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Grand Committee

Volume 771: debated on Tuesday 10 May 2016

Grand Committee

Tuesday 10 May 2016

Arrangement of Business


National Health Service Trust Development Authority (Directions and Miscellaneous Amendments etc.) Regulations 2016.

Motion to Take Note

Moved by

That the Grand Committee takes note of the National Health Service Trust Development Authority (Directions and Miscellaneous Amendments etc.) Regulations 2016 (2016/214).

My Lords, in moving this Motion, I should make it clear that, in raising issues around the governance of NHS Improvement, I make no criticism of the relatively newly appointed chairman and chief executive of that body, both of whom have outstanding records and have, I know, much to contribute to the National Health Service. I want to raise two sets of issues: the governance arrangements for NHS Improvement; and, linked to that, the future of NHS foundation trusts.

The Motion and the order relate to the National Health Service Trust Development Authority, which was established, as a result of a special health authority order in 2012, to manage the performance of English NHS trusts with the objective of assisting them to become foundation trusts. In contrast, NHS foundation trusts are regulated by Monitor under a number of pieces of legislation, including the Health and Social Care Act 2012. Therefore, both the NHS Trust Development Authority and Monitor are responsible for overseeing and, where necessary, helping to improve the performance of their respective cohorts of providers —NHS trusts and NHS foundation trusts.

The Government have argued that, in recent years, both the NHS TDA and Monitor have been working more closely together and are increasingly utilising similar interventions with their respective cohorts. Last summer, the Government announced that NHS TDA and Monitor would come together under a single leadership and operating model. As part of these arrangements, they would share a single leadership team—comprising the chief exec, chair and a joint board—with the organisations to be known as NHS Improvement. In addition, safety and quality would be key components of the new arrangements, with the national safety function previously exercised by NHS England being transferred essentially to NHS Improvement but formally exercised by the NHS Trust Development Authority.

This seems to be a complex governance arrangement, and no one should underestimate the challenge for NHS Improvement, which has to manage a complex range of functions and accountabilities. Monitor’s duties, as economic sector regulator and its role in ensuring the regulation of foundation trusts, remain risk based and proportionate, in line with the “earned freedoms and autonomy” accorded to the foundation trust model. Alongside that, the function of the NHS TDA in supporting and offering oversight for NHS trusts is equally important in the current, challenging financial climate. Then there are NHS Improvement’s new duties to improve trusts and integrate the safety function formerly hosted by NHS England.

The governance structure is therefore complex. NHS TDA and Monitor remain separate institutions—one a special health authority and the other an organisation established in statute and subject to extensive provision in primary legislation. Indeed, the Health and Social Care Act 2012 contains no less than 85 clauses relating directly to Monitor and about 85 days were spent in your Lordships’ House debating them. There is no clause relating to the NHS Trust Development Authority because it is a special health authority, yet it seems to be the principal vehicle by which functions are to be transferred to NHS Improvement.

NHS Improvement is itself subject to no legislation, but a board using its name as a banner will oversee both the NHS TDA and Monitor with the same executive team and operating procedures. My understanding from what has been said is that, in statute, Monitor and the TDA will continue to have their own boards but these will have identical membership and meet as one NHS Improvement board. They will also continue to publish separate annual reports alongside an aggregate report from NHS Improvement. To all intents and purposes, NHS Improvement will operate as one board, with one set of staff and operating procedures, but the legislative provisions under which it operates will be quite separate for NHS foundation trusts and NHS trusts.

I ask the Minister how realistic it is to expect staff to work under a single operating procedure, given the hugely different legislative provisions relating to foundation and non-foundation trusts, unless the market and competition provisions in the 2012 Act are effectively ignored. The King’s Fund, in its analysis of the planning guidance for 2016-17, has said that it effectively spells the end of the emphasis on competition and the principle of autonomy.

Linked to this is the question of the future of NHS foundation trusts. In effect, if FTs and non-FTs are treated in the same way, overseen by the same board, the same members of staff and the same operating procedures, what on earth is the point of being a foundation trust? What will happen to non-FTs that were in the pipeline to gain FT status—what is the point of them applying? I raise this question as an unashamed supporter of the concept of NHS foundation trusts. I think they were the right approach and I am convinced that their governance model, whereby the board is accountable through the governing body to local members, has many advantages.

The noble Lord, Lord Prior, was a distinguished chairman of a very successful foundation trust, and I had a similar experience. While, having been the chairman of a board, I can say that meetings of the governing body were not always comfortable, I thought it was a strength that the board had to account to local people for its performance. Of course, that is not the situation for non-foundation trusts but, if I were now the chairman of a non-foundation trust, I could not see what advantage there would be to me in becoming a foundation trust, because essentially the economic regulator would manage my trust in the same way as it would a foundation trust. At least, that seems to be the implication of the regulations and the changes made to NHS Improvement.

I have seen an intimation that, following these regulations, there will be no further pieces of legislation in relation to operating procedures. I ask the noble Lord, Lord Prior, why that is and whether he can assure me that, with the same group of staff and the same board, the autonomy and independence of foundation trusts, as opposed to NHS trusts, will be respected. I also ask him how this then relates to the development of the strategic transformation plans at local level, which on any reading also signals to me that we are moving back to a planning model of the health service. Again, it would be very interesting to get the Minister’s comments on that. Above all else, I hope that he can reassure me that the Government are still committed to the model of foundation trusts, particularly regarding the strength that it brings to local autonomy and governance. I beg to move.

My Lords, I have no intention of detaining the Committee, as I agree with everything that the noble Lord, Lord Hunt, has said. I look forward to hearing the Minister’s reply. I am particularly concerned that a very complex system of governance will not produce transparency and accountability, and I look forward to reassurance on that score.

My Lords, that was a short intervention from the noble Baroness. I was very struck by the noble Lord, Lord Hunt, saying that, when the 2012 legislation went through Parliament, it took 85 days and 85 of the Bill’s clauses dealt with Monitor alone. I am afraid that that is part of the response that I shall give him today. We did not have 85 days—or maybe 165 days, if we take into account the TDA and the restructuring—because matters are too urgent. However, the noble Lord is right to bring this issue up today, because I do not think that there has been enough scrutiny around Monitor, the TDA and NHS Improvement.

Responding to the points that he raised about foundation trusts will perhaps in part answer both questions. The distinction between foundation trusts and trusts has been eroding over time—there is no question about that. The roles of Monitor and the TDA were becoming more duplicated over time. It is interesting that, when David Bennett was at Monitor, he saw the need to develop an improvement agency within Monitor, almost mirroring the TDA. Simply being a financial and economic regulator was clearly not enough at a time of such huge stress and pressures within the system.

However, there are two other important factors that I should mention. At the time, I agreed that the principle of foundation trusts—I think it was called “earned autonomy”—was absolutely right, as was the governance structure, with clear accountability through locally elected and appointed governors to the local population. But when the King’s Fund says that what we now have is the end of competition and autonomy, it is partly right. Using competition as a means of driving improvement through the NHS has been tested almost to destruction. It started back in 2005-06, with the new Labour Government and ISTCs, foundation trusts and the like. Increasingly, we are of the view that competition has a role to play but a pretty limited one, and we cannot rely upon competition—or the market, if you like—to drive the kinds of improvements and change that are needed within the system.

There has also been another development, which the noble Lord touched on, which is the sustainability and transformation plans and the new models of care. These are largely the harbinger of vertical integration and a system approach to delivering healthcare to the population, rather than a series of individual, more atomised organisations like foundation trusts. So, in a sense, the concept of the foundation trust and a governance structure that is accountable to the local people is still the right one, but it should probably be at the system level rather than at the individual organisation level. You can read the direction of travel from the five-year forward view through to the STP process that is now under way and, indeed, the formation of NHS Improvement. It is a move away from autonomous, individual organisations—by and large, acute hospitals—driving the agenda to one in which the system as a whole, including social care and local authorities, is involved. Those are three fairly big changes that are now running through the development of the NHS.

If I may go back to where the noble Lord started, the regulations made a number of changes to the TDA’s underpinning legislation. These changes were made in order that the two organisations would be able to work together under the operational name of NHS Improvement, which would in turn improve the way in which the NHS provider sector is supported and regulated, drive improvements in the care that people receive and arrest the deterioration in the financial position of the sector. That really recognised what was happening. There was a general feeling, probably shared by the noble Lord, that somehow Monitor had remained much as it was when it was set up—an economic and financial regulator—at a time when the whole system was under such stress that it required a completely different role.

Under the regulations, Monitor and the TDA were not abolished or dissolved, and NHS Improvement has not been established as a new entity in primary legislation. Indeed, it was never the intention that these regulatory changes would establish a statutory basis for NHS Improvement. Rather, NHS Improvement is the operational name given to the collaboration between Monitor and the TDA, whereby they pool resources and administrative functions in order to reinvigorate the support and regulatory offer to trusts and foundation trusts. Both organisations continue to be underpinned by their respective legislative frameworks, with distinct statutory functions and legal powers. They will continue to be held to account by Parliament, the Secretary of State and the Department of Health.

I understand that there may be a concern that, by not setting NHS Improvement on a statutory footing, clear governance may be lacking—this is the issue that goes to the root of the noble Lord’s concerns. I echo his comments that the leadership at non-executive and executive level in NHS Improvement is of a very high calibre. Both the chief executive and the chair of NHS Improvement are well aware of the need to put in place robust governance arrangements. Under their leadership, a substantial exercise is under way to recast the board and executive structure of NHS Improvement to fuse the business of the two organisations much more effectively in practice. From my discussions with the chairman and chief executive, I think that that is happening. Clearly, Rome was not built in a day, but they are making very substantial improvements and progress. There is now one board which is effectively running NHS Improvement.

A significant amount of NHS Improvement’s business will not need separate governance or decision-making, such as in the case of challenged providers where all trusts, regardless of their composition, deserve access to the same level of support and advice. Having said that, in cases where separation is appropriate and the specific functions of either main organisation are being exercised, such as TDA’s role in appointments or Monitor’s competition function, this will be transparently articulated in all relevant documentation.

NHS Improvement’s detailed governance arrangements are in the process of being finalised, as is its new single oversight framework. The arrangements will be fully and transparently set out in rules of procedure and standing orders, which will be publicly available for consultation in the summer. Also, the formal accountability framework documents in place for both Monitor and the TDA, which set out how the department will hold them to account and more generally how we will all work together, are currently under review. It is intended that a revised joint framework document, as well as a formal remit letter establishing NHS Improvement’s objectives, will be published in the summer.

I should repeat that NHS Improvement will be accountable directly to Parliament, the Secretary of State and the Department of Health’s principal accounting officer for the discharge of Monitor’s statutory regulatory functions and to the Secretary of State for the specific functions of the TDA.

Speaking more generally, we see NHS Improvement more as being essentially an improvement agency holding trusts to account and giving them help and support to achieve high levels of performance rather than being purely a regulator, which is I think how Monitor was originally established. Clearly, the role of the foundation trust that the noble Lord mentioned in his speech is going to change over time, but I can assure him that the benefits of foundation trusts, through the clearer accountability and earned autonomy, will still be very much a part of the future.

I thank the noble Lord, Lord Prior, for his response. I certainly understand the need for speed and the erosion over time of the distinction between foundation trusts and non-foundation trusts. I also agree with the Minister on the issue of competition. The past years have shown that while it can play a role, that role should be limited, and I have no objection to that, nor, indeed, to the extended remit of improvement. That is something which has been missing from the regulatory apparatus and it is to be welcomed.

I would like to make a couple of points. First, the Minister said that we are moving locally to system-level leadership and development. I am sure that that is right, but I hope that local accountability will be borne in mind. I have just had responses to a number of Questions for Written Answer that I tabled about accountability in the sustainability and transformation plans. As the Minister knows, they have to be in by 30 June. We know that they will all say that the acute care footprint will be reduced by so many hundreds of beds—to be honest, this has all been done before—and they will then say that there is going to be heroic demand management and, somehow or other, there will be miraculous developments in the community. But they will not have ownership locally because, essentially, they are being top-down led. At some point, they will have to go through formal consultation procedures and I believe that, unless there are some powerful forms of local accountability, they will run into trouble.

I think that the noble Lord has put his finger on it. If the STP process is just another top-down-led system redesign, it will not have any teeth to it. But what has happened in Manchester, for example, is that there is clear local leadership and accountability, which mean that some of the really difficult decisions that have not been taken for generations are now being addressed. There must be effective local accountability and governance around the STPs.

The other area, which I have raised with the Minister before, is in relation to clinical commissioning groups. First, the creation of federations of GPs makes the model unsustainable in the long term, because in some parts of the country the electoral body for the GP members of CCGs will be almost coterminous with the federations. Clearly, there is a conflict of interest in that. Secondly, there is still an issue about the accountability of CCGs. If ever one needed a governance structure that made them somehow locally accountable, the foundation trust model would provide some answers which I hope that the Government will look at.

My final point is on what legislation will be in the Queen’s Speech. Clearly, from all that the Minister has said, much of the 2012 Act is defunct in practice. We are moving to a planning model, and the Act is very different from that. The longer that this goes on, the more need there will be at some point for some legislative change, because at the moment people in the health service are at risk. They are essentially being asked to develop a system-led planning model, but that is challengeable because the Act is very different from that. I believe that at some point it will be challenged. The Government may not want to have core health legislation debated, but at some point that will have to be done. I also remind him that we still have a draft Law Commission Bill and I am hoping that, at the very least, we will see a short form of that announced in the Queen’s Speech.

This has been an excellent debate and I am very grateful to the noble Baroness, Lady Walmsley, and the noble Lord, Lord Prior.

Motion agreed.

Care Quality Commission (Fees) (Reviews and Performance Assessments) Regulations 2016

Motion to Take Note

Moved by

That the Grand Committee takes note of the Care Quality Commission (Fees) (Reviews and Performance Assessments) Regulations 2016 (2016/249).

Relevant document: 30th Report from the Secondary Legislation Scrutiny Committee

My Lords, this is rather like the previous debate in the sense that it is important that this matter is at least discussed and given some form of parliamentary scrutiny, given that the CQC is going to impose very large increases on NHS and private care providers at a time of great financial challenge. I am someone who is impressed with the way that the CQC has developed, and I pay tribute to the work of the noble Lord, Lord Prior, who was the chair of the CQC. It clearly performs a vital role.

At the same time as Ministers have increased the responsibilities of the CQC, they have squeezed its budget and my understanding is that, over the next four years, its overall budget will be reduced by £32 million. The proportion of its budget as grant in aid from the department will reduce and the proportion charged to providers will increase. I understand that its budget next year will be £236 million, which is a sharp reduction of £13 million from that of 2015-16. Like all public bodies with fee-setting powers, CQC expects to follow government policy by levying fees that will, over time, fully cover the cost of its chargeable activities. Previously, CQC was able to charge for some but not all of its activities, so these regulations are a prerequisite to enable it to meet the Government-set target of full cost recovery through a dramatic increase in fees.

Given the budgetary pressure it faces, the CQC undertook a consultation—I will come back to this consultation process—that recommended to the Secretary of State that the CQC should move to full cost recovery in just two years. I understand that there was a good deal of toing and froing between the CQC and the Government on this and that the CQC reluctantly asked for a two-year full cost recovery. The Government have really refused to help out or to give greater flexibility in relation to the number of years that it should take to meet full cost recovery.

I want to raise three issues. First, there is no doubt that this will have a financial impact of some significance on struggling providers by diverting resources away from front-line patient care. Secondly, there is the timing, given that the CQC is about to implement a new strategy in which it will evolve its approach to regulation considerably. Thirdly, there is the illogical series of consultations which took place with regard to these regulations, resulting in a lack of meaningful engagement by the Department of Health with the front line.

If the Government proceed, CQC fees will increase by a massive amount for individual secondary care providers. The estimate from NHS providers is the equivalent to every NHS provider losing two senior nurses. As the Minister knows, providers of NHS ambulance, acute, mental health and community services are already facing unprecedented financial challenges. I would have thought that the last thing the Government would want to do is put extra pressure on those providers at this time.

It is noticeable that, in the care sector, the care providers are facing huge financial acute pressure. Work in the past two weeks shows that up to a quarter of care homes fear financial catastrophe over the next 12 months. Again, I question the Government’s approach to regulation and the sustainability of these homes following such a large increase in fees.

The Government talk about a light-touch regulatory approach, and I suspect that in our next debate we might discuss that in detail. However, providers of health and care services had only two days’ notice of the fee increases before they came into effect. As no provision for this extra expense has been made through the national tariff, providers have to pay for it from money that would otherwise fund patient care.

We could debate the CQC as a whole, but I do not want to do that. I actually think that the CQC has been going in the right direction and I am keen to see its new strategic five-year plan, which is due for publication in the next week or so. David Behan, the chief inspector, commands a great deal of confidence in his mature, sensible approach. Certainly, my experience of large CQC inspections is that they can offer many insights and are getting better in quality as greater experience is gained. Therefore, this is not a criticism of CQC; it is about the impact on the NHS of a sudden increase in fees which, in relation to large NHS trusts, can amount to thousands and thousands of pounds.

On the consultation process, the decision to raise fees over two years has been made amidst a convoluted array of consultations, all of which have a bearing on the issues to be debated today. First, the CQC consulted on the timescale for moving on to full cost recovery. The Department of Health then consulted on a proposal that was a prerequisite for enabling the CQC to adopt full cost recovery for its current inspection model, amending legislation through the regulations debated today to allow full cost recovery of its comprehensive inspection regime through fees. Previously, the CQC had the power to charge health and care providers only for activities related to its core remit of ensuring minimum quality standards. So respondents to the CQC’s consultation were therefore obliged to opt for a trajectory to full year cost recovery of either two or four years before being invited to express views on whether such a move to full cost recovery was appropriate.

Further, the CQC was required to consult on the pace to full cost recovery before the final discussions regarding the spending review and the CQC’s budget for 2016-17 and before it consulted on its new strategy for the next five years. This did not allow for appropriate engagement on the proposals. Clearly, in the logical order of things, the CQC would have been allowed to finalise its strategy before making decisions about future fees. That was wholly unsatisfactory.

The consultation produced an almost unanimous conclusion that full cost recovery should be undertaken over four years rather than two. We need to remember that what this is doing is transferring money back from the Department of Health to the Treasury—we are talking about public money and it is about the way it goes through the system. But at a time of critical financial challenge in health and social care, the Government have bizarrely chosen to take money out of front-line services in order to give the Treasury more money. That essentially is what is happening at the core of this discussion.

At some point in the future, we are going to debate the NHS mandate—I think that it will finally reach us in the new Session—but, at the same time as this financial squeeze is being made, we have the extra CQC fees while another arm of government, in the form of NHS PropCo, is now charging market rates for accommodation rented by the NHS. That is another transfer of money, a paper transfer, presumably to the DH’s central budget. However, it is coming from front-line services. We know that there are other examples, such as in relation to pension costs, which again is essentially a Treasury decision to take money out of front-line services, so it is not as if the CQC decision is isolated. A number of peculiar decisions are being made to take money out of funds going to the NHS.

Those of us who have picked up on the evidence given yesterday by the Secretary of State to the Health Select Committee can see that he made that abundantly clear. Let us go back to the £30 billion for five years estimated by NHS England. The Government claim that they have given £10 billion—which of course is £8 billion because they added an extra year in order to get up to £10 billion—but the Secretary of State made it clear yesterday that about half of that money has been taken away from central department resources. So the reality is that in fact very little extra money is being put into the NHS.

I know that we are not going to debate the overall finances of the health service today, but it is important that decisions about the CQC are seen in the context of a very stretched service. I hope that, at the very least, the Government will reconsider this because it is a bit much to say to health services and care providers that they are facing a huge financial challenge that is going to be made worse by insisting that they pay full cost recovery over two years. I beg to move.

My Lords, it strikes me that this situation is rather like sending out the lifeboat to a swimmer in trouble in the sea and, instead of pulling him on board, pushing him further under the waves.

The issue raises a number of questions in my mind. First, is it right that providers should be expected to pay fully for the regulator, resulting in a dramatic increase of 75% in a single year and, I have been told, of 176% over the very short period of two years? If the Government believe that the CQC inspection is the “single definition of success”, they should be expected to pay for some of that quality assurance on behalf of the taxpayer, at least in the short term, in order to achieve the sustainability that we need not just for the CQC but for individual providers.

Over what time period should this new demand on the finances of providers be implemented? How much notice is being given? There were two days for implementation. That does not strike me as sensible, because it allows absolutely no time for proper budget planning.

The other question is whether providers can afford it. In particular, small GP practices in rural areas, I have been told, will be paying 1.75% of their turnover for the CQC. No wonder GPs are charging care homes for attending their residents, even though they already receive a per capita payment for them. What about the care homes, many of which are unprofitable even now? Let us face it: they are businesses—60% of patients are in private care—and we are heading for mass closure, which will be a disaster for all the old and vulnerable who need care.

As the noble Lord, Lord Hunt, said, what else will have to be cut from the front line in order for providers to pay for this at a time of unprecedented financial pressure? It will cost £28.7 million over four years, which has to come from a sector which already has a projected deficit of £2.8 billion. It seems that the Government are simply moving around the deficit deck-chairs on the “Titanic”. This is being done while the demand for efficiencies on the part of the CQC are marginal. It therefore follows that we should ask whether the regulator is giving good value for money and whether it is moving fast enough.

I wonder why the Government have chosen to ignore the overwhelming view of providers in the consultation, as the noble Lord, Lord Hunt, mentioned—the so-called consultation, perhaps I should say—given that the consultation on the proposed action was done before the CQC had completed and published its five-year strategy. As the strategy is expected to include significant changes to the inspection model, and therefore the costs, surely it should have been done the other way round.

Has any consideration been given to the idea of a risk-based approach to regulation, such as the one used by Ofsted, where schools that are consistently showing excellent results have a more light-touch inspection regime? Obviously, there would have to be safeguards and triggers for snap inspections, but it seems to work reasonably well in education so why not in health? It saves a lot of time and money.

There are a lot of questions there for the Minister.

My Lords, I want to address some of the issues raised by the noble Lord, Lord Hunt, and the noble Baroness, Lady Walmsley, especially in respect of the need for the Care Quality Commission to minimise the burdens on those it is regulating, including the financial burdens of these proposed regulatory fees, going forward.

I recognise that the CQC cannot be readily excluded from the Government’s full cost recovery policy for the setting of regulatory fees in all sectors. However, I believe that there are opportunities for the CQC’s regulatory inspections to be less burdensome and less costly without compromising robust and effective oversight. This particularly applies in the care sector, where care home providers currently face significant challenges, as we have heard, and the CQC faces significant budgetary pressures.

I am speaking in my capacity as chair of the United Kingdom Accreditation Service, or UKAS, which is the sole national body recognised by government for the accreditation of organisations providing inspection services, as well as certification, testing and calibration. We welcome the active encouragement by this and previous Governments of UKAS accreditation as an alternative to regulation as an intelligent, efficient and effective approach to inspection.

UKAS stands ready to assist all regulators in all sectors which wish to develop a more risk-based approach. This includes the CQC, which has indicated particularly that it plans to inspect adult social care services less often and to concentrate its efforts on providers perceived to pose the greatest risks to their residents, such as those homes that have been inspected by the CQC and given summary ratings for their quality of care of “Inadequate” or “Requires improvement”.

UKAS has been developing expertise and experience in the social care sector, having launched a pilot programme in 2014 for the accreditation of independent inspection companies in the care home sector. It has accredited one organisation, RDB Star Rating, which provides comprehensive ratings of the quality of care homes on the basis of wide-ranging inspections. We expect to accredit a number of similar inspection organisations over the coming months. These organisations all believe that there is an important role in the care home sector for independent quality assurance underpinned by UKAS accreditation. In turn, the part played by UKAS as the national accreditation body is key to this role—I am reminded here of the reference of the noble Baroness, Lady Walmsley, to safeguards and triggers.

To ensure reliability, UKAS will verify that any organisation that it accredits as an inspection body in the social care sector has proven its competence, impartiality, operational capabilities and consistency, and the equivalence of its assessments. Importantly, UKAS also ensures that accredited inspection bodies use standards that map on to those used by the CQC, so that their findings can be drawn on by the CQC in support of its regulatory responsibilities. If the CQC were to take account of the findings from UKAS-accredited inspection bodies as part of its risk-based assessment of services—as it so easily could—that would enable it to have a credible, up-to-date and holistic view of homes, and one in which it could have trust and confidence.

To date, the footprint of independent inspection and quality-rating bodies in the care sector is relatively small when one considers that the sector comprises over 17,000 care homes. However, if the CQC were to take greater account of the findings from UKAS-accredited inspection bodies, it would both encourage their development and the take-up of their assessments and ratings by care homes. More importantly, and of specific relevance to the issues raised by the noble Lord, Lord Hunt, it would provide opportunities for the CQC to reduce the scale, frequency and cost of its own inspections of care homes, enabling it to focus only on those deemed to be most at risk in terms of quality of care. This would help to address general concerns about increasing budgetary pressures being felt by the CQC and the rising fees being felt by the healthcare providers and care homes that it regulates.

Furthermore, in the interests of reducing the red tape experienced by providers of social care services—the need for which was emphasised in a recent report from the Government’s Better Regulation Executive—the findings from UKAS-accredited inspection bodies could be used not only by the CQC but also by local authority commissioners and local clinical commissioning groups to avoid duplication and reduce burdens placed on providers through unnecessary data requests and inspections.

Comparable opportunities have been developed by regulators in other sectors. For example, in support of delivering the Control of Asbestos at Work Regulations 2002, UKAS accredits testing laboratories and inspectors. The confidence that this engenders has enabled the Health and Safety Executive to reduce its regulatory inspection and monitoring activities. Similarly, the Environment Agency recognises the value of UKAS-accredited certification of environmental systems to ISO 14001. This has resulted in reduced inspection requirements for the Environment Agency and reduced environmental levies on businesses. Likewise, in the NHS the Human Fertilisation and Embryology Authority, the Human Tissue Authority and the NHS newborn screening programme increasingly rely on UKAS assessments of clinical services. The HTA, for instance, is undertaking joint inspections of mortuaries with UKAS.

The opportunity that I have outlined for the CQC in response to this Motion is timely for other reasons as well. In its recently published business plan, the CQC makes a commitment to:

“Delivering an intelligence-driven approach to regulation”.

This includes working with providers,

“to develop appropriate methods for them to share their own information and assessments of their quality with CQC, to inform ongoing, transparent conversations about quality”.

The CQC already recognises the established UKAS accreditation regimes for pathology, imaging and physiological services as useful and credible sources of information that contribute to “intelligent monitoring” when planning and carrying out inspections. This recognition can reduce the necessity for the time-consuming duplication of assessments by the CQC of pressurised clinical services.

I believe that this approach can be developed further to increase the efficiency and effectiveness of the regulation and inspection in health and social care. It can also demonstrate the CQC’s commitment to an “intelligence-driven approach to regulation” that is at the same time robust and credible. Such an approach would offer the very real prospect of easing both budgetary pressures and regulatory fees in the future.

My Lords, I first acknowledge the fact that any increase in fees, at a time when providers of adult social care, the NHS and elsewhere are going through a very tough time, is clearly very unwelcome. So perhaps it was not surprising, in a sense, that in the consultation when given the choice of spreading the increase over four years or two years, everyone voted for four years rather than two. I think everyone knows that, over time, it was the intention of the previous Government, as well as this one, to have full cost recovery. In the end, that must be right, but it is a question of how long it takes to get from where we are to where we need to be.

Most people will understand why the scope of the CQC’s work has developed over the past three or four years. The origins of the new CQC lay in what happened in Mid Staffordshire, Morecambe Bay and Winterbourne View, and a feeling that those tragedies could not be allowed to happen again. A much more comprehensive, expert-led inspection regime was the right way to try to unearth those awful things.

I totally understand what has been said by my noble friend Lord Lindsay and the noble Baroness, Lady Walmsley, about moving towards a more risk-based form of inspection. In the CQC’s strategy, which will be announced in a week or so, I hope there will be some reference to it having a more risk-based inspection regime. Of course, that has to be based, as my noble friend Lord Lindsay mentioned, on good intelligence. Over the past three years, the CQC has been able to collect intelligence, particularly on NHS trusts, where there are much better data—we are also using soft data as well as hard data—and that does enable one to put in place a more risk-based system of inspection. It has already said that it will re-inspect institutions that have a “Good” or “Outstanding” rating after a longer period of time than the ones with “Requires improvement” or “Inadequate”. But we will see when it produces its strategy next week exactly what it is planning to do.

On the comments of my noble friend Lord Lindsay, we did have some discussions when I was at the CQC, but I have to accept that they did not get very far. However, I would encourage him to meet the new chairman of the CQC, Peter Wyman, as well as David Behan, whom he already knows, to see whether or not there is any way that UKAS accreditation can help not just in adult social care but in aspects of clinical care as well.

On the points made by the noble Lord, Lord Hunt, about the consultation, the consultation period did go from 21 December 2015 to 1 February 2016. There was a reasonable period of consultation, but I accept that the implementation of the increase was much quicker. I also know that, although it did not sound very much in the context of the whole, for individual trusts this was just another cost increase that they had to bear. It is worth noting that the total cost of the CQC as a proportion of the whole that is expected for adult social care and the NHS is around 0.19%—very similar to the cost of Ofsted in education. So it is not as though it is expensive; it is just that the level of cost recovery has been ordained to be over a shorter time.

It is also worth noting that, for domiciliary care, the period of time is over four years and not two years. For GPs, where it was felt that the cost increase was the straw that might break the camel’s back, the baseline funding has been increased to allow for the extra increase.

I believe that it has gone into the baseline funding of the GP contract, but if I am wrong about that I shall write to the noble Baroness.

More generally, the CQC’s scope and the way that it does its inspections is just much broader than it used to be. They are done in more depth and detail. This statutory instrument was introduced to Parliament so that it would reflect what the CQC is now doing and recognise its enlarged scope. The regulations do not extend the remit of the CQC’s activity or the scope of reviews or performance assessments to additional providers or services; neither does it change the fees actually charged.

The CQC, like every other aspect of the NHS, is going to have to save a considerable amount of money over the next five years, which the noble Lord, Lord Hunt, referred to in his speech. This means that the kind of inspections which we have seen in some NHS trusts, where a large number of very expensive people descend upon a trust, will have to be scaled back to some extent. As the noble Baroness intimated, I think that we will see a more risk-based inspection model—a bit more like the Ofsted model. I suspect that we will see more unannounced inspections as well, because a large part of the cost of the CQC is not just its direct cost but the indirect costs on the trusts preparing for the inspections. Sometimes the degree of preparation undermines the validity and insightfulness of the actual inspection.

I take on board entirely the strictures of the noble Lord, Lord Hunt. This is another expense when times are extremely hard, but it reflects the fact that the scope of the CQC is now broader than it was three years ago, and the need to have full cost recovery over a fairly limited time.

My Lords, again, I am grateful to all noble Lords who have spoken in this debate and to the Minister. I have no problems whatever with the wider scope of the CQC’s responsibility, which inevitably has an impact on its cost base. Nor do I object to full cost recovery as a principle, because that has obviously been accepted by Governments over many years.

My complaint is that it is hugely insensitive for the Government to insist, which is essentially what has happened, that the NHS and parts of the care sector had to move to two-year full cost recovery. I note the alleviation given to GPs and domiciliary care, but I am puzzled that residential care was not given the same amelioration, given that, as we know, the care sector is in such a parlous state at the moment. We obviously look forward to the CQC strategy; I am sure it is right that it should be more risk based.

I very much welcomed the intervention of the noble Earl, Lord Lindsay. The United Kingdom Accreditation Service does its role very well. I also recently met RDB Star Rating, which is based in Sussex although it covers a number of institutions nationwide. It also made the point to me that, if you have a strong accreditation system, not only is there greater ownership by the bodies being accredited—because they have volunteered for it—but it ought to tie into the CQC process. The Minister has encouraged the noble Earl to meet the CQC; I hope that he might encourage the CQC to meet the noble Earl to see whether further progress can be made, because we clearly ought to take up the offer in relation to accreditation, if at all possible.

This has been a good debate. It is not at all a criticism of the CQC but of the Government and their approach, and it has been useful to raise those issues.

Motion agreed.

Tobacco and Related Products Regulations 2016

Motion to Take Note

Moved by

That the Grand Committee takes note of the Tobacco and Related Products Regulations 2016 (SI 2016/507).

My Lords, first, I apologise for springing this debate on my noble friend the Minister, in particular, at such short notice right at the end of a Session, but he will appreciate why this is an urgent matter. In 10 days’ time, the EU tobacco products directive may become law through a negative statutory instrument recently laid before this House. I emphasise right at the start that I have no problem with most of the regulations—just the parts relating to e-cigarettes and vaping, which are essentially Parts 6 and 7. My Motion is a little vague on that; the original draft was a little more specific.

As noble Lords will know, it has long been my view that the directive scores an own goal by bringing in measures that would discourage the take-up of vaping and thereby drive people back to cigarettes or prevent them quitting. However, it is not just I who take that view. Increasingly, it is the view of Public Health England and of the Royal College of Physicians, whose recent report on this topic is, I think, a game-changer in this debate. So I am here, at the 11th hour, to help my noble friend prevent a historic mistake being made, or at least to raise the issue. In passing, I note that I have nothing to declare: I own no shares and take no income from anything related to vaping or smoking.

The horrific death toll from smoking—100,000 of our citizens die every year—has, I suspect, touched the lives of many in this Room. It is the biggest cause of preventable death on a scale that is hard to comprehend: it is a Hillsborough every eight hours. It is a scourge that deserves the very best of technical ingenuity and policy-making skills to solve.

Vaping offers, as the Royal College of Physicians said, a great opportunity to apply to smoking the principle of harm reduction—an idea pioneered in this country. When people behave in harmful ways, how do you stop them? You can punish them in the hope of deterrence, as we do with murder and fraud; you can hector them, as we do with alcohol and sugar; or you can try to offer safer alternatives, which is how we tackled HIV infection and heroin addiction in this country in particular, and it is how I believe we should now deal with tobacco. In the case of addictions, where people find it genuinely very hard to resist temptation, harm reduction surely makes sense.

Britain is probably the world’s leading vaping nation. Virtually all of South America has banned the practice entirely, at the behest of the tobacco industry. In America, it is largely demonised and quite a lot of people do not know what it is. Almost all the 2.6 million vapers in Britain are smokers or ex-smokers, and the quit rate for those who try vaping is faster and greater than it is with nicotine replacement therapies or cold-turkey cessation. In other words, this is a public health revolution, and it is costing the taxpayer nothing. By saving smokers a fortune, rewarding entrepreneurs and averting ill health, it is boosting the economy.

However, we have before us a piece of legislation that strangles that breakthrough in red tape. It is the product of big-company lobbying and back-room deals in Brussels. It is legislation which last month the Department of Health admitted, in its impact assessment, risks increasing, not reducing, the amount of smoking. I hope in his remarks today that the Minister will be fully candid and accept that this part of the directive is a mess which does not deserve defending but does need ameliorating. I have alerted him already to three specific matters on which I seek clarity.

First, given that the Royal College of Physicians last month told the Government that they should promote vaping to smokers “as widely as possible”, what new, emphatic and unambiguous statement will the Minister make in support of vaping?

Secondly, given that the department estimates that the tobacco products directive rules will ban 90% of advertising that would have helped to promote switching, what budget has the department specifically set aside for a public information campaign to encourage smokers to move to vaping, as the royal college and Public Health England both want?

Thirdly, given that the regulatory burden that the department is about to place on the industry is so extreme that his officials estimate—at least, this is the only estimate in the impact assessment—that the number of notifiable products will be reduced by 96%, from 25,000 to possibly as low as 1,000, what expenditure will the department make specifically to reduce the cost of the onerous testing regime on the industry?

I would ask the Minister to avoid repeating the erroneous suggestion his officials have been making that any of the £13 billion of public health benefits that his department surmises will come from the tobacco products directive would be the result of Article 20, or Parts 6 and 7 of these regulations. In the table set out on page 45 of the impact assessment, the department has not been able to quantify a single benefit from vaping regulation.

Let me put this in a little context. At the beginning of this decade, attempts to reduce smoking were stalling. We had taxed the habit to the point where the main beneficiaries were black market traders, we had barred smoking from every public building, and nicotine patches were proving unpopular with smokers. Then along comes a technical breakthrough, thanks to a man who I have met named Hon Lik, working in central China. It was something that gives a nicotine hit in the same fashion as smoking but is far safer and cleaner. It is a fantastic piece of luck, or rather ingenuity. As the Prime Minister told the other place in December, vaping has now helped more than 1 million people in this country to stop smoking altogether.

How safe is vaping? We know that concentrations of harmful and potentially harmful constituents such as carbonyl compounds, tobacco-specific nitrosamines, polycyclic aromatic hydrocarbons and other constituents are in the order of 1,500 times higher in cigarette smoke than in vapour. A well-controlled trial has recently been carried out by Dr Grant O’Connell and colleagues working for the vaping manufacturer Fontem Ventures. They asked 15 smokers to give up altogether for five days, 15 to vape only for five days, and another 15 to mix vaping and smoking for five days. They measured the harmful and potentially harmful constituents in the urine, blood and breath of each group, and the results were striking. After five days, the vapers’ carboxyhaemoglobin levels—an indication of how much carbon monoxide they had in their systems—had dropped by 83%, which was an even bigger drop than in the cold-turkey cessation group, whose levels dropped by 75%. Even the dual users had seen a drop of 23%. The amount of carbon monoxide they exhaled had halved in both the vapers and the cessation group. Much the same was true for all the other biomarkers except, of course, for nicotine.

In other words, in terms of harmful constituents vaping is almost indistinguishable from not smoking at all. Both Public Health England and the Royal College of Physicians agree that it is much safer than smoking. As far as we can tell, nicotine addiction without smoking is about as dangerous as caffeine addiction.

Vaping is therefore a public health triumph that the Department of Health has, to its extreme shame, done its utmost to block. In 2010, the department’s medicines regulator, the MHRA, tried to ban vaping devices completely. In 2013, the agency—which is financed largely by the pharmaceutical industry—tried to insist that every e-cigarette should be licensed as a medicine. This would again have amounted to a de facto ban. After six years of trying, the agency has so far only managed to license one e-cigarette, which is still not available to the public. If the Department of Health had had its way, there would not be 25,000 varieties of vaping product on the market today, but zero. The only winners from the Department of Health’s policy prescriptions would be undertakers.

Thankfully—and my noble friends will know how painful it is for me to say this—the European Parliament voted down the folly of exclusive medicinal regulation, but it did not vote down the rest of Article 20 of the tobacco products directive which, in that wonderfully undemocratic way, is now being forced upon us. The truth is that these regulations were scripted in Brussels by pharmaceutical companies desperately trying to protect the sales of their widely unloved nicotine replacement therapies. What we have before the House is still a piece of legislation that is not fit for purpose. When even the Department of Health says that it risks increasing smoking, we know that we are facing a moral responsibility as legislators to review this in great detail. It most certainly should not just be nodded through.

It is no defence to say that some regulation is required. No sensible person would argue against us knowing what is going into e-liquids and what comes out in vapour. Potential toxins should be tested, as happens with food, cosmetics and other consumer products. But as the department admitted in an Answer to a Written Question, far more adverse incidents are reported by doctors about pharmaceutical nicotine replacement therapies than e-cigarettes. At most, a bit of tidying up of the testing process was needed.

Let me put three more questions to the Minister. The Royal College of Physicians describes the big warning labels that will deter smokers from using vaping devices as “illogical”. Does the Minister agree with the royal college on this?

Secondly, the ban on stronger vaping devices—the ones most likely to wean heavy smokers into vaping—was criticised two years ago by a dozen scientists writing to the Commission, which ignored their advice. Economists now predict that 105,000 extra deaths every year across Europe will result from the ban on stronger devices. Does the Minister agree with this estimate? If not, what is his estimate?

Thirdly, the directive proposes that, to cut down the risks of children starting smoking, it is necessary to create a minimum cigarette packet size of 20, yet it imposes a maximum size for vaping devices. This miniaturisation will raise prices and generate more packaging waste. Where is the logic in making the most successful substitute to tobacco more difficult to use?

The Minister has a choice. He can blame Brussels and say this is now a good reason to quit the EU in order to help people quit smoking—a lot of the country’s vapers, who are natural libertarians, are beginning to take that view and to dream of the day after Brexit when Britain abolishes the tobacco products directive and goes back to pioneering the virtual elimination of smoking and its replacement by something much less harmful. Or, if the Minister does not wish to turn this into a referendum issue, he can have a quick rethink and try to alter the implementation of the directive. We have a statutory instrument before us, about a third of which is devoted to stifling an exciting innovation that is saving lives. I beg to move.

My Lords, I thank my noble friend Lord Ridley for raising this issue today. Like him, I intend to concentrate solely upon e-cigarettes and vaping. I have no views whatever on the rest of the directive.

Unlike my noble friend, I must declare a major interest in this subject, in that I smoked 20 cigarettes, a packet, a day for the best part of 50 years. I tried a number of different ways of giving up—patches, chewing gum and will-power, none of which worked—until two years ago when I took up using an e-cigarette. I have not had a cigarette since. I am pleased to hear of the health benefits my noble friend has described, which I hope I am now enjoying. I am also pleased that I now have the endorsement of the Royal College of Physicians and Public Health England in my course of action. It is, I believe, recognised by the Department of Health as the number No. 1 tool for helping smokers give up.

I do not know whether my noble friend has the figures—I do not—but I would estimate that 99% of people who smoke e-cigarettes are those who are trying to give up, or have given up, smoking real cigarettes. I cannot believe that anyone would start using an e-cigarette if they had not smoked an ordinary cigarette beforehand. Maybe some people have, but I do not know.

I can also tell the Committee that it is extremely good for the pocket, as well as the health, in that 20 cigarettes now cost something like £9 a packet, a large amount of which goes to the Treasury of course. I was spending £9 a day on cigarettes, whereas now I use a nicotine liquid, which comes in a 10 millilitre bottle, costs £5 and lasts me a whole week. So it is very good for my pocket.

I understand that nowadays a large proportion of cigarette smokers come from the lower-income categories of people and therefore it would be of great benefit to them if they were able to give up smoking cigarettes. I hope my noble friend can confirm that the type of nicotine liquid I use—which is 1.1% in 10 millilitre plastic bottles—will not be banned by this new regulation.

This directive was dreamt up in 2012, quite a long time ago before I—and, I suspect, most people—had heard of e-cigarettes. Like a lot of things that come from Brussels, it has not been adapted to the facts, including the fact that e-cigarettes are now recognised as a good thing. I hope my noble friend can assure me that he will do all he can to limit the damage that this directive might have on people who are trying to give up smoking.

My Lords, I, too, pay tribute to my noble friend for introducing this debate. I have a great sense of déjà vu because I was one of the people in the European Parliament that he referred to, who helped achieve the original decision against this directive’s restrictions on e-cigarettes. I was also the shadow rapporteur for my group and part of the European Parliament negotiating team that sat until about 11.30 pm in the Berlaymont, with the Commission chairing the meeting and the Council on the other side of the table, thrashing out the messy compromise that we see before us now in the tobacco products directive. Again, I have no difficulties with the vast majority of the directive; my concern was with the articles on e-cigarettes.

Before I started working on this, I had no particular knowledge of the subject. But when any dossier is placed before you, the first thing you do is read the various publications available and listen to all the lobbying and advice and you are also contacted by constituents. I was first alerted to the issue when my email inbox started filling up with literally hundreds of emails from people all over the country—and, indeed, Europe—concerned that these magical devices they had used to give up smoking were going to be banned or severely restricted. Together with a number of MEPs from all sides—including members of both the Liberal Democrats and the Labour Party in the UK—we started a campaign to improve the directive.

I have to say that we were not particularly helped by Department of Health officials. I tried to speak to Ministers many times to find out who was behind the restrictions and why there was such a campaign against something which so self-evidently provides great public health benefits and harm-reduction measures, but I never got a clear answer. I was pointed to a recording of a former public health Minister appearing in front of the European Scrutiny Committee of the House of Commons. When she was asked why she voted for this directive on behalf of the Government, she turned to her officials and said “I think the e-cigarette provisions were removed from it, weren’t they?”—which showed a worrying lack of understanding of what she was voting for on behalf of the Government.

Nevertheless, we ended up with this directive. It was a messy compromise and it is very badly worded, but it is a lot better than it could have been had we not campaigned on it. My noble friend Lord Ridley is quite right to point out the somewhat murky role of various pharmaceutical interests in the production of the directive. When I asked questions in the Commission and the Council—it seemed to me self-evident that these devices were brilliant for reducing tobacco smoking, which I thought was what we all wanted—I asked why they were even in the directive in the first place, given that it is called a tobacco products directive and e-cigarettes are not tobacco products in any sense of the word. The answer I received many times was that this was argued for by the pharmaceutical industry, which would have an awful lot to lose if e-cigarettes supplanted or replaced nicotine patches and gum. I do not know the truth of that, but it seems that it was very successful in getting what it wanted.

I completely agree with all the points made by my noble friends, but I have two additional points to make. First, on advertising, the Royal College of Physicians has a proud history at the heart of tobacco control. Since its first report, Smoking and Health, in 1962, it has been an intellectual leader in the field and is worth listening to. When the headline on the press release on its latest report states in bold,

“Promote e-cigarettes widely as substitute for smoking”,

one would hope that the Government would get the message that its 21 world-renowned authors are trying to put across. But we would be wrong if we thought that, for the regulations that the department wants us to approve are not about the promotion of e-cigarettes but about the suppression of information about them.

Paragraph 176 of the department’s impact assessment forecasts that the EU rules will reduce e-cigarette advertising by 90%. How are smokers supposed to hear about e-cigarettes? In paragraph 167, the department nonchalantly claims that cutting advertising will in fact not reduce the number of smokers switching to e-cigarettes. We have heard this old argument many times before—not from health officials but from tobacco company executives trying to pretend that advertising smoking would somehow not increase the amount of smoking.

The messages that we give really matter. In the complex decisions that smokers make every day about whether to smoke or consume nicotine through much cleaner forms, their perceptions of the relative risks of these products are crucial. The Royal College of Physicians, Public Health England and Action on Smoking and Health have all raised deep concerns about how smokers perceive e-cigarettes to be much more risky than they actually are. It is very interesting that Action on Smoking and Health should now say that, because I recall that that was not the message that it was giving when we dealt with the directive.

We are certainly not going to give that message by banning 90% of advertising, nor by insisting on e-cigarette packaging carrying big health warnings, which is what the Government are asking us to approve in these regulations. The Royal College of Physicians described the imposition of these warnings as “illogical”, bearing in mind that nicotine patch boxes do not have to warn of the dangers of nicotine.

Much of the problem stems from media reporting of junk science. The worst example was a headline in the Telegraph in December, which screamed:

“E-cigarettes are no safer than smoking tobacco”.

It was a nonsense report based on, as I said, junk science.

The second point that I want to raise concerns novel tobacco products. A number of new products have been introduced in this category, particularly products called “heat-not-burn”. These are very interesting developments, and a range of other alternative products is also in development. Some of the ones coming to market contain tobacco, but they work by heating it and not burning it. The absence of combustion is key. We all know that, as my noble friend Lord Ridley has said, harm from smoking comes primarily through the toxins produced by the burning of tobacco. In 1976, Professor Michael Russell wrote:

“People smoke for the nicotine but they die from the tar”.

That was reflected in the title of the recent study by the Royal College of Physicians on e-cigarettes, Nicotine without Smoke. With such technological developments, and a new regulatory basis with the introduction of the TPD, are the Government looking at the opportunities to be had from the available range of products, in addition to e-cigarettes, as part of a harm reduction agenda in the new tobacco control plan?

This is truly a terrible piece of legislation, and I plead guilty for the part I played in helping to produce it in the first place. However, it is not too late to undo some of that harm and to help encourage the taking up of e-cigarettes and, consequently, a reduction in tobacco consumption. Instead of trying to restrict e-cigarettes, the Government should in fact be trying positively to encourage them.

My Lords, these regulations, or the directive, directly affect me, my health and indeed my well-being. I started smoking before I was a teenager, building up to about 50 cigarettes a day. I tried every trick in the book to kick the habit, but nothing seemed to work. I knew that it would kill me—that I would be gathered by the grim reaper before my time—but I just could not stop. I could not kick the habit.

Then, two summers ago, I was in a taxi in a traffic jam. I was chatting to the driver and at one point I said, “I do wish we could hurry up because I’m dying for a fag”. He turned round with an e-cigarette in his hand and said, “Have you tried one of these?”. I said, “No. What is it?”. He explained that he had tried them and had not smoked a cigarette since. He kindly wrote down the details for me to google, but he insisted that if I tried e-cigarettes I must try the strongest ones I could get because, if I did not, I would not get the necessary nicotine hit and would be back on fags in no time at all. I took his advice about using the strongest nicotine—2.4%—and I have not looked back. I have not had one puff of tobacco since two summers ago, rather like my noble friend Lord Brabazon. So they do work and they do help people to stop smoking.

As we have been told, there are 2.6 million people vaping in the UK. Of those, 40% are, like me, ex-smokers and 59% are dual users who both vape and smoke. The Committee will agree that a single vape is better than a single drag on a fag. Interestingly, only 0.2% of under-18 year-old non-smokers have tried vaping, although continued use is negligible. Research conducted by Cancer Research UK found that smokers who vape are 60% more likely to quit than those who use will-power or over-the-counter nicotine products. These statistics demonstrate that vaping is used almost entirely—99%—by current and ex-smokers. Sixty-one per cent of them say that the sole reason for vaping is to stop using traditional tobacco products.

So why have we got this directive and these regulations? Our masters in Brussels believe that vaping could provide a gateway to smoking and that these tough new laws are necessary to protect non-smokers, particularly children, from using e-cigarettes. However, as I have tried to explain, there is no evidence of this. Ninety-nine per cent of those vaping are current or ex-smokers like me. As to children, as I said earlier, only 0.2% of under-18 year-old non-smokers have tried vaping. There is no evidence that vaping is a gateway to tobacco and no evidence that vaping products influence children.

As vaping is estimated to be 95% safer than smoking, you would think Brussels would want to encourage it. Where does Brussels get its evidence that vaping is harmful? I do not know. Has it been got at by the tobacco lobbyists, who have seen their sales of traditional tobacco fall, or by the pharmaceutical industry, as my noble friends Lord Callanan and Lord Ridley have already suggested?

Brussels is banning advertising; e-cigarettes must carry health warnings; and nicotine strengths are to be restricted. To my mind, restricting nicotine strength to 2% will be particularly damaging, but I would say that, as I still use the 2.4%—as do about a quarter of e-cigarette users. By taking up vaping, I hope to keep the grim reaper at bay for a little longer. I hope that when I run out of my 2.4% nicotine supply and I am forced to use the weaker nicotine, I do not switch back to smoking. That is the danger for many e-cigarette users. Perhaps by the time I run out of my 2.4% nicotine supply, stronger nicotine may be available on the black market, with all the dangers that that will entail.

I would like to use one or two quotes to back up my previous assertions. The Office for National Statistics has said:

“E-cigarettes are almost exclusively used by smokers and ex-smokers … and almost none of those who had never smoked cigarettes”,

were e-cigarette users. Public Health England has said:

“There is a need to publicise the current best estimate that using EC is … 95% safer than smoking”.

It went on to say that:

“Encouraging smokers who cannot or do not want to stop smoking to switch to EC could help reduce smoking related disease, death and health inequalities”.

This was backed by the Royal College of Physicians, which said:

“On the basis of the available evidence, the RCP believes that e-cigarettes could lead to significant falls in the prevalence of smoking in the UK, prevent many deaths and episodes of serious illness”.

Even the Prime Minister, last December, said:

“We need to be guided by the experts, and we should look at the report from Public Health England, but it is promising that over 1 million people are estimated to have used e-cigarettes to help them quit or have replaced smoking with e-cigarettes completely. We should be making it clear that this a very legitimate path for many people to improve their health and therefore the health of the nation”.—[Official Report, Commons, 16/12/15; col. 1548.]

Quite so.

I do not know what my noble friend the Minister is going to say when he responds, but I expect him to support the regulations and the EU directive. There is very little else he can do. Our masters in Brussels have told us to jump and, sadly, the only thing that the British Government can do is jump—until 24 June, of course.

My Lords, I first declare an interest, because this is a tobacco and related products order and I am an associate member of the Houses of Parliament Pipe and Cigar Smokers’ Club. I am an associate member because I am a non-smoker, so they tolerate me. I am pleased to be a member of that club because I believe that the attitude towards smoking has been quite absurd in many respects. Measures have been taken against the smoking population—I am talking about the adult smoking population—that are not appropriate in a democratic society, which should allow adults to make choices about their lifestyle and not be dictated to by government.

However, we are not talking about tobacco today. I only just saw the Prayer from the noble Viscount, Lord Ridley—if it is a Prayer—for the debate that he has instituted today, and I think that he and other noble Lords have really put the case. As far as I am concerned, there is probably nothing else to say, except to give them support in resisting the Government’s, and of course the EU’s, decisions to restrict a product that is going to assist others in giving up tobacco smoking. That is almost impossible to believe: that a Government who have been so anti-smoking, and who have themselves brought in so many anti-smoking measures over the years—I have been involved with them for at least 25 years—should now, when we are on the brink of assisting people to give up tobacco smoking, put these very stringent restrictions upon them. Why on earth are they banning the advertising of them if they are a health benefit to people who smoke and the Government think that people ought to give up smoking? To me, that seems to be an absolutely absurd position.

Have there been consultations with the producers of what are called e-cigarettes, but perhaps that was a mistake because they are not cigarettes? Anyone who mentions cigarettes is immediately jumped on by the Government and the department, so it may have been a mistake to label them as cigarettes since they clearly are not and should not be treated as such. Have Ministers had discussions with these producers? I ask that question because the department and Ministers refuse even to meet and have discussions with the tobacco companies. Perhaps that is understandable because the World Health Organization recommends that they should not be given a voice. However, in this case it is something that will help people to give up tobacco. Again, have they had discussions with the people who produce e-cigarettes? I should like to know the answer to that.

The only other thing I have to say is this. I hope that the Government will listen to this debate, although in fact there is not much hope of that because in the past trying to get the Government to listen to reason is like banging your head against a brick wall. It does not matter what you say. They have their policies, but when they get into government, they often change them. I can remember sitting on the other side of the Moses Room and listening to a former health Minister speaking—not voting—against some of the measures that were being introduced by the Labour Party. An example of those was the hiding of cigarettes behind blinds. He was against that, and indeed I well remember him meeting with retailers and saying how a Conservative Government would see that that was repealed. But of course they are in government now and so they are in favour of it, and they have brought forward this legislation. It is not about banning a dangerous product like cigarettes; it is about a product which helps people to stop smoking.

So I hope that the Minister will listen carefully to the experiences of those who have spoken in this debate. I should add that I have met many people, including a relative of mine, who had been heavy smokers but were weaned off smoking by using e-cigarettes. I am obliged to the noble Viscount, Lord Ridley, for seeing to it that we have had a proper debate and I hope that the Government will listen to it.

My Lords, I should start by apologising to the noble Viscount, Lord Ridley, for missing the first few minutes of his speech. I appear to be a dupe to the railway industry at the moment. Today’s excuse for the cancellation of my train was a broken windscreen, which I thought was pretty unique. It was a 125 mile-an-hour Pendolino, so I suppose that the windscreen ought to be intact for the whole of the journey.

I agree very much with what has been said from both sides. I do not have any financial or personal interests to declare, although at the age of 74 I know that my generation are habitual smokers. I was surrounded by smokers. Both my parents smoked and, when I went to work for the railway industry, virtually everybody I worked with smoked. However, unlike the noble Lord, Lord Brabazon, or the noble Earl, Lord Cathcart, I managed to find the will-power to give up about 30 years ago. I did it purely by terrifying myself. It became apparent that smoking was synonymous with lung cancer. I convinced myself that every cigarette I lit was the one that was going to give me lung cancer, so eventually I terrified myself into stopping.

However, I do not understand the purpose of this SI or the fact that we are going to ban products that will help people to give up smoking. Like other speakers, I do not believe that someone who is currently a non-smoker will move from vaping to tobacco. Surely it has been proved, or is obvious enough, that people move the other way—from tobacco to vaping—and I cannot understand why the Government are so ready to accept this SI. That is not to say that I am getting involved in what is going to happen on 23 June.

There is a group of people whom the Government ought to be concerned about regarding smoking in the future. As I go round the country, I am concerned about the number of young people who smoke, particularly the number of young women, many of whom believe that smoking helps them to stay fairly slim—I was going to say “fit”, although obviously it does not do that. Anything that would help them to come off tobacco would be good. I have no doubt that the two medical doctors who will reply for both sides will tell us that there is no scientific evidence that smoking keeps you trim. However, I again quote my own experience. I put on a stone and a half quite quickly when I gave up smoking. There was no medical reason for that. It is a fact that smokers are anxious to put down their knives and forks and head for the door to have a cigarette immediately after the main course. Once I gave up smoking, I stayed for the ice cream and puddings and so on. So I want to know from the medical profession, from both sides of the Room, which will kill me first—smoking or my spare tyre. Understandably, I have been warned about both.

Mention was made by the noble Lord, Lord Callanan, of the reduced-risk tobacco products, such as the “heat-not-burn” products, which I understand the industry is currently looking at. I understand that the Chancellor mentioned these products in his recent Budget. I would be interested to know from the Minister what the Government’s intentions are. I fear that if the Treasury acts in the way that it usually acts under any Government, it will be another excuse to tax something as heavily as possible. However, if we are serious—which we are—about weaning people off the demon that is tobacco, then banning alternative products which are proven to be less dangerous is a far from sensible way forward, and I would be interested to hear from both Front Benches why they are apparently supporting this SI.

My Lords, I want to say just a couple of words about this. First, I do not really have an interest to declare. I have a wife who is a very heavy chain-smoker, but I do not smoke—I let her go on smoking because it keeps her slightly calmer and liveable-with, and it is probably better than her going on to Valium. Personally, I am a chocoholic, which is a different problem altogether.

I think that we should separate out in our minds the difference between the harm done by the burning of substances which we inhale and the harm, or not, from a particular drug within it—nicotine. If you separate those as two different issues, you realise that this is not the right directive, because this is about tobacco, which at the end of the day is a herbaceous substance which we dry and burn. That is what it is meant to be about; it is not about whether or not nicotine is a beneficial drug.

I do not know much about this because I am not a doctor. I read things in the press which say, for instance, that it can help with Alzheimer’s and dementia, and I read other things which say that that is rubbish. I agree with the noble Lord, Lord Snape, that nicotine definitely used to be an appetite suppressant. One thing that I predicted when tobacco was cracked down on was that we would have an obesity crisis. It is one of the few things that I have been right about and it happened very quickly. If we wanted to prevent all the problems with people being overweight, we could perhaps recommend smoking—it is a question of which way you go.

The calming effect is well known for people who are quite nervous and tense; again, I think that is from the nicotine rather than the burning part of it. We also now have signs over the motorways saying, “Tiredness kills—take a break”. In the old days, you had a cigarette when you were driving and felt tired. I know that you should take a break but sometimes it is 30 miles to the next place where you can stop or you have a deadline, so a nicotine hit was a perfectly acceptable way of keeping yourself awake. Maybe vaping would do that, but the point I really want to make is that we should not be confusing the two things.

The point made by the noble Lord, Lord Stoddart of Swindon, was also apt and very good: “What’s in a name?”. They should never have been called e-cigarettes because they are not cigarettes. This goes back to the point of the noble Viscount, Lord Ridley, about having to separate the two issues. He was absolutely right there.

I have two things to finish on. One is that this is a directive which we are trying to implement into UK law, not a regulation, which would mean that it was directly applicable in the UK. You should be able to modify the purpose of a directive slightly, in light of the local circumstances, while still trying to comply with its spirit. I have not read the directive at all, so I do not know whether there should be some room for manoeuvre. If we feel that it would be better for the UK population to write it into our local laws in a different way, I hope that such an amount of latitude exists within the directive—and within the EU—to allow us to do that.

The final thing is that wonderful conspiracy theory: that the Treasury gets huge amounts of tax from the smokers but not from the vapers, so the Treasury may rather see us smoking than see vaping take off, and that the Government have a vested interest in making sure that this directive goes through unchanged to prevent vaping. Maybe they should declare that every time they try to promote the directive.

My Lords, this has been a great debate and I am grateful to the noble Viscount, Lord Ridley, for once again bringing our attention to this matter. It is a pity that we are in Grand Committee and not in the Chamber, but I can understand the reason for that. I should declare my presidency of the Royal Society for Public Health, which has of course produced documentary evidence on electronic cigarettes.

It is tempting to debate Europe—and I look forward to the view of the noble Lord, Lord Prior, on that, as it clearly seems to be part of our debate—and it looks as if we have quite a long time to wait this evening. I am in favour of remaining in the EU, but I would remark that this directive does not seem to show much evidence of the Prime Minister’s claim to have negotiated a new concordat and relationship with the EU.

I am very doubtful about the argument that, if we were outside the EU, we would not be doing this. The fact is—I speak as president of the RSPH—that some elements in the public health world were prejudiced from the start against e-cigarettes. That clearly influenced the Department of Health and is the reason why it has taken such a mealy-mouthed approach to e-cigarettes, which is simply not based on evidence at all. It is interesting that, if you look at some of the papers produced by public health bodies, there are some weaselly words around this issue: “We still don’t know and we need to be very careful”. They are really trying to find a legitimisation for the initial very negative reaction, which I am afraid has laid the foundations for where we are today, because this is bonkers. It is simply madness. Here we have a product which is clearly of benefit to smokers and there is no evidence whatever that it will be used by non-smokers, which is where all this nonsense has come from. Why would a non-smoker take up these e-cigarettes?

The noble Lord, Lord Stoddart, and I have debated tobacco issues for many years, and he will know that I have been strongly in favour of very strong legislation. I moved the amendment to ban the smoking of tobacco in cars with children only a year or two ago, so I am not at all worried about being very tough on smoking, but e-cigarettes are completely different. I do not understand why they are part of the directive at all or classified in the same way.

The evidence is abundantly clear that e-cigarettes are almost wholly beneficial. My concern is that it is also clear that the public are, at the moment, confused. RSPH research revealed that 90% of the public still regard nicotine itself as harmful. Going back to September 2015, Public Health England issued a joint statement with other UK health organisations, saying:

“And yet, millions of smokers have the impression that e-cigarettes are at least as harmful as tobacco”.

It seems to me that one of the real adverse consequences of this is that, as it becomes known that there are going to be major restrictions on the promotion of e-cigarettes, all that will do is emphasise the belief that they are harmful. I have seen the RIA, but I could not see there any analysis of the impact that that could have on reducing the uptake of e-cigarettes among smokers. However, it is a very important point.

I want to put three points to the Minister. First, the noble Viscount, Lord Ridley, asked him what would happen to the investment in smoking cessation services. My understanding is that, as a result of the Government’s cut to the grant to local authorities for public health, smoking cessation services investment is going down. Will the Minister confirm that and say what he is doing to reverse the pattern?

The second point is that, clearly, this directive will go through, because there is no Motion to stop it. What monitoring will take place, and how soon will the Government undertake an assessment of the impact? Assuming that we are still in the EU, is the Minister prepared to go back to the EU if evidence becomes clear that this is having an adverse impact on smokers giving up smoking? I hope he can give some reassurance on that.

The third issue relates to enforcement. In the statutory instrument, regulation 53 makes it clear that:

“It is the duty of each weights and measures authority in Great Britain and each district council in Northern Ireland to enforce these Regulations within their area”.

What guidance is going to be given to the weights and measures authorities about taking a light-handed approach to enforcement?

It is quite clear that these provisions are not supported. It is pretty obvious that the Government themselves do not support them because of the amelioration that they have attempted in transposing the directive. At the very least, one could expect a message to be given to weights and measures authorities that the Government expect enforcement to be proportionate, minimalist and certainly light touch.

My Lords, I do not know whether to thank my noble friend Lord Ridley for bringing this debate here today or not. The arguments that have been put have been very powerful and it would be obtuse of me to say otherwise.

Perhaps I can start by going back to the opening words of my noble friend Lord Ridley, who said that there are three ways of trying to influence the behaviour of people doing things that do harm: you can punish them; you can hector them; or you can try to offer safer alternatives. In the article he wrote in the Times some time ago, he used the example of methadone as something that is not desirable in itself but is used as a means of treating people with heroin addiction.

In the case of tobacco we have tried all three things. We have penalised people through taxation, we have hectored them incessantly for years, and having tried nicotine replacement therapies, in a sense vaping is a way of encouraging people to use something that is considerably less harmful than smoking. Actually, most people would agree that we have been hugely successful in reducing the consumption of tobacco in England. I was asked for a statement of the Government’s view on vaping; I think I can say unequivocally that we are in favour of it as a means for people to come off smoking cigarettes. There is absolutely no question about that. The reports produced by Public Health England and most recently and very powerfully by the Royal College of Physicians entirely endorse that view. The president of the Royal College of Physicians, Professor Jane Dacre, said in response to the report:

“With careful management and proportionate regulation, harm reduction provides an opportunity to improve the lives of millions of people”.

I pick that out because she used the words “proportionate regulation”, and that is really what we are discussing today. It is not about whether we are in favour of vaping or not, it is about what kind of regulation should be around it.

On the European element, given that the noble Lord, Lord Hunt, could not resist throwing that in as one of his questions, I am not sure whether if we had been left to our own devices we might not have come out with something far worse several years ago. The noble Lord was kind enough to mention the original views of PHE and the MHRA, so we may well have brought in a licensing system or even have banned them altogether. I am not sure that one can lay this at the door of Brussels or indeed our own Government. We have been far too quick to resort to regulation in many areas and as a rule I am wholly in sympathy with less regulation. That is the best place to start. What we are discussing today is whether this regulation is proportionate, what damage it could do or what the directive’s unintended consequences might be.

I should just mention while I have it to hand, to put the concerns of my noble friend Lord Brabazon of Tara to rest, that the concentration which he is taking it at will not be affected. It will not have to be licensed by the MHRA, but sadly I cannot say the same to my noble friend Lord Cathcart, who at 2.4% is higher than 2%, which is the cut-off point for licensing. But I shall come to that in more detail in a minute, if I can.

Perhaps I may pick up on a few of the fears that noble Lords have expressed about the directive and see whether I can allay their minds today. It has been said that the directive will ban flavourings in e-liquids. I should make it clear that it will not do so. What it does say is that flavourings which pose a risk to human health should not be used; we could probably all agree that that is a sensible rule. There is an additive called diacetyl, which I think is also used in the making of popcorn, and there are other flavourings where there is some evidence that airways can be inflamed. The noble Lord appears to be questioning that, but I think the RCP report cites evidence that some flavourings can cause damage.

It has also been said that the directive will ban all advertising and prevent shop owners communicating with their customers. It does not do that. The new rules do not prevent information being provided to customers either online or in physical retail outlets, nor does it ban online forums, independently compiled reviews or blogs. Some advertising will also be allowed, such as point-of-sale, billboards and leaflets, subject to the rules set out in existing advertising codes to ensure that these do not appeal to people aged under 18 or non-users. There will therefore remain a wide range of information on the products available to smokers who wish to buy these products.

I take it that they will not be allowed to advertise on television—am I right about that? I see television adverts from the pharmaceutical companies for Nicorette and that sort of thing, so why on earth should these products be treated differently?

What the directive is trying to do, though it may not be doing it well, is to differentiate between smokers and non-smokers, particularly non-smokers under the age of 18. It wants to encourage information being given to smokers but does not want to risk the unintended consequence of normalizing vaping so that people who do not smoke start doing so. That is the purpose behind it.

The noble Viscount, Lord Ridley, asked how much money would be spent on public information. If there is evidence that the impact on advertising is such that smokers are not getting the right information about switching to e-cigarettes or vaping then there will be a strong case for a public information campaign to correct that, but we will have to wait and see what impact the directive has. It has also been said that the directive will ban certain types of products and make those that are available less effective. No current type of e-cigarette will be banned. In addition, it is worth noting that this is a fast-growing, highly disruptive and innovative market—I read somewhere that Goldman Sachs has put vaping down as one of the eight most disruptive products being marketed worldwide at the moment. Although we do not know how many products there are in this new and dynamic market, there may be as many as 25,000. Officials are persuaded that after this directive comes through there will still be many products on the market.

Concerns have been raised about the cost of notification for products that are below 20 milligrams per millilitre. The MHRA has announced that the fee for notification will be £150 per product and has been leading work with our partners in other member states and UK industry to develop and publish pragmatic guidance on the reporting requirements to minimise the burden on business. So, we will have to wait and see but I do not think it is right to assume that there will be a significant diminution of the number of products in the market.

Lastly, concerns have been expressed that the limit of 20 milligrams per millilitre will not meet the needs of smokers who are most addicted and that they will be unable to benefit from the harm reduction potential of these products. Again, this is not the case. Higher strength products can still access the market after 20 May, but they will need a medicines licence. Indeed, the Government would welcome a wider range of applications for licensed products. The noble Viscount, Lord Ridley, said that there is only one at the moment—which is true—and that it has not been properly marketed. But the Government would welcome more products in this space so that they can be made available to those such as the noble Earl, Lord Cathcart, who need and would benefit from them.

We know that the most commonly purchased products are below 20 milligrams per millilitre, though we do not know the exact number above that limit. We also know that at this strength or below, it meets the demands of the majority of current users and balances the risk of exposure of nicotine to children with the needs of users. Last week the European court agreed with this assessment, ruling that the provisions set out in the tobacco products directive, including those limiting strengths, were proportionate and valid.

It would be a massive unintended consequence if, as a result of this directive, fewer people gave up smoking.

It may well be unintended. I would not know the intentions of the curious people who devised this measure, but it is certainly an inevitable consequence, and it is the consequence that matters, not the intention.

The intention of the regulations is to make vaping safer and less variable than it currently is. The intention of the directive is to make it a better product and to cause more people to use it. If it does indeed result in smokers not giving up smoking, then it will have achieved the reverse of what the Government wish to do. The Government’s view is clear: we wish people to quit altogether but if, as a way of quitting, they can give up smoking and take up vaping, that is something that we wish to encourage. Of course, I understand that nothing I can say today will satisfy my noble friends and other noble Lords, but I have done my best to put our case forward.

The Minister is very gracious to keep giving way. It is interesting that he used those terms. There is a reluctance to promote vaping. Even in the words that he used there was a qualification. The Government would prefer everyone to give up smoking but it sounds as though they are half-hearted about this. I understand why they are in that position but the issue that I raised with the Minister is that the evidence is that the public are confused. My concern is that if weights and measures authorities enforce this in a heavy-handed way, it will confirm the public’s view that there is something wrong with vaping. For goodness’ sake, if we could persuade all smokers to vape, it would be a fantastic public health movement. Why is there this hesitation? I do not understand it.

I think that the hesitation comes because for a number of years the evidence around vaping was not clear. Many distinguished scientists felt that it was potentially harmful; it was not just the tobacco lobby. It is now absolutely clear, as I said earlier—I am unequivocal about this—that vaping is far more preferable to smoking. That does not alter the fact that quitting altogether, either smoking or vaping, is probably the best outcome.

The noble Lord, Lord Callanan, and I mentioned the “heat-not-burn” products. I know that strictly speaking they are not covered by the SI but, as I understand it, they are covered by the legislation emanating from Brussels as a whole. As the Chancellor mentioned in his Budget that he was looking at an alternative to cigarettes, I wonder whether the Minister can comment on the Government’s future intentions.

If that is on the taxation point, I am not aware of any intentions to tax these products. I will find out more about that question and write to the noble Lord but, as things stand, I am not aware of any intention to do so.

My Lords, the noble Lord, Lord Hunt, has twice mentioned weights and measures authorities enforcing this in a heavy-handed or a light-touch way. Can the Minister comment on which he thinks they will do?

I certainly hope that enforcement will be more Italian than traditionally British, if I may put it that way.

I am obliged to the Minister for giving way yet again. I understand that he has no power over taxation but, as a member of the department, he has the opportunity to make recommendations to the Treasury. Would he be prepared to ask his department to recommend to the Treasury that it should not put any tax, other than VAT, on this product?

My Lords, I am not responsible for public health in the Department of Health but I will talk to my honourable friend Jane Ellison, who is the Minister for Public Health and will put that view to her very strongly.

My Lords, I will be brief because I know that other noble Lords are waiting to start the next debate. I am most grateful to all those who have spoken in the debate: my noble friends Lord Brabazon, Lord Callanan and Lord Cathcart; the noble Lords, Lord Stoddart, Lord Hunt and Lord Snape; the noble Earl, Lord Erroll; and my noble friend Lord Prior. I say to the noble Lord, Lord Snape, that he looks in extremely good shape. He did not get the advice he was looking for about his health and I am not medically qualified, but he looks fine to me.

I withdraw the advice.

I agree with the noble Lord, Lord Stoddart, and the noble Earl, Lord Erroll, that we need to change the vocabulary in this area. Indeed, I myself now use the phrase vaping device rather than e-cigarette whenever possible because it makes more sense and it is a shorter term. I was also fascinated to recall when listening to the noble Earl, Lord Erroll, how one kept awake on motorways before Red Bull was invented. I did not realise that cigarettes had that effect. The noble Lord, Lord Hunt, has put his finger on it. There is still a real issue of public confusion, which we have seen reflected in recent opinion polls. Over the past couple of years, people’s suspicions about these products have increased because of the misinformation in the studies that were cited by others. The issue of harm is a tricky one to get across to the public because you cannot say that vaping is absolutely safe or that it is good for you. Vaping devices are certainly good for smokers, but in absolute terms they are not good. However, that is not the point. The point is relative harm and harm reduction.

I had originally wanted to put down a regret Motion to express stronger dissatisfaction with the directive and the way it is being brought into law, but the best chance of getting a debate before the end of the Session was through a take note Motion. I am sure that the Grand Committee wants to take note. Perhaps I may make a couple of other brief points. My noble friend Lord Brabazon mentioned that smoking is very regressive at the moment: it bears down much more heavily in terms of cost and suffering on poorer people than richer people. It is no longer an equal opportunity killer, if I can put it that way.

I am most grateful to my noble friend the Minister for the very different tone in his response from that of his predecessor, when we first debated this matter some two years ago in this Room, and for his unequivocal statement that it is a good thing for smokers to take up vaping. I was also encouraged to hear him make the point, and I will press him on it as we go forward, that although the directive prevents advertising, it does not prevent public information campaigns to get the point across to smokers. With that, and the promise of Italian light-style implementation, I beg to move.

Motion agreed.

Diversity in the Media

Question for Short Debate

Asked by

To ask Her Majesty’s Government what is their current assessment of diversity in the British media.

My Lords, I have spent seven long years as a diversity executive and only in the last year or so have I suddenly felt wanted. These days everyone wants advice about improving diversity. Let me start with the housekeeping and draw attention to my entries in the Register of Members’ interests. I am Channel 4’s diversity executive and the lead member on the board of governors for the British Film Institute with responsibility for diversity.

In the past I used to be very lonely but now things are hotting up, I am pleased to report. Everyone wants a piece of the action. After seven years as diversity executive, I thought the time had come to summarise what needs to happen to turbo boost diversity in Britain’s media and which principles we must embrace to secure change. I would therefore like to place before the Committee six principles and one fact.

In other speeches to Parliament, I have outlined the extraordinary strength of Britain’s creative industries and I will not repeat it now. Suffice to say that the creative industries in general and TV and film in particular are special cases. To some extent they create our culture and in many ways make us who we are. We like to think of ourselves as open, accessible, imaginative, innovative, transformational, wealth generating and, perhaps more than anything, fair—we are British, after all. So how is it that the representation we see on British TV does not always seem that fair? How is it that many under-represented groups feel locked out? In a nutshell, why does not British TV reflect Britain adequately? What are we doing wrong?

That question was posed last week on Radio 4’s “The Media Show” about the BBC’s latest diversity strategy. That strategy is hot off the press, but it is the 29th such strategy in 15 years. There is therefore an inevitable feeling that this strategy is just as likely as the last 28 strategies to slowly sink without trace. Simon Albury, chair of the Campaign for Broadcasting Equality and former chair of the Royal Television Society, does a great job of holding all the broadcasters’ feet to the fire. His article in the Guardian last week was entitled, “The BBC’s diversity strategy is not good enough”, so that gives a clue about its content. He then explains why the BBC’s current BAME employment rates are woeful and he praises Channel 4 for being frank about our own progress around diversity and setting,

“a benchmark that other public service broadcasters should seek to match”.

Let me be frank: a diversity strategy is not worth the paper it is written on unless it gives others the tools to measure its success. We can all spin our way out of trouble—or at least try to—and so the first principle we must all embrace is transparency, and we must link that transparency firmly to diversity data. Without it, there is little chance of making progress.

Here the broadcasters deserve credit for creating and funding a system that will allow others to judge them on how they perform on diversity. I know that the broadcasters are not thinking, “Let us sink £2 million on a system that is going to possibly criticise us hugely and be happy about that spend”. However, they have stepped up to the table and are working closely with Ed Vaizey, the Minister responsible—he has provided fantastic leadership in this area—because everyone recognises that it will bring transparency.

DIAMOND is the name for this system. It stands for Diversity Analysis Monitoring Data—a snappy little title that I came up with in the middle of the night but nevertheless serves its purpose. DIAMOND, as the Creative Diversity Network sets out on its website, will switch the lights on. It will enable British broadcasting to be the first of its kind in the world to answer the question: who is on our TV and who makes our TV? That question basically is: who chooses which stories are told and which voices are heard? These questions go to the heart of what it is to be a free society with a free press, so let us not accidently file away the “Diversity in the media” debate as being boring but worthy. It fundamentally deals with questions about who we are and what sort of society we are.

While I am being frank, let me also state what I think one of my greatest mistakes was for five of my seven years at Channel 4, where I was first head of diversity and then, when I came into this House, became diversity executive. My mistake was largely ignoring the situation facing women in the industry. Because I am a woman, I probably thought, subconsciously or not, that I better not start going on and on about women’s issues. But then you reflect a bit. Five years go by and you realise that women’s issues are society’s issues; that if you wipe out discrimination against 52% of the population, you boost employment and expand the talent pool, and if you change gender stereotypes, rather than perpetuate them—which too often the media do—you make things better for girls and boys, because boys are just as distorted by sexist stereotypes as girls.

That brings me on to my second and third principles: accountability that must be data-driven. We need accountability and we need our decisions to be data-driven. The data show us which groups are most excluded. They show us that, extraordinarily important as on-screen diversity is, the lack of off-screen diversity is even more concerning.

One example of data helping to inform opinion is the Channel 4 report on gender in the media. I hope that we at Channel 4 made good a small absence on gender for a few years, although we have had some extraordinary on-screen triumphs in terms of very strong roles for women and so forth. The report looked at how sexist TV is, basically. The report found that British TV is awash with low-level sexism. There are 30 incidents of sexism an hour being broadcast in prime time, all day, every day. It is no doubt the same the rest of the time, but prime time is what we measured.

We also found that the greatest amount of sexism was in comedy. You might not be that surprised by that, but think back to all the “light-hearted” racism—I am calling it light-hearted—of the 1970s. We would not say that that humour was acceptable now and yet, if you start talking about comedy and diversity and women, people say, “Oh, haven’t you got a sense of humour?”. However, we would not these days say that it was acceptable to think about race in the way that we did in comedy in the 1970s. We need to make some improvement there.

We also need to look at things by genre. Here, we found that in on-screen representation, the group that had the fewest women presenters was sport. In sport, the presenters are 98% male and 2% female. This is truly diabolical when you think that 52% of the population are women. Girls looking at sporting events are not ever seeing themselves engaging, commentating or having anything to do with it. The data help you clearly see where the gaps and problems are. They give you insight, and we all need that.

There is no excuse for not improving on-screen diversity, but as I said off-screen diversity remains far worse. Look at the situation facing women directors and ethnic-minority directors. I hope in future to have the stats for the LGBT community, for disability and for social class. These stats came from Directors UK. Once DIAMOND is up and running, the broadcasters will be able to give us all those stats, for instance around LGBT and disability, although not yet social class, another area where we need to make progress. With those caveats, the recently highlighted stats from Directors UK are truly shocking. Ethnic-minority directors make up just 3.5% of the directing community, despite making up 14% of the UK population, and women, despite being the majority, make up just 13.6% of working film directors. What is even more shocking is that these figures have not budged a millimetre in a decade. We have to think about how slowly we are making progress here.

The Directors UK report looks at why this has happened and outlines all the interwoven factors such as,

“career progression … budgets, genres, critics, audiences and public funding”.

The chair of Directors UK, Beryl Richards, stated that,

“the industry culture leads to vastly different outcomes for men and women”.

This is the bottom line for me—culture.

I would of course like to draw your Lordships’ attention to Channel 4’s 360° Diversity Charter, which deals with that culture, but it is also important that we look at the principle of systemic change. Policies that force systemic change are as important as cultural change. I will just name the principles: transparency; accountability; being data-driven; having systemic change; being genre-specific; and resource. That is what we need and what will make the BBC’s strategy, and all the other diversity strategies, a success.

My Lords, it is a pleasure to speak in this debate and to follow the noble Baroness, Lady King. I congratulate her on getting this debate and on the work she has done in this area. I am going to speak about the work I have been involved with at the Equality and Human Rights Commission—my interests are declared in the register—and the role of sport in this area and its power to transform.

This is in no sense a new issue. When I spoke last year with my noble friend Lord Grade, he said at the Edinburgh TV Festival that he first spoke on diversity in 1973. If it is not new, perhaps what is new is the number of initiatives we currently see coming from all the major broadcasters—BBC, ITV, Channel 4, Channel 5 and Sky. This should give us some encouragement that we are perhaps at a moment in time where significant transformational change can occur, because that is what we are talking about with diversity and inclusion. It is not about protected characteristics per se but about transformational change and how that can be achieved.

If we look at the BBC and the forthcoming White Paper, the potential for diversity to be hardwired into the charter could make such a significant difference to that institution. If we look at ITV’s commitment to inclusive programming, inclusive workforce and inclusive culture it is fantastic for a commercial broadcaster to be doing that. Channel 4’s 360° Diversity Charter, as already referenced by the noble Baroness, Lady King, is a phenomenally significant document.

When I was director of Paralympic integration at LOCOG, I was lucky to do the deal for the broadcaster of the 2012 Paralympic Games. We went with Channel 4 not just because of the job it could do at Games time but because of its commitment to inclusive broadcasting, in front of and behind the cameras. It committed to that right from signing the contract, which demonstrated the absolute need for leadership if we are to get transformational change with diversity and inclusion. That leadership came from its excellent chief executive, David Abraham, and chief marketing officer, Dan Brooke, who led on this and pushed it through every element of Channel 4 so that 50% of on-screen talent covering the Paralympic Games were disabled people. There were similar levels behind the cameras. You could see that in the on-screen portrayals, in the commercial “Meet the Superhumans” and in the fantastic jape at the end of the Olympics when there were Paralympians in the tunnel of the Olympic Stadium with the strapline, “Thanks for the warm-up”. This is what is possible to make inclusion happen and to have transformational change at the heart of what one does.

At the Equality and Human Rights Commission, I was lucky to lead on the work in broadcasting. When we released our guidance, Thinking Outside the Box, at the Edinburgh TV Festival last summer, I was absolutely convinced that I was the only man there not to have a goatee or a crushed velvet jacket but I continued nevertheless. What were we getting at with that guidance? We had the support and funding of the DCMS and the support of my right honourable friend Ed Vaizey. We worked in partnership with Ofcom, the CDN and PACT and had round tables throughout last year, meeting with people right across the industry to get to the heart of it. What are the issues? What are the problems? What are the things which people see as barriers in this area? This fact that people feel things are illegal when in fact, when you get into discussions, they may not be.

We are looking at the use of databases; positive action versus positive discrimination; the Rooney rule—all of these issues and more—awareness schemes across the broadcasters; and work practices. Within the guidance, which I recommend to everybody, Thinking Outside the Box, a number of recommendations are suggested to put to broadcasters on how to address and drive diversity and inclusion throughout our broadcasting industry. As to the use of unpaid interns and networks, if you go down those routes you will always get the same results and people will be able to say, “Broadcasting is a meritocracy”. It is absolutely a meritocracy if you are a white, middle-class, middle-aged man, but it needs to be a meritocracy for everybody.

We need to look at the positive use of targets. Self-imposed targets can be a good thing to drive the correct behaviours in this area. On positive actions against positive discrimination, I mean positive action in the general sense to develop those talent pools from which to draw people, not falling into the trap of positive discrimination which would go across the line. How do we get more disabled people into the workforce of the broadcasters? Some 50% of disabled people of working age do not work. That is unacceptable in the fifth richest economy on the planet. We need to use the guaranteed interview scheme, to develop disability talent pools, as we did when I was at LOCOG, to get that talent in front of people and offer them the opportunity to get into these roles, and not only in broadcasting.

Let us look at ring-fencing. It is possible to have ring-fenced funds for particular characteristics within organisations. This is what Lenny Henry has pushed excellently and which was so well noted at last Sunday’s BAFTAs. Crucially, we need to look at “indies”. Quite rightly, a great deal of production is happening through that sector, where there is great creativity. We are world leaders in producing this stuff but we need to help the smaller production houses to get to grips with how they can really embrace and drive inclusion.

None of this is new. For decades a lack of diversity in British broadcasting has been a stain on all broadcasters. It is not new, but what is different are the alternatives that now exist. If you are a young person coming into the industry for the first time, you do not see programmes made that you want to watch; you do not see programmes that represent people like you. Now, TV is not necessarily the sexiest thing in town. There are alternatives such as gaming or going abroad. Idris Elba goes to the US to be in the programmes that he wants to be part of, which was not possible in the UK. If you do not like what is being made, you can become a producer, a maker, and have millions of followers on YouTube.

British broadcasters must become diverse or die. They must become inclusive or become increasingly irrelevant. This is about nothing other than transformational change. It is not about political correctness or even about doing the right thing: it is simply about competitive, creative edge. So many schemes are out there. I hope that we are at a tipping point because the potential is massive to have all of those voices in the mix. We can have people from every background, belief and geography, disabled people and non-disabled people, with every voice informing, educating, entertaining, reflecting and representing. Every voice should represent, reflect and address that most significant of issues. Talent is everywhere, opportunity is not.

My Lords, I thank my noble friend Lady King for introducing this debate, which is important and always current. It is more than 50 years since the Race Relations Act was passed in this country. In 1965 many people thought that a new dawn had broken. In 1975 we had the Sex Discrimination Act, which sat alongside the Equal Pay Act. The disability lobby, after much innovative and sometimes brave campaigning, saw the introduction of the Disability Discrimination Act 1995.

Sitting suspended for a Division in the House.

The disability lobby, after much innovative and sometimes brave campaigning, saw the introduction of the Disability Discrimination Act 1995. The Equality Act 2010 introduced the public sector equality duty designed to require public bodies to consider the possible impact of their decisions on what are known as protected groups. These include, in addition to the groups mentioned above, age, sexuality and religion. All this legislation and yet here we are with masses of evidence that for many people none of the above seems to have entered their psyche.

Just last week there was a piece in the Guardian on a report entitled Cut Out of the Picture commissioned by Directors UK—this is the report that my noble friend Lady King quoted earlier. It is a report about the film industry, but what goes on in film has a knock-on effect and an influence on what is shown on our TVs and what we read in the papers; that is, on how the world is depicted. The findings are pretty shocking, showing that matters on the gender front have barely improved with 11.5% of directors being female in 2005 and a measly 11.9% in 2014. The report covers more than gender parity, calling for an amendment to film tax relief to require all UK films to account for diversity, and an industry-wide campaign to rebalance gender equality. Apparently an equal number of men and women are choosing to study film, but women drop out at every level, particularly as budgets increase. What kind of bias pops into the head of the person with the funds who says, “Be careful here. Mustn’t upset the norm. Let’s stay with the status quo”. Only 3.3% of blockbuster movies were directed by women and yet, at the other end of the scale, 27% of short films with a limited budget had female directors. That sounds like a big and unnecessary loss of talent to me. Publicly funded films have the worst reputation, with the figure for female directors falling from 32.9% in 2007 to just 17% in 2014.

If we turn to TV, the situation is not much better. The female TV population is younger than in real life, with 47% of females being aged between 20 and 39 compared to the real-world figure of 26%. Men on TV outnumber women by six to four, when in reality of course women make up 51% of the population. Other protected groups fare even worse. There is just a 2.5% disabled presence on our screens compared to 20% in the community at large. Older people do no better. For example, there is only 15% representation of women aged over 55—precisely half of that of the real population.

These matters are important not just to demonstrate even-handedness or fair dibs at jobs and possible fame and fortune, although of course all of that is important. What really matters is the message it sends out. For example, how would an Asian woman aged over 60 feel if she never saw a serious representation of herself, be it in a play or a factual programme? The only person we ever see on TV in a wheelchair who is not there to talk about disability or Paralympic sport is Frank Gardner, the BBC’s security correspondent, who was of course already a TV presenter before he was so shamefully attacked by an al-Qaeda gunman. People who are physically handicapped can be just as capable as anyone else of being an actor or of speaking up generally but somehow it does not happen. Despite the fact that the world of entertainment has always had a significant gay presence, it could only ever be recognised by jokes or innuendo. LGBT actors or presenters being depicted as ordinary citizens would be a welcome change.

Behind the scenes, work is going on to improve the employment levels of the various protected groups. Under the Communications Act 2003, Ofcom is required to take such steps as it considers appropriate to,

“promote equality of opportunity in relation to employment by broadcasters and the training and retraining of persons for such employment … promote the equalisation of opportunities for disabled persons in relation to such employment, training and re-training”.

The Act also provides that Ofcom must require holders of a TV broadcast licence to,

“make and from time to time review arrangements for: promoting, in relation to employment with the relevant licensee … equality of opportunity between men and women and between persons of different racial groups; and … the equalisation of opportunities for disabled persons”.

The public sector equality duty also of course applies as appropriate. A 2014 survey carried out by Creative Skillset shows that there is room for improvement here, with, for example, only 5% of the workforce having a disability compared to the estimated 11% of all UK employed. Research by Directors UK found that only 1.5% of British TV programmes were made by a black and minority ethnic director, while only 14% of dramas had been directed by women.

In my humble opinion, things will improve only when the current decision-makers see that change will bring some advantage to themselves, or alternatively when they see that not making changes will bring a disadvantage. I do not know enough about the film tax relief mentioned earlier in my speech to say whether such a measure would be possible or would make a difference. I do know, though, that what gets measured gets done and that if the measurement of equalities’ advancement and change were to be taken into account when determining the salaries and bonuses of decision-makers, for example, change would then leap over the horizon. As my friend Lord Morris of Handsworth used to say, we have enough policies to paper the walls of the conference room, it is time to take action. We have had 51 years of legislation and progress has been far too slow. Only bold steps will make change come faster.

My Lords, I thank the noble Baroness, Lady King, for initiating this debate. She has played such a critical and determined role in advancing diversity in broadcasting. Her role as the diversity executive for Channel 4 has been deeply impressive, as well as being a proud mum of four—no mean feat. This debate is timely. First, we are speaking in a city which has had the pride and multicultural self-confidence to elect a mayor who is BAME and Muslim—one of my better second preferences in my history. It is also being held in the week when we are expecting the White Paper on the next BBC charter.

Seventeen years ago, the noble Lord, Lord Smith of Finsbury, made the first significant attempt by any Minister to address BAME under-representation in the creative industries. He established the Cultural Diversity Network, and in September 2000 at the CDN launch the BBC published its first comprehensive diversity action plan. There is as yet no gold standard in public service broadcasting for driving diversity, but Channel 4 has done more than any other public service broadcaster. It is worth looking briefly at its history.

Thirty-five years ago, Channel 4 demonstrated that it was not difficult to drive diversity. Two of the key elements were institutional commitment from Jeremy Isaacs, the then chief executive, and the leadership and vision of Sue Woodford-Hollick, then the commissioning editor of multicultural programming. They delivered the current affairs series “Eastern Eye”, “Black on Black”, the “Bandung File” and “No Problem”, and then “Desmond’s” about a British black family made and set in Peckham. The resurgence of Channel 4’s commitment to diversity is thanks to the appointment of the noble Baroness, Lady King, in 2009 and the full support that she receives from David Abraham, the chief executive.

I think we are all aware that permanent remits and licence conditions can encourage diversity, but they cannot drive it. Only determined and committed leadership at the most senior level can drive diversity, and so far no other institution has matched the quality of leadership on diversity that Channel 4 has enjoyed. The increase in BAME leaders in Channel 4 from 2014 to 2015 alone is something to be proud of, but I am sure we all agree that there is a long way to go. In March 2014, Lenny Henry gave his now famous BAFTA lecture, which painted an appalling picture of the lack of diversity in UK TV. A week later, here in the Moses Room, my noble friend Lady Bonham-Carter made the point about how critical it is that diversity is at every level: commissioning, editing, presenting and, above all, leading. She set out the following challenge:

“How is this for a fact? Of the key PSB bodies—Ofcom, BBC Trust, ITV and Channel 4—where the Government have some influence, 42 board seats are available, of which just one, a BBC trustee, is not white”.—[Official Report, 20/3/14; col. GC 90.]

She went on to point out that all seats on the Sky board were filled by white appointees. That was the case in early 2014, so with a hopeful heart this morning I checked the details on those same boards, and guess what? I cannot detect any change in the figures, although I am happy to be proved wrong.

Sir Lenny Henry told the Commons Culture, Media and Sport Committee that there have been 29 BBC diversity initiatives over the past 15 years, so there is no lack of commitment on the part of the BBC. The noble Lord, Lord Hall, has spoken of his vision for a BBC where audiences will see and hear diversity in everything the BBC does. Indeed, the new diversity strategy target for 2020 is ambitious but welcome. At the current time, 48.7% of the BBC workforce is women, and the number of BAME employees is at a record high for the corporation, with approximately 20% in London and Birmingham. The diversity of the entry level schemes at the BBC is encouraging. The 2015 intake of TV production apprentices was 45% BAME. Meanwhile, its 2015 digital journalism apprenticeships are 50% black, Asian and ethnic minority.

However, we all know that the entry level is not the problem; it is the creatives, the leaders and the commissioners. Last week in a Guardian article, already referred to, Simon Albury, chair of the Campaign for Broadcasting Equality, argued that the real figure for UK BAME employment in the BBC, particularly in creative production roles, was 9.2% rather than the 13.4% that the BBC has been suggesting. Does the Minister agree with that analysis or with the BBC’s statistical analysis? Is there a need for greater transparency in this area to ensure that we have as many data as possible?

My second question relates to reduced funding and the top-slicing of the BBC in the context of diversity. If the BBC had to cut staff who deliver on content, how is it possible to recruit and grow diversity? During the coalition Government we strongly opposed the Conservative proposals to take money from the licence fee to fund free TV licences for the over-75s. We argued that government policy should be funded by the Government. The Deputy Prime Minister, Nick Clegg, vetoed the proposal and it did not take place. We are very disappointed that the current Government have now gone ahead, to the detriment of the BBC.

Proposals for further top-slicing or new contestable funding will mean less money for the BBC to spend on its services and will create additional costs. Two-thirds of BBC contents spend is already contested and that figure is set to increase. I ask the Minister: how can diversity be delivered if you are cutting a workforce?

While the Liberal Democrats remain critical and watchful of the BBC on diversity, I should stress, with the White Paper imminent, that we believe it is undoubtedly the best broadcaster in the world. We hope that the White Paper will do nothing to damage that or its reputation.

The print media should not get off the hook on this. A report from the Reuters Institute for the Study of Journalism, recently published, said that a journalist entering the trade today will almost certainly have a bachelor’s degree, probably a master’s, and will almost certainly be white. If they are women—and 45% will be—they will find themselves less well paid than their male counterparts and less likely to be promoted. Black Britons are under-represented by a factor of more than one in 10.

Given the pessimism that I have laid before the Committee, I should like to end on a more optimistic and upbeat note. I return to the example of the Paralympics and Channel 4. As the noble Lord, Lord Holmes, explained in much greater detail, it is a perfect example of where a media outlet, if it gets its act together, can make a change to perception, understanding and admiration. It can, for people like my 10 year-old, turn people who were previously ignored in society—that is, people with disabilities—into superheroes. It is quite extraordinary and the media are perfectly capable of doing it. I look forward to seeing that and more, especially in relation to race, where the record is very poor at the moment, as well as gender. It will be about time too.

My Lords, I would like to thank the noble Baroness, Lady King, for securing this important debate. This issue is not a minority one. It concerns who we all are today in modern Britain.

Diversity is a very wide topic. I am aware that gender, sexuality, disability, culture, age and religious issues are all important aspects of diversity, but if I may, I wish to focus on racial diversity in the media. Of the UK’s 63 million population, 14% are black and ethnic minority. The media industry is a very influential sector of society, so it is vital that it represents society as it really is. The reality is that Britain is multiracial, and all the better for it. I can still recall watching with disbelief the 1999 British film “Notting Hill”, starring Julia Roberts and Hugh Grant. It was a lovely romantic story, but no black people at all were portrayed as living in Notting Hill, which is famous for its Caribbean carnival. It was a major film that was shown worldwide, yet it presented a false image of modern London and modern Britain.

While television is using more black and Asian presenters, the recent report by Directors UK, to which the noble Baroness, Lady King referred, states that the number of BAME directors working in UK TV is “critically low”. A sample of 55,000 episodes drawn from 546 titles found that only 1.29% of programmes were made by black, Asian and ethnic minority directors. That is clearly disgraceful. In some areas such as period dramas, talk shows, panel shows and sketch shows, not a single episode had been made by a BAME director. In the mid-1990s I was a television producer at the BBC at White City. It got to the stage when I asked if it was called White City because everyone else above kitchen level was white.

While at BBC Television, I started presenting early morning newspaper reviews. I would do two each morning, the last being just before the 9 am news on BBC1. In those days Ainsley Harriott would follow with his fantastic food show. I recall that one day a letter came in from a very disgruntled lady stating, “I have just seen a black chap doing the newspapers. I think his name is Taylor. Then there was a black cook who came on immediately afterwards. Please, is the BBC being taken over by black people?”. I believe that Britain has moved on from those attitudes, but every speaker has made the point that we have a long way to go.

It was during that period that I also started in radio and loved presenting shows on BBC Radio 2. I was delighted when the BBC said that I would have my own radio show at 4 o’clock. I said, “Wow, this could not be better. Drive time”. The commissioner said, “Er no, it is going to be 4 am, not 4 pm”. But I did it because I had to learn, and I eventually got a 5 pm slot. I enjoyed it and was delighted to then get a call from BBC Radio London about presenting a show for it as well. I went for the interview and was met by two very pleasant white middle-aged producers. One asked, “Right, John, can you speak Patois?”—remember that this was more than 20 years ago. When I asked why, the producer said, “Well, we have a lot of black listeners these days and we thought it would be good if you could speak Jamaican. Can you do a black voice?”. The producer then attempted to demonstrate by lifting her arm and saying, “Haile Selassie, Rastafari”. I realised that the job was not for me.

The point I am making is that diversity should not be about putting people in boxes. I was a barrister for some years and became the legal adviser to the BBC’s top television gardening show. I went along to Shepherd’s Bush to speak to the independent producer of the series. To my pleasant surprise he was black, from the Caribbean. I did not realise he had been producing that series for well over a decade. When I asked why he did not do any personal interviews to make his success more public, he replied that he was concerned that if it was known that the producer of that middle-class show was black, there could be a backlash against him. He was keener to show that he had green fingers than brown ones. He just wanted the commissions each year. The goal for him was simply to get commissioned without any fanfare. Although I understood and respected his view, I thought it rather sad that he felt he could not come out as being black. As for newspapers, Amol Rajan is the only ethnic minority editor of a national newspaper, the Independent, which I note that recently became available online only. City University’s survey in March this year found that British journalism as a whole is 94% white. Is that right? I do not think so.

For 10 years I was vice-president of the BBFC, the British Board of Film Classification. Although the board treated me extremely well, it was a very white organisation when I first joined. If I achieved anything at all there, at least I encouraged it to place job adverts for the BBFC not only in the mainstream papers but in the ethnic minority newspapers such as the Voice and the New Nation.

Last Sunday evening, we had the BAFTA awards. Apart from the high-profile Sir Lenny Henry, there was a distinct lack of racial diversity among the award winners. However, I did note that there were at least four ethnic minority award presenters. Two of them remarked that BAFTA appeared to be ticking the diversity box. Those comments brought a rather nervous laugh, but it shows that we still have a long way to go where diversity is concerned. As to the programmes that were showcased at the BAFTAs, the ones that had any links to race had names such as, “Refugee Crisis”, “Paris Attacks Special”, “My Son the Jihadi” and “Britain’s Forgotten Slave Owners”. These are quality programmes that needed to be shown. All I am saying is that it would be good for the media, especially television, also to portray the successes of minorities in Britain. I know that major broadcasters such as Sky and Channel 4 do take this issue seriously, but it was the BBC that dominated the BAFTAs, so I support Sir Lenny Henry’s call for diversity to be written into the BBC charter. That would be an important signal.

It is also vital that a more diverse pool of programme commissioners is established. Ideas need to be drawn from the widest field possible. I understand that the BBC is developing a diversity creative talent fund, and I welcome that because class is also an issue. Poorer communities have that extra disadvantage in breaking into the media. There is also a place for more training internships for high-potential BAME graduates. I am glad to hear about the BBC Academy and its enlarged apprenticeship and social inclusion initiatives. I sort of fell into the media industry: there was no career path and no mentoring, which I would have appreciated.

I noticed that one of the BAFTA award winners was Channel 4’s “Humans”—a great series. This of course is the hit science fiction TV series about robots. I long for the day when diversity is no longer an issue to be discussed and agonised over. After all, in reality, unlike science fiction, there is only one race: the human race.

My Lords, I thank the noble Baroness, Lady King, for introducing this important debate, and for doing so with such passion and eloquence. I start by congratulating her on the role model that she represents, not only in politics but at Channel 4, the BFI and across the media more generally. I also thank other noble Lords who have spoken today—including my noble friend Lord Holmes of Richmond, and the noble Baronesses, Lady Prosser and Lady Grender—who reminded us quite rightly of the work that has been done by the Mayors of London over the years, particularly on LGBT issues. The noble Baroness also gave third-party endorsement to the work of Channel 4. It is clear that it is delivering on its important remit of serving minority communities, which is a key feature of Channel 4. It was also good to hear from the noble Lord, Lord Taylor.

It is clear that the old world needs to change and that the media, with its high profile and creativity, can play a vital part. I want to move to a world where ethnicity, gender and disability are not issues and only skills and experience count, for example, when it comes to recruitment, promotion and assessing people for appointments. My ambition is to see a sea change which takes us beyond identity politics and constant talk of quotas and targets.

The noble Lord, Lord Taylor, gave us some important examples of how things have changed in his working life. Last week, he kindly participated in a full debate on the Floor of the House on the review that BIS has initiated under the chairmanship of another role model, my noble friend Lady McGregor-Smith. That looked at the issues faced by black, Asian and minority-ethnic people in the workplace and how to harness the potential to call on the very widest pool of talent. We talked about the work that we are doing to improve representation of women and BME people on boards. The media could and should be a leader and not a laggard in this area. It is at the heart—

I thank the Minister for her very generous remarks. On the point about the media being a leader, will she join me in congratulating the BBC as the first broadcaster to say that by 2020 50% of the people that it portrays on screen will be women?

I thank the noble Baroness. I was not aware of that. It is certainly a very brave ambition and it is relevant to the debates that we will no doubt be having very imminently on the future of the BBC. The point that I was making is that the media industry is at the heart of a vast creative machine. It is growing by 10%, with exports of film and television approaching £3 billion a year.

I believe strongly that we need to reach a situation where the prospects for BME individuals, for LGBT, for the disabled and of course for women who want to progress in the media are as good as those for their white or male counterparts in the same situation—neither better nor worse. I think we all agree that there is work to do.

The noble Baroness, Lady King, has been very supportive of the Minister for Culture, Ed Vaizey, in his great efforts to raise the profile of diversity. I pay tribute to Mr Vaizey. He gives government by round table a genuinely good name—he is a modern-day King Arthur. He has been tireless in his work on diversity, especially on BME, and in encouraging the industry to be proactive in increasing diversity both on and off the screen, including in the representation of disabled people. On International Women’s Day, he launched Women in Digital to tackle some of the barriers which mean that women still make up less than 20% of our digital workforce.

The conference that Ed Vaizey held in January raised the wider issue of lack of representation of disabled people in the creative industries. I was very glad that the noble Baroness, Lady Prosser, made some strong points about disability in acting and more generally. Indeed, she rightly referred to Ofcom’s equality remit. Addressing the problems of the disabled is an important area and I think that it has to be addressed in the glamorous media industry. There is a huge spectrum of disabilities, and individuals encounter unique problems. More needs to be done to ensure that they can contribute and that their voices are heard.

More generally, people who are unfortunate enough to have a permanent or temporary disability tell me again and again how difficult life is. It is a mixture of countless physical and mental barriers—such as bad attitudes, with people looking through you and even avoiding you. It is for this reason that ground-breaking legislation was put through Parliament by William Hague—now my noble friend Lord Hague of Richmond—in the 1990s. That was important—the position encountered when travelling overseas is still worse than here. Broadcasting shapes and reflects our society’s values, so increasing the visibility of disabled people’s impact in the media is essential. I emphasise that because it is not always talked about as much as it should be.

I turn to the BBC. The noble Baroness, Lady King, has expressed some of her reservations. As an ex- businesswoman, I believe in the power of encouragement, so we should applaud the efforts of the BBC, as she has just done, in relation to gender.

The BBC has established a fund to help black, Asian and minority-ethnic talent on and off screen to develop new programmes. It will be accepting more training internships, and it is setting new targets to increase senior BME staff in priority areas.

I welcome the work that the BBC is doing with the Shaw Trust to open up business support roles to disabled candidates. I congratulate the BBC on establishing an independent diversity advisory group, with experts and role models including Sir Lenny Henry—of course, we were all glad to see Sir Lenny celebrated at the BAFTAs, as was mentioned by my noble friend Lord Holmes—and the noble Baronesses, Lady Grey-Thompson and Lady Benjamin. They, with others, represent quite a challenge to the BBC on diversity, which I think will be helpful and encouraging.

The BBC charter review has allowed Government to look across the whole of the BBC’s performance. It has given us a great opportunity to review the BBC’s approach to diversity and to ask some forthright questions, some of which were repeated by the noble Baroness, Lady Grender, and the noble Lord, Lord Taylor. The fact is that the BBC should lead the way in representing the nation it serves, and I can assure noble Lords that diversity will feature prominently in the White Paper which is to be published imminently.

Of course, the BBC is not alone in trying to do better. The noble Baroness, Lady Prosser, mentioned film tax relief and diversity. The BFI led the way with a £1 million fund and the “three ticks” scheme that she spoke of. The Government introduced that tax relief for UK films in 2014 and I think that it has been helpful and good for the industry. Sky, Channel 4 and ITV have also all responded positively. My noble friend Lord Holmes rightly highlighted Channel 4’s 360° Diversity Charter, as well as the work done by David Abraham and Channel 4’s support of the Paralympics. To mention a former competitor, Sainsbury’s also supported the Paralympics. These instances of good practice are to be celebrated. I am also encouraged that partly as a result of the round table process, Channel 5 has now joined the other main broadcasters in taking action on diversity. It is doing various things, including special annual apprenticeships and paid internships.

I want to turn now to the Creative Diversity Network because it is a great example of how the major broadcasters can come together to tackle a problem. The noble Baroness, Lady King, talked about “switching on the lights”, soon to be designated as Project Diamond, which is due to go live this summer. I welcome the project because it will monitor diversity on television, as has been explained, and data are important. As has been said, what gets measured tends to get done—not entirely, but it certainly helps to know what you are up to. It will be critical in allowing broadcasters to judge how well they are doing and whether the targets that they have set themselves are being met. I should also like to mention, as did my noble friend Lord Holmes, the guidance entitled Thinking Outside the Box provided by Ofcom.

Sitting suspended for a Division in the House.

My Lords, I was referring to the point made by my noble friend Lord Holmes about Thinking Outside the Box. This guidance, provided through a unique partnership between the EHRC and Ofcom, is part of a range of advice to help broadcasters with fair recruitment, commissioning, broadcasting, programme making and, indeed, procurement practice.

As the noble Baroness, Lady Grender, pointed out, the media getting its act together on-screen makes a huge difference. There are some great examples of where the BBC and the media in general have got it right. The Sunday night series “Under Cover” on the BBC, with Adrian Lester and Sophie Okonedo, would be a good example. Channel 4, as we have said, has been at the forefront of producing popular programmes, including those representing LGBT people like the “Cucumber” trilogy, its well-received transgender series. I also commend Channel 4 Racing—one of my own sporting passions—for pioneering female presenters very early on.

My noble friend Lord Holmes talked about gaming. That caused me to reflect that this is another area for potential transformational change. And we certainly need more female directors such as Thea Sharrock.

The subject of gaming is really important if we are going to keep up with the times. I echo the Minister’s praise of the BFI—I have stated my interest there—but does she think that if it is to encompass gaming it will need to have enough resources to do so?

Of course the BFI has to be well run and properly funded but I was not suggesting that it change its remit. I was saying that the gaming industry is an important and growing part of the media industry, which I spend a lot of time encouraging, and that I think the point was rightly made—for the first time to my mind in this Chamber—that that is an area that should be within the remit of some of the work we are agreeing on.

I also welcome the efforts of the publishing industry with its EQUIP charter, which pushes for better diversity in another industry that is not generally renowned for it. It has brought together publishers, authors and others to make improvements, so that, for example, many employers in the industry now accept CVs without personal data to avoid unconscious bias.

I do not have a great deal to add on funding, top-slicing and ring-fencing, but I am sure we will return to these issues in the coming weeks and months.

I agree with the sentiment of the debate that there is much more to do across the media industries, not only in representation on and off-screen but also in portrayal. Unless more action is taken now, this will become increasingly challenging as audiences diversify further, as the country and demographics change, and as different groups continue to move away from our mainstream media sources. It is in all our hands to improve practice and attitudes. The Government have a part to play, as we have acknowledged, as do business and industry, including the media industries—and, as we discussed last time, as does the education sector and its teachers and lecturers. Led by the Prime Minister, we have set various targets for 2020.

We especially want to increase diversity across the media so that all the UK’s communities feel represented. I believe that our industries can and will rise to the challenge.

Committee adjourned at 7.06 pm.