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Lords Chamber

Volume 733: debated on Monday 28 November 2011

House of Lords

Monday, 28 November 2011.

Prayers—read by the Lord Bishop of Liverpool.

ETA: Ceasefire


Asked By

To ask Her Majesty’s Government what action they are taking within the European Union to support the governments of Spain and France to secure peace following the declaration by ETA of a definitive cessation of all armed action.

My Lords, all EU member states including the United Kingdom agreed a statement at the October European Council welcoming ETA’s announcement of a definitive ceasefire as a victory for democracy and freedom and supporting Spain’s long struggle against terrorist violence. This is primarily a sovereign matter for Spain, but the UK Government would, of course, respond to any requests from Spain or France for further action.

My Lords, I thank the Minister for his helpful response. I declare my interest as a member of the International Contact Group on the Basque Country, which was present at last month’s international conference that culminated in the declaration by Kofi Annan and others calling on ETA for this definitive ceasefire. British Governments have had extensive experience. I ask the Minister, in the light of that experience in the conduct of dialogue leading to peace and in particular to normalisation and more beneficial outcomes for victims, as well as to decommissioning, verification and monitoring, will the British Government respond positively to this situation?

My Lords, we have supported the Spanish and French Governments in their efforts to secure a peaceful and democratic future for the Basque Country, free of terrorism. Should we be asked for support, we would respond in any way that they would find helpful. We are aware of the work that the noble Baroness is doing as a member of the International Contact Group, and my noble friend Lord Howell is very grateful for her update last month.

My Lords, given the increasing evidence that cities and regions coming out of conflict do so successfully only if they have continuing external support after the cessation of violence, and that indeed such support often comes best from other cities and regions that have gone through the same experience, would Her Majesty's Government encourage Bilbao and the Basque Country to join the Forum for Cities in Transition, which includes cities such as Kirkuk, Beirut, Mitrovica, Mostar and indeed Belfast and Derry and which will meet again in Kirkuk next year, in order that Bilbao and its region receive the best support from people who people who, like them, have been through such terrible times?

My Lords, my noble friend makes a very good point. I am aware of the excellent work of the Forum for Cities in Transition and its help to other cities that have been in, or have emerged from, such conflict. This would be a matter for Bilbao, but I have no doubt that the Forum for Cities in Transition will be in touch with the Bilbao authorities.

My Lords, are we just waiting for an invitation? Should we not positively seek an invitation? We at least are independent in a way that neither the French nor Spanish Governments are, and we have very considerable experience in Northern Ireland, which we have used very positively in reconciliation in South Africa.

My Lords, the noble Lord makes a very good point. The situation is very fluid at the moment, with a new Government about to take power in Spain next month. We should wait and see how things turn out and then decide what to do. But it is essentially a sovereign matter for Spain.

My Lords, does my noble friend the Minister share my view that help is always defined better by the receiver than by the giver? Does he also recall the observation of CS Lewis, that if you hear about someone going around doing good to others, you can generally tell the others by their hunted look?

Gambling Commission: Health Lottery


Asked By

To ask Her Majesty’s Government what assessment the Gambling Commission has undertaken of the contribution being made to good causes by the Health Lottery.

My Lords, the Gambling Act 2005 requires that at least 20 per cent of the proceeds of a society lottery go to the good cause that it supports. Each of the 51 society lotteries that are promoted under the umbrella brand of the Health Lottery must comply with this requirement. We understand from the Health Lottery that 20.3 per cent of the proceeds of each individual society lottery will go to the relevant good cause, addressing health inequalities in specific geographic areas of Great Britain.

My Lords, may I ask the Minister two questions? First, is she aware of the great concern that has been expressed by the beneficiaries of legally run society lotteries in the health sector, which have benefited immensely from those local society lotteries, about what is seen as the unfair competition from the Health Lottery? Is she aware that the hospice movement is particularly alarmed, because it depends very heavily on society lotteries? In Worcester, for example, our two hospices receive £70,000 a year from the South Worcestershire Hospices Lottery, which pays 50p in the pound—not 20p in the pound—to those good causes.

Secondly, notwithstanding what the Gambling Commission may have decided initially about the Health Lottery’s legality, how can it be legal to have 51 community interest companies linked to the Health Lottery which have no independent existence, but which all have the same three directors and all operate out of the same virtual office? How is that legal?

My Lords, the noble Lord has great expertise in these matters. In his first question, he raises the concern about the hospices. We share the concern about the potential impact on society lotteries, although a number of existing health-related charities have been supported through the Health Lottery arrangements so far, and we will ensure that the impact on other society lotteries is monitored.

On the noble Lord’s second question, about the legality, he will also be aware that compliance with the requirements of the Gambling Act 2005 is a matter for the Gambling Commission, which has issued the necessary licences for the Health Lottery. As with any major scheme entering the market, however, it will work with the operator to ensure that what is delivered is actually compliant. We expect initial findings from that monitoring to be with us by next March.

My Lords, would my noble friend give some thought to the idea that charities which are created to allow a lottery to be organised might be against the spirit that was initially taken on in this field? If that is right, will she undertake that the Government might look at the whole legal framework? If it is against the spirit, we can change the rules.

My noble friend makes a very valid point that, so far, the legality has been in the matter of the fact of the law. However, as I have mentioned, there will be ongoing monitoring and, as he so rightly says, all these things can be changed if it turns out that the spirit of the law is not being respected.

My Lords, are the Government content with the system that they have in place for monitoring the operations of the Gambling Commission and, if not, what can they do about it? Are they content that Mr Desmond is a fit and proper person, given what was said at the Leveson inquiry last week and the failure of his organisations to associate themselves with the independent press commission, and that this is the way forward given some of the issues which now surround the operation of this lottery?

My Lords, as I say, it is for the Gambling Commission to look at this. We recognise all the issues around Mr Desmond and his other organisations, but those are not perhaps directly relevant to this. One thing that the Government have done is to merge the Gambling Commission and the National Lottery Commission, which we expect will make regulation easier and create cost savings but also help to produce a more robust form of monitoring.

My Lords, may I press the Minister on the issue of what I consider, as I think many would, an apparent loophole exploited by the Health Lottery with its 51 separate companies? Will she give an assurance that this loophole will be examined and perhaps closed by the Government, bearing in mind that the Health Lottery has a turnover of £510 million a year and is in effect an alternative national lottery, affecting funding not only for other health charities but for the arts in general?

My Lords, the noble Lord raises an important point about the issue of whether the Health Lottery will impact on the National Lottery. We are well aware of the vast amount of good work that the National Lottery does for the arts and a whole range of charitable organisations in this country. This is the first time that a lottery has been set up in this mode, with 51 society lotteries under an umbrella. It is a new model, which is why we are looking to the Gambling Commission to report back to the Government on how it is going to operate. Of course, the Health Lottery has been going for only eight weeks so it is early days as yet to see how it will pan out, but I hope that the noble Lord will rest assured that the Government are monitoring the situation.

Following on from my noble friend Lord Faulkner’s question, should the Minister not be speaking up for those charities that give 50 per cent of their income rather than those that give only 20 per cent?

My Lords, I am sorry if I was not speaking up loudly. One indeed commends the society lotteries that give on average 51 per cent to good causes overall, which is a much more significant proportion than 20 per cent. The question remains whether this will be a form of raising additional funding for good causes, and only time will tell whether that is the case.

My Lords, is it not the case that the public assume that a much higher proportion of the money that they put into these lotteries is going to the good cause concerned? Should the Government not be looking to raise the 20 per cent threshold to a more realistic figure? That may then squeeze out those who see setting up these lotteries as a way of making extra cash for themselves rather than for the charities that they are supposed to be supporting.

My Lords, the raising of the threshold has been under discussion. We feel that at the moment, with the Health Lottery still so new, this is not the moment to change the thresholds for the lotteries as a whole. As I say, though, we are monitoring the situation since, as far as we are concerned, it is a new set-up in the lottery world. We shall wait and see, with the promise of a report of that monitoring early next year.

When I had the privilege of moving the Second Reading of the National Lottery etc. Bill in 1993, I gave way 28 times in the hour it took me to complete my speech. It was perfectly clear at that time that scrutiny of the lottery was being carried out extremely effectively by Parliament. I hope that the amount of time that we need to scrutinise this new development will be shorter rather than longer.

I bow to my noble friend’s expertise over many years in this area. I share his hopes that the scrutiny will be shorter rather than longer.

If the Minister reads the prospectus of the Health Lottery, she will see that in order for it to meet its targets of paying money to the 51 community companies it will need to raise something in the order of £250 million a year from the British public. Where does she think that money is going to come from? Surely it will be from existing charity giving, existing society lotteries and the National Lottery.

My Lords, this is one of the things that we shall need to look at. At the moment, the Health Lottery is raising £2 million to £3 million a week compared with the National Lottery which is raising somewhere between £150 million and £190 million a week. So the latter is still far and away the major source of public money in this area but, to pick up an earlier question, it is very important that the public are made aware of just how much of their money is going to good causes from the Health Lottery compared with how much goes to good causes from society lotteries and indeed the National Lottery.

Export Controls


Asked By

To ask Her Majesty’s Government what consideration they are giving to provisions concerning the export and re-export of arms and to the export of software or technologies that can be used against civilian populations.

My Lords, the Government have set out their position on the issue of re-export controls on a number of occasions. The Government do not believe that statutory extra-territorial controls on the re-export of UK-origin goods would add to the effectiveness of UK export licensing. On the second part of the Question, the Government take their export control responsibilities very seriously and do not license the export of controlled equipment where there is a clear risk that it could be used for internal repression or human rights abuses. We take any reports of exports being misused overseas very seriously, and the extent to which export controls should apply to surveillance equipment is something that the Government are considering actively, particularly in relation to Syria and Iran.

My Lords, I thank the noble Baroness for that reply. Has she had the chance to read the testimony of the Iranian journalist Saeid Pourheyder, who was tortured and subjected to a mock execution? He had been identified by British surveillance technology allegedly sold to Iran by a company called Creativity Software. Will the Minister say what discussions her department had with officials from that company in 2009, and what was discussed during those meetings? Why was the 2010 European Union prohibition on all,

“equipment which might be applied to internal repression”,

in Iran not implemented in this case?

My Lords, 2009 was in the previous Government’s time, but I will look back to see if there is anything that I have missed. However, I can tell the noble Lord that at the moment, alongside our EU counterparts, we are supporting the progress of EU restrictions on surveillance software to Syria. All member states have agreed in principle to the prohibition on selling, supplying, transferring or exporting equipment to monitor the internet and telephone communications on mobile or fixed networks. However, surveillance technology is not controlled under our current export-licensing system as it has legitimate applications. For example, it allows companies operating in dangerous locations to monitor the location of staff, and parents to locate their children’s telephone if they are missing. So there are many legitimate uses for this technology. However, we are most certainly looking at it and will report back.

My Lords, is the Minister aware of the Foreign Secretary’s statement of 13 October, when he announced a proposal to introduce a mechanism to allow immediate licensing suspension of software and other export items to countries that are experiencing a sharp deterioration? In light of her answer about Creativity Software, have the Government had any discussions with the company since the Foreign Secretary’s statement on 13 October, with a view to suspending its ability to export these items?

I am afraid that, at the moment, all I know is that the company referred to is exporting quite legitimately, as far as we know. We do not know of any re-exporting involving that company, but certainly we are considering most actively the extent to which export controls should apply to surveillance equipment, particularly in relation to Syria and Iran.

My Lords, I think that most of us would agree with trying to stop arms exports that can be used for internal repression in countries that do not benefit from democracy. However, can the Minister explain which body, in this new technological world, actually decides which items can be used for internal repression and which cannot? This is surely a difficult area. How do the Government cope with that, and how do they decide on which side of the border a particular product lies?

My noble friend is quite right: this is very complicated. We live in a technological age that moves at enormously fast speed. We also do not wish to cause suffering to the innocent people of another country by restricting goods unless we absolutely have to and feel that it is right to do so. That is what we are doing at the moment. I wondered whether anybody would ask me where they could find out what is restricted and what is not. It is always very helpful to have this information. Trade data are available online at if anybody would like to look that up. Information on export restrictions is available on the BIS website. It is the ministry of business that deals with this, which is why I am answering the Question.

What the Minister has said is welcome as far as it goes, and I fully understand the difficulties with surveillance technology, but I should like to ask her this. First, when does she think the Government will arrive at a firm decision on being more restrictive on the export of surveillance technology? Secondly, what about exporting to other countries which might then re-export to oppressive regimes? What can the Government do about that?

The Government do not want goods of UK origin to be re-exported for undesirable uses—of course not. However, the introduction of a statutory re-export control does not make our current export-licensing system more robust. We have talked this through with the European Union. The difficulty is that our law cannot be applied to another country to which something has been passed on. However, we make the questioning of anybody who is looking for an export licence from us very robust, particularly if it is for export to difficult countries, to make absolutely sure that we are clear about why they are doing it and where the goods are going. If, when they come back the next time, we discover that something has happened—that there has been a re-export—we will have an opportunity. However, it is most frustrating that we cannot do more. If anybody can come up with any other suggestion for us or the other members of the European Union, we will be only too happy to listen.

My Lords, the tension that occurs between promoting commercial interests and seeking the improvement of human rights overseas is highlighted by the UK’s role as a major arms-exporting country. We also need to consider the role of government agencies in the support and promotion of arms sales. In its role as a supporter of UK growth, does BIS regularly analyse the industrial and economic benefits of MoD procurement decisions so that a proper cost-benefit analysis can take place? If not, why not? Can we expect to see such analyses being published?

I think that the answer is yes, it does—I am sure that it does. I will check to make absolutely sure, as I am sure that the noble Lord will ask me about this again otherwise. I will return to this with the information that he has asked for, if I may.

May I ask my noble friend what approach the Government adopt towards the export or re-export of arms or software to the Israeli army for potential use in Palestine?

Unemployment: Young People


Asked By

To ask Her Majesty’s Government whether they will appoint a Minister to deal specifically with youth unemployment.

My Lords, the Government have no intention of doing this. We already have a Minister for Employment who has a clear strategy and robust policies to support young people into work.

My Lords, I am sure we are grateful for the youth compact that was announced a few days ago and, wherever we sit in the House, wish it well in denting somewhat the 1 million young people who are looking for jobs. However, would it not be better to have one person with an overall view to look at the short-term and long-term problems of youth unemployment, and to co-ordinate the various departments and strands of policy that are affected by them?

My Lords, youth unemployment, specifically, falls within the context of overall unemployment or employment. In practice, it is more important to have integrated support for people to get back into the employment market than across government for youth. In that area, we have the Social Justice Cabinet Committee, which looks at supporting society right across the piece, including youth.

My Lords, is the Minister aware how much the Government are failing many young people in the north-east? We have the highest rate of unemployment and of youth unemployment in the country. That part of the country is struggling to keep going. Given that the Government scrapped the Future Jobs Fund and the regional development agency, which was much engaged in these things, will the Minister give his personal commitment to look at what is going wrong in the north-east and to come up with specific answer for that region and those young people?

My Lords, without just saying yes, I will give that commitment, I want to point out that despite a growing economy some real structural problems have existed in different regions over decades, and certainly over the past decade. There are no easy solutions, but I will follow up the request personally and look at some of these regional issues. We are spending a great deal of time worrying about this.

Will the Minister indicate what proportion of the 1 million or so unemployed young people have families where neither the father nor the mother is in employment?

My Lords, I have actually forgotten that particular number, though I did know it. I will commit to writing with the precise number, which has fallen out of my head. I am sorry.

My Lords, the Bishops very much welcome the development of apprenticeship schemes. However, is the Minister aware that small businesses very often lose out on the major apprenticeship schemes? Is he aware of the Apprenticeship Training Agency in Liverpool that brings together the Chambers of Commerce, the city council and the colleges in providing apprenticeships for small and medium-sized enterprises? If so, would he like to replicate that model elsewhere?

My Lords, the point about the involvement of small and medium-sized enterprises is a very good one. Last week, we announced a subsidy to enable small and medium-sized enterprises to take on an extra 20,000 apprenticeships with an incentive of £1,500 a time. One of the issues with SMEs is that they need to have comfort that they can go on employing an apprentice for a long time. That is the key issue to get SMEs back into this particular support.

My Lords, as there is a real danger of a generation growing up without hope, would my noble friend discuss with his ministerial colleagues the desirability of having some form of national social service which all young people can undertake when they leave school?

My Lords, we are, as a priority, looking at how to help youngsters back into the workplace. That is what our youth contract, which was announced on Friday, is about. It is about trying to do the important things, which are work experience, apprenticeships and getting people work through a subsidy to employers.

My Lords, there will be time for both Peers if we have the noble Lord, Lord Davies, and then the noble Lord, Lord Walton.

My Lords, more than 50 years ago, when I was serving my apprenticeship, the industrial training boards had a levy and grant system that ensured that all small and medium-sized businesses produced apprentices or paid the levy if those businesses poached skilled men from the big companies. Why should we not reintroduce that system?

My Lords, we clearly need to rebuild the apprentice structure in this country—or at least build it, as was never particularly strong compared with countries such as Germany. We are very actively looking at how best to do that.

My Lords, to follow up the question of the noble Baroness, Lady Armstrong, is the Minister aware that the newspapers in the north-east reported over the weekend that properties to a value of £130 million owned by One North East, the regional development agency that is being abolished, are being sold and that the money derived from those sales will revert to the Treasury? Would not this money be better spent on doing something about youth unemployment in the north-east?

My Lords, we have just announced putting in an extra £1 billion boost to youth unemployment and that money has to be found from somewhere. The Autumn Statement may be examined with great interest as regards how the money has been shuffled to get that support for youngsters, within an overall spending envelope that it is vital to maintain in order for us to keep low interest rates in this country.

My Lords, will the Minister go back to his Government and look at the question of education maintenance allowances? In the 1980s, under a Conservative Government and amid high youth unemployment, Lancashire County Council was one of the first areas to bring in education maintenance allowances. In high youth unemployment areas such as Skelmersdale, the staying-on rate for further education and training increased by more than 30 per cent. We in Lancashire were complimented by a predecessor Secretary of State, Sir Keith Joseph, who allowed us to create more tertiary colleges to do this. Why are the Government ignoring tried and tested policy?

My Lords, there was about 90 per cent dead weight in EMA, and we replaced it with a bursary system on which we are spending £180 million. That started this September.

UK Border Security: 30 November

Private Notice Question

Asked By

To ask Her Majesty’s Government what action they propose to take to ensure that the security of the United Kingdom is not compromised on 30 November.

My Lords, the security of the UK border remains our top priority. Contingency plans are in place and we are satisfied that security will be maintained. We started training additional staff for contingency arrangements in April and adequate resources are now available. Any staff deployed to the front line will have received the training required to operate effectively. Arriving passengers will remain subject to checks at the border by appropriately trained staff.

My Lords, will the Minister confirm that none of the checks highlighted in the recent controversy surrounding the UK Border Agency will be relaxed for the purpose of reducing queues at the point of entry? Given that the UK Border Force has many powers, as defined under the Police and Criminal Evidence Act, would a no-strike agreement with the force be appropriate on future occasions?

My Lords, as regards the second part of my noble friend’s question, that is obviously something we would have to consider after 30 November and after we have seen how we manage on that day. But I can give my noble friend an assurance that none of the checks he mentioned will be relaxed.

My Lords, the Government have sponsored speculation about what they will, may or might do to maintain UK security, especially at the borders, on 30 November—everything from bringing in the Army to the idea of staff from the Prime Minister’s Office manning passport control points. However, people need and deserve stability. If they have booked a holiday that day, they need to know whether they can get away. If businesses have important customers coming to the UK, they need to know that their businesses will not be damaged. I should therefore be grateful if the Government would publish, clearly and fully, for the benefit of the country as a whole, what in detail they intend to do on Wednesday in relation to border security.

My Lords, I am very sorry that the noble Baroness the Leader of the Opposition did not take the opportunity to condemn the strikes that are taking place on Wednesday, which would have been helpful. If all parties agreed that those strikes should not happen we would not have this problem. We shall be operating the appropriate checks with the appropriate people, appropriately trained to make sure that visitors—whether they are coming here as tourists, whether they are coming here for business or whether they are returning UK citizens—can get in without any disruption or with disruption minimised as much as possible. The noble Baroness will also be aware that this is an operational matter and for security reasons it would not be appropriate to comment in detail, as she wishes, on the arrangements.

Will the Minister comment on reports in today’s press that part of the police force is being drafted in to take over the role of the UK Border Agency at our borders and that their training is alleged to be merely 90 minutes? Is that adequate?

My Lords, I would not believe—and I would recommend that the noble Lord should not believe—everything I read in the press. I can assure him and the House that everyone assisting on this matter will have the appropriate training necessary to do the job. Yes, some police will be involved but they will have the appropriate training to do the job that they need to do.

My Lords, the Minister said that staff started training in April. What were they training for in April?

My Lords, any sensible organisation, knowing there was a risk of such things happening—something which has still not been condemned by noble Lords opposite and I am waiting for that condemnation to occur—would make the appropriate arrangements. The border agency started that last April.

My Lords, given that the security of our country is not just dependent on border security but that unfortunately there are risks internally within our United Kingdom, can the Minister reassure us there will be no diversion of security resources to the border checks that will in any way diminish the other security measures that are necessary internally?

My Lords, I can give my noble friend that assurance and he is right to point out that it is not just the borders we need to look at. No concerns have been expressed by the police and others that any diversion to the borders will impair our security arrangements in other matters.

Given that the Minister has repeatedly asked people on this side of the House to talk in terms of condemnation, can we take it as read that the Government condemn the cleaners, the dinner ladies, the low-paid workers and those threatened with a weakening of their pension entitlements and an increase in their contributions? Is the Government’s position that they condemn these people for trying in any way to defend their position?

My Lords, I condemn the strike as it affects our security and the arrangements we are having to make. That is the condemnation I am still waiting to hear from the party opposite.

My Lords, can the Minister tell the House what assurances, if any, we have from schools about the protection of the safety of children, particularly when their parents are at work or may find it difficult to return from work because of the effects of the demonstration? Can he say whether there have been consultations with the Department for Education on this point?

My Lords, I am not aware of any consultations with the Department for Education. I will certainly make inquiries and get back to my noble friend later this afternoon. I am sure there will have been discussions for the very reasons my noble friend raises.

My Lords, the Minister has repeatedly referred to this side of the House not condemning the strike. What I want to ask him is this—can he give a categorical assurance that the motivation of the coalition Government is security and not strike breaking?

My Lords, as I made clear in my original Answer, our first priority, our highest priority, our top priority is the security of the United Kingdom. If the noble Lord thinks that we are involved in strike breaking he should think again. We want to make sure that our borders are kept secure. We think that the unions are endangering that security by the actions they are taking. The offer is still open to talk to the Government and others and we wish they would take that up.

My Lords, of course our borders should be kept secure, but are the Government doing enough to negotiate with the unions on this point? Are the Government in fact making every effort to try to resolve this dispute rather than, as the Minister has told us, having been preparing since April for just this eventuality? Is it not that they actually wanted to provoke a strike, for whatever political reasons they may have?

Come on, my Lords. The noble Lord knows perfectly well that the Government’s doors remain open and that the Government are prepared to negotiate. It is the unions who are being intransigent and it is the party opposite which is refusing to condemn an action that will possibly endanger our security. Because of the actions we have taken, and have been taking since April of this year, we think that we will be able to keep security at the appropriate level at the borders on Wednesday.

My Lords, is my noble friend not aware that most people in this country will be glad that the Government attach the highest priority to our national security?

I am very grateful for the support of my noble friend. I wish I could get similar support from noble Lords opposite.

My Lords, given that the Minister is so fixated on the possibility of getting the kind of statement that he would like to hear from these Benches, does he imagine that the people out there who are contemplating going on strike are mostly or even to a small extent members of the party I support? I submit that not only are they not, they are members of all parties and none, and what is preoccupying them is not the question of whether the Labour Party supports them but their concern for their future pension rights.

My Lords, the noble Baroness accuses me of being fixated on this issue and perhaps I am somewhat naive to be so fixated on this issue. I do not know in which way the members of the unions involved happen to vote. I happen to know that those unions support the party opposite. That is why we are still waiting for that condemnation from the party opposite.

My Lords, does the Minister agree that any strike is a demonstration of failure? Does he further agree that the Government themselves have failed to resolve this strike?

My Lords, I totally and utterly reject what the noble Baroness has said and again invite her, as the Leader of the Opposition in this House, to condemn this strike.

Procedure of the House

Motion to Agree

Moved By

Parliamentary Constituencies and Assembly Electoral Regions (Wales) (Amendment) Order 2011

Motion to Approve

Moved by

That the draft order laid before the House on 24 October be approved.

Relevant documents: 31st Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 22 November

Motion agreed.

Health and Social Care Bill

Committee (8th Day)

Relevant documents: 19th report from the Delegated Powers Committee, 18th report from the Constitution Committee.

Moved by

That the House do now resolve itself into Committee.

My Lords, before the House goes into Committee on the Health and Social Care Bill, I should like to take the opportunity to update noble Lords on the latest position with regard to the Department of Health risk registers. The House will recall that my department received a specific request under the Freedom of Information Act to release the transition risk register, which covers risks relating to the development and implementation of our health reforms. There was also a separate request to release the strategic risk register, which covers the most important risks the department faces.

We have taken the view that the information in both registers should be treated as exempt from disclosure under Section 35 of the Act on the grounds that the information contained in the risk registers is integral to government policy-making. Risk registers of this sort are a tool by which information about potential risks—both actual and theoretical—can be recorded in worst-case terms to enable them to be mitigated and managed. The Information Commissioner accepts that the information falls within this category of exemption. Following our decision not to release the registers, the two individuals who made the FOI requests lodged appeals with the Information Commissioner.

In early November, the Information Commissioner published his decision notices in both cases, deciding that the public interest lay, on balance, in full disclosure of both registers. Since then, as is allowed for under the rules, we have been considering whether we should appeal the Information Commissioner’s decisions. As I explained to the House previously, this was not a decision that the Department of Health could make on its own, as the issues which bear upon the decision have significant implications for every government department.

While the principle of openness is one to which we have adhered to the maximum extent through evidence given to the Health Select Committee in another place and the publication of impact assessments, it has been our firm view, and that of other departments, that for risk registers of this type to fulfil their function, civil servants must be free to think the unthinkable and record potential risks and mitigations fully, frankly and with absolute candour, confident in the knowledge that this information will not be publicly disclosed.

The logic of the Information Commissioner’s decision to order the release of information of this nature would entirely undermine the concept of safe space for these sorts of circumstances. The matter has accordingly been the subject of much careful consultation across Government, and a very clear and firm view has emerged that the publication of information in risk registers of this type would be likely, in the future, to undermine the very purpose for which a risk register of this sort is produced, and thus directly threaten the successful implementation of government policy. I can, therefore, tell the House that my department has decided to appeal both decisions by the Information Commissioner.

I would, however, like to respond to the request made on 16 November by the noble Baroness, Lady Thornton, by sharing with the House as much further information as I can about what my department’s transition risk register contains. On that occasion I undertook to examine whether there were any risks covered in the Department of Health transition risk register that are not already in the public domain and on which information could be provided without further ado.

While I cannot share the detailed breakdown of the information recorded in the risk register, or the wording, I am happy to set out for the record the broad issues covered by the transition risk register. They are as follows: how best to manage the parliamentary passage of the Bill and the potential impact of Royal Assent being delayed on the transition in the NHS; how to co-ordinate planning so that changes happen in a co-ordinated fashion while maintaining financial control; how to ensure that the NHS takes appropriate steps during organisational change to maintain and improve quality; how to ensure that lines of accountability are clear in the new system and that different bodies work together effectively, including the risk of replicating what we already have; how to minimise disruption for staff and maintain morale during transition; how best to ensure financial control during transition, to minimise the costs of moving to a new system, and to ensure that the new system delivers future efficiencies; how to ensure that future commissioning plans are robust, and to maximise the capability of the future NHS Commissioning Board; how stakeholders should be engaged in developing and implementing the reforms; and finally, how to properly resource the teams responsible for implementing the changes. I hope that this information will prove useful to noble Lords as the Bill continues its passage in Committee.

I thank the Minister for that statement, of which I did not have more than two minutes’ notice. It is very disappointing indeed. Basically, the noble Earl is saying that the Government are choosing what they do and do not disclose to the Committee on this matter. It is an issue of trust—whether or not we can trust that we will know what we need to know to make judgments about whether this Bill will work.

I thank the noble Earl for the issues that he has decided that the Government can let us know about, but of course I am therefore concerned about what the issues are that the Government have decided that we should not know about. What are the risks that we cannot know about? That is a matter of grave concern to the Committee.

I shall be looking in detail at the Minister’s statement to the House and I reserve the right to return to this matter if I feel that we need to. For example, during the last two days in Committee I put two direct questions to the Minister about whether certain matters—one concerning children—were on the risk register and what the register said about them. I have not received answers to either of those questions. I shall continue to put my questions in that context and I suggest that other noble Lords do the same.

I am very grateful for the Statement as far as it goes but I do not think that this is an end to the matter. I can see why the Government might think that there is a cross-government issue here. However, no other department is in the position in which we find ourselves here—that of discussing a Bill that is going through the House right now. We need full information on this matter in order to be able to make proper decisions but I believe that we still do not have that. Therefore, I thank the noble Earl so far as this goes but I reserve the right to return to the issue in due course.

Perhaps I may ask the Minister a question. He gave us a list of all the areas which he thought it was not possible for Parliament to scrutinise in some detail. Did the Information Commissioner have access to all the document headings to which the Minister has referred, and did he have the opportunity to read all the documentation under those headings? If the Information Commissioner did have access to information on, for example, the handling of the legislation as it goes through Parliament, why did he, throughout the whole report, repeatedly say that these matters should be placed in the public domain? Again, is it not clear that the Government are trying to hide something from Parliament? The Minister’s first reference was to the handling of the legislation by Parliament. Why should not Parliament see what considerations took place within the department concerning how legislation should be handled as it goes through this House?

My Lords, my clear understanding is that the Information Commissioner had full access to the risk register so that he would be able to see for himself what it contained. I do not believe that anything material was withheld from him. The whole purpose of risk registers of this type is to record all risks, even the unthinkable and the highly unlikely actual risks, as well as potential risks—in other words, risks that may not arise in the future but which could be mitigated with action today. Such risk registers record mitigating actions so that the risks identified do not become a reality. In our clear view, exposing that kind of information could cause needless concern, set hares running and seriously undermine confidence in the programme of work. No Government of any persuasion have routinely made risk registers of this type public for the very reason that to do so would undermine open and frank discussion among policy-makers for fear that the policy would be made public before it was fully developed.

The department has published and discussed its proposals for reform at every stage of this process. It has debated them at length in both Houses. It has even released some detail about the associated risks and what it is doing to address these in impact assessments. Therefore, I firmly believe that the Committee has all the information that it needs to discuss the proposals in detail.

My Lords, the Department of Health will be aware that with a freedom of information request there are always considerable burdens on those who argue that the information should not be conceded. Has the Minister given any thought to the possibility of a limited redaction of the report rather than not making it available at all, or alternatively whether there are parts of it that he feels could be made available so that the House can consider more deeply the issues that are coming up? I share the view of the noble Lord, Lord Campbell-Savours, that on the issue of how Parliament handles the legislation and the implications for the transition, certain things from the register might be useful, although I recognise that some extreme cases might be picked up by the tabloids and be changed into sensational reporting. Could the Minister possibly consider that qualification more seriously than we have been able to do so far?

My Lords, I would be grateful if the Minister could let us know whether the department considered the BMA resolution in council at the end of last week to now oppose the Bill and campaign against it, when the BMA was coming to its decision to appeal against the release of the information. If not, will it be considered in the next steps the Government take, given that it signals a major loss of confidence in the Bill by the BMA?

How long is it likely to take for the appeal and the decision? If the decision disallows the appeal, will the Government accept that?

My Lords, the problem is not what may be contained in a particular risk register, as the Minister has said, but the precedent that it sets for all other risk registers. There may be nothing in this register that is particularly sensational or has not been released. However, once this case is conceded it will nullify the effect of all risk registers across government. If people think these risk registers are valuable it must be the case, as the Minister has said, that people look at the worst risks and do so frankly, and if they make them anodyne then the purpose of the registers is entirely lost.

My Lords, I hope that the noble Baroness, Lady Thornton, will remember those words when she is considering her next intervention on this matter. Bear in mind that what she says then will be taken as the yardstick of what any Government of her colour are expected to do when they eventually—one hopes at a great distance of time—take our place.

My Lords, I understand there is a precedent—a Department of Transport one. Therefore, there is a discretion and the Government are in a position on this occasion and not on a further one. I do not really see that that case is relevant.

My Lords, I am very grateful to the noble Lord, Lord Butler, whose understanding of these matters is one that noble Lords will respect greatly. He is absolutely right—this is not an issue that solely affects the Department of Health: it affects all government departments. That is why the stance taken by the BMA to this Bill was not material in our decision. We regret that stance but it did not come into our thinking in any way.

On the question of precedent, I am aware that during the course of the last Government three separate recent requests were made to the Department of Health to release risk registers. All three requests were declined. I have the letter here that was sent when the right honourable Andy Burnham was Secretary of State, citing exactly the same kinds of reasons I have given.

I was asked how long the appeal would take. I do not know but my understanding is that the process should come to a conclusion reasonably early in the new year. I cannot be more definite than that because it is not up to us—it will be up to the tribunal to order its business as it sees fit. Will the Government accept the result? Clearly, we will have to take a view whatever the result; I cannot pre-empt the decision today. My noble friend Lady Williams asked whether we had considered releasing a redacted version—the decision before us was whether to comply with the Information Commissioner’s decision in full, or not to and appeal. We did not have the option of redaction but I am grateful to my noble friend for her suggestion, which I will take away and consider.

Motion agreed.

Clause 20 : The NHS Commissioning Board: further provision

Amendment 106 had been withdrawn from the Marshalled List.

Amendments 107 to 109 not moved.

Amendment 109A

Moved by

109A: Clause 20, page 17, leave out lines 33 and 34 and insert—

“(5) In discharging its duty under subsection (1), the Board must publish guidance for clinical commissioning groups that includes the option to opt out and explains the extent of compliance with—

(a) the quality standards prepared by NICE under section 231 of the Health and Social Care Act 2011;(b) indicators included within the NHS Outcomes Framework; and(c) minimum standards set by the Board on patient related outcomes measures.”

My Lords, I advise the Committee that if the amendment is agreed to, Amendments 110 and 110ZA cannot be moved by reason of pre-emption.

My Lords, with the agreement of the noble Lord, Lord Newton, I move Amendment 109A, which stands in my name and his. I can do so briefly, although the amendment is important and, I hope, helpful. I declare an interest as the chair of King's Health Partners, an academic health science centre. Part of the centre's mission is to accelerate the translation of research into patient care—getting a faster process from bench to bedside. It is in that capacity that I move the amendment.

The focus in the Bill on outcomes for patients is very welcome. It is also welcome that Clause 20 gives the Commissioning Board a duty to promote compliance with the quality standards prepared by NICE, as well as guidance published by the Secretary of State. There may be circumstances in which there are good local reasons why NHS providers should not comply with NICE guidelines. One such circumstance may be where there are innovative treatments that have been approved but with which NICE guidance has not yet caught up. We do not want the clause to stifle the introduction of such initiatives, which the creation of AHSCs is designed to promote and which are greatly in the interests of both British industry and patients. For this reason, Amendment 109A introduces an element of flexibility through a comply-or-explain regime. It will give providers the opportunity, in cases where there are good reasons why they should not comply with the NICE guidelines, to depart from them provided they can explain their non-compliance satisfactorily. That is all I need to say about the amendment. I beg to move.

My Lords, I chip in briefly in support of the amendment. I hasten to assure my noble friends on the Front Bench that this is a probing amendment and that I have no intention of pushing my luck. I have been so open and transparent as to share with the Minister every word of the briefing that I received and that led to the amendment. He knows what it is about. Therefore, I am looking for a measured, constructive and well informed response. I have no interests to declare except the public interest. The healthcare industry—the interests of which underlie the amendment—is important. It contains a lot of small and medium-sized enterprises of a potentially and actually very successful kind. We ought to encourage them, and I hope that the Minister will do his best.

My Lords, I speak to Amendment 110ZA. In tabling the amendment and Amendment 343A, I was mindful of information from the Prostate Cancer Charity, which I strongly support, and from members of the Epilepsy Society. Of course I am aware that many other people with different chronic diseases, and those who care for them, are concerned about these issues.

As noble Lords are aware, prostate cancer is the most common cancer in men in the UK. In England, 30,000 men are diagnosed with it every year, and there are 215,000 men living with and beyond the disease. Ten thousand men die from prostate cancer every year. Currently, clinical nurse specialists for men with prostate cancer have to care for a worryingly high number of new patients compared to nurses for people with other common cancers. I am therefore worried that the financial pressures on the NHS and the cost of reform will threaten those already overstretched specialist nurses, who are so vital in driving up the quality of care for people with cancer.

Access to a clinical nurse specialist improves the experience of people with cancer at every stage of their journey and ensures that they have access to the vital support and information they need. This has been evidenced by the results of the 2010 National Cancer Patient Experience Survey. If patients are to have more control over decisions related to their care and report a good experience of care, they need the clinical and emotional support, information and expertise that a clinical nurse specialist can provide.

As the noble Earl will be aware from his association with the epilepsy organisations, NICE guidelines state that epilepsy specialist nurses should be an integral part of the medical team providing care to people with epilepsy. Even with investment made under my Government, 60 per cent of acute trusts and 64 per cent of primary care trusts did not have an epilepsy specialist nurse in 2009. SIGN guideline 70 states that,

“all epilepsy care teams should include an epilepsy specialist nurse”.

There are around 150 epilepsy specialist nurse posts, with a further 250 to 300 nurses who have undertaken training but are not in a role due to the shortage of posts.

As all noble Lords will be aware, specialist nurses save the NHS money by releasing consultants’ time, reducing A&E admissions, enhancing patients’ adherence to treatment and reducing the use of hospital beds. Therefore, I am proposing two amendments that would place duties on the NHS Commissioning Board to have regard to the continued access of patients to clinical specialist nurses. The first would support the board’s existing duty as to the improvement in quality of services and the second would create a new standalone duty. I trust the Minister will be able to accept my amendments.

My Lords, I rise to support Amendment 109A. There is no doubt at all that for many years now the work of the National Institute for Health and Clinical Excellence, NICE, has made a major contribution to the National Health Service. There is a widespread feeling in the public at large that NICE deals with nothing other than whether or not to recommend the approval of certain drugs for the treatment of disease within the NHS. However, NICE’s commitment spreads much more widely than that. It examines procedures; it examines complicated interventions of all kinds; it examines the introduction of new and innovative techniques, new instruments and other procedures in the NHS. Its remit is exceptionally wide.

I know full well that the noble Lord, Lord Newton, says he is not going to pursue this amendment to a vote, but it is important that we have some assurances from the Minister. As my noble friend Lord Butler says, it is clear that, although NICE guidance in general terms is something with which health authorities and health bodies of all kinds will be expected to comply, there are clearly circumstances, particularly at a local level, where, for the reasons he gave, such compliance would be inappropriate. The amendment takes full note of that as being an important issue.

However, we must be sure, in implementing the recommendations of NICE, that we do not overlook the crucial importance of ensuring that the national Commissioning Board will have a duty to promote innovation in its annual report. It is also crucially important, when we come to look at innovation tariffs much later, in Amendment 288H, to see that the tariffs system will not act as a counterincentive to the adoption of innovation and of new technologies. These are issues upon which it is important to seek assurances from the Minister.

Perhaps I may also add to what the noble Baroness, Lady Royall, said. The work of specialist nurses is extraordinarily important to the NHS, and not least in my own field of neurology, where nurses who are specialised in multiple sclerosis, Parkinsonism, epilepsy and many other conditions have made an outstanding contribution to the clinical care of patients. In many instances, their work and advice have prevented unnecessary admissions to acute wards of patients suffering from these conditions. They are invaluable. Unfortunately, over the past five or six years, we have identified instances where cash-strapped health bodies of various kinds have diverted some of these specialist nurses into standard nursing care. I hope that the Minister can give us an assurance that the role of specialist nurses in the NHS is going to be enshrined in the Bill and that the Government will recognise that such nurses are there for a special purpose, not to provide general nursing care in hospital wards and out-patient departments.

My Lords, I have tabled three amendments in this grouping: Amendments 110C, 131A and 190C. I am grateful to the noble Lord, Lord Patel, for supporting the amendments because they concern maternity services, and I do not think I could have anyone more distinguished than the past president of the Royal College of Obstetricians and Gynaecologists, although of course the noble Lord is also involved in many other things, not least this Bill. These are probing amendments, the first of which seeks a commitment from my noble friend the Minister that the Government, through commissioning at the national and the local level, will give women and their partners real and informed choice in maternity services. The second amendment would ensure that there is less variation in the quality of services provided, and the third concerns maternity networks, including independent midwives.

The variation in maternity services across the country is quite startling. Sometimes the poor performance is a reflection of a lack of resources or priorities, but one of the reasons for this is that maternity services have been overwhelmed by the rising number of births, including more complex cases. This is partly due to the increase in the number of older women giving birth. Last year the number of women giving birth aged over 40 was the highest since 1948, the post-war period, and we can surmise about that. In the past 10 years in England, the number of births overall has risen by 22 per cent, which means that more than 10,000 extra babies are born every month. There has been a modest increase in midwives, and we should be grateful for that, but they are being run ragged by this record-breaking baby boom.

The Bill seeks to ensure that the quality of NHS services will improve by using new and increasingly much more sophisticated commissioning systems. If this key objective is to be realised, it will require commissioning of a very high quality. Pathfinder clinical commissioning groups are beginning to get a grip and to understand the health needs of their local populations, but inevitably others will lag behind and we will see variations in commissioning. One of the ways to address this is through a NICE quality standard, as already discussed by the noble Lord, Lord Butler, and my noble friend Lord Newton. But as the noble Lord, Lord Walton, said, even when these standards are produced, advice from NICE is not always adhered to, and I understand that the queue for these quality standards to be produced is very long, with maternity services some way down the line.

On quality, proposed new Clause 13E(1) states that the NHS Commissioning Board should improve the quality of services in three areas: prevention, diagnosis and the treatment of illness. On prevention, however powerful the board is, it is going to find it a real task to prevent wanted pregnancies—even Solomon in all his glory failed to do that, and he knew quite a bit about babies. On diagnosis, I do not think there is much problem in diagnosing pregnancy, as it is usually pretty obvious to those concerned. On the treatment of illness, certainly most women who are pregnant are not ill; on the contrary, many take enormous care of themselves and are extremely fit and so will not need treatment for illness.

Looking at those three criteria in that subsection, I think that they do not fit with maternity services. Therefore, we have a lacuna, which I am trying to fill with my first amendment. I suggest that the Commissioning Board keep a watchful eye on the situation in England and use a means—possibly a specification or some other mechanism—which would act as a guide to enable commissioners to buy services from NHS trusts at a set quality, until NICE has produced its quality standards.

My second amendment concerns choice. I apologise because I think it has been positioned rather wrongly in the Bill, but it is another probing amendment.

“Pregnancy is a long and very special journey for a woman. It is a journey of dramatic physical, psychological and social change; of becoming a mother, of redefining family relationships and taking on the long-term responsibility for caring and cherishing a new-born child. Generations of women have travelled the same route, but each journey is unique”.

I wrote that in the foreword for Changing Childbirth, which was a government policy document that I produced many years ago. It is because each journey is unique that women and their partners should have as much choice as possible, because we know choice is empowering. Giving birth can be wonderful, but it is also very traumatic and the start to a new life can have long-term consequences for the baby as it enters childhood and later adult life.

New Clause 13I, places a duty on the board to enable patients to make choices in the services they receive. Pregnant women and their partners have four main choices when considering where to give birth: at home, in a free-standing midwifery unit, in a midwife-led unit situated alongside a hospital or in a hospital led by a team of obstetricians. This is the theory, but it does not actually work in practice. Delivered with Care, a national survey of women’s experiences of maternity care in 2010, undertaken by two very respected researchers in the field, found:

“Many women (80 %) were not aware of the four possible options for … birth”.

Therefore, how can potential parents choose when they are not even aware of the options? Why do health workers, especially GPs, seeing a woman at the first booking, not tell them what is available? The majority only tell them where to go, and that is hospital.

In a joint statement the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives, in their introduction to a paper on home births state:

“The rate of home births within the UK remains low at approximately 2%, but it is believed that if women had true choice the rate would be around 8-10%”.

It is part of government policy to give choice, including birth at home, to every pregnant woman. In Somerset 11.4 per cent of births are at home, whereas in Wansbeck the figure is just 0.1 per cent. Of course there may be a range of factors affecting this—I suspect housing and other conditions also play a part—but this discrepancy is so great that I am sure it is partly due to the fact that mothers were not even told what was available. I would like to ask the Minister how he sees the NHS Commissioning Board addressing its duty in new Clause 13I as to patient choice in maternity services. I appreciate this is quite a minority sport so the Minister may like to write to me on this issue.

My third amendment concerns maternity networks. Neonatal and cancer networks, where they work well, have proved to be highly effective. It is a model that those in maternity services wish to adopt. They believe that effective, inclusive and supported maternity networks have the potential to ensure that all women, within the network locality, are able to access the full range of services from pre-conception to early years. The networks would be able to promote choice within these services and work with all providers to ensure that women are offered and are able to exercise informed choice. The existing networks have received funding for their infrastructure, which has enabled them to be effective. Will my noble friend consider a similar commitment from the Government to support the development and sustainability of maternity provider networks and ensure that they are properly resourced?

Part of the network should be the care offered by independent midwives, who give a highly specialised and personalised service, accompanying the family through this wonderful but often stressful time in their lives. There are around 130 independent midwives in the country, but there are about 800 who would choose to work in this way if they could get professional indemnity insurance. Currently that is not the case because of market failure to provide for it.

The EU Council of Ministers has issued a directive on patients’ rights on cross-border healthcare that requires member states to ensure that systems of professional liability insurance are in place for treatment provided on their territory. The Government ratified this directive on 28 February this year, which means that all midwives in independent practice in the UK will need to be able to access this insurance from September 2013 in order to be registered with their regulatory body, the NMC. Without registration, they will not be able to practise midwifery legally; independent midwifery will disappear, unless a solution to the insurance conundrum is found. Can we really afford to let this happen when the maternity services are in such desperate need of experienced, skilled midwives?

The clock is ticking and the issue is urgent. I ask my noble friend, who is well aware of this difficult issue—we have met in the past to discuss it—to tell me when the Government are planning to publish their proposals and when independent midwives and other non-NHS bodies will be able to take up the NHS clinical indemnity arrangements planned for by the Government.

My Lords, I rise to support Amendment 131A proposed by the noble Baroness, Lady Cumberlege. My wife and I have three children and have experienced some choice as to whether they were born at home or in hospital. I must admit that this was not a matter to which my wife and I had given a great deal of thought when we had our first child 31 years ago. Then we naively assumed that having a child in hospital was fine and the normal practice. The doctor would look after us. However, the truth is that it was far from normal for a young married couple. We discovered later that everything that was done seemed to be focused not on the well-being of the patient—my wife and child; some would say the customers—but on the interests and timetable of the consultant. Medication was given that was not really needed to ensure that the child was born to fit some preordained hospital schedule, a timetable that I think had more to do with the consultant’s golfing schedule, I discovered later, than the interests of the mother and child. The experience left some scars.

Our second child was born at home in Tower Hamlets, under a new home birth scheme that was quite radical at the time and which was set up by Dr Wendy Savage. I must say that this experience was completely different. We all felt so much more relaxed and in charge of events, as best you can be on such occasions. It all happened rather quickly and in a relaxed atmosphere and was an experience of great joy for us all. The effects of this experience on mother and child, with a competent midwife present, were quite different. I must say that even I felt quite competent in making the tea. The first experience in hospital had all been about a culture of illness at the most important moment of parents’ lives; the latter was about health and well-being.

My wife was 46 years of age when we had our third child, who is now 11. There were concerns about the patient’s age, so she was called in early for a caesarean section. On this occasion, we arrived in the maternity ward in Hackney to be greeted by a man sitting in front of a locked door with two keys for two locks. This felt more like an establishment concerned with the security of nuclear weapons than one responsible for childbirth. Eventually, we gained access and were left in a room with a broken cupboard and rubbish on the floor for two hours, before my wife was eventually shown to her bed. The next morning—the day of the operation—an unknown doctor appeared, hours before the delivery. He came to the bedside and asked: “What did Doctor So-and-so say was going to happen to you today”. No previous records from the usual consultant who my wife had seen were apparently available. Initially, the experience felt as though no one was actually in charge of either the case or the facts. I sat there as an entrepreneur who was quite used to intervening in events, but in this case I was quite out of my depth. Eventually, an external midwife arrived who was apparently on the list for that day. She immediately took charge of events and there was quickly a sense of confidence and well-being. She was fantastic.

Our family’s three experiences of childbirth are sadly not unique; what is on offer in our hospitals’ maternity services is quite varied. It is really important that the interests of the mother and child are paramount and centre stage at this important moment of life, and that they have real choice in the provision of maternity services. My colleagues and I created one of the first LIFT companies in the United Kingdom, in east London. It has now built 10 health centres in the East End. One of those new health centres, on the Isle of Dogs, has a birthing suite in it and the quality of care that the midwives give to mothers is excellent. Indeed, the then chairman of the LIFT company reminded me recently that one local East End mum had described the birthing suite, based in a local East End community, as being like a “bleeding hotel”. This is the quality and choice of services that patients deserve and for this reason, I support the amendment.

My Lords, perhaps I may speak to the amendments in this group which are in my name. First, Amendment 110A concerns NICE guidelines and is very much like that tabled by the noble Lords, Lord Newton and Lord Butler. In fact, theirs may be even better than mine so I intend to say no more than that we are interested in the Minister exploring this issue, because those noble Lords both more than adequately covered the points that need to be made in that regard. I am also very pleased to support the amendments in the name of my noble friend Lady Royall and to put my name to those, because the role of specialist nurses is extremely important.

Amendments 118, 119 and 120 concern the duty of the board to reduce inequalities. Proposed new Section 13G of the 2006 Act states that the board must,

“have regard to the need to—

(a) reduce inequalities between patients with respect to their ability to access health services;

(b) reduce inequalities between patients with respect to the outcomes achieved for them by the

provision of health services”.

This seems a rather narrow definition concerned solely with health services, which I assume flows from the continual and overriding responsibility of the Secretary of State for tackling health inequalities. I would be grateful if the noble Earl could confirm to the Committee how the Secretary of State intends to tackle health inequalities—what information he will need, where he will get it from and how those decisions will then be moved through the proposed structures of the National Health Service Commissioning Board, the CCGs and so on.

Surely, the health and well-being boards would want to have some involvement from the NHS on health inequalities, so Amendment 118 seeks to ensure that the board has health inequalities in its remit. I particularly refer the Minister to the letter from the NHS Future Forum to the Secretary of State on 17 November where it devoted much attention to the NHS role in improving public health and made its claim that the NHS must design its services in a way that both promotes good health and prevents poor outcomes. It is thus important that the legislation provides sufficient leeway to allow the NHS Commissioning Board to do this and that legislation relating to health inequalities is not confined solely to the provision and commissioning of services.

What is also important, in coming to my Amendment 119, is that funding to the clinical commissioning group reflects the deprivation levels within its area. Can the Minister tell the Committee whether there has been a risk assessment on the issues of funding? What risks has the department found that go with the levels of funding that might be made available on the basis of deprivation levels within areas?

Of course, the decision of the Secretary of State not to make clinical commissioning groups area-based is a serious problem in ensuring a population base for commissioning, but it will be doubly important to ensure that clinical commissioning groups with large numbers of deprived patients receive financial support. I would be grateful if the Minister could spell out the intended principles behind the funding associated with clinical commissioning groups.

On Amendments 110B, 127ZA and 190AA, which concern maternity services, the noble Baroness, Lady Cumberlege, has adequately covered the major concerns about those services and we would be keen to support her amendments. I am grateful to the Royal College of Midwives for its briefing on these amendments. My only questions are about maternity networks and the recognition of their potential contribution to the type of maternity care and providing clinical commissioners with expert guidance and advice on driving up standards.

The Committee will be very pleased to hear that I do not intend to share any birthing stories. On the other hand, I am concerned. Without a national standard for maternity services, how will the new commissioning arrangements avoid significant variations? We know, for example, that there is a significant variation between trusts in the number of home births that take place. We can explore the reasons for that, but I would like to know how the new structures would deal with such variations and how that would be reflected in the work of the National Health Service Commissioning Board.

My Lords, I have Amendment 112 and 113 in this group. I have a comment regarding the excellent speech of the noble Baroness, Lady Cumberlege, and would like the Minister to reply to it. NICE has suggested that all women expecting babies could have the right to consider the possibility of a caesarean birth. Before the choice is finally made, will that be associated with advice from doctors indicating that caesarean births are certainly not as straightforward as some people believe them to be, and for cosmetic reasons may be deeply regretted afterwards? I was a little worried that NICE had given this green light, as it were, to caesarean births without associating it with any form of counselling to the mothers concerned, not least because, as many people in this House will know, the outcomes in terms of morbidity and infant mortality are not as good as people imagine them to be in comparison with a normal birth. Perhaps the Minister could say something about that. Perhaps the noble Baroness, Lady Cumberlege, could also say something about it when she responds on her useful and important amendments, to which I hope the House will give an extremely warm welcome.

Amendments 112 and 113 are about strengthening the language about health inequalities. On that issue, we have had a helpful letter from the noble Earl, Lord Howe, dated 24 November, in which he sets out in detail some of the steps that will be taken, not least the creation of the Institute of Health Equity, to deal with health inequalities. My question is rather a big one but it boils down to the old problem of how one ensures that these worthy and excellent intentions are actually carried out.

The House will remember that new Section 13F of the 2006 Act proposed in Clause 20, which deals with the autonomy of clinical commissioning groups from the Commissioning Board and restricts the board’s actions in terms of having to bear that autonomy in mind, was put into a different set of considerations—the consideration of the whole of the responsibility of the Secretary of State and the responsibilities of the boards—under the headings of Clauses 4 and 10.

All of this means that we are still debating these issues without being clear about where responsibility for them ultimately lies. I do not propose to go over that ground again, but it is appropriate for this debate to notice that the whole set of duties that are laid out in detail—and to which this debate will undoubtedly add as it lays down further duties for clinical commissioning groups and the board as a whole—in a sense therefore depends upon the outcome of those discussions about the constitutional structure. That matters because we need to bear it in mind all the way through our consideration of the duties that are laid upon clinical commissioning groups.

What makes me, to be honest, even more concerned is that I recently read the discussion paper The NHS: Developing Commissioning Support, which was quite improperly, no doubt, leaked on the internet. My attention was drawn to it by a couple of doctors who had access to the internet. The paper sets out in detail the ultimate objective of moving towards a commercial market in the health service and sets it out under a considerable number of different headings. For example, there is a specific mention in this report that,

“Clinical commissioning groups will have a statutory freedom to secure the commissioning support from wherever they want”.

It goes on to say that the commissioning support should be given in a vibrant, commercial market. What worries me about all this is that I am not at all clear—and never have been in our long debate on health—about what the ultimate goal is. I suspect that we are discussing two things at the same time. One is the attempt to keep improving the existing NHS, sometimes by an extraordinary degree of micromanagement—from this House, I have to say. The other is the determination of many people in this House to ensure the safety and continuation of the NHS which is free at the point of need and which is available to people regardless of their ability to pay. Somewhere along the line and at some point, we really have to be clear what we are talking about. I do not know whether others taking part in this debate share my sense that we are walking in without knowing the constitutional responsibilities and quite where we are going.

I commend my two amendments. They both strengthen the words on equality of health outcomes. I congratulate the Government very much on establishing the Institute of Health Equity and carrying forward the detailed research we are now doing on lifestyles and many other things, which are important and which I am sure the whole House will applaud. However, I have to raise the big question about destinations. I hope that at some point before we abandon the Committee stage, we will have a clearer view about the Government’s ultimate destination: whether it is to retain an NHS; whether it is to make it more open to innovation and other contributions from the private sector, with which many of us would certainly not disagree; or whether the ultimate outcome is to move towards a commercial market system, this being essentially a transitional stage.

My Lords, this is a disparate group of amendments. I support a number of them. Some seem to be counter to others, but I hope that they will come together at some point. Amendment 110A seeks to strengthen the need to take into account the guidance from NICE. From time to time, NICE faces someone complaining about the way it goes about its business. Sometimes patient groups suggest that it is taking its time or is working against their best interests. The pharmaceutical industry complains from time to time that it takes too long and maybe gets things wrong—perhaps that is a good thing on behalf of NICE. Others complain about the methodology that NICE uses, using QALYs—quality-adjusted life years—as its measure of whether a drug or treatment is effective. Despite all that, I believe that NICE does a marvellous job, as do many who know what it does. It makes sure that the suggestion of treatments is based on clear, independent evidence of their effectiveness. Its approval is something of a kitemark for the standards that GPs and PCTs should follow and the system is envied across the world. There are others trying to emulate NICE.

This amendment makes it clear that the boards must work in accordance with NICE guidance. My question to the noble Earl is: why have the Government seen fit seemingly to weaken the role of NICE by making its advice be just that—advice—without any of the teeth that it previously had? There is a subtle difference between what its guidance means now and what it will mean in the future. It would be good to have that clarified.

I support Amendment 109A, in the name of the noble Lords, Lord Butler and Lord Newton, because it provides a little get-out clause. It definitely provides NICE guidance but it also provides the possibility for a new treatment, which has not been tried or looked at by NICE, still to have an opportunity to be used and looked at under very specific and controlled conditions. Therefore, the two amendments can be looked at together.

Amendment 110ZA refers to specialist nurses, who of course do a marvellous job. I owe them some personal gratitude, although I will not enlarge on that to noble Lords. The specialist nurses who are threatened are those in the community, who work across the community-NHS divide. They include specialist diabetes nurses, stoma care nurses, psychiatric nurses and a range of others. They do a fantastic job but, unfortunately, they are threatened. I hope we can see our way to making them unthreatened by ensuring that their joint funding, which comes partly from the local authority and partly from the NHS, is encouraged by the board and takes place. Will the noble Earl try to ensure that the board can promote this idea?

My Lords, I have put my name to several of the amendments in this group—namely, Amendments 112, 113, 115, 186, 187 and 189—all of which are aimed at reducing inequalities. The noble Baroness, Lady Williams, has spoken about this. I will not repeat her arguments, other than simply to say that my reason for adding my name to these amendments was that it struck me that the words “act with a view to reducing inequalities” were not strong enough. Unless commissioning must have regard to the need to reduce inequalities, we will not improve the health of the nation.

Perhaps I may make a comment on Amendment 109A, which is a probing amendment and refers to NICE. I just want to place on record other areas of standard-establishment, such as the National Prescribing Centre and the audits and independent service reviews that are undertaken by the medical royal colleges. These are available and can be very informative. The service accreditation standards that they have produced are aimed at driving the equality improvement agenda and draw to the attention of the Commissioning Board and clinical commissioning groups the role of audits and the information that they can receive from audits, which are intended to drive up equality and reduce inequalities in service provision.

I also have in my name Amendment 299C, which seems to be almost an orphan amendment in this group but is there. It relates to private work. My reason for tabling it is that for a long time there has been confusion over what is private and what is NHS. The Bill also highlights a complexity about what is private and what is third-sector provision. Until now, third-sector services outside the NHS have generally tended to be lumped together in regulation. We will be facing different models in the non-NHS sector ranging from for-profit, through not-for-profit, to the voluntary sector as we know it today. One of the difficulties is making sure that patients are not recruited into the private practice of an individual who sees them during an NHS consultation. The fine balance between information-giving and recruiting should be clarified in guidance. Patients may ask what the waiting time is and whether they could have their intervention, investigation or whatever done more quickly if they went privately. I am concerned that the way the information is given may skew the patient’s perception of it and the patient can then feel they actually ought to go privately. This may be for the profit of that individual practitioner but not necessarily make a great deal of difference to the clinical outcome of the patient.

It is, therefore, a very difficult and fine line, but unless we begin to address it now, we will run into the same problems as we have had, for example, with top-up payments, where we had a lot of debates leading to the establishment of the Cancer Drugs Fund across the UK. We will be facing the same situation, but more so, with many other drugs that come along for non-cancer diseases. The new biologics are very powerful drugs which can be extremely effective but are extremely expensive. I am concerned that a commissioning group might decide that one of these new biologic drugs, even though it goes through all the benchmarking standards required, is something they are just not going to pay for locally. Private sector provision will, therefore, be driving patients who cannot afford to access these treatments, who are not privately insured, and whose quality of life is so severely undermined by their illness—because it is only for severe disease that these drugs are indicated—that they will not be able to work or earn without accessing them. They could therefore find themselves in a double bind.

My amendment is, of course, a probing amendment and I would not intend it to be anything more. If the Minister does not want to respond to these points today, I would nevertheless urge him at least to consider them in the guidance produced for the Commissioning Board and providers on the interface between the public and private sectors.

As this is Committee stage, I hope my noble friends will forgive me if I play Oliver Twist and seek a small second bite. I promise to be brief and make only three points. The first picks up on maternity and the remarks of the noble Lord, Lord Mawson, about consultants versus patients, if I may put it that way. I remember, in the far-off days when I used to sign 18th birthday cards to prospective or actual constituents, noticing a remarkable bunching. If you checked back 18 years you would find a correlation with Fridays and particularly the period in the run-up to a bank holiday. Secondly, nobody else has followed up the amendment of the noble Baroness, Lady Royall, about specialist nurses. I have an interest to declare here as—there are probably other things as well—president of the Braintree Parkinson’s Disease Society and the Braintree Multiple Sclerosis Society. The importance of specialist nurses in some of these areas is both extremely great and underestimated. I hope that we will therefore not lose sight of the point made by the noble Baroness, Lady Royall, in her amendment, supported by the noble Baroness, Lady Thornton.

Thirdly, to assure the noble Lord, Lord Walton—who I thought was at one stage going to accuse me of being a wimp for not pressing this to a vote—I do not rule out returning to the matter on Report, unless the Minister is really nice to me.

My Lords, I shall speak to several amendments to which I have put my name, but I shall start with the amendment of the noble Baroness, Lady Cumberlege, to which I have also put my name. The noble Baroness is well placed to talk about maternity services. She has championed their cause, particularly regarding choice, for nearly two decades. It is she who should be credited for getting us to where we are now, whereby choice of where to have their babies is available to all would-be mothers.

The noble Baroness covered most points, and I support them all. The one on which I should like to expand relates to maternity networks. It appears that both the Prime Minister and the Department of Health have accepted that maternity networks are the way to improve maternity services, and I agree. Maternity networks have the potential to increase clinician involvement and service-user engagement in the planning, delivery and, where necessary, reorganisation of services. They also have the advantage of being able to scrutinise the performance and outcomes of all maternity providers within the network, thereby helping to drive up standards and reduce unwarranted variations in outcomes. This will help to develop shared services across the network. Thus a home birth service provided by a modern maternity unit could be made available to maternity units in areas where the home birth rate is very low.

I know that a current review of clinical networks is being undertaken for the Commissioning Board, and is due to report soon. Perhaps the noble Earl can tell us more about it. I hope that the review recommends that maternity networks be established to cover all maternity services in England. The concern is that if providers are expected to self-fund networks, there is a risk that some providers, especially foundation trusts, will not engage in networks, thereby reducing their effectiveness. For this reason, I hope that the Government will accept the case for providing some funding and support for maternity networks in the same way as neonatal networks and cancer networks have been able to access central funding and support.

One other issue that will improve the quality of maternity services, no matter where that care is delivered, is the establishment of maternity dashboards. They are a good way of auditing the outcomes on a daily basis and establishing whether the clinical guidelines have been achieved. I therefore strongly support the noble Baroness’s amendment.

The amendment in the name of the noble Lords, Lord Newton of Braintree and Lord Butler of Brockwell, is saying “comply or explain”, whereby if you do not comply with NICE guidelines you must explain why. I agree. Not all standards should be complied with, because there may be reasons why they are not. If you do not comply, you have to explain why. However, you also have to explain why the outcome for patients will be the same or better, because if the outcomes through not complying are not the same or better, you should not be allowed to fail to comply.

I understand that there might be good reasons why certain NHS bodies do not comply. Another way could be the establishment of an alternative compliance system in which organisations and clinicians are required to justify why they have not complied with the standards or, for that matter, innovations that will aid delivery of the best clinical practice. The Commissioning Board, in conjunction with senates and by way of patient pathways, could develop a compliance regime that measures, monitors and incentivises the use of innovation or compliance where these will improve standards of care. So I support the proposal, and I know that we might return later to the issue that my noble friend Lord Walton raised about innovation, tariffs and the innovation tariff. That is the other side of the coin regarding non-compliance and going beyond the standard of care laid down by NICE.

I also support Amendment 110A, tabled by the noble Baroness, Lady Thornton, which states that in discharging its duty,

“in relation to specialised services, the Board must exercise its functions in accordance with current NICE guidance”.

This amendment is related to that tabled by the noble Lord, Lord Newton, and I would cite in relation to it the specific example of rare diseases. The amendment seeks to ensure the adoption of clinical guidelines developed at a national level, a point which applies particularly to rare diseases. I would cite the example of treatment for brain tumours and other cancers of the central nervous system, which is commissioned nationally through specialised commissioning, which is due to become part of the NHS Commissioning Board. Rare diseases are currently defined by the specialised services national definition set—which is commonly known as SSNDS. In the case of brain and CNS tumours, the specialised cancer services definition explicitly cites NICE’s brain and CNS improving outcomes guidance as its reference.

I am concerned that some elements of the current framework for the treatment of rare diseases will be jettisoned in the name of streamlining. The danger then is that the link between NICE guidance and commissioning formulas used by the board will be broken. This could undermine the quality of services provided by the board to take care of people with rare diseases unless we insist that the national Commissioning Board must adopt NICE standards and that the choice of “comply or not comply” is not available for rare diseases. It is a completely different argument from the generic one put forward by the noble Lord, Lord Newton. We could have a discussion about that but my view is that a different kind of compliance is required for rare diseases.

I come to my Amendments 144 and 145, which relate to information provided by the health service on the safety of services, which is dealt with in proposed new Section 13Q on page 20 of the Bill. I wish to talk about how learning from information related to patient safety should be available to all NHS organisations; forgive me if I take a couple of moments on this.

Before I start, I should like to pay tribute to two remarkable ladies who established and for two years ran Patient Safety First in England: Vin McLoughlin, who died at the age of 55 of pancreatic cancer; and Karen Woo, a young doctor qualified at University College, London, and fellow of the Royal College of Surgeons, who was in charge of safety procedures and developing surgical safety. Karen was killed on one of her visits to Badakhshan in Afghanistan with nine other members of her medical team. I pay tribute to these two remarkable ladies who promoted patient safety in England. Many of the successes, particularly in surgical safety, are due to them.

Patient safety is a global problem. On average, around 10 per cent of admissions to hospitals worldwide are associated with some sort of unintended harm to patients. The World Health Organisation set a global challenge for member organisations to improve their patient safety. In the past the Minister has said that the Government give patient safety high priority and wish to see it embedded in all aspects of NHS care, and I believe it.

Over the past decade, our understanding has grown. It is now seen as a core focus for many in healthcare, but there are barriers. The barriers are: variable leadership at board level and among clinicians and managers; a blame culture that drives problems underground; defensive communication; limited patient safety education; not enough emphasis on building high-performing front-line teams; and a superficial approach to incident investigation which often fails to identify the underlying causes and system weaknesses.

Most of these errors are system weaknesses. Even today there are up to 3,000 reports daily to the NPSA in England and Wales. Most of the incidents do not result in any harm, but 1 per cent are reported as causing severe harm, which is often permanent, and less than 1 per cent are reported as causing death. The reporting and learning system, which I know that the Government intend to set up as part of the national Commissioning Board, uses national data to detect and understand sources of risk by spotting clusters of incidents arising from individual reports that are not often identified until data are analysed at a national level; identifying the most urgent risks by reviewing all serious incidents and deaths and providing extra points; alerting the NHS to potential for harm quickly by providing recommendations, advice and guidance to ensure that the right information gets to the right person; extracting learning by identifying key trends and patterns in incident reports and providing analysed feedback.

The work of the patient safety division of the NHS Commissioning Board, as it would be, relating to reporting and learning from serious patient safety incidents will be crucial, but as the Bill states:

“The Board must make information collected by virtue of subsection (1), and any other information obtained by analysing it”—

in relation to safety—

“available to such persons as the Board considers appropriate”.

My amendment states that it should be available not as the board considers appropriate but available to all NHS bodies and the public. That is the only way that we can embed learning that might come from one part of the NHS into all parts of the NHS and reduce the harm.

I could give examples, such as the establishment of surgical checklists, which has reduced damage and errors relating to surgery many times over; the incidence of intravenous-related infection and central venous line infections; infection rates in neonatal care; and many others.

The key messages are that both senior managers and senior clinicians need to demonstrate that patient safety is their top priority. They will do so if they are obliged to report all incidents and take note of the learning that comes from the national learning and reporting system. I hope that the Minister will accept that the amendment is apt. If he can convince me that without it in the Bill, we can achieve the same, I would be grateful.

My Lords, I start by adding my support for the amendments that change the duty to reduce inequalities by strengthening the wording from having “regard to the need” to reduce such inequalities to “acting with a view” to reducing such inequalities. Those are Amendments 112 and 113, in relation to the board, and Amendments 186 and 187 in relation to clinical commissioning groups. I do not want to add a great deal to what the noble Baroness, Lady Finlay, said in that regard, except merely to observe that the commitment to reducing health inequalities in the Bill is one of its great advantages and will be one of the great advantages and achievements of the legislation, if it is passed. I suggest that saying it loud and clear and imposing the stronger duty on the board and the Secretary of State would be the better way to achieve it.

I want to address the other amendments to which I have put my name, Amendments 153ZZA and 153ZZB, which concern the permitted disclosures of information by the board in proposed new Section 13Z2 on page 24 of the Bill. It is important to observe that the starting point for this clause is proposed new subsection (2):

“This provision has effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure”.

This proposed new subsection is about permitting disclosures by the board of information whose disclosure would otherwise be unlawful, which from the wording I take to include any disclosures that would be actionable either in tort or in contract. My concern is about how far this provision would sanction a breach of confidentiality owed to patients or others.

Most of the examples or circumstances outlined in proposed new subsection (1) are anodyne or obviously called for. The first, for instance, is that the information is already in the public domain; the second is where the disclosure has to be made pursuant to regulations, and so forth. However, the amendments are concerned with two sets of circumstances that are, I would suggest, entirely too wide. The first is under paragraph (d), where the suggestion is that disclosure should be permitted where,

“the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual”.

As drafted, paragraph (d) is without regard to the wishes of the individual concerned or, in the case of an individual suffering from incapacity, to that individual’s care. I would suggest that that smacks of a certain arrogance that ignores the rights of the individual to choose whether information about him or her is released by the board. It is for that reason that our amendment suggests that the words,

“and is made with the agreement of that individual or of a person having legal responsibility for that individual’s care”,

should be placed as a qualification to the unfettered right to disclose based on the board’s view of what is,

“necessary or expedient for the purposes of protecting the welfare of”

that individual.

The second area where we say that the disclosure provision is far too wide is under paragraph (f), which suggests that disclosure should be permitted where,

“the disclosure is made for the purpose of facilitating the exercise of any of the Board’s functions”.

That permissive subsection would give the board an overall right to disclose any information it chose, notwithstanding that it was otherwise unlawful, on the basis that it was,

“made for the purpose of facilitating the exercise of any of the Board’s functions”.

It does not even go so far as to say that it would have to be necessary for the exercise of those functions. In the view of those of us who have put our names to this amendment, those lines should go. They are an unwarranted intrusion into the confidentiality of the individual, and they give far too wide a discretion to disclose information whose disclosure would otherwise be unlawful.

This is an extraordinarily wide group of amendments—I think there are 27 in this group. I sympathise—well, almost sympathise—with the Minister in terms of how he will respond to them.

I wish to comment on just three of the amendments. The first is Amendment 144, which the noble Lord, Lord Patel, has just spoken to, about the importance of sharing information collected on the safety of services provided by the health service. Particularly in the context of what I think we will see as a fragmentation of the service, where a pattern becomes apparent that suggests that particular practices or processes challenge patient safety, it is important that that information is disseminated.

To save the noble Earl time, no doubt his brief—should he be able to find it in the mass of papers that he has in front of him—will suggest that Amendment 144 is unnecessary because the present form of words in the Bill talks about sharing information with persons with whom it is appropriate to do so. The advantage of the wording of the noble Lord, Lord Patel, is that it spells out some of those with whom this information should be shared—the CQC, Monitor, all commissioning groups, Healthwatch England and health and well-being boards. That is important because these bodies may well be aware of practices that are taking place in local facilities or they may need to be aware of what is considered to be less than safe practice. That is why it is important that the information is disseminated widely and that the organisations listed are included. Otherwise, there will be a danger that, for example, the matter might be seen as entirely technical and not worthy of distribution or as something that is circulated only to those who have an immediate requirement to know, rather than to a wider group of organisations, some of which will be locally based and may be monitoring the situation. For example, providing the information to Healthwatch England may well mean that local healthwatch organisations will be able to pick up a particular issue and advise the board on its importance.

The second issue on which I want to speak is Amendment 153ZZA. I am pleased that I gave way to the noble Lord, Lord Marks of Henley-on-Thames, because I thought that this amendment was not going to be spoken to by any of those who had put their names to it. It concerns the disclosure of information for the purposes of protecting the welfare of any individual and says that this disclosure should take place only with the agreement of that individual. I think that the amendment might be misguided because the health service has a particular duty regarding the welfare of individuals and there may well be circumstances in which the disclosure of information is necessary as a matter of urgency to safeguard the right to life of that individual. For example—this is informed by the work that I do as chair of the Independent Advisory Panel on Deaths in Custody—the board will, I think, have responsibility for commissioning medical services for prisons and custody services. Where an individual may be transferred from one entity to another, repeatedly and at short notice, it will be potentially unwise to expect that individual to have given prior approval of the disclosure of information which may be important for their safety, either because of their medical condition or because they are at risk of suicide.

If the Minister were inclined to concede our amendment, subject to a proviso dealing with emergencies of the sort that the noble Lord has suggested might be important, would that meet his objection to the amendment?

No, the reason being that it may not be an emergency situation; it may be that an individual is being passed from one agency to another. The point at issue is a risk and the mitigation of that risk. The risk may be that an assessment has been done suggesting that a person is at risk of suicide. They may well not commit suicide; there may well not be an emergency; or there may well be things that the receiving agency can do which will reduce that risk. However, there is no emergency so there would not be circumstances in which you could say it is in response to a particular situation; it is to avoid a situation arising. I am sure that there could be a form of words which would both deal with the concerns the noble Lord has highlighted and permit the sensible passing on of information to safeguard the right to life of that individual. I do not think Amendment 153ZZA quite deals with that point, and the Minister may want to respond to that when we get to that stage.

The final amendment I wish to speak to, very briefly, is Amendment 299C in the name of the noble Baroness, Lady Finlay of Llandaff. I, too, think it is extremely important that NHS services explicitly in the Bill must not use NHS business to recruit private patient business. In a context where again we will see the fragmentation of services, the arrival of all sorts of new providers and the possible blurring of distinctions between NHS provision and that provided privately by NHS practitioners, this needs to be made explicit. It is already an issue. I will cite my personal experience. The last but one time I visited my general practitioner—I think it was the first time for some five years—he declined to make the referral for secondary care I wished to have, saying that I probably had not looked after myself as well as I should have done, but then he pushed across the table a card advertising his Chinese medicine service. I thought that was extremely inappropriate—disregarding whether it was an appropriate treatment; as far as I am concerned it is non-evidence-based medicine.

Under any circumstances for there to be a blurring of the NHS responsibility of a practitioner and their private concerns seems extremely dubious. It is important it is made explicit that this is not permitted. In a previous series of exchanges the noble Earl has said it is quite clear what should happen under those circumstances. However, it does happen and what is permitted becomes increasingly confused. Even if medical practitioners are not abusing their position, or there is no blurring of those lines and everyone has been quite proper, it is perfectly feasible that patients will be confused and will not be clear as to what is happening, and that will colour future relationships they have with people providing medical services to them. It certainly coloured my relationship with that GP because on the last occasion I saw him I was extremely dubious about receiving any advice from him. I confess I referred to him as being patronising. This was perhaps inappropriate; it was certainly unwise as he was about to perform a rectal examination. None the less, it certainly coloured the relationship we had. In the interests of both patients and medical practitioners the amendment of the noble Baroness, Lady Finlay of Llandaff, should be in the Bill.

My Lords, I do not intend to follow that in a similar style. I support Amendment 144 in the name of the noble Lord, Lord Patel, to which I have added my name. I do not want to go over the ground covered by the noble Lord, Lord Patel, but I just wish to share with the Minister in particular and the House in general my own experience from introducing near-miss reporting in the NHS when the National Patient Safety Agency was established. In those good old days the figure was around 800,000 a year. The current figure, as my noble friend Lord Patel said, is of the order of 3,000 a day; it is on an upward incline.

The issue at stake in those days was not the principle of trying in effect to copy the airline industry and improve safety by having people come clean about near misses—some very serious, some less serious. No one disputed the merits of trying to learn from those experiences. Where everybody got a little concerned was around the making public of the information. I will not delight the House with some of the discussions that took place in Richmond House about whether the first lot of information should be made available, because who knew what the Daily Mail would do with it? Noble Lords will be pleased to know that the Daily Mail behaved in a predictable manner and ran screaming banner headlines about how near to death 800,000 people came each year.

The important point was that one was beginning to change the culture of the NHS, which knew that the information was being put in the public arena. The problem with the Bill is that it leaves to the board the decision about how to disseminate information. We as citizens would be better off putting in the Bill the specific organisations to which the information should be disseminated—which is what the amendment of the noble Lord, Lord Patel, does. I strongly support it and hope that the Minister will give it very careful consideration, and will carry on the publication and dissemination of the information on an agreed basis.

I will make a couple of remarks in response to the concerns expressed by the noble Baroness, Lady Williams, about a market in commissioning skills. I have no particular wish to promote a market in commissioning skills. However, as a former Minister responsible for the performance of primary care trusts, I say that many trusts seriously lacked commissioning skills. These were lacking particularly in areas such as collecting information, analysing it and using it to establish need and to procure services to meet those needs. We should not in the Bill do anything to limit the ability of the new clinical commissioning groups to receive and acquire the skills to enable them to do their job effectively, wherever the skills may be located. That is a very important part of introducing successful new arrangements for clinical commissioning.

I pray in aid of that approach the history of Dr Foster. The dear old NHS had been collecting data for decades but was unable to use them effectively to improve performance. It took an outsider coming in—Dr Foster—to use the information and turn it into something that was useful to the NHS in terms of improving its performance. We should not be too hung up on precisely where clinical commissioning groups get their skills from to do their job.

My Lords, I forgot to speak to my Amendment 137A. I will make three points. The first is not about my amendment. I say how much I agree with the noble Baroness, Lady Williams, on the issues that are the subject of all the amendments to Clause 20, and of the debate and discussions that we are having in the Chamber and outside it about the mandate. I also say to the noble Lord, Lord Marks, and my noble friend Lord Harris that there is clearly an issue about information and confidentiality that must be addressed before the Bill leaves the House.

I will also say how much I agreed with the orphan amendment of the noble Baroness, Lady Finlay. Mine, too, is something of an orphan amendment but is rather important. Amendment 137A states:

“The Board must ensure that in relation to its duties under sections 13C to 13N, those persons in the private sector contracted to provide health services must contribute in the same way as public providers towards the achievements of those duties”.

Those duties are to do with the NHS constitution, effectiveness, quality, reducing inequalities, patient involvement, patient choice, innovation, research, integration, and the impact of those services. It is very important that we have clarification that all providers have a duty to promote those.

My Lords, I am grateful to the noble Lord, Lord Butler, and my noble friend Lord Newton for prompting this debate, which brings us back to a key theme in this Bill: namely, the extent to which we can reconcile central prescription with local flexibility.

Our White Paper, Liberating the NHS, set out the case for change, and with the help of this Bill we will put patients at the heart of everything the NHS does, focus continuously on improving patient outcomes and empower and liberate clinicians to improve the quality of healthcare services. In doing so, we will build on the successful quality framework pioneered by the noble Lord, Lord Darzi, including the quality standards programme that plays such a central role in providing robust evidence for quality improvement under this Bill.

I am naturally sympathetic to the spirit behind the amendments in the name of my noble friend and the noble Lord, Lord Butler. First, I can reassure them, and indeed the noble Lord, Lord Walton, that the Bill does not impose blanket requirements to implement NICE quality standards or any other NICE guidance, or to comply with indicators in the outcomes framework—nor should it. The board will have to have regard to NICE quality standards, including in relation to those services it will be responsible for commissioning. CCGs will similarly be required to have regard to the board’s commissioning guidance, which will be based on NICE quality standards and other accredited evidence. That is a strong duty. It means that they must consider that guidance and if they do not follow it they have to have a good reason why not. I will be coming on to an explanation of the duty to have regard in a moment. The guidance will explain rather than dictate how to improve quality, efficiency and fairness.

I will just say to the noble Lord, Lord Turnberg, that when it comes to NICE technology appraisals, the Government have undertaken to ensure that the NHS continues to fund drugs that have been recommended in NICE technology appraisal guidance and to maintain the effect of the funding direction in the new arrangements for value-based pricing. So there will be no weakening of NICE’s role here, as the noble Lord suggested.

In this way, the Bill gives us a framework to improve outcomes through recognising and rewarding high-quality care based on evidence of what works best. That comes from encouraging innovation and balancing the independence that is desirable for achieving good outcomes with the responsibility to improve, which I think is the intention behind my noble friend’s amendment.

On this occasion, I am afraid I cannot agree with the noble Lord, Lord Patel, that quality standards should be mandatory for rare diseases. We strongly believe that it should be local areas that lead in setting priorities for their own patient population. Making all quality standards for rare diseases mandatory would essentially cut across that approach. We feel that a more effective way to improve quality is to provide commissioners with all the necessary support and evidence that they need to plan how best to meet the needs of their local population.

I can sympathise with the intention behind Amendments 110ZA and 137B. The Government absolutely acknowledge the important contribution that nurse specialists make to patient care, and the value that patients, their families and indeed other members of the clinical team place on having their specialist expertise and support. I am of course well aware of the value of specialist nurses to people with epilepsy and I also completely understand the close interest of the noble Baroness, Lady Royall, in prostate cancer specialist nurses.

Under our proposals, commissioners will have the freedom to commission pathways of care designed around the patient and delivered by a multiprofessional workforce that includes specialist nurses. Of course, they will have the benefit of commissioning guidance on best practice, but in the end we are committed to empowering clinicians and giving them the freedom to determine how best to meet the needs of their patients. This will include decisions about which member of the healthcare team should deliver which aspects of care. These decisions are complex and we believe that they are best made by local clinicians and commissioners working in partnership, so although I have sympathy with much that the noble Baroness, Lady Royall, said, I do not agree that the board should have the sort of role envisaged in her Amendments 110ZA and 137B. We think that they are too prescriptive.

Turning to Amendments 144 and 145, I would say to the noble Lord, Lord Patel, that safety is a key domain of quality, and I have outlined before our intention to embed a culture of patient safety in the NHS by giving the board responsibility for managing the systems for reporting and learning from patient safety incidents that are currently operated by the National Patient Safety Agency. However, I agree that it is important that information which can inform and enhance patient safety in the NHS should be made available to all those who would benefit from it, as he suggests. The NPSA currently shares information with a number of bodies with a particular role in relation to patient safety, such as the MHRA and the CQC, and this will continue to be the case. Indeed, if it did not make important information available to those who it thought could reasonably benefit from it, the board would be in breach of its duty.

In addition to NHS bodies, the information is currently also used to develop products for use by non-NHS organisations, by the devolved Administrations and by international organisations, for which the board may determine it appropriate to charge a fee. It is for these reasons that we have framed the duty to share information in broad terms, and we would not want it to be more prescriptive or restrictive than that. This is the perennial problem of trying to insert a list in a piece of legislation.

Where the board does disclose information that relates to an individual, it is essential that their confidentiality is respected whenever possible and that information is disclosed only where there are compelling reasons to do so. I can reassure my noble friend Lord Marks that disclosures would be subject to the provisions of the Data Protection Act 1998 and the Human Rights Act 1998, so any disclosures of personal information would need to involve the minimum amount of information necessary to serve the purpose. To ensure that this is clear, it may be helpful to my noble friend to know that we are working with the BMA on issues to do with confidentiality and the application of the common law in relation to the board and other bodies. We intend to bring forward any necessary changes to the Bill on Report.

My Lords, I thank the noble Earl for confirming that the Government are working with the BMA. Is it not also very important, in relation to confidentiality, that they should also work with the General Medical Council which, after all, has provided very detailed advice to doctors about confidentiality issues?

My Lords, the noble Lord is quite right, and my understanding is that we are doing that as well. Meanwhile, I can tell my noble friend Lord Marks that we will consider the provisions highlighted by Amendments 153ZZA and 153ZZB as part of this process.

My noble friend also raised the issue of inequalities. In earlier debates I highlighted the very significant departure made in the Bill that, for the first time ever in this country, the Secretary of State will be legally obliged to have regard to the specific need to reduce health inequalities, whatever their root cause. The board and the CCGs will also have this duty, which clearly emphasises our commitment to equity and fairness across the health service. We believe that the phrase “have regard to” completely captures the intention of the legislation; that is, that the board and the CCGs must consider the need to reduce inequalities in every decision they take. That, I hope, addresses the essence of Amendment 118. This is consistent, as I think it should be, with the public sector equality duty, which is phrased in exactly the same way. As the board already has a responsibility for all patients in the population, its general duty on inequalities also applies this widely.

Under Amendment 119, the board would have to have regard to the duty on inequalities in allocating resources to CCGs. We recognise fully the importance of ensuring that allocations give CCGs the resources to meet the distinctive needs of their local population. Again, our preference is not to place particular weight on one factor or set of factors in legislation. In fulfilling this duty, the board will also need to work in collaboration with health and well-being boards and local authorities. We have already debated the various duties on the board to participate in certain activities of health and well-being boards.

On Amendment 137A, of course it will be important to ensure that all providers contribute to the fulfilment of these duties. Some public sector duties, such as the duties under the Equality Act, already apply to anyone exercising a public function, which includes private providers who supply NHS services. The specific duties in the Bill are placed on the board and CCGs, and they remain responsible for exercising them even when they contract with another body to provide services. It is, therefore, incumbent on them to ensure that these commissioning arrangements, and the ongoing monitoring of services provided under them, support the fulfilment of their duties.

I am not sure whether the noble Baroness, Lady Royall, spoke to her Amendment 343A, but if I cover it briefly, it may be helpful to her. The amendment probes how long it will take NICE to produce the full range of quality standards. As the noble Baroness probably knows, the ambition is to create a core library of NICE quality standards that covers the majority of NHS activity, and supports the NHS delivering against the outcomes in the outcomes framework. The programme is ideally placed to deliver a steady stream of quality standards over the agreed timescales and this will lead to a comprehensive library of quality standards within, we hope, about five years. Therefore, I am afraid the timescale envisaged in her amendment is too short.

I turn now to the group of amendments introduced by my noble friend Lady Cumberlege on maternity services. I am grateful to her and, indeed, the noble Baroness, Lady Thornton, for giving us the opportunity to consider this question. I hope I can provide some reassurance that the new commissioning arrangements will provide a very secure basis for quality improvement in these services. Women should always expect—and always receive—excellent maternity services that focus on the best outcomes for them and their babies, and which optimise women’s experience of care. Getting maternity care right from the start can help tackle the negative impact of health inequalities and begin to improve the health and well-being of mother and baby.

We are committed to improving outcomes for women and babies, and for women’s experience of care. Three of the improvement areas in the NHS Outcomes Framework for 2011-12 focus on improving maternity services, by reducing perinatal mortality, by reducing admissions of full-term babies to neonatal units and by improving the experience of women and families of maternity services. My noble friend spoke of variation in services and that was the theme of the very powerful speech by the noble Lord, Lord Mawson. We are committed to ensuring consistency in the quality of maternity services. From April 2012, a maternity experience indicator will be introduced as part of the NHS outcomes framework. It will allow us to chart a woman’s experience of care through antenatal care, labour, delivery and postnatal care.

To support the NHS in improving outcomes in pregnancy, labour and immediately after birth, the National Institute for Health and Clinical Excellence is developing new quality standards based on the best available evidence on antenatal care, intrapartum care and postnatal care. It is outcomes and quality that matter, and the NHS Commissioning Board will be publishing a commissioning outcomes framework for clinical commissioning groups. The commissioning outcomes framework will rely on the national outcomes framework set for the board and NICE quality standards. On top of that, the NHS Commissioning Board could decide to include guidance on the matter in the commissioning guidance that it must publish for CCGs and to which CCGs must have regard.

Women tell us that being able to make informed choices that enable them to personalise their maternity care is important and that the choice of where to give birth is most important. The birthplace in England study published last week provides evidence for the first time that women with straightforward pregnancies can choose whether they would like to give birth in a hospital obstetric unit, a midwifery unit or at home, knowing that giving birth is generally very safe. But there are some important differences between these birth settings in benefits and risks for mother and baby. This study will help NHS organisations around the country to design excellent maternity services based on what women want and need.

We made extending choice of maternity services a key priority for the NHS, as reflected in the operating framework, so that women have access to a full range of services close to home. As recommended by the NHS Future Forum, the Secretary of State’s mandate to the NHS Commissioning Board will set clear expectations about offering patients choice—a choice mandate. This could include expectations relating specifically to choice in maternity services.

Finally on maternity networks, we heartily endorse the important role that clinical advice will play in supporting the board to fulfil its duties and carry out its functions effectively. We will explore with the NHS Commissioning Board over the coming weeks how to ensure that maternity networks can provide the expert clinical advice that commissioners will need in a flexible way, responsive to local arrangements. I would, of course, be happy to write to my noble friend with further detail on that subject.

My noble friend asked about indemnity in relation to independent midwives. Current membership of the NHSLA schemes is open only to NHS bodies. We are currently looking at reforming NHS indemnity arrangements in the context of this Bill. We remain committed to ensuring that all providers of NHS care have access to NHS indemnity arrangements in future and are pleased that One To One (North West) Ltd has secured indemnity for independent midwives. We hope that this solution will work for other groups of independent midwives as well.

On the question of maternal request for caesarean section, NICE guidance makes it clear that caesarean section is a major operation and that women who request it should consider all risks with the healthcare professionals, including midwives, obstetricians, anaesthetists and others, if appropriate. If, after having advice, a woman still wants a caesarean, her request should be honoured.

I turn to Amendment 299C, in the name of the noble Baroness, Lady Finlay. I shall of course consider the points that she made, as I always do. However, for elective services, patients already choose their NHS services—or NHS care in a private provider, if that is what they want—before they even attend as out-patients. It is a little hard for me to see how they could be poached by foundation trust staff for private work; there would be no incentive for patients to pay for something which they are already in line to receive on the NHS. Using NHS business to recruit private patient business would be against accepted professional practice; it could lead to a charge of misconduct, handled by the profession’s regulator, which would put professional practice in jeopardy. Foundation trusts could also view such practice as a breach of contract, since poaching their patients would lose them money.

On the issue of conflict of interest in referrals by GPs, we will not allow a situation to arise where profits can be made at the expense of patient care or choice. Clinical commissioning groups will not be directly responsible for commissioning services that GPs themselves provide—that will be the responsibility of the board. CCGs will be commissioning organisations; they will not be able to provide services in their own right. The NHS Commissioning Board will be responsible for commissioning primary medical care and holding contracts with individual GP practices in their role as providers. Through GMC guidance doctors will be, as they are now, under a duty that any commercial interest that a GP may have in a company must not affect the way that they refer or prescribe for a patient. The proposed reforms to NHS commissioning arrangements do not in any way alter the existing duties of GPs, as clinicians, to provide high-quality primary medical care to meet the needs of their patients, as required under their contracts.

My noble friend Lady Williams asked what the destination was for these reforms. I reassure her that the destination for our modernisation of the NHS is to safeguard the values and principles that the NHS is based on. That is the case now; it has always been the case and will remain so. On my noble friend’s specific point about commissioning support, clinical commissioning groups will not be able to delegate their commissioning function but they will need support. Commissioning support is the assistance which commissioners, both CCGs and the board, can draw on to help them deliver their functions. Good commissioning support will help CCGs and the board to concentrate better on the clinical and locally sensitive aspects of commissioning to make the best use of resources available to the NHS. That support could come from the talents of their own employed staff or, if they choose, from outside bodies. We are talking here about things such as data analysis, back-office functions and other areas.

It is important to recognise that PCTs can and do currently hire independent sector support for their commissioning functions. That is not commercialisation or privatisation of commissioning but using the available resources to get the best support. It will be for GPs and their colleagues to decide which commissioning activities they do for themselves and which, if any, they choose to buy in from external organisations. It is entirely up to them. I hope that what I have said provides additional clarity and, indeed, reassures the two noble Lords, and that it will enable the noble Lord, Lord Butler, and my noble friend Lord Newton, in particular, to withdraw their amendments.

My Lords, can I ask the noble Earl a couple of questions, on which I would be grateful if he could write to me and to any other noble Lords who are interested? I found two of his answers a bit unconvincing. The first was on Amendment 144, tabled by the noble Lord, Lord Patel. I would really like to know how the Minister will ensure that the board will disseminate this information on patient safety and put it in the public arena to a wide group of people. At the moment, as the Bill is, it is left totally to the discretion of the board as to how it will behave. Secondly, I did not find the Minister’s answer on rare diseases and mandatory guidance very convincing. I would really like to know what discussions have taken place with those such as the Royal College of General Practitioners and clinical commissioning groups, about their appetite for making local decisions on these very rarefied diseases without the kind of mandatory guidance that the noble Lord, Lord Patel, spoke about. I do not expect an answer now but I would like some more written guidance on that.

My Lords, I was heartened by a lot of what my noble friend said about maternity services, but it seems that the variations will be reduced through NICE quality standards. I understand that NICE has a very long queue of services to be considered for quality standards and I wonder whether my noble friend and the Government have any influence over which services have priority to have their standards set early and which will have to wait. As maternity involves a tremendous number of women who are giving birth, it is really important to get it in the front of the queue, as far as possible.

My Lords, can my noble friend tell me where in the legislation it is made clear, if a CCG were to have a conflict—that is, a disagreement—with the commissioning support organisation, where and how that conflict would be resolved?

My Lords, in the interests of time I suggest that I write to noble Lords on those questions, and I am happy to do so. However, I say to my noble friend Lady Cumberlege that I recognise the particular importance of the maternity quality standard. I will try to find out for her what stage NICE has reached or is likely to reach within a certain timescale, and if I can provide her with any further information I will be happy to do so.

My Lords, I am grateful to the Minister for his comments in response to Amendment 109A and I thank the other noble Lords who have supported it. The noble Lord, Lord Newton, said that this is a probing amendment. As the Minister has said, there is a question of balance here: we want the Commissioning Board to be an effective promoter of standards, but on the other hand we do not want the arrangements to put an unnecessary brake on innovation. I am sure that the noble Lord will consider carefully what the Minister has said. In the mean time, I beg leave to withdraw the amendment.

Amendment 109A withdrawn.

Amendments 110 to 120B not moved.

My Lords, the amendments in my name are about patient and public involvement, and accountability to patients and the public. They would amend new Sections 13H, “Duty to promote involvement of each patient”; 13I, “Duty as to patient choice”; and 13J, “Duty to obtain appropriate advice” by the Commissioning Board, in the 2006 Act. I shall also speak to Amendments 141A and 206A. The latter is in the name of the noble Baroness, Lady Hollins, who unfortunately had to leave for another engagement but will return later.

All these amendments are about the requirement for the NHS Commissioning Board and all clinical commissioning groups to engage in meaningful and substantial consultation with users of services, particularly with regard to ensuring that commissioners commission services and pathways that are navigable and coherent.

The current requirement to be placed on the board and the clinical commissioning groups is that they must make arrangements to secure that individuals to whom the services are being provided are involved. It is not enough for the suggested means of doing this to be quite as open-ended as the Bill suggests. The Bill implies that this consultation is really aimed at representatives of patient groups, and I would like clarification from the Minister that both individuals and groups of patients should be able to make representation. It is quite easy to conceive of a situation in which a patient is consulted or provided with information and yet is none the wiser and no more involved in the services that they receive.

Within this amendment is the implicit recognition that different patient groups may need to be treated differently when it comes to getting advice or consultational services. Providing a consultational service that adopts a “one size fits all” approach would be cheaper than one which took the needs of individual groups into account. I use the example of my noble friend Lady Hollins and the Royal College of Psychiatrists about adequate consultations with users of mental health and learning disability services, where individual patient consultation would not be appropriate. The crux of this group of amendments is therefore a proper definition of what it means to involve service users in the design and commissioning of the services they receive. An understanding of involvement which limits the patient’s role merely to being the recipient of a service, would be one that renders the current wording of “requirement” useless.

The inclusion of the word “involve” necessitates an active role for the patient in the commissioning processes. Different patient groups will require different levels of consultation involving different clinical and social networks in order for them to be considered to be actively participating. The board and clinical commissioning groups will be responsible for ensuring that the procedures are in place to make this happen. By explicitly stating in the Bill the requirement to arrange for patients to be involved, the necessary assurance will be provided. My Amendment 128 therefore requires the board to publish in its annual report a paragraph on what advice it received and what it did with it. I beg to move.

My Lords, I have put my name to several amendments in this group, some of which are in my name only. Initially, I will speak to Amendments 125A, 125B, 195A and 195B. These are designed to ensure that the Commissioning Board considers the potentially destabilising effect of new providers choosing to deliver only simple or profitable services, and the effect on existing providers who provide a wider range of services. Clause 101 includes provision for providers,

“to set transparent eligibility and selection criteria",

in relation to treating NHS patients. This is intended to ensure that risk selection does not take place on the part of providers, whereby they accept for treatment only less complex cases or patients, with a view to maximising profit. The Bill also instructs Monitor and the board to take account of the different types of patients treated by providers, and the range of services offered. The amendments suggest that this must also be considered in the national tariff, when that is used, because in looking at tariff adjustments, the Bill does not adequately safeguard against the potentially destabilising effect on existing providers, where other providers choose to deliver only simple or profitable services.

This could increase the relative burden on those providers who deliver a wide range of services, including ones that are more complex and less profitable; also when they provide support at a tertiary rather than a secondary care level, they are providing support into other secondary care services. The amendments would ensure that when the board and clinical commissioning groups discharge their duties in relation to patient choice, they have regard to the effect on the stability of the local health economy and the providers within it; and that they provide this wide range for their patients.

I have made inquiries about what is already happening around the country and I am grateful to the British Association of Dermatologists for giving me some information. It has reported to me that private providers already appear to have been awarded contracts without the appropriate range of specialist staff in situ when starting a service; and private providers appear to be contracted to deliver services that are not necessarily integrated with the existing local secondary care services. They are also decommissioning in isolation without looking at the impact on other local specialist services. For a subject such as dermatology, that becomes really important, because it has a small but important role when extremely complex conditions are looked after by other secondary care providers, and where sometimes the skin holds a light to the true diagnosis.

The association has also drawn to my attention the problem in which some providers set up outpatient clinics which have no educational component. By doing that, they are setting up clinics which are unsuitable for secondary care training, both to doctors in training and nurses who want to train to become specialist nurses. This is a field in which a rising number of specialist nurses have an increasingly important role. The amendments are also designed to make sure that choice is appropriate and that the Commissioning Board does not have to prioritise patient choice over efficiency and effectiveness; quality of services; or over its duties to reduce inequalities and promote integration. These are important duties in the Bill, which many of us have welcomed. I hope that the priority for those is paramount, because they will affect the population at large and reduce inequalities.

Regarding Amendments 175A and 175B, I want to outline briefly why it would be important to be able to appoint a secondary care clinician from within a clinical commissioning group area, rather than being restricted either to somebody from outside the area or somebody who is retired. As we have already debated, there is a great need to promote integration. The report Teams Without Walls, to which I have already referred, stressed the importance of this integration with clinical leadership across primary and secondary care. The Government’s commitment, in response to the Future Forum’s report, that clinical commissioning boards would include at least one specialist doctor and a nurse was welcomed. I hope there will be some reciprocity by having a general practitioner representation on the board at foundation NHS trust board level, at a governance level, to facilitate such integration.

I was concerned that the Secretary of State for Health stated that a hospital doctor on the Commissioning Board should either be from outside the area or be retired. I was particularly concerned about the latter, because there did not seem to be any statement about how recently that person should have retired. People rapidly become out of date with what is going on in an area. For those doctors who work in a fairly large geographical area, it would mean that the secondary care doctor may have to travel a great distance, and perhaps be represented on the clinical commissioning group of an area where the secondary care services are pretty well unknown to him. In saying that, I draw on my own experience of being previously on a health board simply adjacent to the one in which I worked. There were many times when I felt I could contribute much more at a local level, across different services, because of having an in-depth knowledge, than having to explore the various ramifications of secondary care services in the area of the health board on which I sat before I was able to contribute fully to the debate within the board itself.

I also believe that it would help to drive up standards if somebody came from within the board. In saying that, it is important that we learn lessons from problems that have arisen. No one wants to prejudge what the Francis inquiry will recommend but the transcript of the oral evidence that doctors gave to the inquiry appears to indicate that the doctors and the hospital were isolated; that they did not have good networks with other local doctors who worked in different environments; and that when they complained about standards of care they did not report their concerns outside the trust’s structures. That suggests a degree of geographical isolation. There would be merit in reconsidering the stipulation and the restriction that the doctor must be drawn from outside the area.

I do not believe that appointing a clinician from within the clinical commissioning group area results in an unmanageable conflict of interest. First, the role of the secondary care doctor is to offer expertise to inform commissioning decision-making, not to represent one hospital or one specialty. Secondly, GPs will have the same degree of conflict of interest. Therefore, I suggest that the safeguards against this affecting their decision-making need to apply to other healthcare professionals—whoever they are—who sit on the clinical commissioning boards. That also applies to the nurse who sits on the board.

Since the secondary care doctor would not represent any one provider or specialty, there would be no conflict. The model of having a single representative across specialties is not new and exists within the current system—for example, with medical directors in trusts. Other clinical advice will come from clinical networks and senates, and there will be a degree of co-terminosity in the advice received by the clinical commissioning group. That might allow a degree of consistency, which would support some of the difficult decisions that the group will have to make, particularly about issues such as decommissioning services. Therefore, the secondary care doctor will not be able to overrule or push a personal agenda. They will be bound to governing board decisions in the usual way and should have no right of veto. I hope that the Government will reconsider the position of the person on the clinical commissioning group.

For the involvement of patients, it is important to differentiate between public involvement and the involvement of each individual patient in the management of their care and treatment. Amendments 194 and 195 seem important if the mantra and important principle of “no decision about me without me” is to be made real. That phrase is one of the most important things that this Government have put in place. It is certainly a phrase that I have often used in making presentations about various aspects of healthcare delivery.

The importance of involving patients is made clear when you look at the 17 million patients with long-term conditions, many of whom provide more than 80 per cent of their care themselves or with the help of their relatives. If patients understand what is going on with their illness and how to manage their condition, their demands on the health service will decrease. The Health Foundation is developing ways of embedding techniques for supporting people to manage their care and treatment through its Co-creating Health programme. This has already been shown to have excellent outcomes by empowering individual patients to take a degree of control over their own illness and condition. Therefore, I hope that the amendments in my name will be considered by the Government in revising some of the apparently restrictive aspects of the Bill.

My Lords, I rise to speak in support of Amendments 124, 125, 126 and 196, which are in my name in this group. These amendments are on slightly different aspects of patient involvement and patient choice in new Sections 13H and 13I in Clause 20.

Amendment 124 adds words to the duty under new Section 13H to promote the involvement of each patient. Nothing seems more likely to promote that involvement than ensuring that patients have easy access to their own medical records and, even better, hold their own medical records. The amendment puts those matters in the Bill as part of the duty of promoting patient involvement in decisions about their treatment and care. If patients are to be involved in decision-making, it is important that they can be confident about the information about them that is being held by clinicians and used by those clinicians in making decisions about them. We have moved a long way from a position in which doctors could say, “Trust me, I’m a doctor”. That is not to say that patients do not place a lot of trust in doctors, but the more examples of systems failure that patients hear about, the more I suspect they will want to be sure about what the system has on record about them. This is particularly true when we are dealing with end-of-life issues. Some of us are very keen to ensure that doctors and nurses observe our advance decisions in living wills that are placed in medical records rather than just make decisions on our behalf.

Amendment 125 literally follows on from Amendment 124 and reflects a number of conversations that several of us have had with National Voices, which speaks on behalf of many charities, especially those representing people with long-term conditions. National Voices, with assistance from the Health Foundation, has drawn on a lot of work to distil what it believes service-users expect from those commissioning care. The noble Baroness, Lady Finlay, referred to the work being done by the Health Foundation. This work with National Voices was born from the huge frustration of patients, service-users and carers about the way that they are often treated by those providing services. National Voices has also set out the results of this work in an excellent document called Principles of Integrated Care. Many Members of this Committee may well have a copy of it. If the Minister has not seen it, I commend it to him. I am certain that it has been sent to Sir David Nicholson. Around 50 chief executives or chairs of voluntary organisations involved with National Voices signed a letter to him, commending this piece of work.

Amendment 125 tries to ensure that there is a clear obligation on clinical commissioning groups to pay heed to patients’ and service-users’ voices in their commissioning of services and that the board issues guidance in this area to clinical commissioning groups. I hope that today the Minister will at least take away this amendment, discuss it in detail with National Voices and those of us who are involved in this area, and agree a version that can be included in the Bill and with which everyone is content. Of course, if he wishes to say “Snap!” to these words, we will be delighted. I emphasise that Amendment 125 does not come from the fertile minds of people in this Committee. It comes from the experience and views of many thousands of people with long-term conditions whose representatives have discussed and researched this very thoroughly within the ambit of the Health Foundation and National Voices.

Amendment 126 is on a different topic altogether. It tries to sharpen the duty of patient choice in new Section 13I in Clause 20, which in my view is pitifully vague. When they are exercising choice, people need to know what the speed of access to diagnosis and treatment is; where the location options and alternative providers of service are; and some information on the different levels of performance by those providers. Choice cannot be exercised in a vacuum. If people are to exercise meaningful choice, they need information that they can draw on to make their decisions about what is best for them. They should not simply be guided to local incumbents, which is too often the case in the system as it works now. Very often, those local incumbents may not be the best option for the patient seeking services for their particular condition at a particular time in their life.

I speak with some confidence on this, having spent two years as a Health Minister trying to advance the cause of patient choice. I have had a fair exposure to clinical views about patients not wanting it and just wanting a good local hospital. I have seen at close quarters commissioners in excessively close relationships with local providers. I have heard the voices of patients frustrated at being denied the information they need to exercise choice. I have experienced, at first hand, consultants declining to place their consultation slots on the Choose and Book system. I know that we need much more than the vague wording of new Section 131 in Clause 20 of the Bill. I hope that the Minister, who I know to be a strong advocate of patient choice, will throw away his brief and say yes, we do need more specific wording of the kind in Amendment 126.

I hope the Minister will do likewise in respect of Amendment 196, which applies the same increased precision to the duty as to patient choice and places it on clinical commissioning groups as well as the board. I will not go over the arguments again, as they are exactly the same as those I have deployed on Amendment 126. It is even more important to disturb the cosiness of provider incumbency when we come to clinical commissioning groups. I have added a little piquancy to the clinical commissioning groups amendment by a specific reference to end-of-life care, where we badly need more options for people to choose from if their preferences are to be delivered.

I have spoken for too long already, but I also wish to add my support to the amendments in the name of the noble Lord, Lord Patel, to which I have added my name.

My Lords, I shall speak to Amendments 127B and 197B. As they relate to pharmacy, I declare an interest as the chairman of the Council of the School of Pharmacy, University of London. The intention of these amendments is to ensure that all relevant healthcare providers, including community pharmacists, are consulted when the NHS Commissioning Board and commissioning groups are discharging their functions and developing their business and communications plans. The essence of these amendments is to retain the long-standing arrangement whereby, under the 2006 Act, commissioning bodies have to consult widely and in good time with all relevant stakeholders, including local service providers or their representatives.

Under the current system, primary care trusts are required to consult widely in relation to their commissioning duties. There is concern in the pharmacy profession that the current provisions under Clause 20, new Section 13J, for the board, and Clause 23, new Section 14V, for clinical commissioning groups, to obtain appropriate advice are too vague. It is important that consultation with all local healthcare providers should be done via local representative bodies as well as directly with providers. Clinical commissioning groups should consult pharmacy professionals when making decisions in relation to the commissioning of relevant services in order that the professional skills, knowledge and expertise of pharmacists are used in planning, commissioning, delivering and evaluating NHS services. They should also demonstrate arrangements systematically to seek the views of all appropriate local clinical groups throughout the commissioning process, in general and for particular services. This would include ensuring that all local representative committees are fully engaged in the commissioning process and signed up to the outcomes agreed.

As part of their local leadership role, clinical commissioning groups also need open and transparent processes for reconciling different professional perspectives and contingency arrangements for seeking the agreement of non-GP professional groups in the case of urgent service change. These processes should be clearly set out as part of the CCG’s governance procedures for commissioning decision-making. The above will be of particular importance in the immediate term, given the influx of new commissioners into the market, to ensure commissioners commission services effectively. Without relevant healthcare providers being consulted, the different contributions that such providers, including pharmacy, can make to local healthcare could be lost.

If used effectively, pharmacy has the potential to deliver a great deal more both to patients and commissioners. For example, it is estimated that some 57 million GP consultations each year involve minor ailments which could be dealt with at a pharmacy. If these patients could be moved to a pharmacy, more than £812 million could be saved annually, and GP capacity could be freed up to deal with more complex cases.

In summary, it is critical that there is a duty on commissioning groups, when developing their commissioning plans, to consult primary care providers such as pharmacists as there is a danger under the proposed legislation that some groups may not do so, leading to ineffective commissioning of services. At the Royal Pharmaceutical Society Conference in September, the Minister said that pharmacists are pivotal to every aspect of the Government’s plans to modernise the NHS. I find those words very encouraging and hope that he can give further encouragement in the course of this debate.

My Lords, I support the amendment of the noble Lord, Lord Warner, on patients holding their own records. Speaking from personal experience, I know that it was not uncommon in maternity services years and years ago for patients to be given their old, shared maternity card. The difference was that that card was extra to the actual notes, so what doctors and midwives wrote in those cards was probably an abbreviation.

For 25 years of my life, I allowed patients to carry their complete set of records, thus avoiding having to write another card. That meant that what you wrote and what you told the patient had to be precise, and clear thought had to be given to the purpose of writing it down. It also taught people not to use abbreviations that do not mean anything, or that might be misconstrued. It is not uncommon for doctors to use abbreviations such as SOB or NAD. They do not mean what you think they might mean. SOB stands for “Shortness of breath”, and NAD stands for “No abnormality discovered”. This also meant that when you were putting the results of diagnostic tests into the notes you were forced to explain to the patient what those results meant. If the results were ambiguous, then you had to explain to the patient what that ambiguity was. That improved the quality of record keeping, communication with the patient and the quality of care given to the patient. In 25 years of allowing thousands of my patients to carry their own notes—and some of the noble Lords sitting today are well aware of my habits—I lost only two notes. One was eaten by a dog in the patient’s house and the other was torn up after being left by the mother-to-be on a bus. Apart from that, there was no loss of notes, while in hospitals usually you can hardly find any notes.

There is a double issue here. How do we make notes that are compatible—easy to write and yet which communicate with the patient. An electronic version is better, but even a hand-written version works. I am convinced that allowing patients to carry notes is not a problem.

My Lords, this is an extremely important group of amendments, but I hope it is, by and large, an uncontroversial one. The Government say they are committed to patient involvement and patient choice. They say they want to see all decisions being taken with the patient rather than simply by professionals. These amendments all contribute to achieving those objectives. It is worth distinguishing between a number of different elements in terms of patient involvement. There is the involvement of the individual; there is the involvement of the specialist group of patients; and there is the collective involvement of patients. I hope that these amendments provide a means of addressing all three groups.

The involvement of the individual patient—specifically included in Amendment 121 and in Amendment 124, to which the noble Lord, Lord Patel, has just spoken, on access to medical records—is an example of where it is vital to write this into the Bill if you are serious about the Government’s mantra of, “No decision about me without me”. The experience is that, where patients are involved in all decisions about their medical care, better decisions are made and compliance with them by patients is far fuller than would otherwise be the case. Therefore, requiring patients to be involved in every decision affecting them is part of delivering a good and effective health system. My experience mirrors that of the noble Lord, Lord Patel, because the experience of patients’ organisations is that, where patients are given charge of their medical records, they look after them extremely carefully—often much more carefully than under the old system of trolley-loads of not dog-eaten but dog-eared files in hospitals—and are much more likely to be protected by the individuals concerned.

I have put my name to Amendments 123, 192 and 205, which talk about the involvement of healthwatch organisations. Amendment 123 places a duty on the board to promote the involvement of local healthwatch, and it is important that the board sets the tone for the NHS in the way in which healthwatch organisations are expected to be involved at every level. It needs to come from that level. Amendments 192 and 205 relate to the duties of clinical commissioning groups. There is a gap in the Bill, because it seems to be implied that commissioning groups will involve patients and healthwatch organisations, but I am not sure that that is stated explicitly, which is why those amendments are so important.

However, the reason why it is helpful to engage healthwatch at every level within the NHS is the support function that local healthwatch organisations and HealthWatch England will provide to the three levels of patient involvement that, as I have stated, are so important. That is because, as local healthwatch organisations and HealthWatch England, they will have an understanding of the way in which the health service is functioning. They will have an understanding of the pressures on the health service, commissioning groups and local providers and they can therefore support specialist groups of patients with a particular knowledge of their condition in how to exercise their influence most effectively within the organisation. It is those specialist groups of patients who will be tremendously valuable in improving the quality of service. They will often have far more knowledge about the way in which their condition operates than even the clinicians who support them—maybe not the specialists but general practitioners and so on—because they have that detailed knowledge and experience, day in and day out, particularly when they have a chronic condition that may continue over many years. That involvement is crucial in terms of the quality of decision-making, but it is important that they are supported by organisations such as healthwatch, which will then be able to put a context to the way that the local NHS is functioning.

Finally, there is the critical issue of the collective involvement of patients in decisions about the disposition and organisation of health services at a local level. That will be best articulated through local healthwatch organisations. This will be about what best serves the local community and what meets the differing needs within a community. The only simple mechanism by which that can be achieved is through something such as local healthwatch organisations. That is why such involvement must be built into the commissioning process, and the board must lay down how crucial this issue is crucial to the determination of services.

I shall speak to Amendment 198 in my name and that of my noble friend Lord Patel. It would impose a duty on clinical commissioning groups to consult relevant academic bodies in their area, including potential future academic health partnerships. I remind noble Lords of the entry in the Register of Lords’ Interests on my involvement in University College London Partners—one of the five academic health science systems currently designated by the Department of Health.

Academic health science partnerships can take a variety of forms but are all based upon a simple principle: the delivery of healthcare should be combined with high-quality teaching, training and research to drive the highest possible clinical standards achievable. Indeed, throughout healthcare systems in the world it is well recognised that alliances between the academic and service-delivery elements of healthcare help us to achieve the best possible clinical outcomes. That view has been recognised by the Department of Health in the designation of the five current academic health science centres in our country.

A number of other initiatives are moving forward at the same time as this Bill and are considering a broader role for academic health service partnerships. These include the ongoing review, conducted under the auspices of the chief executive of the National Health Service, which is looking at innovation in the NHS and how that might best be promoted as we move forward. It is possible that that innovation review could propose a broadening of the current five academic health science centres to a larger number of academic health partnerships that would have responsibility for the promotion of innovation, and would ensure that the results of research and other innovative ways of delivering care are more broadly and rapidly disseminated across the NHS. That dissemination of best practice and innovation could also be used to create an environment in which to stimulate economic growth. That is an important additional opportunity that the NHS and academic medicine have for our country.

There is also the detailed discussion that has taken place in Committee, outside the Chamber, and in the work of the NHS Future Forum with regard to future arrangements for education and training. In those discussions, there is a recognition that academic health partnerships should play an important role, not only in the configuration of Health Education England but in local arrangements, potentially with academic health science partnerships playing an important role in defining the structure and core of local education and training boards.

Therefore, at least two initiatives, in addition to the mechanisms and structures proposed in the Bill, will turn to partnerships between the NHS, academic institutions and other academic elements in the delivery of healthcare in our country. The purpose of my amendment is probing in order to try to understand what view Her Majesty's Government take of the potential future role of academic health partnerships and what relationship the Government foresee with regard to clinical commissioning groups working at a more local level with potential academic bodies and partnerships in their vicinity. This is particularly important because we heard today in Committee about the vital importance of clinical commissioning groups being appropriately informed. One of the important roles that academic health partnerships may play in the future is providing that kind of information to better inform the decisions that local clinical commissioning groups take. With the vast amount of evidence that academic health partnerships will have in their structures, bearing in mind that these partnerships are broad and include not only academic institutions but a variety of different service providers brought together with a common purpose, it would be peculiar if clinical commissioning groups did not at least make themselves informed of their information and expertise. It would also be peculiar if, in creating a framework and structure for education and training based around a partnership between academic elements and service and provider elements at local level in local education and training boards, clinical commissioning groups did not avail themselves of the opportunities from that.

Previously in Committee, I proposed to the Minister that clinical senates may be constituted around these broad partnerships of academic health service alliances. There was some concern that this might represent a conflict of interest. However, the very broad nature of these partnerships, with multiples of potential providers as seen in the current five academic health science systems, potentially overcomes the risk of conflict of interest. They provide a natural structure and environment to serve the function of clinical senates, to serve the function of the core of local education and training boards, to provide a useful source of information to clinical commissioning groups with regard to understanding the best pathways of care available in their regions and to promote clinical outcomes, patient safety and patient experience. They also provide a very important basis to serve the objectives of the current innovation review to promote not only best practice but the benefits of economic growth associated with innovation and implementation with regard to healthcare.

I would like to ask the Minister about Her Majesty’s Government’s view of the future role of academic health partnerships, with specific reference to clinical commissioning groups, to understand whether there is an intention that the current five academic health science centres are more broadly expanded into health academic health partnerships. If they are, how will arrangements be made in future to ensure that clinical commissioning groups avail themselves of the great expertise and knowledge that will be available in such partnerships?

My Lords, I agree with my noble friend Lord Harris that this is an extremely important group of amendments. I rise very briefly to support those emphasising the significance of patient involvement and, in particular, Amendment 191 in the names of the noble Lords, Lord Patel and Lord Warner, which changes “promote” to “pay regard to”.

There is no doubt that we have made progress in recent years in addressing patient interest and hearing the voice of patients and carers, and we should acknowledge that. We still have a long way to go, however. When you work with groups of patients and carers, or with individuals, you always get the same reaction. They say something like, “I feel consulted out. I have been to every meeting, I’ve talked to every clinician, I’ve given my opinion endlessly, I sometimes think they add the words ‘patient’ and ‘carer’ to every paragraph of every document that comes out of any commissioner, but what I do not know is what happens as a result of my involvement”. This is what we must bear in mind. Changing the wording in that amendment would strengthen the ability of the patient, the user and the carer to ensure that something happens as a result of their involvement. That is what we must concentrate on. We should never forget that the involvement of patients is not a tick-box exercise; it is there to ensure we shape services around the needs of patients, not the convenience of commissioners.

My Lords, I rise to add a number of comments to one or two of these amendments. I have my name on Amendment 196, also in the name of the noble Lord, Lord Patel, which is about making choices real for patients. My experience is exactly the same as his—that patients have actually benefited very little from the wide range of choices they could have if they understood the information about accessibility, about the sort of provider, about the range of other services that that provider might have and about the performance of that provider. If you are skilled you can use information available on the internet now to find details on the various providers you have been offered under the “Choose and Book” system used by general practitioners. However, the vast majority of patients simply do not have the skill to negotiate the choices. Making that choice a reality is therefore vital.

I also support the amendments proposing that patients, wherever possible, should carry their own records. To cheer up my noble friend Lord Patel, I say that he will be reassured to know that most maternity units now do have the patient carrying their own records, and that has proved to be of great benefit because they hang on to them when the NHS loses them. It has worked very well in maternity services and I certainly support it. There should be more of that in mental health services, where there has been too much holding on to information—not always accurate information—in patients’ records. It would be much better if the patient held on to those data and was able to carry a great deal of the data with them. Of course, it would be much better if people had access to information on simple records but they do not because we do not have electronic patient records in every place. The more information the patient can carry with them, the better it is for those who are going to encounter them in the future; it is also better for the patient to have accurate data about their condition.

I come now to the question of whom the clinical commissioning groups should consult in the way of secondary providers when commissioning care. I do not support the amendment of the noble Baroness, Lady Finlay, which suggests that the specialist on the clinical commissioning group should be local rather than a person from another area. No doubt when you have too much conflict of interest, specialists on a clinical commissioning board, and a PCT which engages with the local providers and takes account of their desires, local institutions become favoured. We have seen that many times. It is simply the institution the provider belongs to. That is when you are making a decision, so it is very important that the decisions should be made by somebody who can input and hold in their heads all the necessary secondary specialist information. The decision should nevertheless not be made by a local person with an interest in secondary care.

However, when it comes to gathering local information, local institutions and specialists in those institutions should be consulted about what is possible in the area, what has been done before and what could be thought about in the future. That is where primary care trusts in some parts of the country so often, unfortunately, have not appreciated what they could benefit from locally in terms of academic health partnerships and how they could use their academic health science groups to assist them with the commissioning function. They need to take account of what is available locally, and need to understand and get help and consult with local academic institutions and providers, but when the decision is made it should be made by individuals who do not have a conflict of interest locally.

My Lords, I shall speak briefly to Amendments 193 and 197, amendments to proposed new Sections 14T, on promotion of involvement of each patient, and 14U on the duty as to patient choice.

The Bill and our debates on it have been characterised by a recognition of the importance of patient involvement and patient choice, and a great deal has been said about those two things in this debate. It is important that we recognise and welcome the new Sections 14T and 14U to the NHS Act, which will enshrine those in statute, but it is also important to note that this is not an entirely new idea. In many areas of medical care, patient choice has been with us for some time. Patients currently have a choice of GP practice; they have a choice of hospital; they have a choice of the GP whom they wish to see within a practice; and they have a right to be informed.

However, there is in practice all too often a gap between the theory and reality. The reality is that although people may theoretically have the choice, they do not know that they have the choice. They do not know despite the excellent section on choice on the NHS website and the literature that is put out about choice at the national level. The amendments are designed to impose on clinical commissioning groups at the local level the duty to take steps to inform patients about their right to be involved and their right to make choices. They state, in certain terms, that each group,

“must take steps to inform patients, their carers and their representatives of the right to be involved in such decisions”,

and, in the other cases,

“to make such choices”.

They are simple amendments, and it may be a matter of regret that they are necessary, but simply having the right in the statute book will not do unless we can also ensure that patients are informed of those rights.

My Lords, I rise briefly to support the principle underlying Amendment 198, so ably proposed by my noble friend Lord Kakkar, relating to the crucial importance of making clear that there must be a relationship between the NHS Commissioning Board, local commissioning groups and academic health partnerships. In using that term, I want to be quite clear in what I mean. I am not referring simply to the five academic health science partnerships which have been created within the past few years specifically in certain areas of the country by the NHS; I am talking about the crucial importance of being involved with everyone who is concerned with the teaching of medical students and the training of young doctors and other healthcare professionals.

There is no doubt that years ago, when the health service began, there was an article of faith to the effect that professors, lecturers and readers in the medical schools and universities employed by the universities, those that had clinical contracts, had a duty to spend half of their time on service to patients. In other words, they had honorary clinical contracts, they saw patients and they carried on in that capacity giving services to the NHS, in return for which there was also an article of faith that consultants employed by the National Health Service in teaching hospitals had a duty to involve themselves in the training of medical students and the supervision and training of young doctors who were being prepared for work in a variety of different professions.

There has been a total transformation of the scene over the course of the past 20 or 30 years, because academic appointments are no longer restricted to a small group of hospitals, which used to be called the teaching hospitals. They also take place and are based, in many instances, in other hospitals, sometimes in old regional hospitals at a distance. In those hospitals, not only do we have academic people employed by the university involved with teaching, but many of those hospitals are now called university hospitals. It is a recognition of the fact that medical students now are trained across a huge number of hospitals in what were the regions. Many of them spend considerable periods away from the centre around the medical school. Therefore, a crucial relationship must arise between the academic doctors working in those other hospitals outside the main centre and the commissioning groups.

We must also not forget the crucial importance to the NHS, as we heard a few days ago in discussion of the amendments of the noble Lord, Lord Willis, relating to research, of not only the academic departments but also the consultants working in general hospitals and others who have significant responsibility for being involved in clinical research. As I said when we discussed those amendments, today's discovery in basic medical science brings tomorrow's practical development in patient care. In particular, these academic relationships are crucial when one begins to consider the importance of clinical trials of new procedures, new drugs, and so on, which may be carried out across not only a wide range of hospitals but in the community. A great deal of teaching is now going on in general practices, which makes the relationship between academic doctors in academic centres and commissioning groups even more important. I therefore support the principle and the purpose underlying Amendment 198.

I make one comment on the amendments, which also goes to the Government’s fundamental philosophy, with which we all agree, that patients should be told about their condition and kept fully informed. My experience in recent years has been visiting hospitals and wards with elderly people in them. You cannot but become aware of the inability of a lot of the patients to understand what it is they are being told or to look after their own notes. There is a danger, if we are not careful, of theory and reality moving apart from each other. There has to be a true awareness of the need to get the relevant knowledge to the right person. Sometimes, it will not be the patient; it will be the patient's spouse, daughter, son or whatever. We should keep that in mind.

My Lords, I add my support to the patient involvement amendments and the HealthWatch amendments. Whose life is it anyway if it is not the patients?’ Patients can now be very much at risk, if they are not involved with doctors, through drugs available through the internet which are counterfeit medicine. I was at a meeting this afternoon and heard from a Minister that the Government had asked China for help, because it is a problem place, and the Chinese are now going to introduce the death penalty for people selling counterfeit medicine on the internet. That is a serious problem. Patients need to be involved; they need to have a voice; and they need to work together with everybody else concerned. Otherwise, they will feel left out and shunned, and that would not be a good thing.

My Lords, I am pleased to support the spirit, intention and thrust of all the amendments in this very large and, I hope, uncontroversial group, which are intended to ensure that provisions in the Bill to involve the public, patients, carers and specialist professionals and patient groups in the development and decisions about services, care and treatment are reinforced and strengthened. We recognise that the duties proposed by the Government for the NHS Commissioning Board and clinical commissioning groups—to promote the involvement of each patient and to enable patients to make choices on the services provided to them and obtain advice from specialist professionals—are a significant step forward from the original provisions in the Bill. They build on the foundation work on this issue undertaken by my own Government. However, it is clear from this excellent debate that these general duties do not go far enough to mark the significant step change that we need in getting genuine shared decision-making and participation of patients, carers, and patient groups in decisions about care and treatment, and on how services are planned and developed.

We also now have the added complexity of the reorganisation itself. Senates, networks and health and well-being boards are acting as the system integrators, all alongside our newly enlarged CCGs with their giant private sector support organisations behind them, as we now know from the Government’s recently issued draft guidance on commissioning which was referred to in the previous debate by the noble Baroness, Lady Williams. This will be a highly complex raft of interactions and interconnections with no notable route to accountability. I would be grateful if the Minister could give me some insight into how he envisages the voice of patients being heard among all the clamour and shouting that will go on between these different spheres of interest.

We must try to achieve real involvement. For individuals, that means involvement in care planning and support for patients with their carers, relatives and support groups to manage their conditions and share in the choice of treatment. On collective involvement, this means that knowledgeable patients’ groups should be able to advise commissioners on how to design services, rather than to have token consultation after decisions have already been made, which is the case now in so many situations. We must make sure that we harness fully the collective experience and knowledge of patients and specialist care organisations.

We recognise that this will involve a major cultural change in the behaviours, approaches and attitudes of key professionals from across the specialisms, moving away from seeing patients as units of disease, not as people with rights to information and to participation in discussions and decisions about their care and treatment, as the Health Foundation puts it. We need to change the way that patients and clinicians, in particular, relate to each other, and change the way that the NHS relates to patients in terms of, for example, information provision and the organisation of clinics, and in the style of consultations that professionals have with patients.

In respect of the NHS Commissioning Board, we support Amendment 121, which calls for the board to have the duty to secure rather than promote the involvement of patients, carers and their representatives in decisions about the provision of health services. This is important, and Amendment 150C—which seeks to ensure that the board’s annual report includes accounting for how it has carried out its duties in involvement, choice and advice—complements and underlines the importance of this duty.

Amendments 125 and 126, tabled by my noble friends Lord Warner, Lady Thornton, and Lord Patel, turn the focus on clinical commissioning groups and call for a published guidance to CCGs to ensure that they are clear about what is required of them to meet the duty to promote the involvement of each patient. I also pay tribute to the work of National Voices on the principles of integrated care and on other patient and involvement issues relating to these matters.

We know that many commissioners, both nationally and in CCGs, are unaware of the increasing evidence that involving individual patients in their care and treatment is proven to be more clinically effective, provides better patient experience and makes much better use of healthcare resources. In other words, it is the vital underpinning for the Nicholson challenge and for commissioners’ other duties to improve quality. A far stronger signal is needed in the Bill and in statutory guidance to draw commissioners’ attention to the proven interventions that they require from their providers. I would be grateful to hear from the Minister how he intends to do this.

Clearly, many CCGs will not make the changes that we need without help and support. Amendment 125 is therefore crucial, as it calls on the NHS Commissioning Board to draw up guidance to CCGs which will enable patients, carers and their representatives to make informed decisions. This includes patients having the means to express their views on the quality of services provided, opportunities to consult with service providers, access to appropriate information about their care and treatment, opportunities to consider available treatment options and their risks and benefits, and to participate in decisions about their care and treatment and its managers. The information they receive about these areas must be simple and well presented—not league tables or comparison charts, but clear information about treatment options, how effective they are and what the consequences might be for the patient. As other amendments underline, these rights of patients must be accessible to all patients.

Amendment 126 stresses how important it is to have information on access and location and about the providers of health services and performance if informed decision-making is to become a reality for the majority of patients. We fully support Amendments 127A and 197A, which would give expert patients’ organisations equal status to professionals in providing advice to commissioners. This would help ensure a patient voice in the clinical senates and networks. It is an approach that was supported by the clinical work stream of the Future Forum but overlooked in the Government’s response. We also strongly support Amendments 175A and 175B from the noble Baroness, Lady Finlay, which calls for regulations providing for the governing bodies of CCGs to include individuals who are fully aware of the different aspects of specialist provision in the areas covered by CCGs.

Amendments 140 and 142, tabled by my noble friends Lady Thornton and Lord Hunt, require the Commissioning Board to ensure that patients are involved and consulted in the development and planning of commissioning and in the consideration of how proposals for change in health services are organised and delivered. Most importantly, Amendment 205 secures the involvement of the local healthwatch in these decisions, vital if HealthWatch is to be able to fulfil its key watchdog and patients role. The importance of this role was ably underlined by my noble friend Lord Harris, so I will not expand further on it.

On patient choice, we support Amendment 127, which proposes a definition of patient choice. Research shows that patients care most about being able to exercise choice about the care and treatment they receive, but currently the NHS performs poorly in involving patients in this way. A full definition of patient choice should be included in the Bill to ensure that commissioners provide opportunities for patients to exercise choices that go beyond the choice of provider. Does the Minister accept the need for this definition in the Bill, and if not, how will he seek to achieve the cultural change in systems and attitudes that we all want to see?

All these amendments seek to ensure that the NHS Commissioning Board and CCGs understand fully their responsibility, and that they commission for involvement. These changes would give a clear signal to the system that the Government mean business in wanting meaningful patient participation and involvement, and that real change can be achieved.

My Lords, this large group of amendments all relate to the different ways in which patients, the public and others will be involved in decision-making, and although I shall be suggesting that noble Lords should not press them, I am very much in listening mode on the themes that they raise. The only thing that I cannot promise to take forward is the suggestion of the noble Baroness, Lady Masham, that I should introduce an amendment on the death penalty, but, no doubt, she can persuade me.

The issues that noble Lords have covered are central to our vision of informed and empowered patients, and responsive commissioning that is clinically led. These are also issues that were considered in great depth as part of the listening exercise, in response to which significant improvements were made. Those improvements created much stronger duties than currently apply to primary care trusts, so it is important to begin by recognising how this Bill takes us forward from the current position. Nevertheless, I recognise that some confusion remains about what we mean when we talk about involvement, and what the different duties in the Bill are intended to achieve. The noble Lord, Lord Warner, has tried to frame an all-embracing definition of involvement through Amendment 125, and I find little to criticise as regards the purpose and intent of that amendment. However, I would argue that much of what the noble Lord intends through this amendment is already provided for in the Bill. Indeed, it is because there can be different elements to involvement that would be appropriate in different situations that I would be cautious about trying to wrap them up in a single definition.

It will be helpful to begin by considering the duties on the board and clinical commissioning groups to involve patients in decisions about their own healthcare. The noble Lord, Lord Harris, made some useful distinctions on this point. These new duties reflect our vision of shared decision-making, referred to by the noble Baroness, Lady Finlay—“no decision about me without me”, and an NHS where patients are involved fully in decisions about their care in partnership with clinicians. This is primarily about the relationship between the individual patient and their clinician; it does not extend to commissioning decisions. Therefore, I do not think that it would be appropriate for HealthWatch or indeed any other body to have a role in what are meant to be sometimes very personal decisions.

There is clearly a role for CCGs as commissioners, as distinct from the role of general practitioners, in supporting and encouraging this personal involvement. However, it is not completely within their control, so I do not think that it can be for them to secure, as the amendment proposes. Nor do I think that there should be any sort of hierarchy, where the board is in the lead with a weaker duty on CCGs. That would run counter to what we are trying to achieve, which is after all a more personalised service. Therefore, I am afraid that I cannot agree with Amendments 121, 123, 124A, 191 and 192. However, such a service might include giving patients greater control over their medical records, as Amendment 124 suggests. The noble Lord, Lord Patel, may know that this was a key theme of our consultation on an information revolution. Responses to that consultation showed a clear desire to enable people to be more in control of their care, supported by greater access to the information held about them in their care records. We are committed to this and our forthcoming information strategy will set out how we propose to achieve it.

These duties are of course closely linked to those relating to enabling choice. As noble Lords will be aware, patient entitlements to choice are set out in the NHS constitution. These are underpinned by directions by the Secretary of State, which will in future be the standing rules and regulations under Clause 17 which we have already discussed.

I reassure noble Lords that, as now, the role for commissioning bodies in respect of enabling choice in the future will include acting with a view to making people aware of their rights and entitlements, giving them the information that they need to make informed decisions and working with providers to ensure that these are delivered. I did, however, listen with considerable care and sympathy to the noble Lord, Lord Neill, regarding patients who need advocates to speak on their behalf. This will be further reinforced by the new duty that the board and clinical commissioning groups will be under in relation to promoting the NHS constitution among both patients and staff. The board will set the choice offer, establishing the parameters for choice and competition, based on the choice mandate that the Secretary of State will set as part of the annual mandate to the board. I remind the Committee that we recently sought views on these issues through the consultation, Liberating the NHS: Greater Choice and Control. This is an important approach because it allows the Secretary of State and the board to manage the rollout of choice in a controlled way—something that I know many noble Lords are anxious to ensure. That is why we have deliberately used broad terms in describing the types of choice that patients can exercise. Indeed, I think that defining them in more detail, as some of the amendments attempt to do, could paradoxically limit their scope. They could also be unsuitable or indeed unfeasible in particular circumstances, and that is why, although I am in sympathy with the spirit behind them, I am unable to agree with Amendments 126, 127, 193, 196, 197 or 197ZA.

Greater choice means, among other things, patients being able to choose between a greater range of providers. Amendments 125A, 125B, 195A and 195B are particularly concerned with the impact that greater choice and provider plurality might have on the viability of existing services—a matter that we discussed at our last session in relation to amendments tabled by noble Lords opposite about the interdependency of services. That is an issue that I completely understand. In securing healthcare services to meet the needs of their patients and populations, commissioners must have regard to the stability and financial viability of those services, including taking account of the interlinkages between services, where relevant, on an ongoing basis. Commissioners will need to commission high-quality integrated care that will deliver value for money for local communities and promote opportunities for patients to exercise choices in relation to their care. In taking commissioning decisions, they will have to consider what the noble Baroness, Lady Pitkeathley, reminded us of—that is, what will be in the best interests of their patients. This would always be their primary concern, and we would expect the board to ensure sufficient competency over these issues in authorising CCGs to take on their new responsibilities and in holding them to account for doing the job.

Monitor would need to support commissioners in carrying out their duties by promoting economy, efficiency and effectiveness in the provision of services while maintaining or improving quality. That would include setting prices that deliver sufficient reimbursement for the efficient costs of providing the services specified by the board. It would also mean supporting commissioners in securing sustainable, continued access to services where communities were dependent on one or very few providers. However, above all, our focus and that of commissioners should be on securing the best possible outcomes for patients, and I do not think that protecting the interests of individual providers should come above that priority. I hope that the noble Baroness, Lady Finlay, will therefore understand why I cannot accept Amendments 125A, 125B, 195A and 195B.

The board and clinical commissioning groups will also be under duties to make arrangements to secure the involvement of people in decisions about service provision in their area, just as primary care trusts and strategic health authorities are now. The very purpose of these duties is to ensure that commissioning decisions are informed by, and responsive to, the views of local people, as indeed Amendment 207 seeks to ensure. They will apply to anyone who is already using services or who may do so in the future, and in that sense they are all-encompassing. Therefore, there is no need to specify that this includes carers or representatives, as Amendments 141B and 206B propose. Nor is there any need, as Amendment 205 suggests, for an additional role for local healthwatch, whose role on health and well-being boards and in providing recommendations to commissioners we have already considered. In my view, it is right that the duty should apply specifically to changes to services that affect patients, rather than applying to every aspect of the board’s work, as Amendment 142 would require.

I also believe that it is important to allow these bodies some leeway to exercise their judgment in how they fulfil these duties. Consultation will not be appropriate in every case. However one defines it, there will always be a need to determine what is or is not appropriate in a specific instance. Where information is provided, it should certainly be made available in accessible forms, where necessary, and the board would be required to consider this under Section 149 of the Equality Act 2010. Therefore, I am afraid that I cannot agree with Amendments 140, 141, 141A and 141AA or 206, 206A and 206AA.

I appreciate that the intention behind many of these amendments is to prevent the board and CCGs undertaking, so to speak, cosmetic exercises in public involvement without really engaging with people or taking account of their views. However, the Bill as it stands includes a number of safeguards to prevent this—in particular, the fact that CCGs must set out the principles that they will adopt in exercising this duty as part of their constitution, and the requirement that the board’s and clinical commissioning groups’ commissioning plans and annual reports, as well as annual assessments of CCGs, must all include particular consideration of this duty. I also appreciate the concern to ensure that the board and CCGs—

I am sorry to interrupt the noble Earl’s flow but I have been extremely restrained today. Can he clarify for me the point that he has just made concerning clinical commissioning groups’ constitutions? As I understand it—he can correct me if I am wrong— they have a considerable amount of freedom on how they frame the obligations in those constitutions. Is the Minister saying that there would be some requirements on them centrally from the board to cover areas such as patient involvement and patient choice?

I am. The intention is that no clinical commissioning group will be authorised in the first instance unless it can demonstrate to the board that it can fulfil the legal duties that the Bill places on it. That is key to our thinking. Indeed, as time goes on, it will be under a continuous duty to show it is abiding by those duties. In the first instance, it is very important that clinical commissioning groups demonstrate they are fit for purpose in that sense.

I also appreciate the concern to ensure that the board and CCGs benefit from as wide a range of advice as possible. The Government have been clear that everyone with a role to play in securing the best possible services for local people should be able to do so. The definition used in the duties to obtain advice is that used to define the comprehensive health service. It would encompass the areas covered by Amendment 127C. Indeed, I do not think it would be possible to cast it in broader terms. These duties will apply to every function the board or a clinical commissioning group will exercise. Again, within those broad parameters it is important to retain some discretion for the board and CCGs to determine how best to exercise this duty.

The board and CCGs will certainly have to work closely and effectively with all the providers with which they contract as Amendments 127B and 197B suggest. I would say to my noble friend Lord Clement-Jones that that most certainly would include pharmacists. I also agree as to the expertise and the unique perspective that patients and their representative bodies can bring not just to the commissioning process but also to the way the board and clinical commissioning groups approach many of their functions. The same would apply to many other groups, including academic institutions, as the noble Lords, Lord Kakkar and Lord Walton, have highlighted.

The noble Lord, Lord Kakkar, spoke powerfully in favour of academic health partnerships. Academic health science centres have been successful at developing these partnerships within their local areas but understandably have been less successful in spreading innovation across the NHS. As the noble Lord set out, the NHS chief executive’s innovation review is due to be published next month. That will set out how we can accelerate the adoption and diffusion of innovations across the NHS. It will include a mix of bottom-up, horizontal and top-down incentives and pressures that will drive adoption and diffusion of innovation and behaviour change. The role of academic health partnerships may or may not feature in this review. I hope the noble Lord will forgive me if I do not at this stage anticipate or pre-empt what the report will say by elaborating any further. However, I counsel noble Lords to play close attention to what the noble Lord said in his speech.

While these duties refer to obtaining advice from people with expertise in relation to the health service, that is not confined to clinical expertise. Indeed, in fulfilling these duties we envisage a role for clinical senates, as we have already discussed, in providing not just clinical advice but multidisciplinary advice from professionals in health, public health and social care backgrounds alongside patient and public representation and other groups as appropriate.

I am sure we all share a desire that these duties are effective. However, I am not convinced that imposing specific duties as to where the advice should come from, including through the membership of governing bodies, or how the advice should be acted on is the right way to proceed. If we become too prescriptive we risk overburdening CCGs with so many duties and obligations that they could never be sure whether they were doing enough and in reality we must trust them to build these relationships themselves and judge them on the outcomes they achieve.

The noble Baroness, Lady Finlay, asked me about the secondary-care doctor role on CCGs and whether it had to be somebody from outside the area or retired or whether it could be a local person. We are looking carefully at that question. The secondary-care doctors on CCG governing bodies will not be able to have a conflict of interest in the decision-making process of the CCGs. That is where the noble Baroness, Lady Murphy, was absolutely correct. We will use regulations to set out more detail about this and we will work with stakeholders, including pathfinders, to develop these proposals. The noble Baroness referred to the secondary-care doctor coming from either outside the CCG area or being retired. Those are two ways in which a conflict of interest could be avoided but they are only examples and do not represent an exhaustive list.

I want to finish by returning to a point raised earlier by the noble Lord, Lord Warner. We too are aware of the very good work of National Voices, as well as a range of other organisations, on how patient and public involvement could be strengthened in the Bill. While I have explained why I think these specific amendments are not necessary, I am happy to go on listening. I feel that the Bill is already strong in this area but we are always open to new ideas and I look forward to further discussions on this general topic. It is for those reasons that, while sympathetic to the intention behind the amendments, I am unable to accept them and I hope noble Lords will agree not to press them.

My Lords, on behalf of all noble Lords who took part in the debate I thank the Minister for his comments. He excited us all by first saying that the only thing he would not be able to accept would be the death penalty. He finished by saying he could not accept most of what we were saying, partly because it was already in the Bill, which most of us did not think was the case. He demonstrates a commitment that patients’ voices and public involvement will be paramount and that all the commissioning boards and commissioners will be expected to demonstrate that they listen to the voices of patients and the public. We will watch and see how they are made accountable.

The Minister referred to innovation. Of course, the next group of amendments focuses on innovation, so we may come back to it and also the involvement of the academic health centres. We have had a good debate and maybe after reading Hansard some of us can decide whether we will come back to some of these issues. In the mean time, reluctantly, I beg leave to withdraw the amendment.

Amendment 121 withdrawn.

Amendments 122 and 123 not moved.

Amendment 124

Tabled by

124: Clause 20, page 18, line 11, at end insert “including access to or holding of their own medical records”

My Lords, I listened very carefully to the Minister’s response to my amendment on patients’ access to or holding of their medical records. As I understood what he was saying, it was that we could eagerly look forward to the Government’s long-awaited information strategy which might well be moving this agenda forward. If that is indeed the case I hope we can consider further with the noble Earl and his officials whether we should enshrine that moving forward in the Bill so patients have a clear statutory right to have access to and to hold their medical records. I will not move the amendment.

Amendment 124 not moved.

Amendment 124A not moved.

Amendment 125

Tabled by

125: Clause 20, page 18, line 11, at end insert—

“( ) In discharging this duty, the Board must publish guidance for clinical commission groups that ensures that patients and their carers and representatives have—

(a) the means to express their views on the quality of services provided,(b) opportunities to consult with service providers through a variety of means,(c) access to appropriate information about their care and treatment,(d) opportunities to consider available treatment options and their risks and benefits,(e) the opportunity to participate in decisions about their care and treatment and its management, and(f) the means to ensure informed consent is given to care and treatment.”

My Lords, I am glad to note that the noble Earl is willing to reflect on this and perhaps discuss it further with us. I would very much like to talk to him with National Voices to see whether we can craft some wording which meets people’s concerns in this area. I will not move the amendment.

Amendment 125 not moved.

Amendments 125A and 125B not moved.

Amendment 126

Tabled by

126: Clause 20, page 18, line 14, leave out from second “to” to end of line 15 and insert “the access, location and provider of the health services available to them at all stages of their life, including information about the performance of different service providers”

My Lords, this is an important issue about choice. We need more beef in the Bill about what it means. We have not gone as far as we need to go. In the mean time, I will not move the amendment.

Amendment 126 not moved.

Amendments 127 to 128 not moved.

Amendment 128A

Moved by

128A: Clause 20, page 18, line 24, after “provision” insert “and commissioning”

My Lords, we move on now to discuss innovation and research. The amendments in this group are very important and were prefigured to an extent by the discussion we have just had. The amendment tabled by the noble Lord, Lord Hunt, and me, is modest in some ways. However, it strengthens the promotion of innovation in the provision and commissioning of health services. Taken together with the amendments tabled by my noble friend Lord Warner and the noble Lord, Lord Patel, it strengthens the Bill significantly and in a very important way.

We have come to what seems an intractable problem: how to encourage innovation in the NHS. This is part of the Minister's area of responsibility and was also part of the area of responsibility of my noble friend Lord Warner when he was a Minister. I look forward to both of their contributions on this matter.

We know that often, the taking up of great innovation is a painfully slow, complex and bureaucratic process. Our amendment strengthens the promotion of innovation through commissioning as well as through the provision of health services. I would like the Minister to explain why that should not be possible—because it would strengthen and help innovation—and also how it could be done, because we are looking for incentives to promote and spread innovation throughout the NHS.

Last week, the noble Lords, Lord Willis and Lord Ribeiro, and I, with others, enjoyed a dinner and an evening with organisations and businesses to discuss how to ensure that innovation is disseminated, promoted, supported and invested in throughout the NHS so that both the NHS and UK plc benefit. The point was made during the evening that often we do not talk about sophisticated issues but about simple changes to nursing practice, such as the way dressings are done, or to information management, that nevertheless can have an important impact on patient care and progress.

I will not speak further on the amendments because I will be very interested to hear what other noble Lords speaking to their amendments in the group will say. I hope that the Minister, with his passion in this area, will give us some comfort on the matter. I beg to move.

My Lords, I will speak in support of Amendments 129 and 129A in the group. First, I will take up the point made by my noble friend Lady Thornton about the long-standing problem of the slowness of the NHS to take up innovative ideas, and the frustration often felt by people in this country who have invented new approaches and created new innovations, only to find that they have had to go abroad to get them projected, promoted and sold, with the NHS being one of the last to take up the innovation, which was often funded in one form or another with public money by the British taxpayer. It is a long-standing problem and not a party-political issue; it has been a challenge for successive Governments. One of the most embarrassing moments one has as a Minister is when one meets foreign delegations or travels abroad to back Britain and is asked, “Has this innovation been taken up in the NHS?”, whereupon one has to shuffle one’s feet and think of a suitably weaselly form of words to avoid answering the question directly. It is a very long-standing and difficult issue.

Amendment 129 draws attention to the importance of the procurement of goods and services in the promotion of innovation, and to the duty that that places on the national Commissioning Board. There are many reports about the importance of public procurement in advancing innovation and in ensuring the take-up of UK inventions and innovative practices. The latest one was by the Science and Technology Committee of your Lordships' House, of which I was a member. The report brought out some of the dilemmas around using procurement to take forward innovation. Yet again it cast doubt on central government's use of their purchasing power and muscle to drive the take-up of UK innovations in public services.

The NHS is not alone in having this problem, but it is part of the problem and it is a big part of the public sector. A major and long-standing problem is that too many purchasing decisions are taken too far down the organisational food chain, with too little intervention at senior level and too little willingness to use large-scale purchasing to spread the use of innovative approaches. Whatever else the national Commissioning Board has, it has a lot of financial muscle. It must use that, through the NHS’s purchasing capacity, to drive innovation, which often comes from publicly funded research. I hope that the Minister, who is well aware of the issue, will see the sense in putting something like Amendment 129 in the Bill. We cannot say too often that public procurement is a way of helping to establish and drive innovation in the NHS.

Amendment 129A seeks to add the idea of an innovation fund to the board's armoury on innovation in new Section 13K. There is nothing novel in this. The amendment continues and builds on the proposals of my noble friend Lord Darzi, which led to regional innovation funds that strategic health authorities currently manage. Again, we need to strengthen the mechanisms in the Bill for driving innovation in an NHS that historically has been slow to take up innovations and apply them to scale for the benefit of patients. We are not talking about huge sums of money in the innovation fund, but relatively modest amounts in relation to the scale of NHS expenditure. However, an amendment of this kind would ensure the continuance of the useful work that has been started by the strategic health authorities following the promptings of my noble friend Lord Darzi.

It is typical of what we sometimes do in this country. We start an initiative with a fund at strategic health authority level and then shuffle the cards so that somehow, along the way, some of the initiatives and their benefits get lost. I hope that we can get some reassurance from the Minister that some kind of innovation fund will be available so that we can continue the work that my noble friend Lord Darzi so ably started to ensure that patients can secure the benefits of UK innovations.

My Lords, I support the amendments tabled by the noble Lord, Lord Warner, to which I have added my name.

First, I will speak very briefly about innovation and procurement. I also contributed to the report by the Science and Technology Committee on procurement. The public sector could learn a lot from the private sector about using procurement to drive innovation. Perhaps the Minister can comment on this. The NHS is a huge organisation that uses about £20 billion-worth of procurement a year and if that was done in a co-ordinated way, it could drive an immense amount of innovation within the NHS.

My second point is about how to drive innovation into clinical care. There are lots of examples I could give, but I will give one from my own specialty. It took us 20 years to take the learning from research into the kind of treatment to be given to the mother in premature labour that would considerably reduce the incidence of respiratory distress syndrome, which causes a lot of harm and death in neonates, and embed that into practice. There are lots of examples of such innovations not being embedded into the NHS and we need to look at ways of doing that faster.

My third point is how to use tariffs to drive innovation. If I as a provider will not be given a higher tariff if I drive innovation or innovate a different way of providing the service, and all that will happen is that the tariff for procuring my services as a provider will be less the following year, there is less incentive for me to use innovation in clinical care to improve patient care and also to make it cheaper.

The fourth issue is about an innovation fund, which I support. Together with the Wellcome Trust, the Government have an innovation challenge fund that asks for tenders in particular areas of innovation. The one I know about is in reducing infection rates. Innovation funds of this kind will drive further innovation; for example, in the United States Medicaid and Medicare have a joint innovation fund to drive improvements in healthcare. So I support that amendment.

My Lords, I rise to speak briefly to Amendment 129ZA, which is really a probing amendment. I hope that the Minister will be able to explain what these “prizes” are that are referred to in the Bill. The Explanatory Notes do not really help. They talk about the Bill providing for,

“the NHS Commissioning Board to make payments as prizes in order to promote innovation in the provision of health services”,

and that:

“Innovation will originate primarily from the actions of commissioners and providers but it is intended that the NHS Commissioning Board will take a lead role in promoting it”.

The changes should bring about continuous improvement and innovation often happens outside the main NHS. Indeed, in my own discipline, end-of-life care, the innovations have happened by and large in the third sector, particularly in care in the last 48 hours of life. In some ways, this is where these organisations, the different hospices and those working with them, have felt freed up to pilot different ways of doing things which have subsequently been adopted within the NHS.

There is a huge need for more health services research and for good, qualitative methodology. My only anxiety about the word “prizes” being in the Bill is not that I do not want innovation to happen—I desperately want innovation to improve services for patients—but that I want to make sure that innovations are also properly evaluated; that they are piloted, evaluated and audited in the long term. It is terribly easy for people to have great flashes of inspiration and great ideas but they might not necessarily roll out appropriately across all aspects of the health service. Many of us have seen innovations that seem to be excellent in one setting but when they are rolled out without adequate support and training, mistakes are made and problems arise.

I had the privilege of chairing the commission into medical generalism, and our report noted the shortfall in both funding in primary care and in researching ways of delivering primary care to common conditions. We welcomed the National School of Primary Care Research and the recognition that more funding was needed, but we urged the MRC and other funders to create a dedicated funding stream for clinical research in primary care as it is difficult to secure funding. I hope the Minister will explain what these “prizes” are and say that they will in no way detract from the much needed research funding to really evaluate innovations and innovative ideas, particularly in primary care.

My Lords, I rise to speak to Amendments 130, 131, 147, 150, which are in my name. I have also added my name to Amendments 215 and 218. These are very big groups and the Minister has my sympathy. I am sure he is listening very carefully to all the advice that he is receiving. I would particularly like to add my support to the remarks made about the power of procurement to promote innovation.

I want to speak about research and the research duty. My amendments are designed to add weight to the research duties in the Bill and follow on from the excellent debate on Clause 5 in relation to the Secretary of State’s research duty. I thank the Minister for his letter, which he has circulated to those who took part in that debate, although I fear that it may have raised rather more questions than it has answered. I apologise to the noble Earl for that, and I would like to go through a few of them now. I declare an interest as chief executive of a medical research charity, Breast Cancer Campaign.

In the debate on the research duty in Clause 5, many excellent examples of research were highlighted. It might be useful very briefly to reflect again on the impact that research has on the lives of people in this country, and to mention a report on cancer survival rates by Macmillan Cancer Support that had a great impact in the media last week. It highlighted that people now live nearly six times longer after their cancer diagnosis than was the case 40 years ago. Many noble Lords will be aware that for nine of the 20 cancers studied by Macmillan, median survival time is three years or less, with little improvement since the 1970s. The report highlighted the achievements that research has made but also that there is an awful lot more work to do.

It is also important to remember that there is a lot of research about quality of life. For instance, median survival time for breast cancer has doubled since the 1970s. Investment in research has played a fundamental role in this and yet more than 12,000 women still die from breast cancer every year. As I said, research is not only about improving survival rates. Many women with advanced breast cancer live with complex support requirements that are frequently not met, as evidenced by the research published recently by Breast Cancer Care and funded by my charity, which raises serious questions about pain control, for example. Ensuring that the NHS is committed to supporting research is absolutely key to addressing long-term improvements in survival but also improvements in quality of life for patients today.

Amendments 130 and 131 are intended to strengthen the research duty that has been placed on the Commissioning Board. Amendment 39, which we talked about a few days ago, removed the phrase “have regard to the need to” from the research duty on the Secretary of State, thereby strengthening it, and Amendment 130 seeks to do the same for the research duty on the Commissioning Board. During the debate on Clause 5, the noble Lord, Lord Willis, explained eloquently why the words “have regard to the need to” in the clause would be better removed ,and how by doing that we would have greater clarity and a better statement of intent would be established. So it would be helpful if the Minister could explain why we need to see those qualifying words in this clause. It would be particularly useful to be given practical examples of the effect that removing the words would have, because I suspect that they are not necessary and that the Bill might be better off without them.

I was also extremely heartened to hear the Minister say that he sympathised with me and with many other noble Lords when we argued that the research duty should be strengthened and that he would undertake a “closer consideration” of the research duty. I would welcome hearing a little more about his thoughts on that today, particularly whether any amendments to Clause 5 could be in the making, and whether they could be read across into Clause 20.

Moving on to Amendment 131, this seeks further clarity on the meaning of,

“research on matters relevant to the health service”.

I do not want to rehearse the arguments made previously in relation to Clause 5 and the wording of this phrase except to request a further explanation of its definition, including practical examples to aid our understanding which I hope the Minister will be able to provide either today or later in writing. In correspondence, the Minister helpfully clarified that public health was covered by the current definition, which was an important point for the noble Lord, Lord Warner, as I recall. However, the intention of Amendment 131 is to seek further clarification and a definition of the phrase so that we can understand whether it is sufficiently comprehensive. Public health is one issue that we are very clear about. It is covered, but we need to be confident that the duty is comprehensive in that regard. I believe that a more substantial definition is required and I am pleased to have the opportunity to request this today. For example, with this definition in place, what are the implications for NHS staff who are involved in supporting research? Will there, for example, be sufficient research nurses to support research activity, will clinical training incorporate time for research and how will research successes be recognised and encouraged as part of NHS career progression and structures?

In terms of what we know about the Commissioning Board, what will it be doing with respect to research? The Government have attempted to reassure noble Lords that the Commissioning Board is aware of the need to promote research and indeed that one of the board’s most important functions will be to support a culture that promotes research and innovation. I welcome this but I feel that in practice there is still very little detail about how this will happen. It appears that research will not form one of the six key portfolios of the board, but will fall under the commissioning development portfolio. Will this include, as I believe the Minister’s letter suggested, the development of commissioning tools and commissioning guidance ensuring that patient care is commissioned so as to support the conduct of research in the NHS? I note with interest that the Government are committed to ensuring that the systems and processes for commissioning used by the NHS Commissioning Board and clinical commissioning groups will ensure that research is promoted, supported and funded by the NHS, including the tariff, commissioning guidance and processes for authorising and supporting the development of clinical commissioning groups. That is important, but I would be grateful if the Minister were able to provide further detail on the activities of the Commissioning Board in relation to research.

Will the development of commissioning tools and guidance as defined be sufficient to embed a culture of research in the NHS? While we have heard that the tariff for patient care will incorporate the costs of patients who are taking part in research projects, how will infrastructure costs be captured? Obviously I am thinking about the cost, for example, of storing tissue for research purposes. I fear that what we have been provided with so far is a number of ad hoc references to research that do not attempt to embed comprehensively a research culture into the NHS or set out a vision of what the research duties would mean in practice.

That brings me to Amendments 147 and 150. Two clear opportunities to ensure that the board is accountable for its actions with respect to the research duty now present themselves in relation to the business plan and the annual plan. I note with interest—and I believe that many others have noticed this—that the board must publish a business plan setting out how it proposes to exercise its functions in that year and in each of the next two following years, and at the end of the year it must also publish an annual report on how it intends to exercise its functions. There is therefore a great opportunity here. However, I am puzzled as to why Clause 20 establishes that the business plan and the annual plan must report how the board proposes to discharge its duties only under new Sections 13E and 13P, and likewise explain in the annual report its performance under those sections, which cover the duties on the improvement of quality of services and public involvement in consultation by the board. Again that is very important, but there is no comparative requirement with respect to new Section 13L and the duty on research. Again, there is an opportunity here to improve the feedback loop. I would be grateful if the Minister could explain what plans there might be to bring forward government amendments or to accept the amendments now before the Committee.

My Lords, I am delighted to follow the noble Baroness, Lady Morgan, and particularly to support her comments about the duties in respect of research. But perhaps I may also say that the noble Baroness, Lady Thornton, raised a very important issue in her opening remarks, which is the definition of the difference between a duty to provide and a duty to commission. There is a subtle but important difference between the two. Commissioning, as the noble Lord, Lord Warner, clearly stated, is something for which there is a huge budget, so it is very important indeed that it is used effectively. I was particularly interested in Amendment 129A tabled by the noble Lord, Lord Warner. We are all puzzled about the Government’s intentions in terms of prizes and incentives to encourage innovation and to bring research out of the labs, if you like, to the bedside.

There are some extremely good examples of this. The noble Lord, Lord Warner, mentioned the work of his noble friend Lord Darzi, particularly the Health Innovation Challenge Fund. I have just finished chairing the fund’s three-year review, and it is interesting to note that three years into the five-year programme, new devices, technologies and procedures are being brought forward from research to clinical outcome. Some 13 of these are now up and running, and some are quite remarkable. We have seen the groundbreaking research to deal with the onset of blindness being undertaken at Oxford. Within five years we will have gene therapies that will make a huge difference to patients suffering from a whole range of conditions, including macular degeneration. That will have a massive effect not only on patients’ lives, but also on the health service budget itself. It is important work and there are other good examples on which we need to move forward.

I want to speak specifically to Amendments 215 and 218 tabled in my name and those of the noble Baroness, Lady Morgan, and the noble Lords, Lord Patel and Lord Turnberg. I should also declare an interest as chair of the Association of Medical Research Charities. Amendment 215 concerns the role and responsibilities of clinical commissioning groups towards research and includes, within their commissioning plans, how they intend to execute their duty as defined in new Section 14X. That commissioning groups should have a duty to promote research was recommended by Professor Steve Field, the chair of the NHS Future Forum, when he said in his report:

“Support for research and innovation is also important for evidence-based commissioning and practice, so the report recommends that commissioning consortia should have a duty to promote research and innovation and the use of research evidence in the NHS”—

a recommendation which was immediately taken by the Government, to their credit, and, indeed, was welcomed by the medical research community.

It is important that that is in new Section 14X as inserted by Clause 22 of the Bill. However, as the Bill stands, there is a duty on commissioning groups to promote research but absolutely no mechanism to make sure that it is actually done. There is a duty without the wherewithal. Amendment 215—it is a simple but effective amendment—does exactly that by making it clear that the CCG commissioning plan should include clear evidence about how commissioning groups propose to carry out their duty to promote research. I cannot believe that the Government cannot accept that very simple amendment to put that into practice. I think it is very helpful.

However, this amendment goes further than that because it seeks clarification from the Minister about “evidence based commissioning” and how a “research aware culture” is to be embedded in the NHS through clinical commissioning groups—the very things that Professor Field recommended and the Government supported from the Future Forum. Clinical commissioning groups will have to report in their commissioning plans how they have sought improvements in quality of services, patient care and, indeed, how they have worked alongside their counterparts in health and well-being boards when developing their plans. Why not include in those plans how research is being used too? It makes good sense to have that as a separate issue. If the clinical commissioning groups’ approach to commissioning services is to be informed by evidence, then research is a fundamental part of securing that evidence. Research and patient benefits are two sides of the same coin. By making research part of the commissioning plan for CCGs, Amendment 215 would automatically trigger a requirement for outcomes to be included in the commissioning report. Also in the commissioning report—a matter alluded to the noble Baroness, Lady Morgan—was how the costs for non-commercial clinical research in the NHS were to be met and, specifically, the role that excess treatment costs play in supporting this.

Clearly, the Government decision to confirm the continuation of this funding stream to support, in particular, charitable funders undertaking clinical studies in the NHS is very much welcome. However, there is considerable uncertainty around just what is being proposed by the Government, particularly following the Minister’s comments on 5 November. I cannot stress sufficiently just how crucial the medical research charities are to medical research in the NHS. In 2009-10 more than 3,000 clinical studies were conducted using NHS patients. Thirty-seven per cent of them were funded by AMRC charities and, in the case of clinical trials for cancer, 75 per cent of all cancer patients involved in clinical trials were on Cancer Research UK funded trials. Clarifying how costs will be apportioned is hugely important. The Minister has assured us that systems and processes will be in place for meeting these costs but implied that both the NHS Commissioning Board and clinical commissioning groups will have a role in ensuring that they are funded by the NHS. However, as clinical commissioning groups will commission secondary care, will excess treatment costs occurring on a research study taking place in secondary care come from a clinical commissioning group’s budget?

Similarly, if the NHS Commissioning Board is responsible for commissioning primary care, will the NHS Commissioning Board be liable to cover the excess treatment costs associated with research studies conducted in primary care? At present, these costs are covered via the PCT commissioning budgets. In its review, the Academy of Medical Sciences identified that mechanisms in place for trusts to claim these costs were not clear, they were not consistent and, in turn, led to many trusts becoming disincentivised to undertake clinical research. In fact, there are examples of PCTs refusing to meet excess treatment costs in certain studies, leading to delays in getting the studies set up and therefore affecting patient outcomes and care. The Bill is an opportunity to send out a clear message and I hope that in responding the Minister will be able to put the record straight and, if not, to write to us as he often does.

Amendment 218 examines the role of the NHS Commissioning Board and how it will assess and encourage research to be undertaken by the NHS. Within the new structure there are a large number of bodies with research functions or an interest in research. There is the National Institute for Health Research; the NHS Commissioning Board; Public Health England; the Health Research Authority to be set up; NICE; and, of course, local commissioning care groups. NIHR will stay in the Department of Health, outside the NHS Commissioning Board, and retain its research budget to provide funds to support the infrastructure for research with clinical research networks and biomedical research centres and units. It is essential that this infrastructure is appropriately aligned with NHS activities. The NHS Commissioning Board will include a medical director who, I understand, will have responsibility for research. Presumably this will include executing the NHS Commissioning Board’s duties towards research. Can the Minister confirm that is the case?

What is not clear is where the buck stops with regard to the leadership of research culture throughout the NHS. The Government have accepted a commitment to embed a research culture in the NHS. Amendment 218 is an attempt to clarify the role of the NHS Commissioning Board's duty to promote research and its duty to lead CCGs in their duty as well. This amendment recognises that co-ordination between all the bodies will be critical to identify and implement national strategic priorities for research. The link between the NHS Commissioning Board and the CCGs will be crucial. If we do not get that right, and we do not get the leadership, then heaven knows where we will get to.

CCGs will need clear leadership from the NHS Commissioning Board as to how they are expected to carry out their duty towards research, which is why the Commissioning Board’s research leadership role must be made clear. We have evidence from programmes of work such as the North West Exemplar Programme that we need a culture shift in the UK better to embed research as a core part of the NHS. The intention behind Amendment 218 is simply to make it a requirement for NHS Commissioning Board to assess the performance of each CCG when carrying out its duty to promote research. This would complete a virtuous circle whereby both the NHS Commissioning Board and the local commissioning groups would have to define how they would carry out their duty on research and then report on it in a way that could be openly challenged. It seems a sensible way to progress and gives a clear definition as to what should happen. I hope the Minister will accept both Amendments 215 and 218.

I wish to speak to some of the amendments that are in my name. I would also like to comment briefly on Amendments 128A and 129, dealing with innovation. We know that we are quite slow in taking up innovations in the UK. It is not simply that there is a bit of sluggishness in the system—there are hurdles in the system. I want to mention two examples of very simple innovations that would not cost any money to the health service, but which have been blocked by the systems under which we operate.

One example is a consultant colleague of mine, a gastroenterologist—my own field—who set up a clinic in which he took phone calls from GPs and patients and was able to answer many questions without actually having to see the patients. It had a rapid turnover. It was considered to be innovative but was blocked because it did not earn any money for the hospital trust which found that it was not getting the patients referred. The second example concerns a similar situation in which the same consultant saw new patients from 8 am until 9.30 am. He sent them away for tests, scans, endoscopies and so on, and saw them again at about 11 am with the results of the tests and gave them the treatment that was necessary. This, too, was considered not to be earning money for the PCT, because it was paid for items of service, and it would have got twice the money with the normal system. This is a hurdle to innovation which we should surely be able to overcome. We have discussed that with the Minister. He expressed sympathy for the idea so I hope that it can be acted upon. It is not simply that we are slow; we have hurdles.

I come to Amendments 130, 131 and a number of others in my name. I have no doubt that the Government have firm intentions to promote research and innovation. It is mentioned in several places in the Bill and I know that the noble Earl’s heart is in the right place on all this. The amendments in my name are simply there to help the Government in their own aspirations by emphasising and reiterating the need to keep research and innovation at the forefront. I simply emphasise the points made so eloquently by the noble Baroness, Lady Morgan, and the noble Lord, Lord Willis. The amendments make it clear that innovation and research are of such central importance that they should be explicit in the board’s business plans, in reporting its activities and in clarifying how it is going about achieving these aspirations. The amendments make sure that the board actively promotes research as against simply having regard to it. I hope that the Minister will find the amendments helpful in the light of the Government’s intentions.

Amendment 131 returns to the issue of research that protects the public’s health. Here I make two particular points that the Minister might consider answering in one way or another. First, how will it be possible to ensure that the local authorities taking over the directors of public health also promote research? What levers will there be with the local authorities? Secondly, I ask a question that has been posed before. How will we ensure that the Health Protection Agency, which engages in much important research, will have access to external funds? We have discussed this before, but it would be nice to know whether it is clear that the HPA will have access to grants from external funding bodies.

My Lords, the NHS has a long and proud track record of innovating and delivering better care for patients. That must continue—we all agree about that. That is why new Section 13K of the 2006 Act places a duty on the board to promote innovation when exercising its functions, including innovation in the provision of services and the,

“arrangements made for their provision”.

That last phrase means the commissioning of services. As a result, although we completely sympathise with the principle behind Amendment 128A, it is not necessary. The duty is intended to support the delivery of quality and productivity improvements across the NHS to help transform healthcare for patients and the public. In response to the noble Lord, Lord Warner, I say that I expect that innovation in procurement of goods and services will be an essential part of this. The duty certainly allows for it as it stands. It is an important part of the QIPP programme at the moment, and I am sure that it will continue to be. If we were to specify one area of activity in which the duty should be exercised, as Amendment 129 suggests, we would face the perennial problem of listing those areas where the duty should be exercised to the detriment—

I am sorry to interrupt, but it strikes me that if none of us understood that that was what those words meant—that was what led us to table the first two amendments in this group—maybe the Minister should look at those amendments, because they offer more clarity.

I am always keen to accept the wise suggestions of the noble Baroness, and I will of course go away and consider the words that she has proposed.

I was just referring to the amendment proposed by the noble Lord, Lord Warner, on procurement, and saying that we would face the perennial problem of listing those areas where the duty should be exercised to the detriment of those not listed.

I have an uneasy feeling that we are going to hear a lot about lists today. On lists, some things are more important than others, and I think that the argument about lists does not hold a lot of water unless the Minister can show us some other items that will be missed out that are as powerful as procurement of goods and services in further research and innovation. If there are others, I would be happy to consider the matter, but the reason why the amendment has been tabled is because it is a very powerful way in which to promote something that the Government want. Many of the other things may not be as powerful in delivering that.

I recognise that and, after what I said a moment ago, we know that procurement can be an important lever in the innovation agenda. Indeed, that will be recognised in the innovation review, which is due to be published next month. Furthermore, we are planning to launch a procurement strategy by April 2012. I will not go into huge detail about it, although I have it here, but it will consist of three elements—system levers, standards for procurement and system level support. We can look to take forward some of the ideas that the noble Lord, Lord Warner, put forward in his speech.

All this goes to show that there is a substantial amount of work already under way to create the right conditions for innovation to flourish. These include dedicated regional innovation funds to support front-line innovation and innovation challenge prizes to recognise and reward ideas that tackle some of the biggest health and social care challenges facing the NHS and in future. I have named only two from a long list of current initiatives.

I will just say to the noble Baroness, Lady Finlay, that the Secretary of State already has a power to awards prizes. New Section 13K of the 2006 Act, inserted by Clause 20, simply gives the board the same power. Should it choose to use the power to make payments as prizes—and it is a power rather than a duty—this is one way in which it might decide to promote innovation in the provision of health services. Recently I presented the very first group of innovation challenge prizes, and it was a very heart-warming and exciting occasion.

The noble Lord, Lord Warner, rightly made the point that the NHS was slow to take up innovation and that people were forced to go elsewhere to take their new ideas forward. Again, this is an issue that we are tackling with considerable energy in the NHS chief executive’s review of adoption and diffusion of innovation, which will be published next month. I look forward to talking more to the noble Lord about what is in that review in due course.

I say to the noble Baroness, Lady Morgan, in particular that the main way in which the board will collaborate with research funding bodies is to fund the treatment costs of patients who are taking part in research funded by government and research charity partner organisations.

The existing innovation funds were not put in primary legislation; there is no need to put a specific power in the Bill, as Amendment 129A seeks to do, to enable the board to establish an innovation fund. As with prizes, establishing innovation funds is only one way in which the board might seek to exercise its duty to promote innovation; innovation funding is being considered as part of the chief executive’s innovation review.

Amendments 130 and 131 reflect the similar and previously debated Amendments 39 and 41 on the equivalent duty on the Secretary of State in Clause 5. I agreed to undertake a closer consideration of that duty and I shall do that. I reassure noble Lords that our discussions will include the board’s duty. Work is under way to look at these duties ahead of future stages of the Bill. Indeed, I undertake to reflect carefully on the points raised by the noble Baroness, Lady Morgan of Drefelin, and to write to her with answers to her questions. I have also written to all noble Lords who spoke in that earlier debate, picking up points that I was not able to cover at the time. I explain in that letter how public health falls within the definition of the health service, which was one of the points touched on by the noble Baroness. It will therefore be covered by the existing duty on the board to promote research in proposed new Section 13L of the 2006 Act.

The noble Lord, Lord Patel, spoke about the role of the tariff in promoting innovation. He is absolutely right to do so; the new tariff could indeed play a key role in encouraging innovation. The Bill introduces a new, independent, transparent and fair pricing system where the board and Monitor would collaborate to set prices for NHS services. That would create a more stable and predictable environment, allowing providers and commissioners to invest in technology and innovative service models to improve patient care. We are actively looking at the way in which the tariff could drive that.

My noble friend Lord Willis and, indeed, the noble Baroness, Lady Morgan, asked how exactly the board will go about promoting research. As previously set out, we will make sure that the systems and processes for commissioning used by the board and clinical commissioning groups ensure that research is promoted, supported and funded by the NHS. That will include the tariff, the commissioning guidance and the processes for authorising and supporting development of clinical commissioning groups. However, noble Lords will be aware that a great deal of the practical detail of the board's role is still under development. Further detail will be published in due course and we must respect the autonomy of the board in devising for itself how exactly it will undertake this function.

I turn to Amendments 147, 149A, 150, 215 and 218. Given the wide range of statutory duties placed on the board and CCGs, the approach we have taken in the Bill is to emphasise a few key duties that the board must look at—in particular, in its business plan, annual report and its performance assessments—and that CCGs must, in particular, look at in their commissioning plan and annual report. We feel we have chosen the right duties to emphasise, not because they are the most important but because they are duties about which any annual report, business plan, commissioning plan or assessment should provide explicit evidence, specifically linked to the exercise of the board’s or CCGs’ functions.

That said, with respect to clinical commissioning groups I say to my noble friend Lord Willis that the department has published Developing Clinical Commissioning Groups: Towards Authorisation and that, to be authorised, a CCG will need to demonstrate that it has in place the systems and processes both to promote patients’ recruitment to and participation in research, and for funding the treatment costs of patients taking part in research, so this will not be overlooked. However, we are clear that an annual report, business plan, commissioning plan or annual assessment should provide an assessment of all the body's functions, including the exercise of its innovation and research duties. There is also nothing to prevent the documents going into significant detail about the exercise of a specific duty. I add that the board has the power to issue guidance to CCGs on the contents of commissioning plans and directions as to the form and content of the annual report. I hope that those remarks are helpful in answer to the questions and points from noble Lords, and that they will be sufficiently reassured by what I have said not to press their amendments.

I thank the Minister for those remarks and all other noble Lords for theirs. This has been a very high-quality, expert debate. I do not want to delay noble Lords from their supper and, indeed, on this side, from an opportunity to defrost—we have hypothermia on this side. The Committee has again shown its great expertise, commitment and enthusiasm to innovation and research and there is great consensus across the Committee about this. This suite of amendments would have given practical action and voice, and would have strengthened this part of the Bill on innovation and research. We need to look at what the Minister has said. I am grateful for those areas where he said that he would reflect upon these issues and let us know. However, it is safe to say that because of the consensus in the Committee on these issues, we would all be keen to make sure that the issues of innovation and research are, indeed, put beyond doubt in this Bill. I beg leave to withdraw the amendment.

Amendment 128A withdrawn.

Amendments 129 to 131A not moved.

Amendment 132 had been withdrawn from the Marshalled List.

Amendment 133 not moved.

House resumed. Committee to begin again not before 8.56 pm.

Subsidiarity Assessment: Food Distribution (EUC Report)

Motion to Take Note

Tabled By

That this House takes note of the Report of the European Union Committee on the amended Commission Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No.1290/2005 and Council Regulation (EC) No.1234/2007 as regards distribution of food products to the most deprived persons in the Union (COM(2011)634, Council Document 15054/11) (23rd Report, HL Paper 217).

My Lords, in the absence of the noble Lord, Lord Roper, I beg leave to move the first Motion standing in his name on the Order Paper. It fell to the EU Sub-Committee on Agriculture, Fisheries and Environment, which I chair, to carry out detailed scrutiny of the latest proposal in relation to food for the deprived. In doing so, we were conscious of the consideration which we gave a year or so ago to the previous version of the proposal. Both the sub-committee and the EU Committee itself, which the noble Lord, Lord Roper, chairs, took the view that the changes made to the latest proposal did nothing to remedy the failure to comply with the principle of subsidiarity.

It is tempting to use this occasion to talk about the common agricultural policy as the evolving backdrop to the scheme to distribute food to deprived persons but, since time is limited, I will make only two remarks in this respect. First, when the scheme was initiated in 1987, a largely unreformed CAP generated excesses of butter, milk powder, beef, sugar, rice and cereals—the so-called food mountains—which allowed food to be released to charitable organisations in participating member states. Those days are long gone. Surplus stocks are now very low and in recent years the scheme has in fact relied on open-market purchases of food, so the link between the scheme and the CAP, clear enough in the past, has become more and more tenuous in the present.

I hope that your Lordships will take the view, as the committee has done, that the task of tackling deprivation faced by our fellow citizens rightly falls on the member states, not on the EU itself. No one should downplay the scale of the challenge on social protection across Europe. Data on expenditure in that regard in October this year—I am relying on data from Eurostat, the European Commission's own source—showed that, in 2009, the 27 member states spent over €3 million million on this support. That is, greater than the figure 3 followed by 12 zeroes of euros: a colossal amount of money. Compare the scheme for deprived persons that is being proposed here of €500 million or so. Doubtless that can buy a great deal of food, but in respect of the total spend by member states it is not of great significance.

Your Lordships will know that, in their Explanatory Memorandum, the Government have made clear that the UK has not participated in the scheme since the mid-1990s because of dwindling UK intervention stocks, and because of the bureaucratic overhead associated with ensuring compliance with the scheme’s rules to prevent fraud. The Government go on to say that,

“the UK believes that measures of this type are better and more effectively delivered by individual Member States through their own social programmes”.

As our report explains, we share the Government’s view on this matter. We are clear that the proposal does not comply with the principle of subsidiarity, and we hope that the House will accept our recommendations and agree to issue a reasoned opinion on the latest proposal. I beg to move.

My Lords, I support the arguments that have been put forward by the noble Lord, Lord Carter, who chairs the European Sub-Committee of the European Union Committee dealing with agriculture, fisheries and the environment and who prepared the report that we are considering today. This is an important issue and one of the occasions on which this House has the opportunity to argue why subsidiarity matters and why some things ought to be done at a national level, not at a European level.

As the noble Lord said, the food distribution programme made sense when there were significant European surpluses. However, in the 24 years since the programme was introduced, probably at the time when the noble Lord, Lord Williamson, was responsible for these matters, things have changed. There are no longer surpluses that it is perfectly legitimate for the European Union to distribute to member states where there are needy people. The argument has therefore changed. That is why, despite the fact that the European Commission, in preparing its proposals for this document, modified them from the document on which this House gave an opinion about a year ago and suggested that there was a reasoned opinion against subsidiarity over the old proposal, in our view there is no longer a satisfactory situation.

We do not believe that any European value-added is produced by producing €500 million on buying things from the open market to give to needy people. Member states should do that—there are lots of reasons why they should—but that is a decision for the 27 member states of the European Union. That is why this report has been produced and why, although the earlier proposal has been withdrawn as a result of a judgment by the Court of Justice of the European Union, we still believe that this is a serious error.

As we say in our report, neither the proposal nor the Commission’s Explanatory Memorandum produces an explicit subsidiarity justification as required by Article 5 of the protocol on the application of the principles of subsidiarity and proportionality. However, it seems clear from the summary of the impact assessment that accompanied the original proposal of three years ago that the Commission sees three reasons for this. These include the view that the programme addresses problems of hunger, deprivation, poverty and social exclusion in the spirit of the treaty and that it supports the objective of strengthening the Union’s social cohesion.

Our report sets out our consideration of those justifications. I will not repeat them at length. The nub of our assessment, this year as last, is that the spirit of the treaties can be respected without the European Union acting in this respect. Moreover, we consider that member states are capable of acting individually to fulfil those objectives if they so wish, and in any case the failure of European member states to act is not in itself a reason why the EU should act. In conclusion, we again take the view that there is no compelling argument to suggest that the Union is better placed than its member states to ensure a food supply to its most deprived citizens.

We know that the Government share our view on this proposal—indeed, I believe that it is also the view of the opposition Front Bench—and in their Explanatory Memorandum they have stated their belief that,

“measures of this type are better and more effectively delivered by individual Member States through their own social programmes”.

The Scottish Parliament has taken a similar view and the Swedish Parliament, the Riksdag, has also issued a reasoned opinion sharing our view. Other member states such as Denmark and the Netherlands share our concerns, though we are not yet sure whether they have issued reasoned opinions.

The Government have told us that, unfortunately, agreement in principle on this measure has been reached following a decision by Germany to accept a time-limited extension of the scheme to the end of 2013. There appears to have been movement at the political level but certainly not, in our eyes, at the level of the underlying policy.

While the European Commission has made changes to the proposal that we considered a year ago, we think that those changes make no difference to our assessment of whether the proposal is in compliance with the principle of subsidiarity. We consider that it is not compliant with that principle and therefore recommend that the House should issue a reasoned opinion on the latest proposal.

My Lords, it was of course only in November last year that the House took the view that a proposal from the European Commission on the distribution of food products to the most deprived persons in the Union did not comply with the principle of subsidiarity, and we sent a reasoned opinion to that effect to the Presidents of the European Parliament, the Council and the Commission in accordance with the treaty. As the noble Lord, Lord Roper, stated, on 13 April 2011 the European Court of Justice annulled the provisions of the food distribution plan providing for purchases from the market. In consequence, the Commission has now submitted a new proposal, which we have before us, from 2011, document number 634 final, adding a new treaty base, Article 175(3) of the Treaty on the Functioning of the European Union, which relates to social cohesion. As has been stated, the reason for this is that the Commission wants to make market purchases a permanent source of supply for the scheme when there are no longer the intervention stocks that used to exist in the Union. They have gone and the Commission wants to turn to the market.

The European Union Committee of the House has recommended that the objection on the grounds of subsidiarity that applied to the earlier proposal applies equally to the new one, and that we should issue the revised opinion in paragraphs 5 to 11 of the committee’s report. I agree that we should be consistent and follow the advice of our European Committee. Of course there may be good reasons for supplying food to the most deprived citizens, but today we are concerned only to judge whether this might be done at EU level and on the EU budget. The principle of subsidiarity that is in the treaty on the European Union in Article 5(3) states inter alia that,

“the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”.

We do not agree that this proposal corresponds to that part of the treaty.

Although the principle of subsidiarity may not have much impact, it is none the less an important provision. It is in line with much of British opinion and we should play our role in seeking to ensure that it is respected. As we seldom see the text of a Commission proposal for legislation in this Chamber, I would add three short comments. First, the Commission proposal, which as usual is clearly drafted and easy to understand, is not a law. Bureaucrats in Brussels cannot and do not make laws on a subject such as this. Substantive laws are made jointly by the Ministers of the member states in the Council and the European Parliament. This may seem self-evident, but in view of the widespread public misunderstanding, I emphasise it in this case.

Secondly, it is interesting to note that the European Court of Justice annulled provisions of the earlier proposal because the legal base was not sufficient, showing the value of the oversight by the court. Thirdly, and lastly, as has already been stated, this case shows clearly the transformation of the agricultural policy of the Union—the old CAP—as market intervention has been removed or drastically reduced and intervention stocks are no longer generally available for this scheme. I support the proposal of the European Union Committee of this House.

My Lords, I am delighted to follow and to support everything that has been said by the noble Lord, Lord Carter of Coles; our committee chairman the noble Lord, Lord Roper; and the noble Lord, Lord Williamson, particularly with his experience of dealing with the situation when it was entirely different. I propose to add nothing to what they say, but to ask a few questions of my noble friend. Does he agree with me that this is a serious matter? As far as I understand it, this is only the third reasoned opinion that this House has given, but it is identical to the one we passed on 3 November. Why are reasoned opinions passed by this House taken so lightly by the Commission? What negotiations has the Minister had with the Commission? What was its reaction to our previous reasoned opinion?

It is all very well for the Commission to make a slight tweak to what it presents to us because the European Court of Justice ruled it out of order, but that does not satisfy me. I want to know what the Commission has done to take on board our concerns. I hope my noble friend will update me on that. If the Commission does not take on board member states’ concerns about reasoned opinion, there is no point in us producing reasoned opinion. If it is as dismissive as it has been to date, it will only intensify the disregard and dislike of the Commission that many in this country have.

May I also ask the Minister about the current state of negotiations? I was appalled to read the letter from his fellow Minister, Mr Paice, of 15 November, in which the Germans seem to have decided with the French in, if no longer smoke-filled rooms, the corridors of power to do some dirty deal and produce a draft joint minute telling the rest of the European Union’s members what they can accept from the Germans and the French. That is pretty unacceptable, too. I hope that he has made strong representation to the Germans about this. Surely it is wrong in principle, as has been well said, for some sort of shady deal in which this matter is done at European level rather than at member-state level to the end of 2013. Let us hope that in negotiations about what will happen after that, when the French will be keen to continue this into the next round, the Germans will be in a weaker position than they would be if they remained firm and principled.