more people than any other health service in the world. That does not matter, but the people who are already there need to be reorganised to be more productive.

We should also recognise that with our historic links, the English language and the ability to speak Latin in English—I did not know that many great physicians can—we are at a point where this could be the most important commercial business of this country for the next 25 years. Rather like the noble Lord, Lord Stoddart of Swindon, I do not believe that we should say that it is free at the point of delivery. We are all clients. We are customers. We have our rights and people would like to serve us. The potential does not seem to have sunk in.

From time to time, on the basis that I was interested in tuberculosis, I became interested in MRSA and all the hospital-borne diseases. I tried to work out where the bugs came from. I call them bugs although you are not allowed to do that. Suddenly, I was on a human embryo and stem cell committee. I was the only one who did not know what I was talking about or what other people were saying. A certain noble Lord would whisper to me, “Why didn't you ask the Chief Medical Officer about the primitive streak?”. So I asked about the primitive streak and he could not tell me about it.

Then I suddenly realised that the Home Office was involved and what we were talking about was effectively DNA—the original cell. I got involved and I declared an interest. I spoke to the Minister at some point, who then wrote me a letter and asked me whether I would be kind enough to go and see him. I took all the papers that I had written myself and he could have papered his office with them, but I know that he would have given them to someone and they would have ditched them. I then said that I would come and see him again because here within Europe we have really great potential.

We have the R&D here. We have the people who have been trained. I have never really understood why a vet trained for five years and a doctor for only four years, but a surgeon trains for ever. I have talked about some of the latest things in diagnosis and the latest equipment. Unfortunately, historically, all the diagnostic equipment was British. That has all gone out of the window. Much of the surgical stuff has gone. One of my earliest clients was Thackeray, which made hip joints. Now we find that the continent of Europe has BMW service stations where you can do elective surgery—nine operations per surgeon per day of 40 minutes each. There are right-handed and left-handed people on the right sides of the bed and everything is there—bone banks and blood banks.

I am president of the Anglo-Swiss Society. We tried to close it down but we could not quite. Switzerland was where we all went. I was looking at how we might be able to use adult stem cells for regeneration. The people in Switzerland are pretty good at that and we were looking to set up an adult stem cell bank using the latest cryotechnology for research into treatments. I said, “Do you have any MRSA or C. difficile?”. In Holland they have the least, at 6 per cent; in the United Kingdom we have 23 per cent. You cannot take a Dutchman into Germany and send him back again unless he is treated. This is a bug. I said, “Do you have any incidence?”. They said, “Yes, I think so. We'll let you know”. The next day in Davos they said, “Two”. I said, “Two per cent?”, and they said, “No, two”. I asked them why and they said, “It doesn't survive here”. I suddenly thought that when people went to higher altitude stations when they had tuberculosis, they would not be cured, but maybe the bugs would not mutate. Therefore, in that cold, dry atmosphere you would have clean hospitals. I do not know whether that is true.

Down below the Swiss hospitals, there are bunkers. You have to be ready to be invaded. There is a nuclear bomb shelter that is absolutely clean and clear. What we are going to try to do with the British side—it is accepted as the best in research—is to see if we can start to go back to using people's body parts to heal themselves, which has worked extremely well. There are many instances of this and I will not go into allogeneic or all the types of stem cells. I have to learn them by heart. But here is one technical area that is really very exciting.

There is also money to be made. We have the biggest balance of payments surplus in drugs of anyone in Europe and we are right in the forefront of it, but somehow the bureaucracy of our great organisation does not realise that the noble Lord, Lord Darzi, on his own with three people could probably do the same amount as 500 people. I talked to him also about some of the latest technology, including the da Vinci machines for elective surgery, whereby remotely you look to combine drugs and elective surgery without the need for hospitalisation. I am getting a bit carried away.

Oh!

My Lords, I do need a bit of help, because this is what people do now. I say, “Isn’t there anything wrong with you?”. They say, “No, there must be something”, and then they tell me that they have biliary cirrhosis. The current condition on which I could do with a bit of help is ankylosing spondylitis. I would appreciate it if anyone could help me, because one of our colleagues here would like some advice. What I find is that you can talk about health. It is a healthy thing to talk about. We really do have some good people; they hide their lights under bushels from time to time.

Finally, I come to my major project of the year, and I will take only 30 seconds. There is a well known rock band called Moonlight. Its hit heavy metal record is effectively called “Opium”. Project Moonlight, which I started, relates to the two countries that can use morphine legally in the form of codeine, France and the United Kingdom. I have talked to the drug companies. Morphine, in general, comes from poppy straw from India, Pakistan and Tasmania. I ask the Minister if we can get the drug companies together, to which they have agreed in principle, because you have to stop India and Pakistan producing morphine; I have suggested that Tasmania should produce wine instead, as it always used to. You then say, “Look, if we are the two countries that can use codeine legally, could this country not place a substantial order in Afghanistan for our health service?”. That would work, as long as we did not pay all the money at once. I will write to the Minister on Project Moonlight after the Recess.

I am sorry to have occupied noble Lords for a while, but I thought that I would think diagonally or laterally or, as some people would say, go off at a bloody tangent.

My Lords, the noble Lord, Lord Selsdon, is a very difficult act to follow, as always. I am sure that there are many admirable provisions in Parts 1 and 2 of this Bill, which, I fear, I have not studied, but the same cannot be said of much of Part 3 and, specifically, Clause 19. It is upon this clause that I wish to concentrate. I am less concerned about Clause 20, which concerns tobacco vending machines.

It is extraordinary how freedoms have been curtailed in this country recently. Could the servicemen returning to this country in 1945, after spending up to five years fighting to liberate continental Europe and much of Asia from tyranny, have possibly imagined that they, supposing that they are still around, their children and their grandchildren would have to stand outside in the sleet and rain like outcasts, simply to enjoy a cigarette or small cigar, all because of a stubborn refusal by zealots to compromise and agree on a middle way, as has been achieved in a number of European countries?

As a light smoker I am rarely inconvenienced in this way, but the scenes of perfectly decent people huddled up, with their coat collars turned up, braving the elements, remind me forcibly of witnessing on more than one occasion 60-odd years ago in the American south, and in the United States capital, Washington DC, another minority group—coincidentally they also formed about 20 per cent of the population—standing outside diners munching their burgers in the cold, while representatives of the majority population sat inside enjoying their meals in warmth and comfort. Apart from creating, in effect—although I am not sure whether it was deliberate—second-class citizens, the zealots have effectively signed the death knell of the great British pub. Pubs are closing at the astonishing rate of 39 per week.

Not content with that, the zealots plan to impose burdens, financial and otherwise, on small shopkeepers, a disproportionate number of whom are hard-working Asians. Newsagents derive as much as a third of their income from tobacco sales. For what end is this plan? It is supposed to protect the health of adolescents, but, if people are so concerned about that, and it is an admirable objective, why did the Government use the Parliament Act to force through Section 1 of the Sexual Offences (Amendment) Act 2000 against the considered judgment of a majority of your Lordships’ House, including many Labour Members? For those noble Lords who want to refresh their memories, I commend the House of Lords Hansard of 13 November 2000, in particular columns 35 and 36.

I revert to the subject of tobacco. I am sorry that the noble Lord, Lord Rea, is not in his place, but it is already a criminal offence to sell tobacco to the under 18s. This new law is almost always obeyed, and where it is not, the remedy should be to pursue and punish the offenders rigorously. I shall go further; should not the police be given the power to confiscate tobacco from minors, matching their powers to confiscate alcohol?

Underlying the Bill there is an extraordinary misunderstanding of human psychology. The BMA, for example, claims that a display of tobacco products at the point of sale reinforces in young people notions of the glamour of smoking. I go into shops and supermarkets quite a lot, and I can vouch that the huddle of customers around the tobacco counter is about as glamorous as a queue of people at a chemists waiting to buy aspirin or corn plasters. The fact is that young people throughout the world are, and always have been, tempted by what is mysterious and forbidden by adults. If you hide cigarettes behind a curtain, they will automatically become more exotic and desirable. On a practical note, I have noticed that in most supermarkets a cigarette counter is always busy, so in practice, the curtain would be open most of the time.

The BMA is on surer ground by asserting that young people are influenced by role models. On the whole, this is true; but what can you do about it? Should you censor every film, DVD and TV programme which shows people smoking? Mind you, the Americans, with their puritan heritage, did just that regarding one of their most famous 20th century presidents, Franklin Delano Roosevelt. In real life, FDR was rarely seen in public, nor I suppose in private, without his elegant cigarette holder, in which a cigarette smouldered more or less perpetually. However, the Americans successfully and literally airbrushed this important feature of his personality and lifestyle right out of history. American schoolchildren today believe FDR to have been a lifelong non-smoker.

One wonders how long it will be before British children are taught that our famous wartime leader, Winston Churchill, used to boost Britain’s morale during the blitz by being driven around bombed areas giving a “V” sign with one hand, while with the other brandishing his trademark cylindrical macrobiotic muesli bar, before retiring to his simple supper of lentils and brown rice, washed down with dandelion tea, to fortify himself for his titanic struggle with the evil, chain-smoking, hard-drinking carnivore, Adolf Hitler. Do not laugh, my Lords, it may yet happen. Speaking of Prime Ministers, it is noteworthy that three of this country’s 20th century’s Prime Ministers most closely identified in the public mind with smoking—Winston Churchill, Clement Attlee and Harold Wilson—lived on average to the age of 85. Not bad going.

The Government themselves, through their agencies, the Better Regulation Commission and the Parliamentary and Health Service Ombudsman, have clearly stated on more than one occasion that policy solutions “must be proportionate”, “need to be evidence based, objective and rational” and must be “appropriate and fair”. None of these conditions has been met in the case of the proposed ban, and the Government should think again.

My Lords, I begin by congratulating my noble friend Lord Darzi on being the driving force behind change in the National Health Service. It is frequently said that Parliamentary Under-Secretaries do not have a great deal of influence in departments, but my noble friend’s track record shows where the drive and initiative for change have come from. I congratulate him not only on that but also on the exceptional stamina that he has shown in sitting right the way through this debate. Sometimes he must have felt a little twinge of regret about it; nevertheless, he has done it.

During the debate, a number of flights of fancy have taken us quite a long way from the subject. I shall start with my preferred one, which is that this reform of the National Heath Service does not come from a point of view of overall crisis in the NHS. If we look at the record of this Government since 1997, we see enormous progress: in real terms, the NHS budget has gone up by 96 per cent; waiting times for operations have been dramatically reduced, while waiting lists, which had gone up by 400,000 during the tenure of the previous Government, have fallen by 600,000 during the tenure of this one; operations carried out in the health service are up by 1 million post-1997; the number of nurses in employment in the NHS is up by 80,000; and there are 38,000 additional doctors in the NHS. All that has been achieved alongside a massive improvement in the National Health Service estate and innovative actions leading to the creation of things that did not exist before, such as the 90-plus NHS walk-in clinics. Therefore, it is from a position of enormous achievement that we are now looking at the next drive forward, and I congratulate my noble friend on that.

I welcome the idea of a National Health Service constitution, although I did not think that I would until I saw it. It is a very good start, but I have one or two concerns about it. There is an imbalance between rights and responsibilities as expressed. I think that we should emphasise a lot of the responsibilities that come with access to the health service, as well as people’s rights. I am a little doubtful about the full expression of these rights, particularly in the handbook to the constitution, my concern being that it may become a charter for litigants. We already have too many vexatious litigants knocking around the National Health Service.

My other concern about the constitution is where it talks about rights. Time after time it states, “You have the right”, but it does not specify who “you” is. That is quite important. “You” has to be defined. Is it a British citizen who acquires the right or is it any legal resident? Is it anyone who is legally in this country but not as a resident, or are we just going to rely on the exception that we can charge overseas visitors? What about asylum seekers, and what about failed asylum seekers who should have been sent home but have not yet gone? A whole series of questions has to be asked about who the “you” is. One reason why I am a strong supporter of a compulsory identity card is that I would like to see it become a statement of entitlement to the benefits and services in this country for people who are legally entitled to be here. For other people, there would be other ways of accessing the services that they need. Therefore, I welcome the constitution but I have some doubts about it. For example, 56 pages in the handbook cover rights and pledges relating to the patient, but, when it comes to responsibilities, there are only six pages. That is an imbalance.

A very useful additional management tool is the measurement and publication of data and the whole question of quality accounts. My only caveat about that is the imperative of keeping systems both accurate enough to be useful and simple enough to avoid the creation of another layer of bureaucracy. Such a bureaucratic overlay might just consume resources, which will continue to be scarce, rather than give value in terms of the benefits arising.

I found it difficult to get enthusiastic about personal budgets and direct payments, but I listened with great care to the noble Baroness, Lady Campbell of Surbiton, who gave an interesting and moving personal example. However, it depends on how far and how wide the question of personal budgets and direct payments goes. We all know from experience that the National Health Service is not the best at operating large-scale computer systems or securing patient information at the necessary level of confidentiality. Therefore, when I see new systems being introduced for personal budgets and direct payments, although I am willing to give the whole idea a fair wind in our examination of the Bill, I certainly have some doubts about size, scale, propensity to fraud and the ability to manage data inside as complex an organisation as the National Health Service. However, I do not like the idea of a large number of people directly receiving cash to provide their own health service; I remain to be convinced about that.

I hope that innovative prizes are widely based and are not limited to the great and the good in the National Health Service who in the past have been the recipients of merit payments. There has to be a wider base, because it is not only expert doctors in the NHS who can have good ideas about innovation. I hope that we will include in the scheme ambulance men and women, paramedics, cleaners, caterers and porters. Even patients may have ideas about innovation and how to change things for the better. Of course, I totally welcome the contribution that doctors, nurses and other health professionals can make, but I do not think that their contribution to innovation is exclusive.

I am all in favour of reducing smoking as much as possible and I listened with great interest to all the arguments about tackling the problem of tobacco at the point of sale. I am convinced that the only alternative to doing that, if we are to discourage young people from smoking, is to deter through taxation. There has never been a better time than today for punitive additional taxes on tobacco: there is very low inflation; it will not have a seriously detrimental effect on the rate of inflation to be declared during the next year; and we will not see it feeding through into inflationary pay claims. If we do not do something about reducing smoking, as is suggested in the Bill, or if there is an attempt to knock out Part 3 of the Bill, I will perhaps look to make some suggestions to the Government about what they should do in the next Budget in relation to taxation on tobacco.

While the Government are at it on tobacco, I find it quite illogical for them to be seeking to deter smoking without in parallel seeking to deter the consumption of alcohol. The cost of alcohol-fuelled accidents and the carnage that we see in so many of our towns and cities, particularly on Friday, Saturday and Sunday nights, when enormous alcohol-fuelled damage is done, are borne partly by the police and substantially by the National Health Service. I look for the Government, if not now, then at some other time, to say that they regard alcohol as a threat to the financial interests of the National Health Service and to the health of our people.

The Bill has clear purposes to ensure the highest possible standards of care and to empower individuals to help shape the care that they receive. I agree with those purposes and support driving up the quality of the health service through the proposed quality accounts. Despite the caveats that I have expressed, I welcome the Bill and the main purposes that lie behind it, and I will give it my support during its passage through this House.

My Lords, we have had an informed and interesting debate, but time is going on, so I shall confine myself to commenting briefly on the Bill and then discussing an amendment I shall table to insert a new clause on transplants and organ donation.

Other noble Lords have commented on the NHS Constitution and Part 1 of the Bill. It is a sad reflection of our society that there is still bullying in the health service and that the NHS does not always respect and value the intrinsic worth of each human being. As Cicely Saunders said, “You matter because you are you”. That should have been the maxim of the NHS Constitution, and it could have been blazoned across the front of the publication. It is important to write down the principles, but we also need to have a debate about what the NHS cannot do when an emergency, whether national or local, arises. Staff need to know that they will be supported when they work outside their normal roles in such a situation. I fear the Bill may be a missed opportunity to realise our research potential by decreasing the regulatory hurdles for researchers in this country. My noble friend Lady Campbell argued eloquently for personalised budgets, especially mixed-health budgets for some aspects of equipment and defined interventions. I can see how useful such a provision might prove. It might remove unnecessary delays, particularly for wheelchairs, some treatments and equipment.

In 2003, I introduced a Bill to ban smoking in public places. Although my Bill for Wales did not become law, the Government's legislation of the same nature is now in effect and working well. Those who predicted that such legislation would result in a marked fall in smoking have been proved right. The reported 40 per cent fall in the incidence of heart attacks is probably the combined effect of less smoking, better cholesterol and blood pressure control and targeted health education. However, statistics unfortunately also reveal that approximately 450 under-18s start smoking every day in the UK. The Department of Health consulted on three legislative measures on tobacco ahead of this Bill: prohibiting retail display, banning tobacco sales from vending machines, and plain packaging. The Bill covers only the first of these—prohibiting retail display—and plans only to restrict access to vending machines. Declaring my interest as president of ASH Wales, I must say we would like to go further, but other noble Lords have addressed tobacco control comprehensively.

I turn to the urgent problem of transplants. As noble Lords know, I introduced a Private Member's Bill during the previous Session to introduce a soft system of presumed consent for kidney donation. I remain convinced that such a system would be advantageous, but I recognise it would not be a panacea. Presumed consent has been advised against by expert committees inside and outside this House, and I heed that advice. As the report of the EU Committee chaired by my noble friend Lady Howarth stated, we must encourage the gift of life to others after a tragic death and we must improve the infrastructure to encourage organ donation and support transplant procedures. My amendment will insert a new clause in the Bill. It will require the transplant team to take account of advanced wishes as expressed by the donor's relatives when they give consent. In the Mental Capacity Act, we made provision in Section 4(6) in Part 1 for an advance statement of wishes to be considered when a best-interests decision is being taken—an important principle that was championed by the noble Baroness, Lady Barker. My amendment will allow the family to express such a wish on behalf of the deceased.

At present, when a donor dies, the family's wishes about the use of donated organs are excluded. With her mother desperately in need of a transplant, Laura Ashworth told family and friends that she wanted to donate one of her kidneys, yet when the 21 year-old tragically died after an asthma attack, the Human Tissue Authority refused to consider her mother as a possible recipient of one of her kidneys and her pancreas, with the other kidney and her liver going to others. Instead, her organs went to three strangers on the waiting list. Of course, it is not known if tissue matching would have shown Laura's mother to be a suitable recipient, but if she had at least been considered, her grieving would not have been compounded by being denied the possibility of even being considered. She now has to rely on her sister becoming a live donor, which will endanger her sister. This is not the case in other countries. Elsewhere, a person already on the transplant waiting list and known to the grieving family can be considered in the tissue-typing process. The Human Tissue Authority seems to insist that an advance statement of wishes must be in writing by the potential donor having recorded a wish to be a live donor prior to death. That seems to run counter to the spirit of the Mental Capacity Act.

Let me be clear. My clause will not allow the donation to be conditional, but it will allow consistency with respecting an advance statement of wishes by the deceased by allowing the suitability of a potential recipient to be considered. It will help to ensure that organ donation is truly a gift to those in need, and it will allow the grieving to have comfort from the attempt to help someone among family and friends if a person on the waiting list is personally known.

I have consulted on this and have support from transplant professionals, but more of that when we debate the clause. I hope that the Government will see that it may increase donations, particularly in ethnic-minority communities, and would certainly do no harm. I will be calling on the House to support this.

My Lords, I congratulate the noble Lord, Lord Darzi, on bringing forward his first Bill for consideration by the House. I must declare an interest in Clauses 18 to 22. Unfortunately, I am one of those people who have not yet managed to give up; that is something that your Lordships ought to know. I also make it quite clear that the policy that I will outline from these Benches about the tobacco control measures has been worked on with my colleagues here and in another place, who vary only in the degree of their intensity of anti-smoking feeling.

During debate on the Queen’s Speech a few months ago, I tried to set out some of the enormous challenges that the NHS, our largest public service, will face over the next five years during a time of recession. As we go through the Bill, we need to bear in mind that now, more than ever, people want evidence that the NHS provides high quality, efficient services delivered personally, locally and nationally. That is why my colleagues and I continue to believe that locally accountable health boards are an important way forward, which, working in partnership with local authorities and voluntary organisations, are the best way to ensure accountability and transparency of services.

I start with the constitution. The first and obvious point is that it is not a constitution; I do not know what it is, but it is not a constitution. I understand from talking to people, including some of those who worked on it, that this statement of intent, or whatever it is, should not be used by individual patients to further arguments with clinicians. Rather, it sets out the general relationship between the NHS and its patients. As such, it is an important document which tries to set out some strategic issues that have a big influence on healthcare.

For that reason, we on these Benches have two regrets: two issues are missing. The first is a statement of clear principles about the use of patient data. I do not want to rerun the arguments made by the noble Lord, Lord Turnbull, but that is an ongoing issue that has never been resolved. Patients are fearful of confidentiality being breached, and researchers are frustrated by lack of access to anonymised data. That key point should have been included. Secondly, as the Local Government Association points out, if we are to reach the stated aims of overcoming health poverty, reducing mortality and improving efficiency and delivery of care, there needs to be full co-operation between the NHS and local government. I regret that there is no requirement on the NHS fully to co-operate with local government in the document.

What is the document’s status in relation to existing policy and legislation? Important drivers for healthcare for several years have been the Children Act 1989 and the Mental Health Act 1983. I do not want those important pieces of legislation to be undermined in any way by this document, the status of which is unclear.

Reviewing the handbook seems to be like a Forth Road Bridge job—never-ending. Reviewing it every three years seems to me quite daft. The pace of change in the NHS is such that you cannot fully implement something and review it successfully during that period, so we will propose later that the figure be changed to five years.

On quality accounts, the NHS is swimming in data; it has data everywhere. It does not have a clear, purposeful system for analysing and using that data. We support the aims of the noble Lord, Lord Darzi, and we welcome the involvement of clinicians in setting quality accounts, but to ensure that the provisions are right we need a much fuller statement about the purpose of quality accounts. Then we can determine what their nature should be. We will support anything that helps the NHS to come up with verifiable data that improves its evidence base.

We support individual budgets and direct payments as a means of making services responsive to need. I welcome any initiative that will enable older people to have greater independence, that will enable people to manage pain by having a chiropractor or an osteopath treat them, and that will help people with mental health problems to get rapid access to therapies, whether or not they are provided in their area.

Direct payments are, however, very complicated. I told the noble Baroness, Lady Campbell, before she left the Chamber that I would tell the House that we need to be very clear that the use of direct payments in social care has yielded very little evidence so far. That evidence suggests that they work very well for some people, but for other people they are incredibly problematic. I am sorry to say that the noble Baroness, Lady Campbell, presented a particular view that may not be typical, and I am really worried that we see individual budgets as the answer to the NHS and all its problems when they are not, although they might be an answer for some people.

I ask noble Lords to consider that the individual budget is a market model, which is interesting; when the City is ditching market models at a hell of a rate, we are suggesting that they move into the NHS. They have been trialled in social care, which has 28,000 providers, most of which provide stand-alone services, and if the providers fail, there is no knock-on consequence for anything else at all. In social care, services are managed by eligibility criteria and people’s ability to pay, and we are going to apply that to the NHS, which has a few hundred providers. In the NHS, the distinction between acute care and community care is not clear-cut, and taking a budget from one part of the organisation could have severe knock-on consequences for another. All those services are supposed to be free at the point of delivery at the moment and are largely uncosted; yet we are going to do all that on the basis of some very thin evidence from social care. That is a huge risk. We assume that this system will work, but we must realise that this is a system in which there are more providers and more capacity than people need, so they can have a choice and there is sufficient purchasing power. Noble Lords may think that that applies to the NHS today, but I ask them to consider whether it will apply in five years’ time.

The IBSEN study has shown that there are some problems. I do not want to go into them; other people have, but if we go ahead without having fully evaluated this we will be in danger of compounding inequities between different client groups. That would be extremely dangerous. I say to the Minister now that we will not let the Bill leave the House without much more rigorous requirements for review and evaluation before this is rolled out.

Innovation prizes are okay on one condition: that the Minister gives an undertaking that the money will not come from existing research, education and training budgets. If he says that, that is fine; he can have them.

On tobacco control, we on these Benches, like everyone else, have seen all the evidence that has been put before us. It is regrettable that we have to consider this without a comprehensive strategy from the Government to counteract the illness and health inequalities that are caused by tobacco. I make the observation that tobacco is like any product; if there is a market for it, there is profit to be made, manufacturers will make it and distribute it and retailers will sell it.

I will not restate the point made about vending machines, but I will say that we are a little sceptical about the extent to which the measures in the Bill will limit access by young people. I want to make it absolutely clear that we support the end of point-of-sale advertising, but we do not believe at this stage that it is right to end point-of-sale display. We would be happy to consider anything that noble Lords wish to put forward on plain packaging. We believe that, if stuff is put under the counter, it is glamorised and made more attractive to young people and smugglers are enabled to further their business.

On pharmaceutical contracts, will the Minister explain whether the new system that he proposes will be used to decrease the number of pharmacies? Pharmacists are high street retailers and not immune from the carnage we see on our high streets at the moment, so we want it to be absolutely clear that the Government are not doing something that will decrease coverage.

On adult social care complaints, I thank the Government for listening to what we said on the Health and Social Care Bill, but it is important that the local commissioner has a duty to refer any investigations to the regulator. That is how he will pick up incidences of bad practice and malpractice.

Over the next five years the outlook for the NHS and local authorities in terms of funding is grim. I hope that, as we go through the Bill, not only do we keep in mind the long-term vision of the noble Lord, Lord Darzi, but we also ask ourselves this: will what we are doing make the NHS something that people continue to value and cherish in good times and in bad? Some parts of the Bill will help that, some may not, and on some it is unclear. Those parts which are good will have our support.

My Lords, I am sure that the Minister will have been gratified by the general content and tone of this debate, which, with one notable reservation, has indicated a good measure of support for the Bill from all quarters of the House. He will be glad to know that I do not propose to be the one to spoil the general mood, for even if I cannot let out a rousing cheer for every single clause now before us, I am the first to acknowledge that this Bill is shot through with good intentions, and to that extent the Government and the Minister are deserving of our good will. Unfortunately, there are two parts of the Bill on which I will sound a note of criticism, and I shall come to those later. But knowing as I do how immensely hard the Minister has worked to bring his next-stage review to this point of fruition, I should like to congratulate him on those parts of this Bill which have his distinctive imprimatur visible upon them.

When it comes to the NHS Constitution, my reaction is little different from that of many other noble Lords: one cannot sensibly oppose it. Indeed, it was my own party that originally proposed the idea of an NHS constitution some time ago. I agree with what has been said; there is a benefit to be gained from articulating in a single document those values and principles which characterise the way in which the NHS goes about its work alongside the rights and pledges which patients of the NHS should be able to rely on. Restating all these things is by no means a sterile exercise. It serves to refresh the mission and purpose of the health service and, one hopes, underpin public trust. On the whole, I think the constitution reads very well. There is only one small problem. If you look for the constitution or any part of it in the Bill, it is nowhere to be seen. Not even the founding principles of the NHS are included here. What is more, they will not appear before us in a formal way at any time in the future, either in regulations or in any other statutory form. With all the talk in the constitution about parliamentary accountability, that is rather regrettable. Indeed, one has the feeling in this particular context that Parliament is something of an irrelevance. When we reach Grand Committee, I think we need to challenge the Minister on that point.

The other noticeable thing about the NHS Constitution is the one mentioned by the noble Baroness, Lady Barker, in that it is not really a constitution in the accepted sense at all. One of the defining features of a constitution is that it should serve to provide clarity on issues of principle that are likely to prove contentious and to act as a point of reference when disputes or matters of definition need to be settled. Section 1 of the National Health Service Act 2006, for example, speaks of a “comprehensive health service”, and the constitution itself echoes that phrase. If we look for a definition of what the word “comprehensive” should actually be taken to mean, we will be disappointed. It would have been helpful to know the extent to which people have a right to access NHS dentistry, an issue of widespread concern, but the constitution is silent on dentistry altogether.

Similarly we all remember that one of the most knotty and contentious issues of health policy in 2008 concerned NHS top-ups. In precisely what circumstances should a patient who is receiving healthcare in the private sector be denied access to the NHS? It is a question of fundamental significance but the constitution fails to answer it. The Minister will know only too well, and it has been mentioned today, that the issue of mixed-sex accommodation has been a highly charged one for more than a decade. Does the constitution take us anywhere near an understanding of what NHS patients have a right to expect in this area? It does not.

The NHS constitution seems to be a lost opportunity. Equally, some of us would have liked to see within it a clear articulation of how and to whom the powers, rights and responsibilities within the health service are allocated and distributed. Constitutions are normally a convenient vehicle for defining the broad structure of governance within an organisation, but not here. Ministers have told us, and we have to accept, that the constitution was never intended to create any new legal rights for patients. Given that, it seems a distinct pity that it has ended up ducking some of the key issues of structural definition.

I am not wholly clear why it is necessary to incorporate in statute a duty for NHS bodies and independent sector organisations to have regard to the NHS constitution. The Secretary of State already has a power of direction. Why would it not be sufficient for him to issue a Section 8 direction to health service bodies under those existing powers and to achieve the same result with independent sector providers by means of contractual obligations? Perhaps the Minister will be kind enough to tell me. If it turns out that the Government could have created that duty by another and more straightforward route, we need to ask why they did not do so. If there was another route open to them, this part of the Bill looks suspiciously like political grandstanding.

Ultimately, as noble Lords have said, the test of the constitution will be the added value that it brings to patients and staff. We owe it a fair wind, but I wonder how close we will come to being able to measure its effectiveness with any degree of precision. I support the Minster’s wish to measure quality in the NHS and to improve outcomes. The noble Lord is eloquent on his proposals to introduce quality accounts, and I am certain that this House will want to give him the chance to put them into practice. If I have doubts about the policy, they centre around the gap that may emerge between ambition and actuality. The first requirement for quality accounts is reliable and meaningful information. The collection and presentation of that information will be no mean task. The noble Lord, Lord Walton, sounded a warning about the burden imposed on healthcare providers.

The second requirement is that the information which is published tells the story that needs to be told. Will it? If it is up to local providers to decide what should make up the greater part of a quality account, there needs to be some way of ensuring that the bad news is published as openly as the good news. How will we know that this is happening? Who will audit the completeness and accuracy of what a provider chooses to publish? I am aware that the noble Lord, Lord Patel, who regrets that he cannot be here today, would have wished to voice his concerns on this very point.

There is another dimension to quality accounts which makes me somewhat anxious. We understand that the accounts will focus on three principal areas of a provider’s performance: safety, effectiveness and patient-reported outcomes. There is one important element that seems to be missing from those headings, which is the uptake of innovation. A provider may score high marks on safety and on patient-reported outcomes, and may be judged as being effective under certain definitions. However, if the provider does not constantly improve and develop new and better ways of working for the benefit of patients, the quality of his performance is, at best, questionable. I have not seen or read anything on this aspect of quality in the literature provided by the noble Lord, and it would be helpful if he would comment on it.

I also give broad support to the proposals on direct payments for healthcare contained in Chapter 3 of Part 1. It is extraordinary: this was a proposal that my party put forward more than three years ago. The then Secretary of State denounced us, and in the Government’s White Paper of 2006 the idea was ruled out. Undeterred, we made direct payments one of the central tenets of the health policy paper that we published in 2007. I am glad that the Government have changed their mind, because the whole purpose of this proposal is to extend the control that people have over the services provided to them—particularly those people living with reasonably predictable long-term illness or disability. For them, the divide between healthcare and social care can be a source of frustration and bewilderment. Services that should be seamless are not, and costs are often shunted between the NHS and social services.

If we take people’s individual needs and wishes as our starting point, instead of the traditional structures of service delivery, we can begin to break down the barriers to providing people with better care. However, we have to go about this carefully. The Government are right to start off with pilot schemes. Much detail needs to be developed and wrinkles need to be ironed out. The questions that we will ask in Grand Committee will centre on how the Government want the scheme to work; what kinds of healthcare will fall within the scope of direct payments; how individual budgets will be calculated; and how patients will be able to make informed decisions about what services to choose. Noble Lords were right to indicate the potential pitfalls. We need to take time to identify and overcome them.

I shall touch briefly on Part 2 of the Bill. We have waited some time for the Government to put in place a failure regime for NHS bodies. The proposals before us are a disappointment in one important respect: that of foundation trusts. The Government are obliging Monitor to hand over to the Secretary of State its responsibility for overseeing foundation trusts and for securing the services that they provide. The net effect of this is that all liabilities of NHS foundation trusts will be underwritten by the taxpayer. As a matter of principle as well as practice, I take issue with that, and in Grand Committee I shall explain why.

Finally, I will say a few words about tobacco. I am a spokesman on health and I take extremely seriously the public health imperative to reduce the prevalence of smoking, in the general population and in young people in particular. I support any reasonable and evidence-based measure that will bear down on teenage smoking. The Bill's proposals to outlaw point-of-sale displays of tobacco products are unjustified and repressive. The evidence to back them up is flimsy, and the data has been hyped. In 2002, when tobacco advertising was banned, the Government said that they had no plans to interfere with the right of retailers to display a perfectly legal product in shops. We must be absolutely sure of our ground before removing that right. I worry about what this measure will do to small shops, and I find it surprising that the Government have chosen to pass over other measures that would promote smoking cessation and make the existing law work more effectively. Our detailed debates on this must wait for Grand Committee, but the Minister will recognise that they are likely to be well attended.

I have concluded on a note of scepticism merely because I have followed the sequential order of topics in the Bill. As I said at the beginning, for the greater part of the Bill, the Government can count on our general support; and they can count on our constructive engagement on the whole of it. I join other noble Lords in looking forward to our later debates and, in the immediate term, to the Minister's reply.

My Lords, I thank noble Lords for a lively and informed discussion. It has become customary to declare interests and I declare that I am an active clinician and work as an academic at Imperial College, a name that was mentioned earlier. I should also declare that many years ago I was a smoker. The incidence of smoking is higher in the medical community than in any other sector. I should also declare that, despite stopping smoking, I broke that vow on two occasions. I should probably leave the reasons why to the Committee stage.

The proposals in the Bill break new ground in a number of areas, mostly in driving quality in healthcare in the NHS, an organisation that we all admire and which is a part of our moral and social culture. Many in this Chamber today eloquently described its 60-year history and where it is heading over the next decade. The purpose of the Bill is to ensure that the quality of healthcare, the product of the NHS, is improved in the next decade, that it is more personalised around the needs of those who use it and that there is further accountability within the system to meet the expectations of patients.

Many valuable points have been raised in the debate and I shall try my best within the time that I have to address some of the main issues. I look forward to further discussions as we move to the Committee stage of the Bill.

The first part of the Bill covers measures to implement the recommendations in the report High Quality Care for All, which I had the privilege of leading. I am grateful for the support of noble Lords over the past 18 months in producing that important work, in which many colleagues in the NHS across the country were involved and more than 60,000 people engaged. One of the fruits of the report was the NHS Constitution, on which we have had many contributions today.

First, the noble Lord, Lord Naseby, and the noble Baronesses, Lady Tonge and Lady Meacher, raised the issue of the enforceability of the NHS Constitution. Every right in the constitution is already in law. The constitution itself is not a legislative document; most of the rights are in the different Acts to which the noble Baroness, Lady Barker, referred. She asked how the different Acts that we have in the system at the moment refer to the constitution. The rights are already enforceable in law. We have added three new rights, to which I referred in my opening speech, including the right to informed choice. The right to vaccination is the second new right.

I reassure the noble Lord, Lord Rea, that “having regard to” is a well established phrase and means that bodies or individual providers covered by the legislation will need to demonstrate that they have given proper consideration to the constitution in their decisions. The duty also means that they must have good reasons for any decisions to depart from the constitution. As I said earlier, we did not want to create a lawyers’ charter, which is why the constitution will not be set in legislation, although its contents are already in legislation. As the noble Lord, Lord Walton, pointed out, no one wants an NHS that is constantly dragged through the courts. I hope that that explanation also addresses the issue raised by the noble Earl, Lord Howe, about the relevance of the constitution and why it should not be part of the Bill.

I wish to assure your Lordships’ House, particularly the noble Lord, Lord Naseby, and the noble Baronesses, Lady Young and Lady Wilkins, that we envisage that there will be a wide-ranging consultation on any further reviews of the constitution, which will involve all key stakeholders, including trade unions, carers, the Care Quality Commission, local government and all other individuals and bodies that are interested in participating.

The noble Baroness, Lady Tonge, highlighted the issue of choice with regard to maternity services. It is important to stress that the right to choose will develop over time as choice policy extends into other areas. When the right to choice comes into effect on 1 April 2009, it will reflect the existing requirements that patients have the right to choose the organisations that provide their NHS care when they are referred to the first out-patient appointment with a consultant-led service. That does not mean that maternity services will not be covered by the right to choice in the future.

The noble Baroness also asked about integration of healthcare and social care. Several elements in the constitution relate to social care and its relationship to the healthcare system—for example, there is a commitment to make the transition as smooth as possible when a patient is referred between the two services. However, there are currently no plans to produce a constitution specifically for social care because, as the noble Baroness will be aware, the Government will be publishing a major Green Paper on the reform of social care and the support system in early 2009. I also reassure the noble Baroness, Lady Masham, that the duty to have regard to the constitution will apply to providers of NHS services including the independent third sector organisations providing NHS care.

The noble Lords, Lord Naseby and Lord Stoddart, and the noble Baroness, Lady Knight, asked about the Government’s commitment to reducing mixed-sex accommodation. Privacy and dignity are key aspects of good patient experience. The quality framework will capture that and the constitution itself refers to it. As announced by the Secretary of State last month, the department has set up a privacy and dignity fund to the tune of £100 million to make swift adjustments over the next six months, with a central team to support local action.

We have also had an interesting and informative debate on the proposals in the Bill to introduce direct payments for healthcare.

My Lords, just so that we are all quite clear on the subject of mixed-sex wards, the Minister said, in answer to a Parliamentary Question that I tabled, that single-sex bays were the norm in the NHS, but that would result in a mixed ward. The Secretary of State has said that mixed wards will go. What exactly is the definition of a non-mixed ward in the Secretary of State’s new announcement?

My Lords, obviously the confusion continues. We are committed to single-sex accommodation, as we have always said in debates in this House. The announcement made by the Secretary of State is in support of that exact policy: we are committed to establishing 100 per cent single-sex accommodation in the future. We have done a lot in this area and I hope that with the help of the NHS we will achieve our aspirations and the commitments that we have made. I hope that the new investment will—

My Lords, is it possible for a date to be given?

My Lords, I will be more than happy to come back to that. I cannot commit to a date while standing in the House addressing a Bill that does not specifically address this issue but, as I said earlier, we are fully committed to this. Last month the Secretary of State announced not just a commitment but a significant investment to support that commitment.

We have also had an interesting and informative debate on the proposals in the Bill to introduce direct payments for healthcare. I am grateful to noble Lords for the range of experience that they have brought to these discussions, particularly the noble Baroness, Lady Campbell, for her powerful contribution. Many noble Lords have asked for further detail on the Government’s plans, such as whom direct payments may apply to, how they will be implemented, the safeguards that are envisaged and the support that will be given.

The noble Baronesses, Lady Howarth and Lady Young, raised the issue of advocacy. We would expect the PCTs to work with local authorities and third sector organisations to provide guidance and support to people being offered personal health budgets. Independent or peer advocates may also have a role in supporting people through the process. Some of the evidence from other healthcare systems suggests that peer, or expert, patient involvement as advocates may be very effective.

The noble Baroness, Lady Thomas, spoke from the breadth of her experience, particularly on muscular dystrophy. Several noble Lords raised the issue of other complex cases. I would like to reassure the noble Baroness, Lady Pitkeathley, that we hope to present as seamless a service as possible with those receiving social care and personal healthcare budgets. These budgets should be pooled as far as possible, as far as is practical and as far as is legal. That may require careful auditing and we will look into it further. It is one area that we need to explore as we consult on the type of pilot.

Several noble Lords, including the noble Baroness, Lady Barker, spoke about intended safeguards for direct payments. We intend that, before a healthcare direct payment is issued, all parties must agree the underlying principles as well as the clear objectives of the care plan. The care plan needs to be signed off by the patient and their care plan manager. Once the direct payment is running, it should be regularly monitored to ensure that the appropriate and agreed services are being used. It would also be appropriate to monitor budgets more frequently, probably in the early weeks and months of patients receiving direct payments and less often once the user becomes an established user of health budgets. If a patient is no longer able to manage direct payments, then this should be withdrawn by the PCT and services should be delivered directly.

Several noble Lords considered the Government’s plan to use quality accounts. I firmly believe that that has the potential to embed a completely new culture in the NHS. That is what I referred to as a transformational change. It excites me because it is the language that the 1.3 million people who work in the NHS identify with and own up to because it reflects the quality of care that they provide to their patients. I thank my noble friend Lady Wall for her encouragement regarding quality accounts. I reassure her that we plan to develop our approach through a close working relationship with stakeholders to ensure that our plans are pragmatic.

The noble Baronesses, Lady Murphy and Lady Young, both raised points about the role of foundation trusts, their governance and the independent regulator. The Bill is designed to accommodate the inclusive design process currently under way; that includes other factors that are not in the Bill, such as the national quality board, in which we can align the system out there when it comes to having quality as the organising principle within the NHS. I very much hope that, as was pointed out, the purpose of quality accounts is not purely for regulation. I have had many discussions with the noble Baroness, Lady Young, about the role of the regulator. The regulator has an exclusive right in ensuring that core standards in the NHS are met. The potential in the quality accounts is much higher than that.

The Care Quality Commission and other regulators will have an inclusive role with all other stakeholders, including professional bodies and people in the NHS, in driving forward this innovation in improving the standards of care and aspiring to excellence so that we can compete nationally, as well as internationally with many of our European counterparts.

On accountability, I strongly believe that the quality accounts will hold healthcare providers accountable to the users of those services. The noble Earl, Lord Howe, discussed whether this would create a further burden in the NHS. The noble Baroness, Lady Barker, referred to the wealth of information and data that the NHS captures. I could not agree more, but there is not ownership of it by the individuals providing that healthcare. Through the quality accounts, we are trying to reignite that interest in taking ownership of the information gathered, with a very clear framework of safety and effectiveness but also patient experience. As the noble Lord, Lord Walton, said earlier, the best clinical teams who work in the NHS constantly measure what they do because that is the only way you can improve services. There is nothing novel about it and we have the opportunity now that we have made investments in the NHS to move on and focus on what we provide.

On the auditing of quality accounts, a number of individuals and bodies will have an interest in the provider’s quality account and are likely to scrutinise it more thoroughly. We therefore do not believe it is necessary to require providers to have their quality accounts independently audited in order to obtain an assurance that the account is trustworthy and reliable. However, as I said earlier, providers will have to change their quality account if an error is brought to their attention, either by the CQC, the local strategic health authority or Monitor. We will also encourage providers to seek external validation, perhaps through their local PCT, their local involvement in relation to the LINks, or even the local authority to ensure that the views of key local bodies are reflected. This in turn will enhance the credibility to the user of the service.

The noble Baroness, Lady Tonge, and my noble friend Lord Turnberg raised the issue of innovation prizes. Although the final decision to award a prize will be made by Ministers, it is important to remind ourselves what we are trying to achieve. We are trying to put the right incentives in the system, to encourage the NHS to come up with breakthrough discoveries. We have seen many, many discoveries in the past 60 years of the NHS. We wish to recognise these achievements or at least to put forward prizes for addressing some of the major challenges facing our healthcare system over the next decade or two. We are working with expert groups, and I am delighted to tell my noble friend that we are also working with the Academy of Medical Sciences, an organisation of which he was once the president.

In response to the noble Earl, Lord Howe, although it is not in the Bill, there are many innovation policies in the White Paper published in July, ranging from innovation funds—new funding, not from our R&D budget—holding strategic health authorities legally accountable to innovation and identifying innovation metrics that we can introduce into the system, no different from what is done very successfully in business and industry.

On the provision of trust special administrators and the points raised by the noble Baroness, Lady Young, before the Secretary of State or Monitor decides that a trust or a foundation trust will enter the regime, they will have to consult the trust, the strategic health authorities and the relevant commissioners. It is expected that any quality issue relevant to that decision will be raised through these routes.

The noble Lord, Lord Walton, also raised the issue of who would take the role of a trust special administrator. It will need to be someone with the right skills and knowledge to work collaboratively with staff, patients and local and national bodies to develop a solution that will meet the needs of the local population and the wider health system. They will also need to have significant expertise in the NHS and to understand the particular challenges facing the provider organisation in question.

We have had a passionate and informed debate on the important tobacco proposals in the Bill. They will form one part of a new comprehensive national tobacco strategy, which will be published later this year. I emphasise that smoking remains a serious public health challenge, a major cause of health inequalities. The Government believe they have a particularly important responsibility to empower and enable children and young people to make informed healthy choices, a right that is undermined by the marketing—that is the point I wish to make a reference to—of tobacco. The Government have carefully reviewed the evidence base, which I am sure we will discuss further in Committee. Further information will be available in the impact assessment. We consider a prohibition on tobacco display and age restriction on use of vending machines to be effective and proportionate measures in preventing premature death and illnesses caused by smoking.

The noble Earls, Lord Liverpool and Lord Howe, and my noble friend Lady Golding mentioned the impact of the measures on small businesses. I reassure them that we will work with trade bodies and provide all the support needed in the ample lead-in time for compliance to minimise any burden on businesses.

The noble Lord, Lord Naseby, raised comparisons between the NHS in 1997 and the NHS in 2008. I suggest that he reads in Hansard the contribution of my noble friend Lord Tomlinson. I am delighted to say that I have a copy of the missing letter sent to the noble Lord’s offices in December. I shall hand it to him.

I also acknowledge the confidence of the noble Lord, Lord Selsdon, about the potential contribution of the NHS to the economy of this country. A business which has 1.3 million talented staff, spending £110 billion, has the potential to make a tremendous contribution to our economy.

I acknowledge also the contribution of the noble Lord, Lord Tugendhat, in relation to the potential of academic health science centres, where we see the integration of university and the NHS. The sum is greater than the parts, and I wish the noble Lord the best in leading the new organisation.

The noble Baroness, Lady Finlay, raised transplantation, which I have no doubt we will have plenty of time to debate in Committee. I look forward to seeing the relevant amendment before I address the issue that she raised.

I thank all noble Lords for their contributions at Second Reading, which has provided an important opportunity to consider the main themes and issues in the Bill. The Health Bill contains a number of important measures, and I very much look forward to working with your Lordships in Committee.

Bill read a second time and committed to a Grand Committee.