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Grand Committee

Volume 708: debated on Wednesday 11 March 2009

Grand Committee

Wednesday, 11 March 2009.

Health Bill [HL]

Committee (6th Day)

There may be Divisions in the Chamber while we are sitting. If that is so, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.

Amendment 105

Moved by

105: After Clause 22, insert the following new Clause—

“Plain packaging

(1) The Secretary of State may make regulations imposing such requirements as he considers necessary prohibiting or restricting the sale or supply of tobacco products otherwise than in packages or packaging which comply with the regulations.

(2) The regulations made by the Secretary of State under subsection (1) may impose such requirements as the Secretary of State considers necessary or expedient with respect to any one or more of the following particulars—

(a) the colour of the packages or packaging;(b) the shape and material of the packages or packaging;(c) distinctive marks displayed on the packages or packaging;(d) trade marks or registered trade marks displayed on the packages or packaging;(e) the labelling in any respect of packages, packaging or tobacco products, or associated with packages, packaging or tobacco products;(f) the contents inside the packages or packaging, in addition to tobacco products; and(g) any other particulars as may be prescribed by the Secretary of State.(3) Regulations made under this section may provide that packages or packaging of any such description, or falling within any such class, as may be specified in the regulations shall not, except in such circumstances (if any) as may be so specified, be of any such colour or shape, or display any such mark or trade mark, or any other particulars as may be so specified.

(4) No person shall, in the course of a business carried on by him, sell or supply, or have in his possession for the sale or supply any tobacco product, package, or packaging in such circumstances as to contravene any requirements imposed by regulations under this section which are applicable to that tobacco product, package, or packaging.

(5) Any regulations made under this section may provide that any person who contravenes the regulations shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding a level on the standard scale specified in regulations made by the Secretary of State.

(6) Before making any regulations under this section, the Secretary of State shall consult such persons as are likely to him to be substantially affected by those regulations.

(7) For the purposes of this Act—

“trade mark” and “registered trade mark” shall have the same meaning as in section 1 of the Trade Marks Act 1994 (c. 26);

“package” shall mean the packet, container, wrapping or other receptacle which contains or is to contain the tobacco products;

“packaging” shall mean all products made of any material to be used for the containment, protection, handling, transporting, delivery, sale and presentation of the packages;

“tobacco product” shall include cigarettes, cigars and any other product containing tobacco and intended for oral or nasal use and smoking mixtures intended as a substitute for tobacco, and the expression “cigarettes” includes cut tobacco rolled up in paper, tobacco leaf, or other material in such form as to be capable of immediate use for smoking and cigarette papers, tubes and filters.

(8) Regulations made by the Secretary of State under this section—

(a) may make different provision for different cases; and(b) may contain such incidental, supplemental, consequential and transitional provision as the Secretary of State thinks fit.(9) The powers of the Secretary of State under this subsection shall be exercisable by statutory instrument which shall be subject to annulment by a resolution of either House of Parliament.”

My amendment relates to the plain packaging of tobacco products and deals with whether packaging is a form of advertising. I declare an interest as vice-president of a charity called Quit, which helps people to quit smoking.

My amendment seeks to make plain packaging mandatory for all tobacco products, removing all branding and leaving the health warnings and, in plain text, the name of the product. Tobacco packaging, sometimes called the silent salesman, has always been an important part of tobacco marketing, communicating attributes such as style and sophistication to the would-be smokers.

As some of your Lordships may have noticed, I was interested by an article from the Times of Monday 9 March, which said: “Branding on cigarette packs under fire from MPs”. I was glad to see the article say that the noble Lord, Lord Patel of Bradford, was going to move this amendment. More importantly, the writer of the article referred to:

“Tobacco companies—for whom branded packs are the only remaining form of advertising in the UK”.

I shall not quote further, but it interesting that this comes not just from me but from journalists.

Tobacco branding should be prohibited because it is plainly advertising. It recruits young people into a lifetime addiction and misleads smokers about the relative safety of different brands. So is it advertising? According to legal opinion from Sir Richard Buxton, a former Lord Justice of Appeal, the packaging being used by the tobacco industry meets the definition set out by the 2003 EU directive for tobacco products, which is,

“any form of commercial communication with the aim or direct or indirect effect of promoting tobacco products”.

Since the advertising ban of 2002, the pack has acquired even greater importance as a tool that the tobacco industry uses to recruit smokers to replace those who have quit or died. The ban on advertising therefore did not lead to an end of the influence of the cigarette brand but rather the displacing of its potency to the cigarette pack.

There are many examples of how the tobacco industry has risen to the challenge of carrying the whole message on the pack. Examples include Silk Cut; the number of advertised variants within the Silk Cut “brand family” has doubled since the advertising ban, allowing the logo to appear repeatedly in a variety of colours. They have also used creative packaging, such as the “perfume pack”, as it is called, to target particular markets. Camel is another brand, marketed as a “natural flavour”. This new youth-oriented brand variant was launched in 2007. Speaking to the trade press, Jeremy Blackburn, communications manager of Gallaher Group, said:

“Camel is the smoking style statement for young adult smokers”.

Then there is the Lambert and Butler “celebration pack”. When this was introduced into the market, Imperial Tobacco was able to see just how much difference packaging made; with nothing else changing in the marketing mix, it added £60 million in its sales.

I remember when I used to smoke some 38 years ago that brands such as Peter Stuyvesant were my favourite, because the cigarettes were slightly longer. At weekends occasionally, if you could afford it, you bought what were known as black Sobranies to the student ball, for example, to impress ladies. There were “cocktail” Sobranies, with green, black, yellow and cream-coloured cigarettes. It did not make any difference to the ladies, but they were certainly cool to carry.

The cigarette pack is plainly a sophisticated form of advertising. It seduces young people into a lifetime of addiction. The majority of smokers start smoking before they are 18. The younger a smoker starts to smoke, the more addicted they will become by adulthood, the harder they will find it to quit, and the more likely it is that they will die from the habit. Findings from a UK study, reported in a 2008 report for Cancer Research UK, showed that the number of cigarette brands that 15 year-olds could recall increased the chances of them expressing an interest in trying smoking by 35 per cent for each additional brand. Research conducted for ASH by the University of Nottingham has further shown that young people found branded packs more attractive than plain packs. That demonstrates the appeal of packaging and branding independent of the appeal of the tobacco product itself.

Branding on cigarette packs has a powerful impact on young people, and different brands are used to perpetuate and reinforce the ideas that young people have about themselves. Therefore they become powerfully totemic in themselves. Tobacco branding is designed to confer status and sense of belonging. This is a quotation from a young person in the north of England that was gathered for the recent Department of Health consultation on tobacco control:

“At school the type of cigarettes you smoked depended on what group you were in. The ‘cool kids’ smoked Lambert and Butler because they liked the silver packet and the cards that came with it, and the people who liked rock music smoked Marlboro. The ‘Goths’ smoked John Player Special because of the black packets. What you smoked said a lot about you and it was all down to what was on the packet”.

Packaging misleads smokers about the relative safety of different brands. The use of branding, particularly the colours or livery on packs, also misleads smokers into thinking that their favoured brand or brand variant is a safer product than other brands. With the removal of wording, the tobacco industry has switched to colour coding. In the Nottingham study, young people were shown pairs of cigarette packs in the same brand family and asked which cigarettes were lower tar, less harmful to health and more attractive. Young people and the adult smokers were more likely to perceive the lighter coloured packs as less harmful and less addictive.

Large, bold, written health warnings are effective in motivating smokers to quit, and new picture warnings may be even more effective. However, tobacco branding lessens the impact of the warning message, as colourful branding detracts attention from health warnings.

If young people and smokers are to be given a real, free and informed choice about whether they smoke, we should prohibit branding as it inhibits that choice. On-pack branding undermines the existing tobacco advertising law, misleading smokers and continuing to promote tobacco. It dilutes the impact of health warnings designed to ensure that smokers were making a more informed choice. Most importantly, it seduces young people into taking up a habit that in their youth they see as something that expresses who they are, but in their adulthood could kill them.

I have added my name to the amendment, to which I give my strong support, because packaging is the most ubiquitous form of tobacco advertising. At Second Reading, I said that I had reservations about cigarettes being sold in plain packaging because I felt that it would not help individuals to identify which cigarettes had the greatest and lowest nicotine content. However, I discovered that my comments were ill advised; for some considerable time, it has been illegal for anyone to identify a brand as “mild” or “light”, so that reservation is no longer valid.

Since the introduction of the Tobacco Advertising and Promotion Act 2002, packaging has become increasingly sophisticated and appealing, with careful use of imagery, colours and design. Each smoker displays their brand every time they take their pack out to smoke. Cigarette packaging has been called “the silent salesman”. Since 2002, the number of cigarette brand variants has more than doubled as tobacco companies increasingly use the pack itself as a promotional tool.

The importance of pack design in branding and promotion is explicitly recognised by the tobacco industry in its own documents. For instance, Imperial Tobacco in the UK has stated that,

“additional brands and pack design in the United Kingdom have a significant impact on profit improvement”.

Imperial’s global brand director, Geoff Good, said in December 2006 that pack redesign had been worth,

“over £30 million in additional turnover and a significant profit improvement … the UK had become a dark market, the pack design was the only part of the mix that was changed and therefore we know the cause and effect”.

That is a compelling comment.

Members of the Committee may not be aware that Professor McNeil of the University of Nottingham and Dr Hammond of the University of Waterloo in Canada have a research paper shortly to be published on the effect of tobacco branding on young people. The research shows that the branding gives the misleading impression that one member of a brand family, typically in paler coloured packaging, is less harmful, less addictive and more attractive than others that come, typically, in darker coloured livery. It is illegal to mislead people about tobacco products in this way, which is of course why the terms “light” and “mild” are prohibited. The only solution to this problem is plain packaging.

I strongly support the amendment. I do so partly because of what my noble friend Lady Howarth said about the fascination of children with colourful packaging, of the kind that is displayed on Rothmans and Marlboro and the like. I repeat my interest as a trustee of the Adolescent and Children’s Trust, a fostering agency.

I recently visited a children’s home. A 15 year-old young woman was saying over lunch that she was getting fatter and fatter. Young people who have had a poor experience of parenting can feel particularly worried about their weight and have low self-esteem. They are particularly vulnerable to marketing of all kinds, including package design of cigarettes. I am particularly concerned that, for this girl, for instance, a brand like Silk Cut Slims, with its elegant white packet, will suggest to her that if she smokes she will become more elegant and slimmer. Of course, there is a danger that, as a young woman, she may feel that smoking will reduce her appetite, making her less fat.

I remind Members of the Committee that, according to the Office of National Statistics, two-thirds of children in care smoke—far higher than the national average. The rates of teenage pregnancy for those in care are far higher. This is a risk for young women, such as the woman in care I met last night who started smoking at the age of eight, had a child while in her teenage years and continued smoking throughout her pregnancy; I think she was 17. These young children are encouraged to smoke by marketing, including the packaging of cigarettes. They do not have parents to guide them. They are therefore more susceptible to marketing messages. They become pregnant and their children are further at risk of being underweight at birth, suffering from disability and being premature. The children grow up with a mother who smokes in the house and the child is therefore at risk of respiratory illnesses and more likely to miss time at school and possibly to fall behind. He is also far more likely to pick up smoking if his parent smokes.

I urge Members of the Committee seriously to consider the amendment and consider curtailing marketing in this way. If we look back, we have to say that we have not looked out for our most vulnerable children as well as we should have done. If we look back at the fostering and social work services we have provided, we have not invested in social workers and foster carers. What the Government and Conservative Party are now considering in terms of social work is encouraging. This is a small but important step in improving the chances for these children and their children to do far better than they have in the past.

I think this is a cracking amendment. I hope that those who tabled it will move it on the Floor of the House on Report so the House has the opportunity to vote on it. This should be in the legislation. I am convinced it would have the support of the majority of the British people. It is constructed in the normal language of legislation. I have put aside my rather lengthy brief on this matter because I understand that we are short of time. We are running against the clock and have a lot of business.

One reason why I support the amendment is because, if used in the way I would like it to be used, it would isolate imports. If we had a standardised, single-colour pack for all cigarettes with the name of the manufacturer in very small print on the side, it might make life a little easier for those who want to help others stop smoking. To be even more radical, if we are intending somehow to isolate imports—we have an opportunity to deal with that on the next amendment—perhaps we should have coloured cigarettes. My noble friend Lord Patel referred to Sobranie Black Russian, which I remember from when I was a boy. We used to smoke them behind the bike shed at school. A cigarette that is individually identified—it might be yellow—could be a cigarette distributed within the United Kingdom, so those who smoked non-yellow cigarettes would be indicating to others that they were smoking imports that had come through under the ludicrous European regime we have at the moment. The system that operates now is that I can ring up a tobacconist in Italy, order my fags and they are sent to me through the post. I understand that is now within the law. I have just checked with a relative who told me that that is the case and that you can buy cigarettes on the phone and have them posted to you in the United Kingdom. It seems to me that we have lost total control over cigarette consumption from abroad. Smuggled imports and, indeed, legitimate imports that do not turn up in our figures probably play havoc with the statistics on the domestic market in the United Kingdom. I hope that this amendment goes through when it comes to Report. I am sure that it will have a lot of support on the Floor of the House of Commons.

Far from thinking that this is a cracking amendment, I think it is crackers. Where have noble Lords been? I have brought some boxes.

They are colourful, as the noble Lord opposite said. Where is the colour? It has been put on by the Government. Where are the nicotine content and the tar content? They are on the package. Where is the advertising? “Smoking kills”, “Smoking causes serious harm to you and others around you”. Are we going to get rid of all—

I am not going to give way for the moment. Do we want nothing on the packages? Then why have the Government already ordered manufacturers to do all this? They have done it. What is the identification? Sterling. It is the identification of the manufacturer. Do we not want manufacturers to be identified? Do we not want the size of the cigarette to be put on the package? What is it that we are after? Is it getting rid of this colourful advertisement, “Smoking causes a slow and painful death”, which was put on by the Government? Is all that to come off? What a lot of nonsense we do talk. We do one thing one day, and the next day noble Lords want it all off and to do something else. It is an absolutely stupid amendment.

I, too, oppose the amendment. It is a formidable amendment with a formidable array of sponsors, only some of whom we have heard from so far; others may speak shortly. One reason why I oppose the amendment is that while the Government, as we know from earlier debates, have been only too eager to impose various restrictions, especially the one on the display of tobacco products in retail premises, they themselves are not impressed by any evidence that the introduction of plain packaging would reduce further the number of young people smoking. Of course I have heard what the noble Earl, Lord Listowel, whom I respect, the noble Lord, Lord Walton of Detchant, and others have said; they have argued strongly that smoking among young people is wholly undesirable. But this is not a debate about how undesirable smoking is among young people; it is about whether it would assist in the objective of reducing the number of young people smoking if we had so-called plain packaging.

The principal reason I want to concentrate on in my opposition to Amendment 105 is the express provision within the amendment that the regulation should be introduced to ban the use of registered trademarks on packaging. Brand names, as the noble Lord, Lord Patel, indicated, are typically registered as trademarks. I trust that the Committee is aware that in order to get a trademark you have to pay application fees, registration fees and renewal fees, which are all paid to the state. The trademark is a right of property. Trademarks are of course a common feature of competition in all sorts of products quite apart from tobacco, but without trademarks the producers—of tobacco, in this case—would have to depend entirely on price competition rather than on differentiation by way of quality, innovation and reputation.

Interference with trademarks by one country within the European Union—in this case, the United Kingdom—or, for that matter, one country within GATT—again, the United Kingdom—seems to be contrary to the harmonised EU and international system of trademark protection. I ask those who are going to speak on this amendment, such as other sponsors or the noble Lord, Lord Patel, whether they have satisfied themselves that there is some overriding basis for allowing such infringement of trademarks as is involved in the amendment. I would be glad to hear the Government’s view. What is their attitude to the 1994 Trade-Related Aspects of Intellectual Property Rights Agreement entered into by this country? The agreement states that the nature of the goods—that is, how desirable or undesirable they are—is not an obstacle to trademark registration. Have they taken into account the view of Christopher Morecambe QC, an expert in intellectual property who has had articles published on this point, that the European Court of Human Rights is on record as ruling that the European Convention on Human Rights applies to intellectual property, which is protected against infringement?

Five months ago our Prime Minister said—this is a broad point but I am sure most people would agree with it—

“Investment in … ideas, brands, and research and development”,

will be a vital feature in,

“building Britain’s future high value … competitiveness in the global economy”.

If a trademark cannot be affixed to a product or its packaging, it is virtually worthless—useless. I doubt if the proposers of this amendment have thought through all the implications of its express reference to trademarks.

I would like to follow the noble Lord, Lord Borrie, because I have done a little delving on the legal situation, and it would be helpful for the Committee to understand the legal position. Prohibiting the use of trademarks—in other words, brands—on tobacco packaging would, first, impose restrictions on the registration and use of trademarks based on the nature of the goods and services for which such marks are registered, contrary to the harmonised European international system of trademark protection. The noble Lord has already mentioned the European Court of Human Rights and TRIPS. Secondly, it would be unlawful interference with the human right, established by the European Court of Human Rights, to free speech between the manufacturer and the consumer of a product. Thirdly, it would constitute a barrier to the functioning of the internal market, which is contrary to EU law. Fourthly, it would undermine the very basis of intellectual property rights, which are, as the noble Lord said, of a global nature and of great significance and which need to be protected internationally, with implications far beyond the tobacco industry.

My experience of “may” in some 40 years in Parliament is that it always results in “shall”. I assume that it will get to “shall”. I am therefore hoping at this point to knock it on the head and to do the work, probably, of Her Majesty's Government, who would like also, I suspect, to knock it on its head.

There is nothing in the amendment that makes it illegal to display the trademarks; it simply allows the Secretary of State to introduce regulations making such provisions as may be necessary to fulfil the intentions of the amendment.

I suspect that the interpretation of the European Court of Human Rights would be exactly the same as mine. Intellectual property rights are a cornerstone of the whole of western civilisation and economic activity, hence both their significant value to their owners and to the wider economy, and the need for them to be effectively protected at both domestic and international levels. The UK Government are not entitled to interfere with trademarks and related intellectual property rights in respect of lawful products by reference to the nature of those products, because such interference would be contrary to the harmonised EU and the international system of trademark protection, with which we are obliged to comply. The protection of trademarks is harmonised at the EU level by means of the trademarks directive and Community trademark registration. The UK may not introduce measures that are inconsistent with that harmonised regime, which requires the consistent protection of trademark rights across the EU. Plain packaging regulations would be contrary to the harmonised regime.

Accordingly, the UK Government cannot introduce plain packaging without breaching its obligations under EU and international law. Such breaches would render the regulations liable to be struck down. Furthermore, plain packaging regulations would amount to deprivation of a manufacturer’s valuable property rights, in the trademark, copyright and designs incorporated in the packaging, as well as in the good will arising in the resulting brand, which would be contrary to Article 1 of the First Protocol of the ECHR. Such deprivation is unlawful, and it would require the payment of compensation to those who had been deprived. Given the commercial value of manufacturers’ trademarks and related rights, it is clear that the compensation due in these circumstances would be very substantial.

Plain packaging would inevitably inhibit the ability of manufacturers to communicate with consumers in relation to—I emphasise this—a lawful product. That ability, both of the manufacturer to communicate and of consumers to receive information, is protected by Article 10 of the European Convention on Human Rights, which recognises free speech, including commercial free speech, as a fundamental right. Prohibiting a rights holder enjoying his intellectual property rights in respect of a lawful product creates for the first time globally a pariah class of goods, in respect of which the universal protection of intellectual property rights does not apply. If the principle of such discrimination by reference to the goods themselves were established, its application would not logically be limited to tobacco products; it would probably be extended to alcohol and, surely, to certain food products. That seems to me to be the situation.

If it ever happened—a totally unlawful prospect—first, the competition would be on price, as the noble Lord said; the price would come down and consumption would go up. Secondly, if we have a problem now with the illicit importation of cigarettes—27 per cent of cigarettes are already imported illegally—once there is plain packaging, it will be as easy as wink for any distributor, any retailer, any car-boot seller anywhere in the United Kingdom to ensure that they have their illegal sources and you will not be able to tell where on earth the cigarettes have come from. Once again, Her Majesty's Government will lose £3 billion or £4 billion. Referring briefly to the question asked on the Floor of the House, if we are so short of money that we cannot provide drugs for those two categories which I mentioned this afternoon, I am sure that we should be saving on £3 million or £4 million-worth of illegal importation.

The noble Lord, Lord Naseby, and the noble Lord, Lord Borrie, question whether my amendment infringes property rights of trademarks. Existing trade obligations protect the property rights of trademarks. On the other hand, a key agreement used by the industry to make the argument is the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights, often known as TRIPS. The agreement makes provision for Governments to act to protect public health and to provide limited exceptions to the rights conferred by a trademark where that is appropriate. As I interpret it, that means that the rights of trademarks are subject to the wider public good and, therefore, can be constrained when shown to benefit public health.

The noble Lord is right: TRIPS has that within its ambit. However, he needs to look very carefully at the creation of a pariah group of products. Society may decide that there are a number of areas where there should be pariah goods but the law, as it stands, requires lots of evidence to meet the public interest, as the noble Lord has suggested, and significant compensation if there is to be any advance in that area. I think Her Majesty’s Government will want to think long and hard and I am not sure that the Chancellor of the Exchequer would welcome any advance on that front.

I think that quite a good case could be made out to classify cigarettes as pariah groups. I take the Committee back to remarks which I made earlier. I quoted Mr Geoff Good, the brand director of Imperial Tobacco, speaking at a conference in December 2006. He spoke of the UK, as my noble friend Lord Walton pointed out, as a dark market, meaning that former open advertising channels had been blocked by the Tobacco Advertising and Promotion Act 2002. He said that the industry had to be more creative in devising other methods of marketing. He then went on to show that Lambert and Butler had found that their new design for their celebration pack to mark their 25th anniversary had been most successful in increasing their brand share of the market. The pack design is recognised by the industry as a really important factor in increasing sales, especially now that all other forms of advertising have been prohibited.

We could avoid all this rather complex and convoluted, but very real, argument about European regulations—I say that as a member of the EU Select Committee who has concerns about this—if the manufacturers stopped using the packs as covert advertising and we found ways of not showing the brands, so ensuring that children do not see them. The noble Baroness asked where we had all been. I had been around the shops and, despite never having been a smoker, I now know new brands of cigarettes because huge branding can be seen across brightly lit and colourful displays. We have already had this debate. As I have said before, this branding is continually displayed next to sweets or attractive items.

We know from the statistics produced by the tobacco industry in the past that in adult life people tend to go for the brand that they have smoked for many years and they stick to that brand. Why do we want advertising that will entrap children at an early stage into a brand which they will then smoke continually as they grow up? I shall not repeat all the arguments about the effects that that will have on their health. We have had that debate and the arguments have been made. Anyone who works with children day in and day out will know how they are impressed. All cognitive behavioural psychology now tells us about the way in which children learn. I simply want to make the point again that, whatever intellectual argument we have about property rights—and I know that there is a possible legal argument there—the underlying reason for wanting plain packaging is to ensure that children are not caught at an early age, that they do not then continually smoke that or another brand, and that we have a healthier nation in the long run.

I intervene briefly to support my colleagues, who clearly worked with, and had a lot to do with, children over the years. The noble Lord, Lord Naseby, gave an extremely interesting speech. I, too, am very concerned about whether we break the law. I am not so concerned about manufacturers bringing down the price of cigarettes because the Government could always put the tax up, which would mean that they could be just as expensive. I make it clear that I have nothing at all against adults doing what they want to do with each other in private. Here, we are trying to stop young people taking up smoking, which will injure their health and kill them prematurely if they carry on. That is what we are trying to do. We do not want to stop adults.

From my experience as a student and as a mother of a big family, and from my experience of my children’s friends and of working for many years in a youth counselling centre in Kentish Town, I know that young people are dedicated followers of fashion. They always go for what the herd is doing, what the herd is smoking and what the herd is wearing. That is what they are meant to be like. My brothers taught me to smoke when I was about 16 because they did not want to be embarrassed by a sister who might make a fool of herself if offered a cigarette. I was taught to smoke outside the back door of someone’s house. As I said, young people need to follow fashion. As the noble Lord, Lord Campbell-Savours, said—indeed, we are of the same opinion—Black Russian were definitely the vogue when I was a student, but we moved on to Gauloise, which then became extremely chic and everyone went around smoking them.

I wanted to intervene following the speech of the noble Baroness, Lady Golding, because for a moment it made me think of my brothers. I thought that she was going to hand out free samples to us all to try to get us all going again, which for people who were smokers would be very easy to do. She obviously collects empty fag packets, which is very sad.

From my own experience and my experience of young people, there is no question in my mind that unattractive or plain packaging, from which you would be unable to distinguish what brand you were smoking, would discourage young people. They would not bother with it so much, and I want to reinforce what has already been said.

The main arguments against the new clause have already been made by the noble Lords, Lord Borrie and Lord Naseby, and the noble Baroness, Lady Golding, but there are aspects other than legal ones about it that should be put to the Committee.

We are supposed to be a free democracy in favour of freedom of speech and against censorship, yet we have this new clause before us today. What does it do? I will not read it all out, as the Committee would be a bit bored by that. However, in essence it says to the Government, “Here are a list of things you must do”—after consultation, true—but the list involves not only manufacturers but purveyors of tobacco. It does not really give Parliament the proper opportunity to discuss the matter, because, right at the end, it says:

“The powers of the Secretary of State under this subsection shall be exercisable by statutory instrument which shall be subject to annulment”.

In other words, it is a negative instrument, not an affirmative instrument, so carte blanche is being given to a Minister of the Crown to do exactly as he or she likes, without proper parliamentary discussion or approval. In the House of Commons, they would have an hour and a half—is that still right?—to discuss this important matter, which takes away the right of manufacturers and purveyors of a legal product to display it in a way that they think will make it attractive. It does not matter whether the product is cigarettes or anything else; a right is being taken away from people, affecting their ability to sell a legal product.

I find it amazing and absurd that the Government are in favour of covering up displays in the shops so that people cannot see the packaging anyway. But they are not satisfied with preventing retailers from displaying a legal product—they now want to say that what is hidden must be in terms agreed by the Secretary of State without parliamentary approval. Where on earth are we going in this country? Do we no longer believe in individual freedom or choice? It is going so far as to become frightening. Of course, once you do it with tobacco, it sets a dangerous precedent. Tobacco is not the only product dangerous to health, we are told, day in and grinding day out in the newspapers. One day they tell you something is bad for you, the next day that it is good for you. I am talking about chocolate, sweets and, of course, alcohol. Last Monday the noble Baroness, Lady Coussins, was telling us that although she agrees with the non-display, or the covering up of displays, of tobacco products, she does not believe that the same sort of thing should happen with alcohol.

I would like just to answer the noble Lord. I said nothing about alcohol whatsoever. This debate is about tobacco. We have gone down enough side routes. If I were debating alcohol I might have a very strong view about displays.

I do not think I referred to the noble Baroness, Lady Howarth.

I find it absurd, frankly, that a person who believes that you should cover up a display for tobacco should be happy to have alcohol displayed in attractive bottles with attractive labels; it simply does not make sense. Once you start on this course, it will surely extend to other products. I am getting sick and tired of freedoms that we have hitherto enjoyed being removed bit by bit in this country, and this is just another freedom that is being removed. I hope that the Committee will reject this new clause—although I am sure it will not.

In the light of the well informed comments from the noble Lords, Lord Borrie and Lord Naseby, would it not be helpful for the Government, in the regulations prescribed under this amendment, to prescribe that plain packaging might well and could properly include, in small lettering, the product name, the manufacturer name and the trademark, so long as that plain packet also showed “Smoking kills”? We are concerned about the development of extremely gaudy packaging that is so compelling for young people when they see these displays in shops.

It might be helpful if I said what the Government’s position was on this. Amendment 105 would enable the Secretary of State through regulations to impose plain-packaging requirements on all tobacco products. I do not intend to rerun the arguments about tobacco and young people at this time; please take those as read. I am going to limit myself to the Government’s position on this one issue.

The Government’s position on plain packaging was set out by the Secretary of State in a Written Ministerial Statement made in another place that stated:

“We believe that more needs to be done to develop our understanding of how the packaging of tobacco products influences smoking by both adults and young people. The Government will therefore keep tobacco packaging under close review”.—[Official Report, Commons, 9/12/08; col. 47WS.]

That review, I suspect—I will confirm this if the Committee wishes—will address the points raised by my noble friend Lord Borrie and the noble Lord, Lord Naseby. We have committed to developing the evidence base on whether selling tobacco products in plain or generic packaging could change behaviour and, in particular, protect young people from tobacco industry marketing. However, we consider it premature at this stage to take this major step. To be completely clear, the UK is perfectly capable of being in the vanguard of new movements in public health, but I note that no other jurisdiction in the world has yet introduced such legislation. We will work hard to ensure that the emerging evidence on plain packaging is kept under review, and the Government’s policy will change if and when that is appropriate. I hope that, in the light of the Government’s commitment to develop the evidence on plain packaging and to keep the issue of tobacco packaging under review, the noble Lord will feel able to withdraw the amendment.

I thank the Minister for that response. I am slightly disappointed, because I had thought that we all had enough evidence to support the idea that plain packaging will deter young people from taking up smoking, which is what this is about. However, I will not rehearse the arguments. I thank all Members of the Committee who passionately supported me. I obviously aroused the passion of the opposition. I have found a new friend in the noble Lord, Lord Campbell-Savours—

The only passion the noble Lord raises in me is my belief that he and those who support him tend to forget that this Parliament is charged with producing future laws. We are a law-making assembly, not a debating chamber for the pros and cons of whether young people should smoke or not. The amendment’s new law would be totally illegal under the UK framework, the EU framework and the international framework—

I would like to finish my sentence. In that context, I remind the noble Lord that we should be careful when we try to change the law as it is effected internationally as well as nationally.

I am no expert in the law, but all that the amendment would do would be to give authority to the Government to introduce regulations on this matter. That is all.

The noble Lord made an intervention on my good self. The noble Lord quite rightly says that he is not an expert on the law and he is, I am sorry to say—I do not mean to be abusive—showing his ignorance.

I make it clear to the noble Lord, Lord Naseby, that I did not table the amendment for the mere purpose of debating it. I tabled it in all seriousness to protect the health of young people. However, I will not prolong the argument. I will think further about whether to bring it back or not but, in the mean time, I beg leave to withdraw the amendment.

Amendment 105 withdrawn.

Amendment 106

Moved by

106: After Clause 22, insert the following new Clause—

“Licensing of tobacco retailing

(1) The Secretary of State may make such regulations as he considers necessary for licensing the sale of tobacco and cigarettes.

(2) Before making any regulations under subsection (5), the Secretary of State shall consult such persons as are considered by him likely to be affected by those regualtions.

(3) Regulations under subsection (1)—

(a) may make different provision for different cases; and (b) may contain such incidental, supplemental, consequential and transitional provision as the Secretary of State thinks fit.(4) The power to make regulations under subsection (1) is exercisable by statutory instrument.

(5) No regulations may be made under subsection (1) unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.”

It is my pleasure to move the amendment on behalf of the noble Baroness, Lady O’Cathain, who unfortunately cannot be here today as she has another parliamentary engagement in Paris.

This is a key amendment, which I hope will find favour from all sides. It would create a licensing system for the sale of tobacco so that it is only sold by those with a valid licence. As a harmful product, tobacco is age-restricted. However, although it kills many more people than alcohol or fireworks, you do not need a licence to sell it. Young smokers are sold cigarettes by both legitimate and illicit suppliers. One in five so-called test purchases by those under 18 from legitimate retailers results in a sale. It is likely that the success rate in buying from illicit providers is even higher.

The Bill introduces much needed additional restrictions on the marketing of tobacco products. Creating a licensing system that is clear and transparent will help to restrict the availability of tobacco to young people, both through retailers and the smuggled market. Licensing of the sale of tobacco would be a positive move for all retailers selling legitimately to adults. It will result in greater revenue for legitimate retailers as illegal traders are forced out of the market. New regulations are coming into force that will mean heavier penalties, including a ban on sales of tobacco for persistent offenders. However, as a lethal and addictive product, there is a need for coherent, systematic regulation.

Is there therefore a case for a tobacco licensing scheme? The Bill introduces additional restrictions on tobacco marketing. If it and the amendments are successful, new offences will be created, including displaying tobacco products at the point of sale, selling tobacco products in vending machines and adults purchasing cigarettes on behalf of children. In addition, there are existing requirements not to sell tobacco products to people aged under 18, not to display tobacco advertising larger than one side of A5 and to display signs warning that tobacco products may be sold only to those over the age of 18. Last year, new penalties were introduced for the repeated sale of tobacco products to minors, which now results in the suspension of a retailer’s right to sell tobacco products. This amendment will improve compliance by providing retailers and enforcement officers with a single framework that sets out and regulates the responsibilities of a retailer when selling this highly dangerous and addictive product.

So far, the effort to restrict the sale of tobacco products to young people has focused on legitimate tobacco retailers, but we know that vending machines and retailers are important sources of cigarettes for young people, as are illicit outlets ranging from sellers of smuggled tobacco to adults who believe it is acceptable to provide cigarettes to children. This amendment gives powers to create an offence of selling tobacco without a licence. It would apply to all those who sell tobacco to young people. The measure is extremely popular with the general public. According to a YouGov survey conducted last year, 87 per cent of adults support requiring businesses to have a valid licence to sell tobacco, which can be removed if they are caught selling to underage smokers. A strong licensing system will support trading standards officers in implementing tobacco sale laws and enable them to support retailers to understand their role in preventing sales to underage children and enforcing the law where retailers continue to fail to comply. Licensing will help tackle smuggling. Retailers say that one of the biggest challenges they face is competition from illicit sources of tobacco. Smuggled tobacco currently makes up a significant proportion of the market share—13 per cent of cigarettes and over 50 per cent of hand-roll tobacco.

This amendment will allow trading standards officers to prosecute illegal sellers of tobacco for selling without a licence and so improve local enforcement. This is a measure that protects responsible retailers at the expense of those who are breaking the law. The system will be straightforward and transparent. Retailers who comply with the law will not be further inconvenienced and the measure will minimise the illegal competition from retailers selling to underage children and those selling illicit tobacco. A commitment to review the system of licensing for tobacco should be part of any comprehensive strategy being developed. The availability of tobacco to children from shops represents a significant problem and clamping down on it is key to achieving a reduction in the number of young people smoking and, in the long term, in overall prevalence.

I shall be very brief. If a dog owner needs a licence, I cannot see why a retail tobacconist should not have one. I shall make one comment in one sentence—

I shall when I have finished the sentence. A single-coloured pack for all tobacco manufacturers within a licensing system would stop the sale of smuggled products in retail shops.

My adviser has corrected my statement, which was wrong. But I am sure that there is something for which we need a licence that is quite mundane.

Yes, selling alcohol. My main point is that a single-coloured pack and a licensing system would cut back on smuggled products being sold in retail shops in the United Kingdom. Could my noble friend comment on that proposition?

I thought I had better just say a few words. When I ran a grocery shop, I actually had a tobacco licence. I am not at all sure that it did any good but, nevertheless, it was a licence, which could be removed. But of course these are different times; the tobacco licence was abolished after the war.

We are talking here about a licence that puts further pressure on retailers. They are under huge pressure at the moment not to sell to young people. They can be fined £2,500 if they do sell—and now, under this, they would be under threat of losing their licence, although they might innocently have sold a packet of cigarettes to an underage person. Frankly, I think that we need to nurture our small shops at the moment, whatever they sell. We are already in recession and are in danger of going into depression. The last thing that we should be doing at this point is adding further burdens to retailers and to put them under further pressure of fines, and perhaps even imprisonment—but, worst of all, losing their livelihoods.

We need to be very careful about what we are doing, as the noble Lord, Lord Naseby, pointed out. We have a duty to protect the freedoms of the individual. That is one main reason why Parliament exists, apart from raising money for the Government. Parliamentarians are there to protect the individual liberties of people—and, unfortunately, some people appear to have forgotten that.

I certainly agree that it is Parliament’s duty to protect people’s individual rights, but Parliament prescribes the limit of those freedoms when there is a greater public good to be gained from their being restricted. The more we take measures that make it more difficult for tobacco to be sold to children and thus make it more difficult for children to start smoking and become addicted to this terrible product, the better it is. That is a legitimate aim of Parliament. It is legitimate to restrict freedoms when the greater good benefits as a result from it.

Far from attacking retailers, I would see this as a huge benefit for them. The reputable retailers will be delighted that the retail sale of tobacco is licensed, because they will all I am sure take every effort to ensure that the product is not sold to people to whom it should not be sold, such as children, and it will do something to drive out the illegal selling of tobacco—

The noble Lord talks about the illegal selling of tobacco, but I assure him that most of the tobacco sold illegally is not sold in tobacconists’ shops. It is sold in all sorts of other places, and it will be very difficult to find them, because it is illegal anyway at present to sell contraband items. How they are sold at present is already illegal and, in spite of what the noble Lord says, this will not injure the criminals who sell contraband, but it will hurt law-abiding retailers, who will be under threat if they make a little mistake.

I do not agree with the noble Lord at all. One of the effects of having a positive licensing system for the sale of tobacco is that it will distinguish much more clearly the legal sale to adults from the illegal sale. I have no doubt that the incidence of illegal sales will decrease if there is a positive licensing system. The other benefit is that it would help the purposes of the amendment of the noble Earl, Lord Howe, debated last Thursday in which he proposed that adults who buy cigarettes for children should be subject to a particular law and penalised for that. If anyone were selling to adults for the purpose of selling on to children, the licensing system would catch them as well. I would hope that he would see that there is merit in this proposal.

The point made by my noble friend Lord Campbell-Savours about smuggling is one which I also endorse. Therefore, I think that the proposal put forward by the noble Lord, Lord Patel, in this amendment, to which I put my name, should be considered very carefully. As I did on Thursday and earlier, I declare my unpaid interest as a director of Action on Smoking and Health and a trustee of the Roy Castle Lung Cancer Foundation.

This amendment would provide powers to introduce a wholly new approach to the sale of tobacco in this country. It is an issue on which the Government consulted in 2006, following the 2004 public health White Paper Choosing Health. While many stakeholders supported licensing, particularly health groups, there was much opposition from retailers worried about the cost and work involved in applying for a licence. As noble Lords have mentioned, we are concerned about imposing extra burdens on business in the current economic climate. Many local authorities were also concerned about the extra administrative burden and cost involved in running such a scheme. There are almost 100,000 tobacco retailers in the UK and as many as 90,000 in England alone. Running such a scheme would be complicated and costly.

We responded by bringing in a negative licensing scheme in which a retailer can sell tobacco unless and until they have been found to be persistently selling tobacco to young people. This new law comes into effect from 1 April this year. We would like to see how it works and what happens. We think that the negative licensing system is a more cost-effective alternative to the positive licensing system proposed in this amendment. The new scheme will be a powerful deterrent to retailers selling tobacco to young people under 18 while avoiding the additional burdens on business.

Noble Lords have asked what effect this will have on tackling the illicit tobacco trade. It goes without saying, as I reported to the Committee in full on Monday, that this continues to be a vital element in our strategy on tobacco. It is important to note that very little smuggled tobacco is made available through formal retail channels, but rather through other locations such as workplaces, car boot sales or even people’s homes. Positive licensing would be unlikely to add further tools in that direction.

However, we are committed to keeping the position under review. As promised in the debate on restricted sales orders last March, we intend to report on the impact of these orders next year. If there is still a problem with the illegal sale of tobacco to young people under 18, we will reconsider the merits of an enhanced licensing scheme. For these reasons, I hope the noble Lord feels able to withdraw the amendment.

I thank the Minister for her response. The amendment is intended to help retailers, not make their life more difficult. I hear the comments made by other speakers. At this stage, I beg leave to withdraw the amendment.

Amendment 106 withdrawn.

Amendment 107

Moved by

107: After Clause 22, insert the following new Clause—

“Reporting of promotional activities

The Secretary of State may by regulation require manufacturers to disclose the particulars of their tobacco product-related promotional activities.”

I shall speak to Amendments 107 and 107B, which are in my name and those of other noble Lords. Amendment 107 would give the Government extra tools to evaluate more effectively measures which are aimed at controlling marketing by the tobacco industry, especially that which may be aimed at young people. I am extremely glad that, whatever side of this debate that we are on, there seems to be general agreement that children should not start smoking and that cigarettes are not a good, even if they are, for historic reasons, lawful. All of us approve any decline in consumption. I therefore hope that I can command support for the amendments.

Amendment 107 would give the Government powers to require tobacco manufacturers to disclose the scale and scope of their marketing activities. This information is essential if the Government are to identify and develop effective policy responses to marketing tactics used by the industry to get round the ban on advertising, promotion and sponsorship. All the information will be published in aggregate at industry level, as in the case of the US and Canada, rather than identifying individual companies.

As we know, the Tobacco Advertising and Promotion Act 2002 sought especially to reduce the power of tobacco manufacturers to recruit new, young smokers. The Act has dealt effectively with the conspicuous marketing which is generally described as “above the line” advertising. It failed to deal with what the industry calls “below the line” advertising such as price promotions, retailer incentives and point-of-sale display—we have heard a bit about that.

The evidence suggests that there has been an expansion of below-the-line promotional activity. It is possible to identify a number of activities which are designed to get round the advertising ban. We heard last Thursday and on Monday from the noble Lord, Lord Rea, and from the noble Lords, Lord Patel and Lord Rea, today about the famous Mr Good of Imperial Tobacco. I remind the Committee that he spoke of the 2002 ban and the need, as he put it, for its marketing team to become more creative. We have heard a little about how he sought to do that. He noted the increase in sales from changing the appearance of a particular pack. Mr Good has become very famous in these Lords debates during the past few days. I feel that he may be rather more reticent in future, but I welcome his openness on this point. Whether he is still with Imperial Tobacco, I would be very interested to know. Requiring the industry to provide information on these activities is essential if the Government are to monitor the creative measures that the industry will develop and to which Mr Good referred.

The Canadian reporting regulations require the industry to report on how much it pays to retailers, which has been extremely useful in providing evidence that, even after a retail display ban is implemented, the industry continues to pay retailers for handling and selling tobacco products. My noble friend Lady Barker asked some extremely pertinent Written Questions in this area, seeking to find out whether the UK Government had figures on how much tobacco companies had spent on marketing within the United Kingdom in the past five years, whether the figures were based on estimates, were collected by the Government or supplied by the tobacco companies, and related questions.

The Answer came that the department had requested information from the tobacco industry on its payments to retailers for the display of tobacco products in shops, but the tobacco industry has for some reason refused to provide such information. The Government do not have the powers to require the tobacco companies to report on marketing expenditure and, therefore, given such lack of co-operation, hold no such information. I therefore trust that the Minister will see the amendment as a very useful tool to have at her disposal or that the tobacco industry will decide that it is best to reveal that information.

Amendment 107B was also mentioned in an exchange on Monday. The Framework Convention on Tobacco Control is an international treaty of the World Health Organisation to which the UK is a party. Article 5.3 seeks to protect public health policy from the influence of the tobacco industry. It states that when parties to the treaty are setting and implementing public health policies related to tobacco control, they shall,

“act to protect these policies from commercial and other vested interests of the tobacco industry”.

We are all very well aware of those tactics, understandable as of course they are—

Sitting suspended for a Division in the House.

I shall backtrack slightly. I was talking about Amendment 107B and reminding noble Lords, who are no doubt extremely familiar with this WHO convention, that it states that when parties to this treaty set and implement public health policies related to tobacco control, they shall,

“act to protect these policies from commercial and other vested interests of the tobacco industry”.

As I was saying, we are extremely well aware of these tactics, which are very understandable as this extremely strong industry battles further for its sector. The kind of methods that it uses include casting doubt in the minds of the public about what they can trust or believe, suggesting that cause and effect is not necessarily the case, that statistical data do not provide answers, that their seemingly unbiased research undermines the public health case, and of course—that easiest of things—seeking delays in the implementation of what, to others, is self-evidently right. We know them all and saw them in the debates on the 2002 Bill, which I remember extremely well.

Years ago, I was an historian of 20th-century medicine. You cannot study and teach that without being extremely well aware of how the tobacco and health debate was played out in the 20th century prior to and beyond the definitive researches of Sir Richard Doll. He published before I was born, and here we are still. We are fortunate that we do not have to rely on a few personal stories but have extremely wide-ranging, incontrovertible statistical evidence. However, if noble Lords want a personal story, perhaps I may add to those that we have already heard.

On Monday night, I was waiting for my son at a sports centre. As I watched, a man sitting outside took a long draw on a cigarette, then his whole body convulsed in pain as he coughed. His body slowly recovered and, as soon as it had done so, he drew in the cigarette smoke once again. He had to do it, even with the excruciating pain that it was causing his body then and there. If noble Lords ever doubted addiction—the absolute need to smoke, even with a terrible immediate pain—they should have seen him. I was quite glad that my son, along with other kids, saw him as they came out of the sports centre. My heart went out to him because, if you like, there was no free will about that.

I am now a spokesperson on international development and, as the Committee heard, the parent of teenagers. Therefore, I am immensely grateful for the regulation of tobacco and the public health messages promoted in the UK. At the same time, I am appalled by the spread of the sale of tobacco in the poorest developing countries, as I know what a time bomb in health terms they have coming down the track. We need all the tools at our disposal to counter in the UK—and, I hope, overseas—this particular problem. We are not naive; we know the history and the present position of the tobacco industry. The World Health Organisation has observed that even when tobacco companies devote portions of their profits to corporate social responsibility projects, things are not quite as they may seem. The WHO states that so-called,

“socially responsible initiatives … sit side by side with their continued involvement in aggressive advertising and sponsorship campaigns directed at young people, financial pressures they impose on countries that attempt to limit tobacco marketing, their deliberate deception in many developing countries concerning the dangers of second-hand smoke, and attempts to actively undermine the tobacco control activities of the World Health Organization”.

Of course, the tobacco industry is actively lobbying against UK health policy on this issue now. As we heard on Monday from the Minister, last autumn MPs received postcards from the Save Our Shops campaign. Nowhere on those postcards was it disclosed that the campaign was industry-funded. Save Our Shops was branded as “Responsible Retailers”, which was actually a campaign of the Tobacco Retailers Alliance. The Tobacco Retailers Alliance is funded by the Tobacco Manufacturers’ Association, which in turn is funded by the three UK tobacco companies. Why am I not surprised?

I offer these amendments to the Government to try to help them. The second amendment would enable them to establish a review of their guidelines on their engagement with the tobacco industry in respect of tobacco control and see the extent to which we are adhering to the important and hard-fought-for WHO convention. Government action to protect tobacco control policies from the commercial and other vested interests of the tobacco industry requires the insulation of tobacco control policy development from the tobacco industry to the greatest extent possible. Engagement with the tobacco industry should be limited to only those areas where it is strictly necessary; for example, to regulate tobacco products and the industry itself. Such engagement must be transparent and recorded. As I mentioned on Monday, the FCO has guidelines and makes it clear that it should not be involved in the promotion of tobacco products.

As was referred to earlier, we have a particular responsibility as the UK Parliament to protect public health, especially the future of our children. I offer these amendments to the Government as a couple of tools to help them in their primary concern. I beg to move.

I congratulate the noble Baroness, Lady Northover, on introducing these clauses. I put my name to one of them and am happy to support the other. If I might be allowed a small party point, I hope that her presence in this debate alongside the noble Baroness, Lady Tonge, indicates that the Government and those of us who believe in tobacco control will be able to count on substantial support from the Liberal Benches when we debate these issues on Report. It is important that these measures get through for all the reasons that have been expressed in successive debates in this Committee.

We do not need to go over old ground or to describe why the tobacco industry and tobacco products are not normal. It is unlike any other industry because of its product’s uniquely deadly characteristics. If I might add my own personal anecdote to that of the noble Baroness, when I first started working in a consultancy in the early 1970s, the firm I worked for had Imperial Tobacco as one of its clients. Since I knew a bit about Parliament, I was encouraged to get involved in some of its parliamentary relations activities. I can tell the Committee that the main objective of Imperial Tobacco’s parliamentary activity was to be sufficiently nice to a number of Members of Parliament in all parties to ensure that on a Friday, when Private Members’ Bills came up in the House of Commons to limit tobacco advertising and sponsorship, there would always be two or three of them there to say “Object!” at the crucial moment. For many years, this tactic worked brilliantly. The Government did not have the courage to introduce their own legislation at that time, and it was easily possible to block Private Members’ Bills in this way.

At the same time, they usually had a function going on somewhere in the Palace of Westminster to help people along with a drink or two.

My noble friend is absolutely right. If they were not able to get along to the function in the Palace, no doubt they would have been invited to Glyndebourne, Wimbledon, the test match, rugby league or many other activities that they were then allowed to sponsor. As I understand it, invitations are still made available to Members of the House of Lords and the other House. A number of them appear on the Register of Members’ Interests.

Indeed, I was astonished to discover last year that British American Tobacco is a corporate sponsor of Glyndebourne, which is apparently not covered by the Tobacco Advertising and Promotion Act 2002. When I went to the Glyndebourne website, I found the BAT logo and clicked on it, which took me straight to the BAT company website where its various products were advertised. Members of the Committee may think that I am a spoilsport, but I am afraid that I reported it to the trading standards officer in Sussex who immediately insisted that the link be removed. Although the emblem remains, it is now no longer possible to get to the BAT site via the Glyndebourne site.

Today’s amendments are timely. Nobody has yet mentioned that today is national No Smoking Day. I take this opportunity to congratulate my noble friends on my left on reducing smoking in the United Kingdom to its lowest-ever prevalence level, 21 per cent. This shows that the successive legislation that we have passed is working. A further important statistic that relates to national No Smoking Day is that, according to the Office for National Statistics press release, 66 per cent of smokers say that they are desperate to give up smoking. We should be doing everything that we possibly can to help them do that. We should ensure that nothing is done to encourage young people to start. Above all, we must watch what the tobacco industry is up to. As we have heard from the noble Baroness, its efforts to get round legislation and sell to vulnerable markets, outside Europe if necessary, in order to keep its business going is utterly scandalous and needs to be exposed. I very much hope that my noble friend will be able to accept at least the spirit of these amendments.

I address the Committee because I have yet to hear in all our deliberations any evidence that any of the tobacco companies based in the UK are pitching any of their activities to under-18s. They pitch tobacco as an adult product; it is a legal adult product. If there is evidence, I would be the first to complain and bring it to the attention of the Minister. I imagine that others would as well.

On Amendment 107, we are taking about the idea of reporting all promotional activities not to get around the young people, but in order to live with the existing Act. I repeat: cigarettes are legal products. The sort of activities that come to mind would affect all packaged goods. They are to do with price, handling, fees, promotional orders, pack sizes, pack shapes, new products, promotional offers and so on—whatever below-the-line activity is available. I wrote a book on below-the-line activity with the University of Bradford many years ago. All those things are perfectly legal.

I think it was the noble Lord, Lord Borrie, but certainly somebody referred to the Prime Minister’s appeal for an enterprise economy with the importance of brands and so on. An enterprise economy requires companies competing with each other, not totally regulated by the state. I do not think that Amendment 107 is legal, and it would certainly be resisted by the whole of the packaged goods industry.

Since we are almost at the end of this smoking section, perhaps my personal experience could be recorded. My late mother, God bless her, smoked until she was about 80. She died in her sleep aged 95, having been to the opera in Brisbane, and was not diagnosed with any form of lung cancer.

The Tobacco Advertising and Promotion Act 2002 prohibits virtually all tobacco advertising, promotion and sponsorship and the EU tobacco advertising directive applies to all EU states. As I have said before, I chair CitizenCard, and the tobacco industry has kept that card going to try to prevent under-18s buying tobacco in shops. I just do not know what the tobacco industry is expected to do. I come back to the packs, which advertise against smoking.

The rules are quite clear. The Companion states:

“Exhibits should not be taken into the Chamber or produced in debate, whether to illustrate a speech or for any other purpose”.

I ask my noble friend to put her empty cigarette packets away and to use description in her speech.

I thank the noble Baroness for that. I was not aware of that rule. Naturally, it would help people to see what I was talking about, but it does not stop me talking about it. Cigarette packs already carry warnings. Do the Government pay the companies to put warnings on the packs? Do the Government pay them to put horrendous illustrations on packs? Do the Government pay them to put the amount of tar in cigarettes on the packs? The companies do everything they should do. I strongly object to people in this Committee saying that the tobacco manufacturers are deliberately targeting underage smokers.

The Committee will not get away without hearing me on this subject. I apologise, first, to the noble Baroness, Lady Northover, as I did not hear the whole of her speech. The reason is that there was a huge delay on the L to Z side of the Voting Lobby, hence I was unable to get here within the 10 minutes. Perhaps I may suggest that when there is a Division in the House, the rule should be that the Committee adjourns until a Vote has been declared. That would be more sensible and would ensure that Members of the Committee do not miss part of the proceedings.

I honestly believe that the attacks on the tobacco industry are becoming a scandal. As the noble Lord, Lord Naseby, other noble Lords and I have pointed out, the whole tobacco industry is a legal business whether people like it or not. If one wants to stop the industry producing and selling the commodity, it will have to be banned. If tobacco is not banned, the companies must be allowed to sell it and promote it. The industry has been under considerable pressure over a very long period, including the banning of sponsorship.

I interject that I have not been invited to Glyndebourne—I probably would not go anyway—and the sponsorship of events by other tobacco companies must now be very small because it is against the law for them to do so. Again, I say, having had contact with the industry, that it is entitled to put its point of view. This is still a free country, or I thought it was a free country. Apparently if an industry, although legal, is not thought to be quite the thing, it is not allowed to be heard. I demand that it is allowed to be heard, which is why I supported the noble Baroness’s amendment last week. It will give the industry the opportunity to be heard. I have to say, too, that the tobacco industry has been—it is not going to like this; how shall I put it?

It would be most difficult for me to put anything delicately. I think that it has been frightened and lily-livered and that it has not stood up to government edicts hard enough. It has not, in fact, put its point of view forward as it should have done or protected its customers as it should have done. It has allowed its retailers to be abused and allowed smokers to be abused and made pariahs. When is it going to get a say? Why should it not be able to promote its product in a free commercial sense, in a free country?

The industry is not the only group that promotes itself. A lot of promotion is done by the Government, either directly, with tens of millions of pounds, but also through single-issue organisations such as ASH. I, too, tabled Questions about smoking. In fact, I have a file on smoking about so high, because I have been around the subject for well over 20 years. I asked a Question recently,

“whether the Action for Smoking on Health Group (ASH) or other anti-smoking organisations have received Government funding in 2006, 2007 and 2008; and, if so, how much in each year”.—[Official Report, 26/1/09; cols. WA22-23.]

The Answer was £180,000 in 2005-06, £185,400 in 2006-07, and £191,000 in 2007-08. That is a total of £556,400. Of course, it has gone from being a voluntary organisation to one with a chief executive. It has really grown in importance as the Government continue to support it.

That is not all. As was mentioned earlier, this is No Smoking Day, which is going to cost the taxpayers £250,000. All sorts of other people are being promoted, the anti-smoking lobby in particular.

Would the noble Lord accept one point? He asked why the industry should not be able to promote the sale of its products. It is because the product kills. It is the greatest single cause of ill health now valid in the United Kingdom, and we must do everything to prevent promotion of sale. To answer the point made by the noble Lord, Lord Naseby, and the noble Baroness, Lady Golding, about why the industry is not targeting those under 18, I should say that the reason is very simple: it is not legal for people under 18 to buy tobacco. If it were legal, I have no doubt at all that it would target them as well.

The noble Lord has not got the point that I am trying to make, which is that the tobacco industry has every right as a legal organisation to promote within the law. That is what it is doing. Gradually, its ability to promote at all, even to show its wares in shops, is being eroded. That is a scandal. If the Government were really concerned about this, they would ban smoking entirely and be prepared to lose the revenue.

I am glad to get that “Hear, hear” from the noble Lord, Lord Palmer, because he moved an amendment to the Health Bill in 2004 to ban smoking.

If I may correct the noble Lord, Lord Stoddart of Swindon, it was to ban the sale of all tobacco products. That then brought up the hideous question of how much illegally imported tobacco was sold on the streets, which meant the Treasury being out of pocket to the tune of £3.8 billion.

I thank the noble Lord very much. I am glad to have been corrected on that point, but perhaps we should have a Private Member’s Bill to ban tobacco and see exactly what the Government’s attitude is to that. As I was saying, there are all sorts of promotions. The Government promote with billions of pounds all sorts of organisations which some of us do not like and which, indeed, may be very harmful to people’s health. Of course, other products which are sold and promoted with a large amount of advertising and so on do considerable damage not only to people but to the social framework of our lives.

I am always told that smoking kills. However, I am sure that it would be agreed that smoking does not kill everyone who smokes. Indeed, as I have pointed out before, 78 per cent of those who die from smoking-relating diseases are over 65 years of age. Under that age, the number is very small indeed.

I am not going to argue with the noble Lord. I have the figures here but I do not want to take up too much of the Committee’s time.

I am not pulling anyone’s leg; I am simply ensuring that the point of view of the tobacco industry and the retailers is put. It is being put because we are putting it. It is not being accepted but at least we have the right to do that.

I believe—I shall finish on this point—that, of the other products, the most damaging in this country is alcohol. Let us make no mistake about it; that drug does more damage to the social fabric and to families and individuals than anything else. Smokers do not go outside to have a cigarette and then knife someone in the back; nor do they usually go home and beat up their families, which many drunken people do—not only men but women as well. It is the most dangerous drug, yet the sale of it is allowed to be promoted in virtually every way except on television.

If the noble Lord will join me in trying to stop the promotion of tobacco, I will join him in trying to stop the promotion of alcohol.

I shall have to think about that. The noble Baroness may be interested to know that I prepared a Bill, which had its First Reading, to ban alcohol advertising, so I am well ahead of her. However, I have come to the conclusion that when we ban people from promoting legal products, we have to be very careful and, with regard to tobacco, much less hypocritical.

The noble Lord, Lord Stoddart, has rightly reminded us that tobacco does not kill everyone, which is why people regard the warnings on cigarette packets with disdain. It tends to kill people who smoke heavily and people with the wrong sort of genes, but people who do not smoke very heavily and have the right sort of genes can smoke and live to a great age. He will remember Madame Calment of Arles who lived to the age of 122 and smoked two or three cigarettes a day until she was 116, and she was not alone in that sort of thing.

My thunder was stolen in that I wished to close this section of the Committee’s deliberations on tobacco by wishing everybody a very happy national No Smoking Day, but my noble friend got there first. We have considerable sympathy with the intention behind these amendments. They seek to support and protect public health policy development by ensuring it is informed about the tobacco industry’s activities or that it is protected from tobacco industry interference.

I turn first to Amendment 107. Experience has shown that if you clamp down on the tobacco industry in one area of promotion, it will actively look for alternative means of promotion. Knowing what promotional activities are being planned, developed and implemented by tobacco companies would clearly be an advantage and allow public health policy to keep pace with developments. On the other hand, some noble Lords vociferously said that they consider that such a requirement would go beyond the bounds of a proportionate and appropriate burden on business and be likely to compromise sensitive commercial confidences. I have to ask whether we need to ensure that commercial confidence is protected in this area. There are arguments on both sides but, on balance, I do not feel able to accept this amendment. Nevertheless, I have listened carefully to all the points made during this debate. I would be interested to hear more on the subject and will be happy to meet noble Lords to listen further to their views on this topic.

I now turn to Amendment 107B, which seeks a review and published guidelines on interaction with the tobacco industry. As the noble Baroness, Lady Northover, explained, Article 5.3 of the World Health Organisation’s Framework Convention on Tobacco Control states:

“In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.”

The UK is a signatory to the framework convention and takes its obligations under the agreement very seriously.

In November 2008, we played a part alongside European Union colleagues in developing and agreeing final guidelines for the implementation of Article 5.3. I shall not quote any more of it because the noble Baroness did so. The guidelines promote accountability and transparency when Governments interact with the tobacco industry on public health matters. In practice, this means that meetings between the Department of Health and the tobacco industry are held on an exceptional basis only where that serves the purpose of public health policy development. It is made clear to attendees of a meeting that it will cover the specific subject in question only and that details of the meeting will be made available to any individual on request. I am not sure how a review and the publication of more guidelines would improve how we abide by those obligations, but I am always happy to look at ideas about how that could happen. On that basis, I hope that the noble Baroness will feel able to withdraw her amendment.

I thank the Minister for her positive response. We will look at this further, and I look forward to talking to her about it. I also thank those who participated in this debate, particularly the noble Lord, Lord Faulkner. Noble Lords will be aware that we have often been on the same side on this issue. I am also touched that the noble Lord, Lord Stoddart, minded that he missed part of what I said, and I am encouraged by what the noble Baroness, Lady Golding, and the noble Lord, Lord Naseby, who is not in his place, said, which recognised the harm caused to children by beginning to smoke. I look forward to them playing an active part overseas in ensuring that the tobacco industry does not target young people. Their assumption is built on the knowledge that this is Russian roulette. When people take up smoking, they do not know whether they will live to 95 or to a much younger age as a result of taking up that habit. The fact that they recognise the danger of tobacco smoking is welcome. Therefore, I would not wish to promote advertising to any age and certainly not to children. I look forward not only to their defence of children in Britain and elsewhere, but also their defence of the adult population in the United Kingdom.

I note what the noble Lord, Lord Stoddart, said about the budgets of the Government. I believe that a Question to the Government costs about £147 to answer so his pile will have cost the Government quite a lot, deflecting the money from public health.

He is obviously entitled to put Questions. I welcome the fact that the Government spend £185,000 supporting ASH. I wish the industry were utterly transparent so that I knew how much it spent on marketing, but I have a feeling that £185,000 to ASH may pale into insignificance compared with what the tobacco industry spends on promotion, which is what the amendment is about.

Perhaps I can help the noble Baroness. It would be in the interests of the Committee to know that the government grant to ASH is spent entirely on quit programmes and education programmes. None of the campaigning to which the noble Lord, Lord Stoddart, objects so much, is funded by the Government. That comes from voluntary sources such as Cancer Research UK and the British Heart Foundation.

I welcome that clarification. Even if they were campaigning, I think that that would be perfectly justifiable given their contribution to public health. I believe that this is a moving debate and we are moving in the right direction. I look forward to noble Lords working with us overseas. I beg leave to withdraw the amendment.

Amendment 107 withdrawn.

Amendments 107A and 107B not moved.

Schedule 4: Tobacco: minor and consequential amendments

Amendments 108 to 111 not moved.

Schedule 4 agreed.

Clause 23: Pharmaceutical needs assessments

Amendment 111ZA

Tabled by

111ZA: Clause 23, page 27, line 10, at end insert “including an assessment of existing services provided by dispensing doctors and an assessment of the circumstances and needs of elderly and disabled patients, including those in rural locations”

I have to be on the Woolsack at 6 pm, so my good and noble friend Lord Faulkner of Worcester will speak to my amendments. I hope that is acceptable.

With the leave of the Committee and at the request of my noble friend, I am very happy to move this amendment on her behalf.

The aim of this group of amendments is to seek assurances from the Government that revised regulations enabled by the Bill will not undermine the ability of dispensing doctors to provide services to patients in rural areas. Additionally, it seeks to ensure that patients' preferences are fully taken into account when deciding how pharmaceutical services are to be provided in rural areas.

The development of pharmaceutical needs assessments will change the way that applications to provide pharmaceutical services are judged and the future shape of these services. Where this impacts on other health services—for example, if PNAs grant many more pharmacy applications and lead to closures of dispensing doctors' services—that needs to be taken into account. It is vital that the impact on existing services is assessed to produce a complete picture rather than making decisions in isolation.

The reason for mentioning services provided by dispensing doctors in particular is that they stand to be directly affected by decisions to open new pharmacies and provide a range of essential medical services to 4 million people across the country. Recently, we have seen that dispensing doctors' services are highly valued by patients. More than 99.9 per cent of responses received by the Department of Health to its recent consultation on the subject advocated no change to these services. It is important that PCTs do not overlook this service when conducting a PNA, and this amendment would ensure that that was the case.

The needs of the elderly and disabled patients are unique. Not only do they have a greater need to access pharmaceutical services, but also they face greater difficulties in doing so due to mobility problems. It is therefore important that, when assessing pharmaceutical needs, PCTs take particular care to recognise the needs of these vulnerable groups and attribute them due weight.

Amendment 111C re-emphasises the importance of the services provided by dispensing doctors and aims to ensure that they are not diminished. I beg to move.

I support the amendment. I live in Belford in Northumberland, which is in the centre of a rural area. I do not say whether it is a village or a town because it is uncertain which of the two it is. Having said that, I am registered with the only general practitioner there, who has a dispensing practice.

I recently tabled a Question in your Lordships’ House on this very issue and was greatly reassured by the Government’s reply. They said that there was no intention of changing the present arrangements in relation to dispensing doctors because that service in that area in particular and in many others like it is vital, particularly for elderly and disabled people. That is not least because the only retail pharmacist in the village or town is open for only a relatively short number of hours. The dispensing practice is open for much longer hours and is therefore readily accessible and a vital service.

I simply seek the Government’s assurance that the principle underlying this amendment is accepted and that no change in relation to the services provided by dispensing doctors will be contemplated.

I, too, support the amendment. I live in rural North Yorkshire when I am not in London, and the difference between the services in London, where there are many pharmacists, and those in the rural areas of North Yorkshire, which is the same size as Belgium, is vast. This affects not only the elderly and disabled but the many people who do not drive, and that must not be forgotten. When my noble friend asked his Question and the Government gave us an assurance that rural doctors would still be able to prescribe, that was very welcome.

The noble Lord, Lord Faulkner, has very capably outlined some of the concerns which I am aware are current among members of the pharmacy profession in the community. In speaking to my own Amendment 112, which is grouped here, I should just like to add a few words to what he has said.

Life in rural communities has a number of features which need to be considered—almost automatically—whenever health services of any kind are planned. The distances that people have to travel to access services are greater than in urban areas; access to community services, including the voluntary sector, is more difficult because of the nature and sparseness of public transport links; and there can also be considerable degrees of social deprivation in rural areas, and hence greater health inequalities. It is for those reasons that there has been such support for the retention of dispensing GPs.

One worry that many people have is that the Bill now before us could have adverse consequences not only for dispensing doctors but also for rural communities more generally. The reason for that worry is the lack of clarity about how well PCTs are equipped to gauge the needs and preferences of those who live in less populated areas, and what information they will draw on as they make these assessments of need. Experience of PNAs to date suggests that their quality is generally mediocre to poor. The White Paper concluded that existing PNAs were highly variable in their, “scope, depth and breadth”, which I read as a rather damning indictment.

This finding represented a number of concerns raised in the earlier consultation exercise. One concern of the pharmacy community was that PNAs, as they exist at present, are disproportionately focused on cost-effectiveness and not enough on health need. It seems to me that, if that concern is to be dispelled, ways have to be found of reconciling the duty on commissioners to be cost-effective with their duty to meet perceived health need and to do this in a transparent manner that will command public confidence. The prospect of bringing this about is by no means assured. We simply do not know enough about how the needs assessment will actually work, nor whether PCTs will be fully up to the task of carrying them out. In particular, there is a fear that the way in which needs assessments are translated into service delivery could once again cause dispensing GPs to be under threat, this time as a direct consequence of decisions taken which would permit new pharmacies to provide NHS services.

Additionally, there is concern about the ability of PCTs to adapt with sufficient speed to the changes that are needed in the commissioning of enhanced and advanced services. It is quite telling that the latest available data from the NHS Information Centre suggest that, between 2006-07 and 2007-08, the number of out-of-hours services commissioned by PCTs from community pharmacy declined by 9 per cent. In the same period, the number of home delivery services commissioned from pharmacy declined by 47 per cent, and only 138 community pharmacies out of more than 10,000 were commissioned to provide prescribing services to GPs. Those figures do not give one much confidence that enhanced services are currently high on the agenda of PCTs, whether for rural areas or for the country more generally.

Like the noble Lord, I would be grateful for any reassurance that the Minister is able to give on this set of concerns. The next group of amendments will provide an opportunity to debate the subject matter of these clauses in a more general way, but this is undoubtedly a useful lead-in to a topic which is perhaps less straightforward than it first appears.

When I was a Minister in the department, it was drummed into me that doctors prescribe and pharmacists dispense. The reason given was that it was good practice because it avoided the conflicts of interest that could arise when doctors were perhaps tempted to prescribe drugs that played into their financial interests.

The exception to that has of course been in rural areas. That is absolutely right, and I take on board what the noble Lord, Lord Walton, and the noble Baroness, Lady Masham, said. We need some exceptions. However, I am confused about what a “rural area” is. I can certainly understand that, in the highlands of Scotland, on the top of Dartmoor and in the Yorkshire dales, where people have to travel considerable distances to a pharmacy, they need a dispensing doctor. But what are those distances?

I seek the definition of “rural” from the Minister. Voltaire said:

“If you wish to converse with me, define your terms”,

so I seek the terms of “rural”. The Oxford English Dictionary describes it as “pastoral”, which sounds a bit old fashioned to me, or “agricultural”, which is also rather vague. The Minister might say that it is up to the PCTs to define what is rural. That is not good enough. This is a basic block of government policy and we need to know what we are talking about.

The present system appears to define “rural” as one mile from a chemist shop, because GPs are allowed to dispense to patients who live more than one mile away from a pharmacy. This is a nonsense, especially when car ownership has increased considerably over the past few years and many pharmacists provide doorstep deliveries of medicines that they dispense. I have not found many GP practices that do that. Contrary to what the noble Lord, Lord Walton, was saying, I have seen pharmacies with much longer hours than GP practices. It is interesting that GPs talk about out-of-hours. Whose hours? It may be their out-of-hours but they are actually my in-hours. My in-hours are evenings and weekends, but that apparently is not what doctors have.

We know that pharmacists are experts in their field and, unlike dispensing doctors, we know that a pharmacist is dispensing the medication. A dispensing doctor does not have to have a trained pharmacist. A young person with an NVQ, with perhaps just a year’s training, could do it. Where a pharmacist does it, you get a second view, a check. Certainly, in my area, that second check has proved to be very valuable. Pharmacists also do medicine-use reviews, which have been useful.

The Government produced a very good White Paper, Pharmacy in England: Building on StrengthsDelivering the Future. I am an officer of the All-Party Pharmacy Group, from whose work quite a lot of that document arose. The document has 139 pages and a very interesting annexe, which is about health challenges and how pharmacy can contribute. The health challenges are healthy weight, healthy lives, smoking—which is of interest to this Committee—sexual health, alcohol use, an ageing population—which is perhaps also of interest to this Committee—long-term conditions, mental health, healthcare-associated infections, medication-related harm, drug misuse-related harm and health and work. Alongside every health challenge is a column on the long-term impact if it is not addressed. There is then a column which sets out how pharmacy can contribute, followed by one on the likely benefits and outcomes. It is very clear, very good and puts the whole matter into context. It is therefore clear that the Government feel that pharmacy has a future and that it has untapped potential. Having received the RCN’s briefing, I was interested to see how it welcomed the integration of pharmacy into primary care.

It is wrong to confuse dispensing doctors and their service with the wide range of services that pharmacy provides, especially in health promotion. I receive the Pharmaceutical Journal weekly. On the front page of the issue of 28 February is a picture of a very large boot stamping on a packet of cigarettes beside the headline, “Stamping out smoking: are targets achievable?”. In the document is an extremely good, comprehensive report on how to encourage smoking cessation. The author, Andrew McGeogh, gives tips on engaging more clients and re-engaging those who have failed in previous attempts to give up. He writes of the smokers that they say, “I tried to quit before” and that you say, “Not with me. This is our first attempt”. So some very strong messages are going through that subject of smoking.

Pharmacists provide over-the-counter medicines, which a dispensing doctor does not, and they give advice. Very often, the advice one receives in a pharmacy is much more accessible than in a doctor’s surgery. You are on neutral territory, as opposed to a doctor’s waiting room or consulting room, which feels like their territory.

That is a question of opinion. I am likely to sit in my doctor’s waiting room and read the various pamphlets; I am certainly not going to do that in the chemist. I need the noble Baroness’s help, because I have got a bit lost on where we are in relation to the amendments. I would be grateful if she could point me in the right direction. However, I just wanted to challenge her on what I thought was an assumption, not evidence.

The noble Baroness is absolutely right to some extent, but this is anecdotal evidence. One talks to pharmacists and sees young people go into a pharmacy and get products from them that they would not dare to ask of a GP because they or their parents are known in the GP’s area. One only has to think of sexual health and other such matters.

I am contributing to this debate because we are talking about dispensing doctors in rural areas. I am drawing a distinction between what dispensing doctors provide and what pharmacists provide. The two are often in conflict. That is a pity, but that is the way we are.

I am concerned, and again this comes from personal experience. In my area the GPs decided to go for dispensing, which would have closed our chemist’s. We would have lost a whole range of services because of the local GPs taking that action. When the chemist became very purist and stocked only medicines and things that were to do with ill health, the village rose up and said, “No. We want our toothpaste, soaps and creams back”. The pharmacy, which is part of a chain, reacted to that and we got the products back.

The GPs wanted to introduce dispensing, despite the fact that the whole village rose up and did not want them to dispense because they recognised what they were losing. The GPs went ahead with an appeal, but people in the village were fantastic about appearing at that appeal and won it by a margin of 80 per cent. I am anxious that, although I understand some of the strengths of dispensing doctors, we do not lose pharmacies as a result of the extraordinary system whereby the rural area is defined by one mile.

I ask the Minister to have another look at all this. I know it is a sensitive and difficult subject. One also ought to take into account value for money: when GPs dispense they get more per medicine dispensed than does the pharmacist. They get a grant to set up a new service and an added income of, on average, £127,000 each. GPs are not on the breadline—they have done pretty well out of past contracts. From the Government’s point of view, bearing in mind their expenditure and the financial situation we are in, some of these points need to be addressed, and it takes courage to do that.

What are we talking about when we say “rural”? And what are the Minister or her colleagues going to do about some of the anomalies that need to be addressed?

I want to raise one point. I cannot help feeling that the noble Baroness’s experience is in some way exceptional. In the dispensing practice to which I refer in my town in Northumberland, and in several others in the same rural area, it is not the doctors who dispense; they employ a qualified and trained dispenser in a separate part of the surgery which is quite independent. The doctors themselves are not producing the medicines, the tablets and so on; they have a dispenser who is part of the practice. That is a good arrangement.

In passing, I ask that, if this amendment is to be pursued further, could we please have a correction of the two spelling mistakes?

I am delighted to hear what the noble Lord has said, but it is not the norm for a qualified pharmacist to be employed by the GPs. They can employ anyone who has something like a year’s training, which is what many of them do, and of course you lose all the other advantages that pharmacies offer.

The amendment of my noble friend Lady Gibson, spoken to by my noble friend Lord Faulkner, would amend this clause in two ways. The noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege, seek to amend the clause in a slightly different way. My noble friend’s amendment would require, first, that regulations made provision so that the services provided by dispensing doctors were included by the primary care trusts in their pharmaceutical needs assessment along with the circumstantial needs of older and disabled patients everywhere, but with particular mention of rural areas. Secondly, they would enable the regulations to make provision so that the pharmaceutical services to which an assessment must relate would include in particular the services of dispensing doctors.

The Government have always recognised the importance of dispensing services for those who cannot easily access a pharmacy, and recognise the value that patients put on them, as so eloquently expressed by the noble Baroness, Lady Masham. That is why, following consultation, my right honourable friend the Minister of State for Care Services Phil Hope made clear last December that there would be no change to the arrangements currently in place under which doctors are authorised to dispense to their eligible patients. Indeed, in response to a Question in the House, I repeated that.

Like my noble friend, I fully accept that the needs of older or disabled people must form part of a comprehensive assessment of pharmaceutical needs locally. After all, we know that older people are far more likely to be frequent users of their pharmacies, as are those with long-term conditions, but important as these users are, they are not the only groups to be considered. The important thing must be that primary care trusts undertake comprehensive needs assessments that are specific to their areas. I am not convinced that we assist them in this task by laying down in the Bill the types of needs or the kinds of services that they must or must not take into account beyond what we have already proposed. We run the risk of undermining their work or of omitting some aspect of critical importance locally that we may be unaware of nationally. I would not wish to fetter their discretion in this way, but I reassure my noble friend that it would, in my view, be a very odd assessment that did not, for example, consider the needs of older or disabled people or did not include, where appropriate, the services of dispensing doctors. It might be appropriate to make specific provision for such matters in the regulations to come—it is certainly appropriate for the information and guidance now being produced for primary care trusts—but that is best decided by all interested parties when drawing up the detailed regulations that will support implementation rather than it being in the Bill.

I turn now to the amendment tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Cumberlege, which is closely linked to that tabled by my noble friend. Their amendment adds a specific provision that the regulations require primary care trusts to have particular regard to the needs of rural populations when making their pharmaceutical needs assessment. Rurality is not defined by one mile. The rule is that patients in designated rural areas who live within one mile of a pharmacy should, with limited exceptions, use it. There is no intention to change the dispensing doctor arrangements. I am not sure that I am going to satisfy the noble Baroness in the definition of “rural” when I tell her that rurality—I am not sure that is a real word—is determined by PCTs. PCT decisions are appealable, and guidance has been issued to them on factors that they may consider. I will send it to the noble Baroness. I suspect that we will continue this discussion.

I shall address the more general points raised by the noble Earl about the capabilities of PCTs in the next group of amendments, which relate specifically to them, and shall not go into detail here. As noble Lords may be aware, in 2004-05, all primary care trusts in England were advised to develop a pharmaceutical needs assessment in preparation for the community pharmacy contractual framework and the reform of the existing control of entry regulations. It was envisaged that these assessments would equip each primary care trust to deal with control of entry applications for their area, including urban, suburban and rural areas. Under this new power, we expect to require primary care trusts to include a full assessment of the needs of their area, whether it covers rural, urban or suburban areas, and the population mix. I thank the noble Baroness for referring to the report of the All-Party Pharmacy Group, because it helped to shape the pharmacy White Paper.

The noble Earl, Lord Howe, made a point about out-of-hours services and home deliveries. PCTs commission according to their assessment of local needs. A decline in numbers might be an issue, or it might be attributable to more pharmacies opening with extended hours or to pharmacies voluntarily providing home deliveries. I am not sure we have evidence of what is behind the decline. I listened carefully to what noble Lords said, but I am not, at the moment, persuaded of the necessity of including in the Bill the consideration of the circumstances of the rural population. However, I reassure noble Lords that any pharmaceutical needs assessment will have to consider the overall needs of the whole population in the primary care trust’s area and be as comprehensive as possible. I stress that we expect primary care trusts that have rural populations to ensure that they take full account of their particular needs and circumstances. I hope I have been able to reassure the noble Lords sufficiently on these matters and ask them not to press their amendments.

The Minister did not mention the out-of-hours services. Those in rural areas are really very difficult. I have to say to the noble Baroness, Lady Cumberlege, that an out-of-hours service in my rural area means going 10 miles on a Sunday and another three miles to get a prescription from the local supermarket. There are no pharmacists open at all apart from one pharmacist within the supermarket. It is the supermarkets that have closed down a lot of the small pharmacists.

I say in response to the question raised by the noble Earl that I was including out-of-hours services in that, in the sense that PCTs commission according to their assessment of local needs.

I am sure that my noble friend Lady Gibson of Market Rasen will be delighted with the short debate that we have had on this subject and will have been gratified by the widespread expressions of support for the sentiments contained in the amendment that she tabled and to which she kindly asked me to speak. She will be particularly reassured by the Minister’s confirmation that the needs of elderly and disabled people will be taken into account in rural areas in provision of dispensing services. I am sure that she will read the debate with great care and decide what she wants to do at the next stage. In the mean time, on her behalf, I beg leave to withdraw the amendment.

Amendment 111ZA withdrawn.

Amendment 111A

Moved by

111A: Clause 23, page 27, line 16, at end insert—

“( ) requiring the Secretary of State to implement pilot schemes for Primary Care Trusts in carrying out Pharmaceutical Needs Assessments before they are rolled out nationally; and for those pilot schemes to be evaluated twelve months after they commence”

I shall speak also to Amendment 113. For a number of years, as my noble friend Lady Cumberlege mentioned, the Government have spoken of pharmacy as an untapped resource. The reforms that have so far been put in place have not really changed things appreciably, in the sense that patients use pharmacy in a way that might lead to improved health outcomes. For that reason, last year’s pharmacy White Paper, Pharmacy in England, and the Review of NHS Pharmaceutical Contractual Arrangements published by Anne Galbraith were welcome developments. Both those documents found that effective commissioning by PCTs in the area of pharmacy was still some way off. Four structural changes were recommended. I shall not go through them, but the fourth one is the only one to be contained in this Bill—that is, proposals to change pharmaceutical needs assessments.

The White Paper and the Galbraith report identified major shortcomings in the ability of PCTs to commission pharmacy services. The strong implication of the White Paper was that PCTs needed to embrace what amounts to a cultural change if they are to come close to approaching world-class commissioning standards in this area. As we have just debated under the previous group of amendments, many in the pharmacy community do not think that PCTs are capable of writing accurate or robust PNAs that are kept up to date and respond to locally changing patterns of demand or need. The sort of thing that I hear from the pharmacy world is that very few PNAs have been updated since they were first introduced in 2005, largely because of a lack of resources. I am told that it is common practice for PNAs to be largely ignored in appeal cases—that is, cases heard to consider applications for new pharmacies to be included in the pharmaceutical list. Some PCTs do not have a PNA at all and many that do exist are simply a commentary on what services are currently on offer, rather than anything more forward-looking. Could the Minister tell us of even one example of a new pharmacy contract being awarded as a result of a specific need being identified for a new pharmacy within a PNA? There may be one, but I have not heard of it.

If this system is to work as it should, it is essential for PNAs to be continuously updated and to be linked to a PCT’s wider strategic services delivery plan. The relevant regulations need to be quite specific on this score. In Amendment 111A, therefore, I am proposing that in order to make faster progress in the long run we should initially take things more slowly by introducing PNAs by means of pilot schemes. The Government have so far ruled out piloting PNAs on the grounds that that would delay their full benefits. I think I see things a bit differently—in fact, I know I do. We embark on this exercise from where we are, not from where we would ideally like to be, and where we are is, as I have described, a situation where PCTs are struggling to do the things that they should. We need to monitor progress closely, which is why there is a good case for enabling PCTs to refine their approach over a limited period of time, and then for those PCTs that have taken part in the pilots to share best practice with others. It would be helpful to hear the Minister’s thoughts on all that.

The basic problem with the creation of PNAs is that they do not address the areas of major concern that were raised during the Government’s consultation exercise. For example, we do not know the extent to which PNAs will in practice be based on robust, high-quality data. Unless they are, they are likely to remain as crude tools that are disproportionately focused on cost-effectiveness as opposed to local health needs. We do not know how effectively PCTs will use PNAs, especially given their record to date of disinvesting in enhanced services such as out-of-hours opening and local delivery, as I pointed out in the last group of amendments, although I will go away and consider the reply that the Minister gave a moment ago. Nor, importantly, can we have confidence that PNAs will create a basis for commissioning pharmacy services that is consistent and rational across the country.

There is much to be said not only for pilot schemes but for a national framework for PNAs that could be adapted at local level to suit local conditions. A national template would include data sets and statistical models from which each PCT should work in order to ensure, first, that the PNA was robust and, secondly, to give clarity for contractors. If there is not to be such a framework, we have to ask how robust the process is likely to be and how precisely assessments will translate into service delivery. Those are the uncertainties here, and I am afraid they are fairly basic ones. I look forward to the Minister’s reply. I beg to move.

I am a fan of pharmacists and pharmacies. There is no question in my mind that they are the first port of call for a huge proportion of the population when seeking advice, healthcare or leaflets. The noble Baroness, Lady Howarth, mentioned people not picking up leaflets, but certainly in our local pharmacist’s there is an enormous amount of advice. They serve the population with important information. As a newly qualified doctor doing GP locums, I found that pharmacists got me out of holes time and again when I got the odd prescription wrong or the decimal point in the wrong place. The pharmacists know it all and they will always gently put you right. I would like that to go on record.

I am also a huge fan of the noble Earl, Lord Howe, who has said everything that needs to be said on these amendments. I support his call for pilot schemes. I think there was one thing, but I am not sure; my mind may have wandered, so I do not know whether he really did mention this. There is a requirement that pharmaceutical needs assessments will,

“set standards for pharmacies to aspire to”


“can … stipulate minimum standards for premises … The guidance goes on to provide that the PCT should be able to undertake a number of commissioning and regulatory functions”.

I do not think the noble Earl mentioned that. That causes some concern among pharmacists I know. Will it be a conflict of regulatory power with the General Pharmaceutical Council?

Briefly, I support the amendment and the one that follows. It is crucial that this kind of inquiry, perhaps on a pilot basis, can define more precisely the needs of the pharmaceutical services in a particular area.

The Committee will forgive me for going back to my point about the particular dispensing practice in the village where I live. It has a fascinating and wholly acceptable symbiosis with the local pharmacist, with an agreement which is obviously quite different from that in the village of the noble Baroness, Lady Cumberlege. If you get a prescription from the practice in the morning and you live in the village, you must take it to the pharmacist’s shop; they will not dispense from the individual practice. Dispensing from the practice is for people who live outside the village, a long distance away, or who go to the surgery to get a prescription when the local pharmacist is closed. That kind of local agreement, which can be part of a pharmaceutical assessment scheme, is quite invaluable.

The noble Earl, Lord Howe, seeks to amend this clause by requiring piloting and evaluation of pharmaceutical needs assessments. He is joined in this by the noble Baroness, Lady Tonge. I have listened to what the noble Earl has said, am not convinced of the strength of their case for piloting and hope to convince them about this.

In the Bill, primary care trusts will be required to undertake and publish their assessments of pharmaceutical needs in accordance with regulations. These regulations would set out the structure and content of these assessments and how primary care trusts should carry them out. They would also enable the Secretary of State to set out the circumstances under which a primary care trust must make a new assessment. The department expects to work closely with interested parties, including NHS and contractors’ representatives, on drafting these requirements.

When primary care trusts first developed their pharmaceutical needs assessments in 2004-05, they were not piloted. I am not aware that any strategic commissioning tools which PCTs have been tasked with developing, such as joint strategic needs assessments, were first piloted and evaluated. Of course, before this duty went live, there would have been wide discussion and consultation on specific requirements. We do not propose to act differently here.

I well understand the concern that primary care trusts do not yet have sufficient capacity and capability to produce these assessments across the piece, but we have already put in train—with NHS Employers and as promised in the pharmacy White Paper—a comprehensive support programme for primary care trusts. The first element of this, Pharmaceutical Needs Assessments (PNAs) as Part of World Class Commissioning: Guidance for Primary Care Trusts, was published by NHS Employers on 7 January this year. Further resources will be available later this spring to include guidance on how to commission pharmaceutical services and more detailed advice on the information that these needs assessments should contain. A formal piloting and evaluation programme would mean a delay of at least two years, and probably longer, in achieving the goal of universally strengthened local assessments of pharmaceutical needs. That is not a delay that we would wish to see.

I will not address the amendments of my noble friend Lady Gibson, as they have not been spoken to. I am sure that she will bring them back at an appropriate time if she so wishes.

The second amendment of the noble Earl, Lord Howe, in which he is joined by the noble Baroness, Lady Cumberlege, proposes a requirement for the Secretary of State to publish guidance on the manner in which commissioning of pharmaceutical services may be informed by the results of an assessment. The virtue of producing guidance to support the regulations is that it can go much wider if it is not tied to the regulations. It can explain what is—and, importantly, what is not—in the legislation. I would not want to fetter this freedom in any way.

I referred earlier to the comprehensive support programme for primary care trusts that we are putting in place. Given the action already under way, we are not convinced of the need to bolster that with a new legislative duty.

The noble Earl referred to new pharmacy contracts awarded as a result of the PNA. No information is currently held on that centrally. Under the current legislation, PCT decisions are not required to be based on PNAs—hence the proposals in the Bill.

I hope that I have been able to reassure noble Lords sufficiently on these matters and that the noble Earl will feel able to withdraw his amendment.

I am grateful to the noble Baroness, Lady Tonge, in particular for her support on this amendment and also to the noble Lord, Lord Walton, for his, as ever, very wise and to-the-point intervention.

I am sorry that my amendments have fallen on stony ground with the Minister, although I am not entirely surprised. However, I think that there is an issue here about devolving all decision-making. The noble Baroness said that she did not wish to fetter the freedoms of PCTs. I realise that this is not quite the sense conveyed by my amendment but I spoke about having a national framework so as to arrive at PNAs that are consistent and rational across the country. There can be no better example of what I am thinking about than vascular screening. The Prime Minister announced in January last year the introduction of a uniform and universal vascular risk assessment for everyone in England between the ages of 40 and 74, which will be implemented in full by 2012. The national programme can of course be delivered in a variety of settings—not just GP practices but also pharmacies. This is what Pulse magazine had to say about the whole thing about three weeks ago:

“No Government policy illustrates localism gone mad better than the vascular screening programme, which in fact is not a programme at all. A programme implies common aims, an agreed methodology and a consistent set of criteria for evaluating success. Vascular screening has only a vague aspiration, sketched guidance and implementation plans that vary widely from one area to another … Some areas use pharmacists, others are employing battle-buses outside supermarkets. There is not even any agreement over the methods used to assess risk or consensus over how those at risk should be managed once identified”.

So, by way of example, if there were a national requirement to incorporate an assessment of the needs of a PCT’s population for vascular risk assessment into PNAs, this would be a good first step towards establishing a more systematic and consistent approach to undertaking vascular screening across the country. I am troubled that we are going to leave all this to PCTs. I am afraid that, although many of them are well equipped to do it, many will struggle and will find themselves considerably at sea. There is no more that I wish to say at the moment, unless the Minister wishes to comment.

The note refers to the framework. We agree that the need for consistent and comprehensive assessments is vital, and we intend that the regulations will provide that national framework. I know that I am not going all the way to satisfying the noble Earl but that may help a little.

It does help a little, and I look forward to reading the draft regulations when they are published. With that, I beg leave to withdraw the amendment.

Amendment 111A withdrawn.

Amendments 111B to 113 not moved.

Clause 23 agreed

Clause 24: New arrangements for entry to pharmaceutical list

Amendment 114

Moved by

114: Clause 24, page 28, line 8, at end insert—

“(2D) Nothing in subsections (2) to (2C) shall be taken to imply that a Primary Care Trust may exercise its powers in a manner which purports to involve an assessment by it of a pharmacist’s professional fitness to practise or the fitness of his premises to deliver pharmacy services.”

We come to an issue presciently raised by the noble Baroness, Lady Tonge. The amendment is designed to flag the issue up. As I argued earlier, if we rely on localism to determine what pharmacy services there should be in an area and how they should be delivered, they are unlikely—subject to the regulations, which I look forward to reading—to have a recipe for national consistency in the configuration of those services.

There is another aspect of localism that causes concern, as the noble Baroness said—the power that the Government propose to confer on PCTs to set standards and regulate pharmacy premises. By giving considerable discretion to PCTs to decide the standard of pharmacy services needed in an area and who should and should not provide those services, there is scope for substantial argument, or even litigation. The natural question that arises is who regulates pharmacists. Is it PCTs or is it the Royal Pharmaceutical Society of Great Britain? If it is in effect both, which body takes precedence? I see the potential for confusion here, and I should be glad of the Minister’s comments, which I hope will reassure me in some measure. I beg to move.

When it is decided by a PCT or whoever decides about pharmacists, will the miles be taken into consideration or the population? If it is the populations, that is very dangerous for rural areas.

The noble Earl, Lord Howe, seeks to amend the clause so that PCTs cannot assess pharmacists’ professional fitness to practise and assess the quality of a pharmacy contractor’s premises when determining an application under the reformed market entry test.

The Government made a commitment in 2002 to provide increased protection to the public by ensuring that all registered primary care practitioners performing NHS services in the community were listed with primary care trusts. They subsequently introduced a framework via the NHS (Pharmaceutical Services) Regulations 2005 within which primary care trusts can take action if a pharmacy contractor’s professional conduct, competence or performance gives cause for concern when an applicant applies to be admitted to a primary care trust’s pharmaceutical list or afterwards. Known as “fitness to practise”, it applies to pharmacies and appliance contractors whether they are sole traders, limited liability partnerships or bodies corporate.

A Vision for Pharmacy for 2003 mapped out the ambition for a contractual framework for community pharmacy to reflect modern service requirements and to help ensure community pharmacy is an integral part of the NHS and not just another shop on the high street. The community pharmacy contractual framework went live from April 2005 with all pharmacies providing essential services from October 2005. Primary care trusts are charged with monitoring performance of the framework in their areas. Under the framework, services are divided into three categories: essential services, advanced services and enhanced services. Service specifications were agreed with pharmacy bodies and published for all essential services, advanced services and a number of enhanced services. These include minimum standards, for example, for premises and accreditation of staff.

In 2007, the Government published their White Paper, Trust, Assurance and Safety—The Regulation of Health Professionals in the 21st Century, which set out a series of proposals to reform professional regulation. The Government are consulting on a draft pharmacy order to take forward recommendations to establish a General Pharmaceutical Council—GPhC—in Great Britain. The GPhC will be the new regulator for pharmacists, pharmacy technicians and pharmacy premises, taking over the role currently performed by the Royal Pharmaceutical Society of Great Britain, whose functions are being split. The purpose of this is to modernise and strengthen the regulation of healthcare professionals to ensure patient, public and professional confidence and to make protection of patients and public the first priority. Noble Lords are completely familiar with those issues. As a regulator, the GPhC will have the power both to operate fitness-to-practise procedures to deal with registrants where there are concerns about their fitness to practise and to protect the public from registrants who become unfit to practise and for registration, regulation and inspection of pharmacy premises and enforcement responsibilities.

As noble Lords may be aware, under powers in Sections 151 to 153 of the NHS Act 2006, before including a pharmacy or appliance contractor in its pharmaceutical list, a primary care trust must be satisfied that the practitioner is suitable to be included on that list. The sections outline the grounds on which the trusts can refuse to include that person or, if a person is already on the list, the grounds on which they can be removed. I am concerned that this amendment could potentially undermine the powers that have been in place for over three years.

I assure the noble Earl that the new GPhC will be encouraged to have further discussions with representatives of the NHS and pharmacy contractors on the standards that they set for community pharmacy which will work across Great Britain in both the NHS and the private sector, and avoid any duplication.

The provisions in subsection (2C) of the proposed clause already enable the Secretary of State to stipulate matters that a primary care trust must or must not take into account. I am happy to give every assurance that, in the light of these discussions, we will strive to demarcate in the regulations the respective responsibilities of the new regulator and the responsibilities of primary care trusts. I am not persuaded, however, that it is in the public’s or the NHS’s interest to concede on this particular amendment at this moment.

With regard to the question raised by the noble Baroness, Lady Masham, about miles or population, I will need to write to her with further clarification. I ask the noble Earl to withdraw his amendment.

That was a helpful reply from the Minister. It told me, if I understood her correctly, that a modus operandi is being framed between PCTs and the Royal Pharmaceutical Society—or the GPhC, as it will be—so that each works in harmony with the other. There is a distinction, albeit a fine one, between deciding that the way a pharmacist is delivering services is unsuited to the needs of an area, for whatever reason, and regulating pharmacy standards and fitness to practise. I have no wish to prevent PCTs taking action where they see that a pharmacist is not up to the mark, but that is rather different from a PCT deciding whether a particular pharmacist is fit to practise. We have to play this one very carefully to ensure that the role of the GPhC is not usurped, essentially, and that PCTs are conscious that there is a division of responsibilities that has to be observed. I am happy to go away and consider this further. I thank the Minister again for her helpful reply and beg leave to withdraw the amendment.

Amendment 114 withdrawn.

Clause 24 agreed.

Clause 25 agreed.

Clause 26: Breach of terms of arrangements: notices and penalties

Amendment 114A

Moved by

114A: Clause 26, page 29, leave out lines 19 to 21

I shall speak also to Amendments 114B and 115A to 115E. Clause 26 adds a new section after Section 150 of the National Health Service Act 2006. It gives the Secretary of State power through regulations to enable PCTs to issue remedial notices or to withhold payments as part of action to secure quality pharmaceutical services and to manage performance. The effect of the clause will be to give PCTs new powers and discretions in respect of appropriate action to address poor performance and to decommission poor services.

I propose two minor and technical amendments to this clause for England. The first will remove the definition of “pharmaceutical services” from new Section 150A(3). That definition is unnecessary in the clause as the term is already defined in the existing legislation in Section 126(8) of the NHS Act. The second will insert a definition of “practitioner” in Section 150A(3). That will clarify the use of the term “practitioner” in Section 150A(1) and adopts the same language as is used to define the term elsewhere in the NHS Act.

There are five amendments in respect of the provisions regarding the NHS (Wales) Act 2006. These are also minor and technical and, I stress, have been agreed by Welsh Ministers. They concern NHS ophthalmic and pharmaceutical services in Wales. The first four amendments concern the equivalent provisions for Wales regarding notices and penalties, to which I have just referred.

The first amendment would create a new Chapter 1A of the NHS (Wales) Act 2006 for the provisions concerning notices and penalties. Rather than adding them to an existing chapter, this amendment means that the Welsh provisions are treated in the same way as the English provisions. The actual provisions will be unaltered by this change.

The second amendment clarifies that the provisions in the new Section 106A extend to practitioners who provide pharmaceutical services and general ophthalmic services in Wales. This is because Wales has not followed the route in England of direct contracting for ophthalmic services but retains its previous arrangements.

The third and fourth amendments replicate for Wales the amendments for England to which I have already referred and also remove the definition of “ophthalmic services”. Definitions of ophthalmic and pharmaceutical services in the new Section 106A(3) are unnecessary as they are already defined elsewhere in the NHS (Wales) Act 2006. Pharmaceutical services are defined in Section 80(8) and general ophthalmic services in Section 71(10) of that Act. The insertion of a definition of “practitioner” into the new Section 106A(3) ensures that the language used to define “practitioner” is the same as that used elsewhere in Chapter 2 of Part 8 of that Act.

The fifth and final amendment corrects an error made at consolidation in 2006. It adds a reference to ophthalmic contractors in Section 107(9) of the NHS (Wales) Act 2006 to ensure that they must comply with the same fitness-to-practise requirements that pharmaceutical contractors must meet. I hope that Members of the Committee are content with these minor amendments and I beg to move.

Amendment 114A agreed.

Amendment 114B

Moved by

114B: Clause 26, page 29, line 21, at end insert—

““practitioner” means a person included in a pharmaceutical list, and”

Amendment 114B agreed.

Clause 26, as amended, agreed.

Clause 27 agreed.

Amendment 115

Moved by

115: After Clause 27, insert the following new Clause—

“Prescriptions: labelling showing actual cost

(1) The National Health Service (Charges for Drugs and Appliances) Regulations 2000 (S.I. 2000/620) are amended as follows.

(2) After regulation 11 insert—

“11A Prescriptions: labelling showing actual cost

(1) The packaging of any drugs or appliances supplied in accordance with regulations 3 to 6A shall carry a label showing the full retail cost of those drugs or appliances.

(2) Paragraph (1) applies irrespective of whether—

(a) there is an exemption from charging under regulation 7 or 7A, or(b) a valid exemption certificate under regulation 8 is in force.””

Many Members of the Committee may be aware that I tried to introduce a similar amendment in the previous Health Bill and that I got a degree of support from all sides of the House. I place on the record how grateful I was to the Minister for her letter on this amendment. The notion behind reintroducing it is, first, to reduce the number of repeat prescriptions that must be prescribed and, secondly, to ensure that patients finish the course of prescribed drugs. Next, again, is the intention to emphasise the value for money that, by and large, most patients who have a prescription are getting.

Something that I have loved about the House since becoming a Member nearly 20 years ago—only five Members of the Committee were here before me—is the tremendous learning curve that one goes on to. Since reintroducing the amendment, I have spoken to lots of general practitioners and pharmacists. I was rather shocked to discover that some prescribed drugs cost literally pennies, whereas others cost hundreds of pounds.

I can understand the Government’s reluctance to have much sympathy with the amendment, but it crosses my mind that, if I were to bring it back on Report stating that any drug costing more than £10 would have to be clearly marked on the prescription, that would make it abundantly clear what fantastic value for money people in England get at £7.10 or in Scotland. I am sure that the Minister is aware that Scotland is about to do away with prescription charges at a cost of £65 million a year, which seems slightly extraordinary.

I think that there is quite a strong case for looking at this again. I know that the noble Earl, Lord Howe, was initially quite supportive when I brought this issue back during the passage of the previous Health Bill. Like all these things, once you start digging into it, it seems extraordinary that some drugs are incredibly cheap and others are incredibly expensive. One of my colleagues outside the Committee asked me whether anyone was putting me up to this. No one is putting me up to it; my main reason for introducing this amendment is simply that I am convinced that it is a very good idea that people realise what they are getting for their prescription charge. I beg to move.

I have been in this House for almost 10 years. One thing that I learnt fairly early on is that the noble Lord, Lord Palmer, is one of the great free spirits of this House and one Member who not only thinks and speaks for himself but causes some of the rest of us to sit back and think in ways that we had not anticipated. I say that in all sincerity.

I have listened to the noble Lord on previous occasions when he has moved similar amendments and I have a great deal of sympathy with what he is trying to do. Those of us who sit through most of the debates in your Lordships’ House know that medicines management and the waste of medicines in the NHS have a particular resonance with the public. We know, too, that many people on low incomes are put off seeking and taking treatment by the disproportionate cost to them of prescriptions.

I do not want to make a general speech on prescriptions policy, because now is not the time for that, but my money is on the Minister coming back and explaining to the noble Lord, Lord Palmer, that even the same drug prescribed in a different place and at a different time may have a different cost depending on the method of purchasing it. A PCT may have a bulk discount and so on. Therefore, that is quite difficult, as is isolating the cost of a drug from the treatment.

However, I am enormously sympathetic to the noble Lord’s desire to get through to the general public an appreciation not just of the cost of medicines but of how they themselves can be responsible about medicines. Therefore, I suggest to the noble Lord that he moves his idea in a slightly different direction by looking at the prescription forms and the general messages about the cost of medicines, together with ways in which the general public can access information about managing medicines more efficiently themselves in discussion with their clinicians. That might be one way of moving nearer to what the noble Lord is trying to achieve, which I think is entirely laudable.

We are really out of knockabout territory on this issue. In my view, this is a very serious amendment because it requires greater transparency. I congratulate the noble Lord. I had originally intended to table something similar on Report, and I am pleased that he has helped us with his amendment because I am still working in that area.

We can expect the Government to reject the amendment. I may be wrong but I suspect that that is the case. I should like to use this amendment to appeal to those outside who can help us to table something perhaps better on Report. We have to address a number of issues which may prove difficult in implementing a system of this nature, but I should like to know what they are in some detail so that we can argue them out on Report in a more mature and sensible way.

There may well be a problem of price identification, which the noble Baroness, Lady Barker, has just referred to. Also, is it the retail price that should be shown? Perhaps another price would more accurately reflect the actual cost to the National Health Service. What happens in the case of drugs that are both over the counter and prescribable? There may be different price structures there. Do issues of competition arise? What is the view of pharmacies and the pharmaceutical companies on this level of transparency on the market more generally? What would the impact be on NHS procurement policies? Does it have implications for the export and import pricing of drugs?

I am bringing up issues that might complicate things, but I do so only because I strongly support the principle and should like to know what the arguments against it are so that we can sit down and work out, if the Government do not accept the principle at this stage and elsewhere on this Bill, how in future we can make it work on the Floor of the House and ultimately convince the Government of the principle.

I support the amendment. I would not like to tell the Committee the annual cost of my drugs to the health service, but I suspect that they run into many thousands of pounds. To be frank, I should like to see on every bottle, every injection and every pill box what the costs are to the NHS. It is in the public interest that we all know what we are costing the taxpayer.

The spirit of the amendment is important, but there is a danger here that patients might be made to feel guilty that they are incurring high drug costs. It would be important for staff always to be aware of the true cost of equipment, the drugs they prescribe, admissions and so on, as staff in the NHS are often not truly aware of the costs that they incur with the things that they do. Sometimes they open packs and chuck them away or are not careful with them, or they use one type of equipment that is a lot more expensive than another.

The spirit behind the amendment is to be commended, although I have a feeling that it is not quite right in the way that it is put together and there could be a downside. However, perhaps we need much more open and transparent pricing across the whole of the NHS for both staff and patients.

The noble Baroness, Lady Finlay, has made a good point in sounding a warning that patients might, as it were, die of embarrassment or guilt rather than go to the doctor and get a renewed prescription. Nevertheless, I am sympathetic to the amendment of the noble Lord, Lord Palmer, as I have been in the past. One could regard this as part of the “responsibility agenda”, the term often used to denote our collective wish to get patients to take responsibility for their own health and their own care.

My only detailed point is one that has already been flagged up in various forms: it is difficult to refer to the actual cost or the full retail cost of any drug. Those are elusive, will-o’-the-wisp terms. I suggest that the noble Lord might consider replacing those terms with “the recommended retail price”, which is something you can pin down. I hope that he will not let this go and that we will have a chance to debate it again.

This is an interesting amendment and important in principle. The only difficulties that I foresee are some of the points that have been made already by my noble friend Lady Finlay and the noble Earl, Lord Howe. Are we going to give the retail price? Will it include the pharmacist’s dispensing fee? Many hospitals have a rule that even if a doctor writes a prescription for a proprietary preparation, the hospital may dispense the generic alternative, which will be much cheaper. The patient getting it from the hospital might meet someone getting the same drug from the local pharmacist and say, “Why is mine costing so much less than yours?”. All kinds of problems arise if one fulfils the amendment as printed. However, it is well worth pursuing so long as we can get it right.

I support what has been said by noble Lords. I think that the points made by the noble Lord, Lord Campbell-Savours, were very pertinent. I would like to join those who want to make something like this happen. The idea of putting in a floor is a good one—a £10 floor or whatever—but it needs some detailed work. That would be very good, and I am sure it would reduce the cost of drugs.

I sympathise with the intention behind the amendment, as has every Member of the Committee who has spoken, as it encourages patients to finish their prescribed medicines and to realise the value for money they are getting from the NHS. As noble Lords might anticipate, there are several significant reasons that lead me to believe that this amendment should be rejected.

The noble Lord, Lord Palmer, is completely consistent in his view, and I do not believe for one minute that anyone would put him up to anything. He will remember the debate he had with my noble friend Lord Warner on this issue during the passage of the Health Bill 2006. My noble friend’s greatest concern related to patient attitudes to price labels. He promised that the issue would be taken forward with a proper study, and that study took place. I recently wrote to the noble Lord, so that he could read the detailed findings of the research. For the benefit of the Committee, the research question was whether people would continue to waste such high levels of medicines if they were aware of their actual cost. The researchers looked specifically at the effect of pricing information on medicine labels.

Qualitative research, in the form of focus groups, took place as well as a literature review. It clearly showed that labelling medicines with prices has significant challenges. The noble Lord, Lord Palmer, will have seen from the detailed findings how complex this issue is. The first key point is that it showed the risk that the noble Lord’s amendment could present to patients who need their medicines to treat their medical condition effectively. We would not want to deter such patients from taking their medicine because they fear being a burden on the NHS if the price of their medicine is particularly high. That is particularly an issue for older patients. I can think of several of my own acquaintance who would be horrified if they knew that their medication costs the NHS thousands of pounds a year, as referred to by my noble friend.

I am referring to the cost of the medicine and the effect of putting pricing information on medicine labels. Equally, we would not want to deter someone who benefits from a relatively cheap medicine, who may perceive, albeit wrongly, that the lower price is linked to a lower-strength medicine or a lower level of care. The second key point, to quote the conclusion, is that:

“Given the various routes to wastage (most of which seem to be beyond the control of the patient), there seems to be little possibility of reducing that wastage via pricing information”.

The findings of the research are sufficient in their own right to oppose an amendment of this nature, but it may also be worth quickly highlighting some other practical challenges. One is calculating the full retail cost of drugs and appliances. Several Members of the Committee have mentioned that. While suppliers will publish a list price for products, that is not necessarily the cost to the NHS of supplying the product to the patient. There are other elements to take account of, such as the service fee paid to the dispensing contractor and any discount arrangements. Dispensers would not be in a position to know them all at the time of dispensing.

The scope of this amendment also means that it would affect far more than just prescriptions dispensed by a pharmacy or dispensing doctor in primary care. Prices would also need to be included on prescriptions dispensed, for example, by appliance contractors, out-of-hours service providers, hospital out-patient departments and walk-in centres. A practical challenge is the complexity of implementation. Changes to IT systems, including mechanisms to establish prices and to label medicines appropriately in all the NHS settings I have just mentioned, would be required. Costs would be ongoing as well as one-off. There is no evidence about how such costs and potential savings would compare.

I hope the noble Lord will sympathise with my reasons for feeling that this amendment should be rejected. However, to reassure him, I would like quickly to stress the fact that the department has action underway to address the very important wider issues on medicines adherence that this amendment has raised. Two of our well established policies—medicines use reviews and repeat dispensing—contribute to this agenda. An MUR’s purpose is to improve a patient’s knowledge and effective use of medicines through face-to-face consultation between the pharmacist and the patient to help reduce medicines wastage. Repeat dispensing makes it possible for patients to have their medicines dispensed in instalments for up to a year without having to contact their GP surgery. As each instalment is dispensed, the pharmacist checks that the medicines are still needed and are being used appropriately by the patient, thereby helping to reduce waste.

Furthermore, my noble friend Lord Darzi points out as a result of the intervention of the noble Baroness, Lady Finlay—it is not often that one gets briefed by the Minister, but I have been on this occasion—that the next-stage review recommendation is to ensure that those who incur the most expenditure should also be accountable for it, which raises some interesting questions as we move forward.

The department has commissioned research, currently in progress, to establish the extent to which medicines are not used and hence wasted and how much that costs, as well as to determine the varied and complex reasons why people do not take their medicines as intended. The outcome of the research, which will be available this year, will inform future policy development for influencing both health professionals and the public to reduce the amount of unwanted medicines and provide value for money for the NHS. We need to wait for the outcome of that research so that any progress that we make is evidence-based. While I share the valid concerns of the noble Lord and others about the waste of medicines, I hope that he will feel able to withdraw his amendment.

The Minister said that my noble friend’s amendment would do very little to curb wastage. Would it not encourage patients who are prescribed medicines to take at home to take good care of them and not mislay or lose them? Furthermore, if they have been overprescribed, not by accident but because they needed fewer of the painkillers or whatever it was they were prescribed, would they not say to the doctor on the next occasion, “Look, I don’t actually need 60 of these; 30 will do because I’ve got plenty at home”? Little things like that could add up to quite a lot in savings for the NHS.

Those are very good suggestions, all of which involve patient education and the prescribers of the medicines taking their job seriously. However, it would not necessarily involve the labelling of pricing.

I am grateful once again for the support that I have had from all sides of the Committee. Greater transparency is an important factor in what I am trying to achieve with the amendment. I said in my opening remarks that one is opening something of a can of worms, and I quite accept the point made by my noble friend Lord Walton of Detchant that I have perhaps not worded the amendment quite as technically or as brilliantly as I might have. The noble Baroness, Lady Cumberlege, mentioned that the proposal might help reduce the overall cost of drugs, which must be a very good thing. The noble Lord, Lord Campbell-Savours, talked about the fortune in drugs that he uses. I should perhaps have reminded the Committee that, being diabetic, I do not pay prescription charges, but I dread to think what I get free of charge on the National Health Service due to my condition. I am very grateful for the Minister’s reply, and I thank her again for her letter. I may still consult her and bring back the amendment in some revised form, perhaps having spoken to my noble friends Lord Walton and Lady Finlay and the noble Baroness, Lady Barker. In the mean time, I beg leave to withdraw the amendment.

Amendment 115 withdrawn.

Clause 28 agreed.

Clause 29: Breach of terms of arrangements: notices and penalties

Amendment 115A

Moved by

115A: Clause 29, page 30, leave out lines 26 and 27 and insert “In Part 8 of the National Health Service (Wales) Act 2006, before Chapter 2 (disqualification) insert—

“Chapter 1ANotices and penalties”

Amendment 115A agreed.

Amendments 115B to 115E

Moved by

115B: Clause 29, page 30, line 30, leave out “or” and insert “services or general”

115C: Clause 29, page 31, leave out lines 2 to 6

115D: Clause 29, page 31, line 6, at end insert—

““practitioner” means a person included in an ophthalmic list or a pharmaceutical list, and”

115E: Clause 29, page 31, line 8, at end insert—

“( ) In section 107(9) of that Act, after “included in” insert “an ophthalmic list or ”.”

Amendments 115B to 115E agreed.

Clause 29, as amended, agreed.

Clauses 30 and 31 agreed.

Schedule 5: Investigation of complaints about privately arranged or funded adult social care

Amendment 116

Moved by

116: Schedule 5, page 52, line 21, leave out “, or is connected with,”

I shall speak also to Amendments 117 and 120. These are probing amendments, which I can cover quite briefly. In new Section 34A of the Local Government Act, we see that the definition of “adult social care provider” is,

“a person who carries on an activity which … involves, or is connected with, the provision of adult social care”.

I do not fully understand the phrase, “is connected with”. An activity that is connected with the provision of adult social care could include almost anything, such as the servicing of a van used to deliver food to a care home, yet we would surely not wish to say that the person engaging in that activity was an “adult social care provider”. The definition seems to encompass a wide range of people, and I should be glad if the Minister could explain how wide the range is intended to be in practice and why we need what appears to be a rather loose form of words here.

The provisions relating to the procedure that the local commissioner has to follow when investigating a complaint include a particular action: new subsection (4) says that the commissioner may obtain information and make enquiries as he sees fit but that he may also,

“determine whether any person may be represented (by counsel, solicitor or otherwise) in the investigation”.

I question that power. If someone wishes to be represented, and there may be all sorts of perfectly good reasons why they may wish to be, then to my mind they should not be prohibited from appointing someone to act for them. What lies behind the provision? Would it enable the local commissioner to decline to deal with someone’s independent advocate or a member of their family?

I raise that question particularly in the light of the provision in new Section 34G(3), which says that for the purposes of an investigation a local commissioner has the same powers as the High Court in respect of the attendance and examination of witnesses and the production of documents. If that is so, we are surely dealing with a quasi-judicial process. It does not seem right that the commissioner should then be able to deny someone the right to be represented in that process.

A number of provisions govern the way in which a local commissioner must announce his decision on the matter he is investigating. If he decides not to investigate, or to discontinue an investigation, he must make a statement to that effect and say why he has made that decision. If he completes an investigation he must also make a statement setting out his conclusions and recommendations, which he then must send to various parties, including the complainant and the adult social care provider. The recommendations, naturally enough, may include action to be taken by the adult social care provider concerned. We then find in new Section 34H(8) that the statement must identify the adult social care provider concerned unless the provider is an individual and,

“the Local Commissioner considers that it is not appropriate for the individual to be identified”.

I ask the Minister what kinds of circumstances might apply in which the commissioner could decide not to disclose the identity of the provider. Most would say that a person who had been found to have done something wrong should not be protected by public anonymity. On the other hand, I can see that there is an argument for protecting the identity of someone who has been in receipt of an unfounded complaint, but the Explanatory Notes shed no light on whether this kind of consideration would bear upon the local commissioner’s decision, or whether other considerations would. I would be grateful if the Minister could explain the thinking behind this provision. I beg to move.

Amendments 118 and 119 are grouped with that of the noble Earl, Lord Howe. Before I speak to them, I echo the noble Earl’s comments on Amendment 116 about associated activities. Being familiar with this area of work, I had made an assumption that those words were included in the Bill to encompass things such as the provision of support, brokerage or care management. It was not until I heard the noble Earl that I realised quite how far and widely they could be interpreted. Clearly, they should not. I would be interested in the Minister’s reply.

Amendments 118 and 119 also refer to the complaints procedures and the duties of the local commissioner in response to statements that are prepared. These amendments come from Help the Aged and Age Concern, soon to be a new charity for older people. Those bodies, like many Members of this Committee, are grateful that the Government listened to all the points made by noble Lords during the passage of the Health and Social Care Act. Older people who receive privately arranged or self-funded social care now have recourse to an individual complaints procedure, set out in Schedule 5 of the Bill. That is a welcome step forward.

However, self-funders and those who arrange their own social care are still outwith the scope of the Human Rights Act, even though they may live in residential care and may be quite vulnerable. It is therefore important that they have protection and access to a robust complaints procedure. The amendment’s purpose is to move the Care Quality Commission and the local authorities up into the group of people who must receive reports of complaints, rather than those who might or may. If the CQC is to carry out its job, and local authorities are to be able to pin-point those providers of care that, according to CSCI, remain of unacceptably low quality, they need to know how complaints processes work and what their outcomes are.

In addition, I suggest that the local commissioner has to be adequately trained and resourced to deal with this new role. They should have a duty to inform the CQC of any negative outcomes from a complaint.

I will address Amendments 116, 117 and 120 tabled by the noble Earl, Lord Howe, and Amendments 118 and 119, tabled by the noble Baroness, Lady Barker.

Amendment 116 is aimed at restricting the scope of the new scheme in terms of the type of activity that is covered. New Section 34A sets out that the scheme applies to “adult social care providers”. An adult social care provider is defined as a person who carries on an activity which involves, or is connected with, the provision of adult social care. The noble Earl’s amendment would restrict the definition of “adult social care provider”, omitting the activities that are “connected with” the provision of adult social care. The noble Baroness, Lady Barker, referred to this and she was right.

Our aim is to achieve consistency between the coverage of this new scheme and that of the registration system to be operated by the Care Quality Commission. As noble Lords may recall when we discussed this under the 2008 Act, an activity may be regulated by the CQC only if the activity involves, or is connected with, the provision of health or social care in, or in relation to, England.

The 2008 Act goes on to say that activities “connected with” the provision of health or social care include, in particular, the supply of staff who are to provide such care; the provision of transport or accommodation for those who require such care; and the provision of advice in respect of such care. I think that that illustrates very well the sorts of activity we mean when we refer to being connected with the provision of care.

The new CQC regulatory scheme is due to come into effect in April 2010. The Government consulted on the scope of registration last year. We will shortly publish the response to this consultation together with a consultation on draft regulations that will set out the scope of registration. I believe it is the right approach for the same activities regulated by the CQC to come within the scope of this new complaints scheme.

Amendment 117 seeks to remove the ombudsman’s power to determine whether someone may be represented, legally or otherwise, in an investigation. This section deals with the procedure for conducting an investigation. The ombudsman can generally decide how to conduct the investigation. He may obtain information and make inquiries from any person as he sees fit. New Section 34F(4)(c) additionally is intended to clarify particular aspects of the discretion conferred on the ombudsman in the investigation procedure. It does not itself give the ombudsman that discretion. In particular, the ombudsman may restrict the presence and role of representatives acting for witnesses or for the complainant when interviewed. The aim is to regulate the investigation procedure and to ensure that it does not become unduly bureaucratic or costly. It is also important to assist the ombudsman in obtaining evidence.

Permit me to illustrate this with the example of the ombudsman’s current investigation procedures relating to local authorities. That is what this reflects. Interviewees may often have a friend present, who may be a relative, trade union official or a lawyer. They are there to give support to the interviewee and not to provide evidence. In cases where the ombudsman interviews a local government officer, the ombudsman may stipulate that the friend may not be an officer of the authority with previous involvement in the complaint, a legal officer of the authority, or the superior or junior officer of the interviewee. This is to avoid a conflict of interest or undue pressure being placed on the witness.

New Section 34F(4)(c) gives the ombudsman the same powers as under Part 3 of the 1974 Act governing his functions in respect of complaints about local councils. The intention is for the two schemes to be run as similarly as possible. Furthermore, all the UK public services ombudsmen have similar powers.

I now address Amendments 118 and 119, which seek to put the local government ombudsmen under a duty to send a copy of all statements they will produce about their investigations to the CQC and local authorities which may have an interest in the matter. I very much understand the aims of these amendments, which is to ensure that the CQC and relevant local authorities get to know about the complaints received by the ombudsman and factor them into their decisions relating to regulation and commissioning respectively.

Currently, new Section 34H(7) gives the ombudsman a power to send copies of statements to the CQC and to local authorities. That, of course, is a power, not a requirement. It differs from the provisions of subsection (6) where there is a requirement to send copies to the complainant, to the provider, to any person alleged to have taken or authorised the action which was the subject of the investigation, and to any other person who appears to the ombudsman to have taken or authorised such action. I believe that noble Lords would agree that it is absolutely right that copies of the ombudsman’s statements should always be sent to those people.

However, statements will be produced about all complaints received by the ombudsman. Many of the statements would be of little or no interest to either the CQC or local authorities; for example, where the ombudsman has decided not to investigate and the statement simply gives his reasons for that; or where an investigation is discontinued because of lack of evidence of failure by the provider or injustice to the complainant. Of course, the complainant and provider must see the statement of why the ombudsman is not investigating, but it would rarely be of interest to the CQC.

I therefore do not believe that it would be necessary in all cases to send copies to the CQC and to relevant local authorities. It would, on the other hand, be entirely right for the ombudsman, having completed an investigation and made recommendations, or having discontinued an investigation because the provider has agreed a satisfactory remedy, to send a copy to the CQC as the regulator, and probably to the local authority. The important thing is for the ombudsman to be able to decide when that communication is necessary, rather than being obliged to send reports to the CQC and local authorities which would be of no interest or value to them.

I am sure the ombudsman will want to develop a protocol with the CQC and with local social services authorities collectively, so that they receive only that information that they consider to be useful and relevant to the discharge of their functions. I should also point out that the ombudsman is empowered in new Section 34P to disclose any information to the CQC if this appears to be of interest to it in its role as a regulator. This information could be in a different form from to that in the statement. The provisions in the Bill allow the necessary degree of flexibility for the ombudsman, enabling appropriate rather than compulsory communication.

Amendment 120 relates to new Section 34H. Our intention in subsection (8) is to give the ombudsman discretion over whether it is appropriate for a provider to be identified in the ombudsman’s statement. The statement must not identify the complainant or any other person other than the provider, unless the ombudsman considers it necessary. This amendment would mean that a statement by the ombudsman could not identify the provider if they were an individual; nor could it do so if, in the ombudsman’s opinion, an individual, including, for example, the complainant or another service user, was likely to be identified by publishing the provider’s name. That would be the case whether the provider were an individual or an organisation. By removing the discretion, the position would then be that it would never be appropriate to identify a provider that is an individual, and there would be many cases where a corporate provider could also not be identified. The ombudsman would normally wish to name the provider in the statement, for the very good reason that it is the public statement of the ombudsman’s conclusions on a complaint. The provision is therefore worded in a way that allows that but it recognises that there may be human rights issues in doing so, such as where there are risks to the privacy of the individual provider.

The ombudsman will also want to ensure that an individual service user cannot be identified as a result of naming the provider in the statement. However, even though naming the provider risks identifying the complainant, the complainant may actively wish the provider to be named. The individual service user just may not be concerned about being identified. The point of the provision is that the ombudsman can decide on the merits of the particular case. It would be very difficult to make provision for the precise circumstances where identification is or is not appropriate, which is why we believe the best approach is to allow the ombudsman discretion.

As I mentioned in the context of Amendments 118 and 119, the ombudsman is empowered in new Section 34P to disclose any information to the CQC if this appears to be of interest to it. The information would not be subject to the limitations about identification. The ombudsman is well accustomed to using similar discretionary powers in the current local authority scheme in Part 3 of the 1974 Act. I argue that the use of discretion in this way is an important factor in the operation of the scheme. I hope that I have been able to provide sufficient explanation and reassurance so that the noble Earl will now feel able to withdraw his amendment.

I am grateful to the Minister for her reply. I am pretty satisfied with her reply on Amendment 120, but I am still very uneasy about my other two amendments. She was right to point out that the words “involves” or “is connected with” are a mirror image or transposition of the wording used in the 2008 Act but, as she also pointed out, the definition in that Act was made narrower by way of examples of what “is connected to” actually means. Here, if it is left entirely open, there is scope for people to argue that someone servicing a motor vehicle is an adult social care provider, which would be very undesirable.

More serious is the reply that she gave on Amendment 117. It is entirely right and understandable that a local commissioner should have the power to decide how proceedings are run and lay down the procedure applicable to a hearing and so on, but that is not the same thing as deciding that a person may not be represented.

The wording appears to say that a person may not be represented at all. The noble Baroness’s reply indicated that what is meant here is that the local commissioner could decide that a particular person was an unsuitable representative. If that is intended, I should prefer to see that made clear here. As it is, the wording is very widely drawn and it could be taken to mean that the local commissioner has a very sweeping power. I am not entirely happy with that situation and I wonder whether, between now and the next stage, further thought could be given to that point.

Perhaps I may seek clarity. My understanding of what the noble Baroness said is that in practice the ombudsman has the power to decide whether a person will have any representation of any kind, not the nature of that representation. That power exists for a very good reason: it is a means of attempting to ensure that a minor matter does not escalate. If an individual arrives with a QC, unsurprisingly the local authority will go on the defensive and the whole thing can spiral. My understanding is that all ombudsmen have that power. When the noble Baroness writes to the noble Earl, perhaps she could cast an eye over this matter and also give examples of how this works in practice, not just in the field of social care. I think that all Members of the Committee would find that helpful.

That was an extraordinarily helpful intervention by the noble Baroness. I certainly take her point but equally one could imagine circumstances in which someone who needed help in presenting a case—and it might be a good case—was prevented from doing so because the ombudsman decided, for whatever reason, that representation was not appropriate. Therefore, one would hope that the rules that the ombudsman had to follow, or the guidance or whatever that was laid down, would distinguish between the two types of case. Nevertheless, I do not propose to detain the Committee further. I beg leave to withdraw the amendment.

Amendment 116 withdrawn.

Amendments 117 to 120 not moved.

Amendment 120A

Moved by

120A: Schedule 5, page 64, line 37, leave out “means”

I shall also address Amendments 121 and 122 tabled by the noble Earl, Lord Howe. Although I am not surprised that he did so, I compliment the noble Earl on noticing the drafting error in new Section 34T in the published version of the Bill. I am most grateful for his amendments, which seek to correct the error in the definition of “person affected”. The word “means” is repeated unnecessarily.

I have tabled a government amendment seeking to correct the same drafting error in a slightly different way. This amendment leaves out the word “means” in line 37, instead of leaving out “means” in lines 39 and 45. I believe that that makes the provision clearer, although I remain grateful to the noble Earl, Lord Howe, for bringing this point to our attention. In the circumstances, perhaps he will be content not to press his amendments and agree that mine remedies the mistake. I beg to move.

Before my noble friend speaks to his amendments, the expectation is that this may be the last group of amendments. It is my understanding that there is an agreement that, as always, this Session should complete as close to 7.45 pm as possible. The Government have been kind enough to indicate that further time has been found on Tuesday 17 March, unless other matters intervene.

I can tell that the Minister just wants to be different—and why not? I note in passing that whereas my amendments would have removed two words from the Bill, hers removes one, which I cannot help thinking is not quite such an economical approach; Occam’s razor ought to apply, and all that. Nevertheless, of course I do not go so far as to object to Amendment 120A, and I thank her for her remarks.

Incidentally, the Public Bill Office discouraged me from tabling another amendment to this same sub-paragraph where it says,

“‘the SPSOA 2002’ means the Sottish Public Services Ombudsman Act 2002”.

I thought that the ombudsman would want that corrected, and no doubt it can be without the need for an amendment.

Amendment 120A agreed.

Amendments 121 and 122 not moved.

Schedule 5, as amended, agreed.

This is a convenient point for the Committee to adjourn. I understand that we will reconvene on Tuesday 17 March at 3.30 pm.

Committee adjourned at 7.37 pm.