§ '(1) Any determinations made under Section 3 may be referred to an adjudicating panel of independent members appointed by the Secretary of State by regulation for a period of five years by any affected person within four weeks of the determination being made and published.
§ (2) The adjudicating panel will consider the reasonableness of the determination and may refer any determination hack to the determining authority for further consideration.'.—[Dr. Marek.]
§ Brought up, and read the First time.
§ Mr. Deputy Speaker (Sir Paul Dean)
With this it will be convenient to discuss the following amendments: No. 46, in clause 3, page 6, line 16, leave out subsection (2).
§ No. 49, in page 6, line 20, leave out subsection (3).
§ Dr. Marek
The new clause is important. It would not be so important if we had a normal Government, but we do not have a normal Government. They have been prepared to act unreasonably many times. That is illustrated by the many occasions on which the former Secretary of State for Transport was hauled before the courts for acting unreasonably.
The Opposition believe that the Bill gives far too many wide powers to the Secretary of State for Social Services. especially in determining the remuneration for persons providing general medical services. The Bill enables the Secretary of State, if he has any new information, to reconsider a determination and, on the basis of that new information, to reopen the negotiations and try to claw back some money.
That was done recently with the opticians. I shall deal with that case at some length because it went to the Queen's Bench division of the High Court of Justice and the Secretary of State lost the appeal against the opticians. He did so for several reasons. The judgment is interesting. From it, we understand why clause 3 has been drafted as it has. The judge used certain arguments when finding against the Secretary of State. All those arguments are provided for in the Bill. Should there be another court case, a judge would not be able to deploy them.
Amendments Nos. 46 and 49 relate to the deletion of clause 3(2) and 3(3). To some extent, they are probing amendments. Amendment No. 46 would leave out clause 3(2), which provides:An earlier determination is to be taken to have been unsatisfactory only if, had it fallen to the authority to make it at the time of the later determination. the authority would have made it on the basis of different information.The subsection can be interpreted very widely. Information does not have to be replaced. Different 76 information could be more information. In such circumstances, the Secretary of State could argue that one year has passed since fixing the price for spectacle lenses, dentures or surgical appliances, that he has extra information, and that he will reopen the procedure.
The Minister will say that we have perfectly good working arrangements between contracting services and the DHSS and that we ought to give them a chance. He will argue that we should let bygones be bygones and that the Government will not try to recover the unintended profits from opticians. He will argue that, if only the House trusts him, everything will be all right.
I shall not say that such a statement would be dishonest, but we are legislating for more than the next year or two years. A Minister in a future Government might contend that he has certain powers and would not read the present Minister's assurances. Besides, one Administration cannot hind a successor. The Minister might then use the wide power in clause 3(2) to reopen a determination on the basis of perhaps a very small difference in information.
New clause 4 and amendment No. 46 would stop such action and ensure that, once a determination has been made, it will be left alone. It is important for the contracting professions, such as dentists, pharmacists and opticians, to know where they stand. We still have the problem of future determinations recovering money on different products or services. That is what happened with the so-called unintended profits made by opticians.
The Secretary of State has declared that he would recover the money that opticians made from supplying discounted glasses on eyesight tests. He intended to recover the money from every optician practising at the time, although some might have entered the service only after the profits had been made. That is hardly a moral line and it was much resented by the profession. I am pleased that the Minister has accepted the judgment in the Queen's Bench division and said that he will not try to recover those profits under this Bill if he is empowered as is suggested.
The Secretary of State was quite prepared, however, to take discriminatory action against a class of contractor. It is important to be able to restrain the Minister so that he cannot do anything that he likes.
Amendment No. 49 would leave out clause 3(3), which provides:If an amount falls to be deducted by virtue of subsection (1)(a) above, the determining authority, in fixing amounts of remuneration for persons to whom the determination relates, may have regard to the period within which they first provided services of the description to which it relates.The Opposition do not necessarily oppose the subsection, but we strongly oppose the word "may". The matter was not discussed properly in Committee. "May" should be replaced by "shall". If the Minister is persuaded by our arguments, I hope that he will ensure that such an amendment is made in another place.
We should have "shall" for equity's sake. There should be a system in the DHSS which enables us to track down who provided a service, who entered the profession and who retired. When negotiations are closed and a determination is made, that should be the end of the matter. We should not be empowering the Minister to reopen any determination which he sees fit to reopen on the basis of almost any excuse.
New clause 4 is a way out of the dilemma. It proposes: 77(1) Any determination made under Section 3 may be referred to an adjudicating panel of independent members appointed by the Secretary of State by regulation for a period of five years by any affected person within four weeks of the determination being made and published.If the Minister has, perhaps unfairly, determined that the amounts payable should be X plus Y, the contracting parties would have some recourse to an independent adjudicating panel.
New clause 4(2) proposes:The adjudicating panel will consider the reasonableness of the determination and may refer any determination back to the determining authority for further consideration.".The intention is not that the adjudicating panel should judge the determination and go through the lengthy process involved. It is possible that a Minister might be leant on by the Treasury or the Prime Minister to save as much money as possible and he might therefore calculate the figures unreasonably and impose his determination against the will of the contracting parties. The new clause provides some safeguards against such action by a Minister.
I would not normally propose such a new clause, because Ministers usually act reasonably and try to serve the public. The present Government, however, are noted for being comprised of Ministers who make decisions that are found to be beyond their power or incorrect. The Secretary of State for Transport is one; the Secretary of State for Social Services is another, his board and lodging payments regulations having been found to be illegal and not properly drafted.
I shall deal with the case of The Queen v. Secretary of State for Social Services—application for judicial review —in the High Court of Justice, Queen's Bench division. It is important for the House to know exactly why the judgment went against the Secretary of State. The judgment starts:The question to be answered in these cases is essentially the same. Namely whether or not the Secretary of State for Social Services can recover sums which he calls 'unintended profits' which he says he has paid to ophthalmic opticians in England and Wales in the years from 1978 to 1985.The Minister. not the opticians, called them "unintended profits". As I understand it, they arose because opticians were granted certain sums for spectacles, and, because of competition in the market, certain discounts were given to opticians, who then pocketed them.
The Department was sadly at fault in not perceiving that that had been going on for about four years. It should have been on the ball and said, "Last year you made the extra profits from discounts. We shall change that." Eventually the DHSS woke up to the fact. Its sampling system is at fault, from the usual trouble of not having sufficient manpower to police the determinations and the agreements. Therefore, it does not have a good statistical basis on which to place its determinations. If the Government had spent more money and employed more people, this would probably not have arisen. Amendment No. 46 would not allow the Minister to reopen determinations on the basis that different information had been supplied. If that had been the case, there would have been pressure on the Secretary of State to ensure that, when a determination was made, it was made properly. It would not then need to be reopened.
The judgment continues:However the issue is described that is the real nature of these cases. There are two separate cases because two 78 representative bodies have made their own applications. But the cases dovetail and interlock to such an extent that I consider them as one.
I say at once, since I do not believe in suspense, that the applicants succeed in their arguments before me, and thus the Secretary of State may not in my judgment recover the relevant sums. It would have been nice to see a sentence in the Bill saying that the Department would not recover any sums by primary legislation at this stage. I know that the Minister gave that assurance in Committee —[Interruption.] This is primary legislation.
§ The Parliamentary Under-Secretary of State for Health and Social Security (Mr. Ray Whitney)
That would have been an extremely odd sentence to insert in the Bill.
§ Dr. Marek
It could have been inserted through a clause similar to clause 1(8), which states:This section shall have no effect in relation to anything done or omitted before its commencement.A similar sentence at the end of this part would have laid to rest a great deal of the apprehension within the profession. The opticians' and dentists' bodies read Hansard, but I wonder whether every optician reads Hansard as assiduously as Ministers and hon. Members and the bodies representing the professions. If that had been inserted, it would have shown the Government's intention to be fair as opposed to their apparent intention to get away with spending as little as possible.
The judge continues:The amount involved is said to he over £14 million of which the Secretary of State assessed that he might recover over £ 11 million in the course of the next two years should his proposed arrangements for recovery be held to be lawful.It should however be noted at the outset that the applicants have never accepted that the sums involved are properly described as 'unintended profits'; and (in the case of the Federation of Optical Corporate Bodies) Sir Ian Percival points out that the Secretary of State is unable to identify specifically any sums which may have accrued to his corporate clients and relies upon an 'imputed' figure of £3.5 million as their share in the total sum in question.8.15 pm
That speaks for itself: the Minister could not identify any sums specifically. Hon. Members will note that powers are given to the Minister in clause 3. Subsection (5) makes the distinction when it states:If the later determination is of remuneration for a category of services falling within one of the descriptions of services mentioned in section 43A(1) of the 1977 Act or section 28A(1) of the 1978 Act, it is immaterial whether the earlier determination was of remuneration for the same category of services or for any other category of services falling within the same description.That makes it clear that it does not matter which category of services it is. The Minister has wide powers to go from one category to another and to make later determinations for different categories from those of the earlier determinations.
The judge talks about members of the Bar appearing before him, and, in his judgment, continues:In the same context Mr. Bagnall points out that while his clients did achieve substantial discounts in their buying of spectacles in the relevant years this was perfectly well known to the DHSS from 1978 onwards, and palpably clear from 1982 (see the PAC documents). And … full deployment of the history would show that such discounts were necessary for survival in many cases because of the DHSS decision to withold very large sums (up to £92 million at one time) which were legally due to the opticians. The residuary £6 million of that retained sum was only accepted as repayable recently. So 79 that again the applicants say that the overall history would not justify any criticism of the opticians nor any conclusion that they had become unjustly enriched in any way.The tenor of the judge's statement is that the Minister is not acting reasonably or morally, and that he is not considering dispassionately the reasons why the position arose. It suddenly came to his attention.
Earlier I said that I did not believe that the DHSS knew what was going on, but the judge states that it did If the DHSS knew what was going on but did nothing, that is worse than if it had not known. The judgment shows that the Minister was acting unreasonably and was prepared to go to the courts to recover the money, without allowing any discussion as to whether the so-called "unintended profits" were unintended. He simply assumed that they were unintended profits, penalised the opticians, and said, "I shall recover this money. What is more, I shall recover it for another service and from everybody, not just from those who benefited from these unintended profits." How much more immoral can one get than that?
The judge continues:It should be noted that the fixing of the fees and payments by successive determinations is unilateral, in the sense that no agreement or arbitration is provided for by the Act or the Regulations.It is clear that the judge was not happy about this, and any dispassionate person aiming to judge the case on its merits would regard this as fair.
The judge goes on to say:The Secretary of State is (as Mr. Carnwath put it)"—I take it that he is another barrister—determining rates on which he is willing to do business with practitioners and he lays down the fees and charges. Mr. Carnwath added that the Secretary of State says in his Statements, 'These are the terms on which I think it is reasonable to seek these facilities'.Actual payments for services by the relevant Committee are subject to specific rules as to over payments made in error or in circumstances where it was not due … Within certain constraints therefore the Secretary of State acts in his discretion. But it can at once be seen that the rates can be altered at any time by a fresh determination, so that the correction of any imbalance is wholly in the hands of the Secretary of State.I emphasise that last sentence, because it is crucial to the way that the Bill has been drafted. It says:But it can be seen at once that the rates can be altered at any time by a fresh determination, so that the correction of any imbalance is wholly in the hands of the Secretary of State.The judge pulled up the Secretary of State, and that is why these powers are included in clause 3. They give the Secretary of State back his untrammelled powers. Everything will be in his hands so that he can make different determinations, or whatever. The new clause and the two amendments seek to restrict the Secretary of State's powers a little by not allowing him this unbridled freedom to do what he wishes.
The Federation of Manufacturing Opticians rejected an alternative argument that included these words:While it is, of course, the case that the sums contained in the Statement are those which we have negotiated with you, there is nowhere in the Statement or in the Terms and Conditions of Service of opticians any prohibition, explicit or implicit, on their obtaining more favourable terms if they are able to do so.If that is the case, the way that the determinations are made should be looked at. It looks as if some hole or gap is available into which wording could be put to tighten up 80 The regulations under which determinations are made. That means not that the answer should be that the Minister should be given these powers, but that he should go away and look at the regulations and the way in which he fixes the determinations between the contracting parties to make sure that those unintended profits are not made.
The judge continues:From 1978 onwards it is said that because of discounts available to opticians and (as it seems to me) because of reduced costs in lenses and in manufacture, the Statement payments in respect of appliances have allowed opticians to recover more than the Secretary of State intended, since his intention was that payments should be 'neutral'.The Secretary of State's intentions may have been that the payments should be neutral, but he did not set up the body, the determination, the apparatus, the consultations and the committees to ensure that these payments should be neutral. He now proposes that we give him blanket powers to go back two, three, or even five years and say that the payments were not neutral and that he would recover the difference.
I am not arguing—and my hon. Friends will agree with me—that the Opposition should support whatever the contracting parties to the NHS should be doing.
§ Dr. Marek
This is an important argument. If the contracting parties were unsure of their future and did not know what the Secretary of State would do about the determinations that had been made years before, that must affect the quality of service that the NHS enjoys from these contracting parties.
I do not want contracting parties to be overpaid or underpaid; I want them to have just the right amount. Any legislation could ensure that. I am glad that the Minister nods. I am sure that both sides of the House would agree with that. The argument is about how we get this. The right way to go about it is not to allow the Minister powers arbitrarily to change the determination at a later time.
The judge goes on:Back in 1977 'prescription houses' advertised their services at Statement rates…but after that year the DHSS concluded that unintended profits were being made. Some 'realignment of statement rates' was done as from April 1982 and on other occasions, but according to the DHSS this did not produce the intended result. So for 1985 the present assessed figure is the disputed £14 million.Was there any bungling or any incompetence in the DHSS in not being able to assess the figure accurately? This has been going on since 1977. The judge says:Some 'realignment at statement rates' was done, but according to the DHSS this did not produce the intended result.Are we doing the right thing in passing this primary legislation? Should we be looking instead at what goes on inside DHSS offices at the Elephant and Castle to make sure that the procedures are carried out efficiently, that there are enough staff to undertake the procedures and that the procedures are accurate once they have been carried out? It would have been better if the Minister had looked at the matter from that point of view, instead of taking the easy way out and saying that, as the Government have a majority, it does not matter what they put in the Bill. There might be 15 Tory Members rebelling on Monday night, a different 15 rebelling on Tuesday and yet a different 15 on Wednesday, but it will not matter because of the Government's majority.
§ Dr. Marek
They often rebel.
I suspect that that may have been in the Secretary of State's mind when this legislation was introduced. He might have said, "Let us not think too hard about it. This gives us all the powers that we need and certainly all the powers that we thought we had before the judgment. Our life would be made easier if that happened." That may be the case, but our society would not then be as fair as it would be if the Secretary of State went about it another way and looked at his own procedures and organisation within the DHSS.
The judge says:It is to be noted that the Statement figure still comes solely from the Secretary of State who obtains his information from the suppliers and not from the opticians. So that the opticians are in no way responsible for what the Secretary of State says has happened.The argument gets worse and worse. The price fixing was with the suppliers, not the opticians, as hon. Members will note.
The judge is not sure about the next point. He says:Furthermore, assuming that more has been paid than was 'intended', the Secretary of State accepts that there is 'no legal basis for imposing the recovery of unintended profits; recovery can only be achieved by agreement' (see DHSS Memorandum of 1st February 1982, page 71 of the Westhead bundle). This theme is often repeated in the answers given to the Committee of Public Accounts. For example, see page 75 of the Westhead bundle:'Sir Kenneth Stowe … In considering the future settlements within the relevant Whitley machinery of their remuneration we certainly will want to have regard to the fact that they did get this additional sum of money.The Chairman. But you have no power in that respect?Sir Kenneth Stowe. We have no power; that will be for negotiation."'We must have some semblance of negotiation and agreement if agreement is to be reached. However, earlier there was a statement saying that when the final determination is made —perhaps the Minister will be able to reply on this——it can at once be seen that the rates can be altered at any time by a fresh determination, so that the correction of any imbalance is wholly in the hands of the Secretary of State.The way in which the negotiations take place gives the appearance of agreement. When the Department is behaving properly and is not under the influence of the Treasury, the Prime Minister, or monetarist economic policy, the negotiations leading to determination work well.
The amendments are tabled to cover the case when the Minister is under pressure from outside forces and when the Minister has to attend to economic policies more than we should want. The Minister's first priority should be to achieve the best possible National Health Service.
The judge says:I refer to these samples front the evidence since in my judgment there is no practical or moral blame which can be imputed to the opticians, since they played no part in fixing the rates nor did they ever conceal anything or seek more than was volunteered to them.I suspect that the fault is with the Ministry and the DHSS rather than with the opticians.
The judge says later:First, it does seem to me that this case is not much affected by questions of onus. The applicants are attacking the Secretary of State's determination and Statement. So that 82 to that extent they seek a remedy and would in most cases hear the burden of proving their case. On the other hand., the Secretary of State is admittedly and wholly openly seeking to recover moneys from the opticians, and he cannot do so unless he acts lawfully.Later the judge says:Secondly it is right, as Mr. Bagnall says, that there is an element of retrospection in what the Secretary of State seeks, although the 1984 legislation is not strictly retrospective. And also the direct result of the Secretary of State's action is to take back from the opticians' profession moneys to which they had plain and directly unassailable legal rights.Unless therefore the Secretary of State has a plain and clear right to act as he seeks to act he should not be allowed to proceed. As a general principle that proposition seems to me to be correct.It is symptomatic that the Secretary of State seems to think that he has powers to act arbitrarily without considering the merits of the case. This judgment told the Secretary of State that he could not do that. That is why clause 3 is phrased as it is. And that is why amendments Nos. 46 and 49 and new clause 4 were tabled. They attempt to restrict the Secretary of State's power.
The judge goes on:Thirdly I am urged to say that the Secretary of State's action is an expropriation or levy or tax, and that special coniderations thus apply. But these words are somewhat emotive and this part of the applicants' argument is not in my judgment of great significance.The judge has accused the Secretary of State of using an element of retrospection in what he seeks to achieve. Can we allow legislation to permit so much freedom to the Secretary of State, especially with the experience in the case to which I have referred.?
The judge says that the Secretary of State's action is an expropriation of tax. If that were made known in the press everybody would be appalled. I can imagine what would be said if the Oppositon Front Bench advocated a policy which allowed a Secretary of State to expropriate such funds. I can imagine what capital Conservatives would make out of that.
I hope that the House will consider seriously what is happening. The judge continues:I have already said that in seeking recovery there must be justification for the course taken, and I do not believe that the questions to be answered are helped by comparing the position with that which rules in special fields such as tax, any more than it can or should be decided on a basis of overall fairness … Without the help of the 1984 legislation in my judgment there would be no sensible argument for the Secretary of State to advance. Under Regulation 10 of the 1984 Regulations he could simply determine the fees payable and the payments to be made for the relevant services for the future.It is just as well that we have that legislation, because without it the Minister would have got away with this immoral act of expropriation and retrospection. The judge continues:I do not understand Mr. Carnwath to be strongly arguing that without the 1984 Act the Secretary of State could have acted as he did, although I am aware that he did not concede that this was so.What then is the position as to the 1984 Act? Section 7 adds two Sections respectively to the legislation which governs England and Wales and that which governs Scotland. These Sections are intended to provide (says Mr. Carnwath) a general code for setting fees and remuneration for the professions in the National Health Service, since at present the code provided by current legislation is sketchy.I am not entitled to enquire why such amendments were necessary or desirable, and I therefore simply consider them as they are.First I stress that only subsection (4) of Section 7 is at present in force. That subsection provides that 'any 83 determination…which was made—Clause 3 seeks to revert to the previous position so that the Minister would have the power to have a new determination. The provision is couched in slightly different words because there would have to be different information but it is not beyond the wit of any Minister to dig up new information and to claim that the information was different and that therefore he has the power to reopen the determination.
shall be deemed to be validly made if regulations authorising such a determination could have been made had that provision been in force at the time'.
- (b) after (the passing of this Act) but before the coming into force of a provision inserted by this section
Perhaps I am being too cynical. If that is so, I expect the Minister to show us the colour of his money. He should take on board what I have said and offer to introduce another clause in another place.
The judge goes on:All agree that the subsection (and indeed other parts of the Section) are obscure. But I have to attempt to see through that obscurity.
§ Dr. Marek
I would but that would take a long time. I shall continue. The judge says:Looking at section 7(3)(7)(a) I am however wholly unconvinced that it allows the Secretary of State to recover these moneys.He does not use the words "on the balance of probabilities, taking one argument with another I believe that the Secretary of State is allowed to recover these moneys." He says that he is "wholly unconvinced" and that there is no case for the Secretary of State trying to recover such moneys. The reasons he gave were:First, I read the subsection simply and solely as an explicit statement that past expenses may be taken into account after taking discounts into account in making a determination for the future. Secondly the subsection allows future trends expressly to be considered. Thirdly the subsection eliminates an argument that some who would not have incurred or will not incur specific expenses are outside the ambit of the determination. These matters are spelt out for the assistance of all concerned.But in my judgment there is a distinction between 'taking into account' what has happened in the past with a view to fixing rates for the future and thus achieving a fair rate for the future, as compared with recovering sums which the Secretary of State believes to have been 'over-reimbursed'.The judge is an eminently respectable, responsible and honest person. I think that he was speaking as an average citizen. The crux of the argument lies in the words:In my judgment there is a distinction between 'taking into account' what has happened in the past with a view to fixing rates for the future and thus achieving a fair rate for the future, as compared with recovering sums which the Secretary of State believes to have been 'over-reimbursed'.If a determination is made, it should not be reopened. Powers should not be given to the Minister to reopen the determinations once they have been made, on the pretext of different information. If the Minister has made a mistake he should go voluntarily to the contracting parties and say, "There is a mistake. You are sensible people. Can we agree on a scale of payment in future?" I am quite sure that the contracting parties would agree to that, if he approached them. He should also say to them, "We have made a mistake. I have no intention —in fact, I have no powers— to reopen the determination and cause many 84 problems for people who may have retired and perhaps new entrants into the profession who, therefore, were not affected by the determination." The Minister should say, "The determination has been made. We must do something about it in future. Let us talk and see whether future determinations cannot be dealt with more appropriately." That was the judge's view. That sensible view is shared by myself and my hon. Friends. The judge went on to say:Even if I am wrong as to this, and even if the subsection does in terms allow recovery in certain circumstances I am however also convinced that the Secretary of State meets a further insurmountable hurdle.Section 7(3)(a) allows him to take into account the prescribed matters 'in connection with the provision of services of a kind to which the determination will relate'. The applicants submit that in this context this cannot possibly allow reduction of sight testing and dispensing fees since the relevant expenses which are being considered simply do not relate to the sight testing and dispensing activities of opticians at all.In my judgment the supply of appliances is not the provision of services 'of a kind' to which the determination of fees for sight testing and dispensing relate. Broadly the provision of general optical services describes the services provided by opticians, but those services are in my judgment of three kinds, namely sight testing, dispensing, and the supply of appliances.Later, he said:Logically this should also in my judgment be correct since it would surely be unjust to a practitioner dealing solely in sight testing and/or dispensing to recover from him any part of moneys accrued to others in respect of 'unintended profits' gained from the supply of spectacles.Subsection (5) of clause 3 states:If the later determination is of remuneration for a category of services falling within one of the descriptions of services mentioned in section 43A(1) of the 1977 Act or section 28A(1) of the 1978 Act, it is immaterial whether the earlier determination was of remuneration for the same category of services or for any other category of services falling within the same description.That is another vivid illustration of the Minister trying to have his bread with butter and jam on both sides. He was found wanting by the judge. He was found wanting in terms of ordinary, commonsense action. In a slightly wrapped-up way. he tried to restore his untrammelled powers of freedom that he thought he had and which he was quite prepared to use in acting quite unfairly and immorally. The judge said:To some extent this injustice is sought to be alleviated by the provision of a full £8.60 by way of determination of sight testing fees for such practitioners as test sight only. But in my judgment the need for such a distinction highlights the fallacy in the Secretary of State's argument in this respect.The judge made an important point at the end of his judgment.In my judgment there is here an identifiable illegality (in the sense of that word as used by Lord Diplock at p 410 in the case of CCSU v. Minister for Civil Service, 1985, AC p 374) in that the Secretary of State has not acted within his lawful powers in the process of deciding what is the fair determination of fees for sight testing and dispensing. This should in my judgment be subject to control and correction by judicial review and by the imposition of such a declaration as may resolve the problem in this case.8.45 pm
The judge wants the proper judicial review and control. The Bill does not provide any control whatsoever. It allows the Minister to do what he wants. The intention of new clause 4, amendment No. 46 and amendment No. 49 is to impose some control over the Minister. The judge said: 85I am comforted in my conclusions in this case by a conviction that this result is just, since the opticians played no direct part in fixing the payments for appliances over the relevant years, and if there was fault or failure in the assessment of those payments it was the fault or failure of the DHSS and thus the Secretary of State.I have referred to other aspects of the procedures within the DHSS which could be at fault and which I suspect were at fault. The Secretary of State takes responsibility for this sorry affair, but it is quite wrong of him to try to get over it by producing a Bill as he has. The judge continued:I do however stress that I impute no bad motive to the Department and furthermore there has been no sort of concealment of the full nature of the decision-making process. This has given the applicants the ammunition with which to make their case.I am pleased that the judge wrote that. It makes me think that the Department was good-natured but incompetent. It was incompetent either because it did not have the manpower to do the sampling and go through the procedures to be able to provide the Minister with the necessary information that certain things were happening, or it did not know about it. The judge seems to think that the Department did know about it but that it failed to carry out efficient administration. In some ways, that is worse than if the Department did not know. I hope that, if that is the case, the Minister will put it right and ensure that the new systems of determination are adequately manned so that they are dealt with in a correct and efficient manner. The judge said:It seems to me also just that the loss (if there truly is one) should lie where it falls, upon the shoulders of the taxpayer,"—we have the Minister to thank for that—since otherwise it could well be that a substantial number of opticians or firms which did not benefit from the payments made between 1978 and 1985 might have to meet a share of the recoupment sought by the Secretary of State. If even a few had to pay such sums it would in my judgment be unjust and unfair.The words which I judge to he important are:even if a few had to pay such sums it would in my judgment be unjust and unfair.Yet the Minister was not only prepared to ensure that a few people paid such sums in such an unfair way but he was prepared to countenance many people paying such sums. Those are the reasons why the two amendments and the new clause have been put down. There is here a clear case showing that one cannot trust Ministers, at every time and in every circumstance, to behave properly. Ministers must try to act fairly and justly. The Minister, for his own reasons, intended to recover money quite unfairly and quite unjustly. An element of retrospectivity was involved. It could even be called expropriation. The Minister was prepared to do that. The judge stopped him.
Now we have clause 3 which, in a different way, would restore these powers to the Minister. Is the House prepared to let the Minister get away with that so that he can act at will? I hope that the House will not allow him to do so. I hope that the Minister, as a reasonable man, will see some sense and say, "Yes, I shall have these powers, but I do not intend to use them unreasonably. I am prepared to think about putting a provision in the Bill—even if I cannot accept the new clause and the amendments—to show everyone that I cannot use these powers at will." Those important points should be borne in mind. I hope that the Minister will see the sense of them.
§ Mr. Whitney
I was looking forward to further contributions from a number of supporters of the hon. Member for Wrexham (Dr. Marek), and I am surprised that they did not meet with favour. It was odd that during the 40 or so minutes during which the hon. Member for Wrexham spoke—
§ Mr. Whitney
It seemed longer. It was odd that during the 55 minutes of the speech I managed to find one sentence with which the Government would be happy to agree —on the need to strike the right balance and be fair to the contracting professions and to the users of the NHS. The hon. Member for Wrexham seemed to have no concept of the fact that we are talking about taxpayers' money. We are talking about ensuring that that money, which is devoted in ever greater quantities by the Government—since 1979 an increase in real terms of 24 per cent. — to the benefit of the NHS, is used for the benefit of the Health Service and its customers. The hon. Gentleman seems instead to have enlisted on the side of the contracting professions and to have no interest in the proper use of Health Service funds.
We are committed to a fair deal for the contracting professions in the Health Service, and our record shows that. As the hon. Member for Wrexham said, following the 1978 inquiry the Government paid opticians £92 million. I should have thought that it would be difficult to find a more tangible demonstration of the Government's good faith.
The hon. Member for Wrexham inevitably had to recognise that we agreed not to use any new provisions to take into account the opticians' £11 million of what we would call "unintended" profits. The Government's record in determining that that remuneration is on a fair basis has been amply demonstrated. If we went down the road suggested by the hon. Member for Wrexham— no retrospection, and with only one determination being made—there would be a determination after a number of years, which would be retrospective. I cannot believe that the contracting professions would welcome that; nor would it be given a sensible welcome by most hon. Members. We seek a balance between the Governments conflicting duties — most sensible Governments would recognise that— to find a fair deal for the contractors and to find a fair deal for the NHS.
There was no mention of figures, but there was a newfound beneficence to private entrepreneurs. Of course, that is to be welcomed. It was suggested that the Opposition were opening up yet another bottomless pit of public funding, whether for the NHS or for elsewhere. Presumably we would have to add a little bit more to the £24 billion — to which the proposals of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) add up—for the half-undertakings offered by the hon. Member for Wrexham.
The new clause would acid an unnecessary load of bureaucracy to the remuneration system of the contracting professions. There is a strong likelihood that, in practice, there will always be some contractor who does not favour a determination of remuneration for his profession. Therefore, it is likely that every determination would go to a panel as proposed in the new clause.
There is already an independent element in the consideration of remuneration for general medical and 87 dental practitioners, which is provided by the Doctors and Dentists Review Body. There is also the Pharmacists Review Panel, which is available to advise on disagreements arising from negotiations on the pricing of the pharmacist's contract. I remind the House that the Government are fully committed to full negotiations and consultations with the contractor professions' representatives, as appropriate. Sooner or later, such a panel would undermine that negotiation process. For example, the Government and a particular profession might reach agreement on a determination, but an individual contractor might then refer it to the panel and, in turn, the panel might ask the Government to reconsider. What would the Government and the professions' representatives then do? The ensuing uncertainty would be in the interests of no one.
I submit that such a check on the determining authority's decision is clearly unnecessary. Although the remuneration systems of the contract professions are similar in principle, there are significant differences in their operation. This requires, in some cases, an element of flexibility and discretion, which is in the interests of the professions and of the taxpayer. That flexibility is the essence of the arrangements, which on the whole have worked well, and it seems to have escaped the hon. Member for Wrexham.
Amendment No. 46 would remove an important qualifying condition that must be satisfied when previous over or underpayments are corrected in a subsequent payment. The condition reflects the fact that initial payments are based on estimates. The actual figures become available later. This subsection means that corrections can be made only if later information reveals that the earlier estimates, and therefore the earlier payments, were incorrect. The parties may only behave as they would have behaved if later information had been available in the first place. In other words, only the numbers can be changed; the rules of the game cannot be. The removal of this subsection would take away an important safeguard and would appear to confer precisely those arbitrary powers that were feared by hon. Members in our Committee debates.
The same effect would be true of the proposals contained in amendment No. 49. It would remove another important qualifying condition when payments are being adjusted. The subsection gives the Secretary of State— the determining authority—power to take into account the position of new entrants to the service when payments are adjusted to take account of an overpayment in a previous year. This obviously means that remuneration will be lower than it would otherwise have been. This is perfectly fair and reasonable if the people who suffer the deduction have previously enjoyed the benefit of the overpayment. It may not be fair to those people who have joined the service so recently that they did not enjoy the benefit of the overpayment. If the inequity would be of any substance, the Secretary of State might want to make appropriate differential adjustments. This is an important safeguard which it would be most unwise to lose.
On the basis that the hon. Gentleman has failed to make out his case, to understand the system and the need to strike a balance, and to appreciate the need to ensure that the increasing amounts of taxpayers' money that are 88 being devoted to the National Health Service are used properly and responsibly, I invite the House to reject the new clause and the amendments.
§ 9 pm
§ Mr. Campbell-Savours
This matter has been brought to the attention of many hon. Members during the last few years. I have received correspondence from local contractors who have expressed concern about the way in which they feel that the Government are imposing their views upon them. If the Minister were to ask his departmental officials to find it, he would be told that correspondence has been received from me which puts their case and sets out to establish some rights on their behalf.
We examined this matter in the Public Accounts Committee during the 1984–85 parliamentary Session. The PAC's 23rd report is entitled "NHS Supplies and Pharmaceutical Price Regulations Scheme, Department of Health and Social Security." I draw to your attention, Mr. Deputy Speaker, the case put by the Pharmaceutical Services Negotiating Committee in a document marked "PAC 88". It contains correspondence of 25 February 1985 from Mr. A. J. Smith. the chief executive, who was writing on behalf of the PSNC. He said that the intention of writing was to set out a brief memorandum that he was copying to the National Audit Office. To some extent, the PAC shadows the National Audit Office, because under the National Audit Act 1983 the Comptroller and Auditor General is now an officer of the House of Commons. Correspondence was sent to him setting out the position.
In his letter of 25 February 1985 Mr. Smith said:You will see from the attached NHS remuneration balance sheets that the accrued underpayment on 31st December 1983 amounted to £24.36 million. This was corrected, to a certain extent, during the period ending 31st December 1984 but, even at this stage, there remained £11.95 million underpaid to retail pharmacists.We are referring, therefore, not to a small amount of money, but to a substantial amount of money that was in contention and about which there has been argument between the Department and the contractors. My hon. Friend the Member for Wrexham (Dr. Marek) has dealt in great detail with the matter, in particular with the legal judgments that were delivered on another but related matter.
The letter continued:The forecast balance sheet for the period 1st January 1985 to 31st March 1985 shows a worsening situation with a forecast accrued underpayment, at 31 March 1985, amounting to £16.84 million.That shows that the contractors were faced with an accelerating and developing problem. Mr. Smith continued:In the forecast balance sheet for the period 1st April 1985 to 31st March 1986, you will see that the forecast accrued underpayment by 31st March 1986 will amount to £45.9 million.Again that was an escalating, increasing figure and it was obviously a matter of great concern to the contractors. The letter continued:We have, however, concluded an agreement with the Department which will increase 1985/86 remuneration to absorb the whole underpayment and leave a nil balance at 31 March 1986. When I wrote to the right hon. Robert Sheldon on 20th August 1984 I pointed out that on the publication of the Twenty-Ninth report there were certain unfortunate and sensational press comments alleging 'rich pickings" "——that is a very interesting term"— 89for retail pharmacists by over-reimbursement of drug costs. No mention was made in the Report of the payment owed by the Department to pharmacists because of under-reimbursement of labour and overhead costs.To what extent did the Government set out to ensure that the truth was known? Did the Department contact the press to put the record straight? Was a press release issued by the Department following this report about rich pickings? Was such a press release circulated to ensure that journalists were made aware of the more accurate picture of remuneration to pharmacists?
When a group of contractors who depend on the Department feel defamed, surely the Department has a responsibility to ensure that the pharmacists' reputation is fully protected. Perhaps the Minister would like to intervene to clarify the position, because I am sure that the contractors would wish to feel assured in case similar developments occur in future. They would like to know that they would be protected, because we have no information about what happened in the past.
Mr. Smith went on to say:With the current method of Inquiry, there is an inevitable gap between the date of Inquiry and the finalisation and agreement of the Inquiry results, and it is during this period that over and under-reimbursement occurs. It should be noted that in the Minutes of Evidence——that is the minutes of evidence of the Public Accounts Committee—dated Monday 20th February 1984, it is recorded that 'adjustments have in the past been made to compensate professions for underpayments, at least as often as they have been made to recover payments on behalf of the tax-payer'. I hope that the Public Accounts Committee will include in its deliberations and reports their concern at the magnitude of the underpayments to chemist contractors during recent years and confirm their support for the proposals by both the Department of Health and Social Security and the Pharmaceutical Services Negotiating Committee that annual negotiations are essential so that large imbalances between amounts due and paid in any year do not occur in future. In passing I should mention that one of the major reasons for the current imbalance is the Department's insistence on using Treasury norms for inflation rate forecasts when all the statistical evidence shows that the costs of providing the pharmaceutical service (particularly labour costs) are increasing to a higher rate.Mr. Smith went on to talk about "Good business acumen." I am sure that that phrase commends itself well to the Government because they repeatedly tell us that they are committed to defending the interests of small businesses, the enterprise culture and the entrepreneurial society. Mr. Smith said:Good business acumen and excellent pharmaceutical wholesaler service have enabled pharmacists to achieve great savings in drug costs (currently of the order of 6 per cent.). The whole of this deduction is 'clawed-back' by the Department and currently saves £80 million per annum of tax-payer's money and the cumulative savings, so far, amount to in excess of £300 million for the years 1980–84.In the words of Mr. A. J. Smith, the chief executive, we have an example of good business acumen and excellent pharmaceutical wholesaler service rewarding the taxpayer with again a windfall of £300 million for the years 1980 to 1984.
Mr. Smith went on to say:I am sure you will readily understand the Committee's concern that these efforts of retail pharmacists to reduce drug costs are then referred to as 'rich pickings' in the interim period between the base of the Inquiry and the finalisation and agreement of the Inquiry findings resulting in the clawback. The ongoing savings to the National Health Service are immense and require an equal degree of exposure to public scrutiny.90 In his letter Mr. Smith is looking to the Department to ensure that this exposure takes place. I hope that the Minister will take this opportunity to assure the House that in every way every opportunity was used by the Department to ensure that they description "rich pickings'', which was attributed to the pharmaceutical contractors, was corrected in favour of what Mr. Smith believes to be the substantial contribution that pharmaceutical contractors have made and the need to illustrate that in press releases and material from his Department.
Mr. Smith said:The ongoing savings to the National Health Service are immense and require an equal degree of exposure to public scrutiny. Fairness to both tax-payer and the pharmacist can he achieved by the introduction of a system of continuous monitoring of discounts obtained to which again I would hope that the Public Accounts Committee would lend its support. Business efficiency of pharmacist contractors should be recognised by a proportion of these savings being passed on to the pharmacy contractors"—basically, what is being said is, "If we save the taxpayer money we are equally entitled to get a share of that money"—whereas under the present system"—this is referring to the system operated in 1985 by the DHSS—the savings in drug costs accrue in totality to the Department of Health and Social Security.In a written answer on 7 February the then Minister of State said that the Bill was designedto re-establish beyond doubt the Government's ability, challenged in court proceedings last autumn, to ensure that the remuneration and reimbursement arrangements for all NHS family practitioner services professional contractors are fair to the contractors themselves and to the taxpayer by allowing past overpayments or underpayments to be reflected in future recs."— [Official Report, 7 February 1986; Vol. 911, c. 289–90.]I think that my hon. Friend was referring -unfortunately, after the meeting of the Public Accounts Committee today and dinner this evening I came in to hear only the latter part of my hon. Friend's glittering speech, which we all found so riveting and interesting—to the court challenge referred to in the judgment of 16 October 1985.
§ Mr. Campbell-Savours
Clearly the contractors are not altogether satisfied, and my hon. Friend, in the new clause, is trying to introduce some adjudicating authority to arbitrate between what I might call—I am sure that my hon. Friend will correct me if I am wrong—the warring factions. There is certainly a warring Minister, in the sense that he is out to get them. That appears to me to be the intention behind the Government's position.
I hope that the Minister has taken on board the comments of Mr. A. J. Smith. I am sure that in writing to the Public Accounts Committee he felt that his words would be listened to, and they certainly were. Similarly, I hope that they were dealt with by the Government.
§ Mr. Maxton
I congratulate my hon. Friends the Members for Wrexham (Dr. Marek) and for Workington (Mr. Campbell-Savours) on their speeches. One of the Government Whips sitting opposite says, "Shortly" I think that he is implying that I should make a short speech. I have every intention of doing so, but the more that I am provoked the longer it is likely to get.
The Bill covers England and Wales and, I hasten to add, Scotland. I am speaking from the Dispatch Box 91 because I am the Labour party's spokesman on health matters in Scotland. The Labour party has taken some interest in the NHS and in the Bill but the Scottish Office Minister with responsibility for health has taken no interest whatsoever. He did not reply to the Second Reading debate, nor serve on the Committee. He was here for about half an hour earlier this evening and it does not appear that he will reply to any debate, although he may just manage to come in to propose one small amendment about dairy companies later in our proceedings. I can assure him that it will be very much later on.
Which is the determining authority for the prices paid to contractors in the NHS? Given the way in which the DHSS has dragged along the Scottish Office, it is fairly clear that the determining authority will be the DHSS, yet the people who supply services in Scotland are contracted to the Scottish Office. They will almost certainly not be exempt from any attempt to reclaim money. In Scotland the contracting employer will not be determining fees or whether some or all excess profits should be reclaimed.
That is an anomalous position. Labour Members—more than Conservative Members, though I am delighted to see that the hon. Member for Stirling (Mr. Forsyth) is present—believe that the sooner that we have a system of devolved government for Scotland that allows us to take our own decisions on these matters, the better it will be.
The Minister made great play of saving taxpayers' money and being fair to contractors. I note that the one part of the triangle that he did not mention was the patient. We are all keen to ensure that the Government do not overpay or underpay contractors, but it is hard for us to hear the Government say that they are concerned for the patient when we see what has happened on prescription charges, dental charges and the optical and ophthalmic services.
Equally, it comes hard to me, as the hon. Member for a Glasgow constituency, to hear the Minister talking about a 26 per cent. real terms increase in expenditure on the NHS when I know that the general manager of the Greater Glasgow health board has just made proposals to cut £20 million off the health services. Only three quarters of an hour ago there was a damning indictment in a television programme about the expenditure of that board in Lennox Castle hospital. The Minister should not talk to any Glasgow Member about the NHS receiving more money. There have been massive cuts.
§ Mr. Michael Forsyth (Stirling)
Will the hon. Gentleman confirm that the Greater Glasgow health board is the best-funded health board in the country, receiving £420 per head?
§ Mr. Deputy Speaker
Order. I hope that the hon. Member for Glasgow, Cathcart (Mr. Maxton) will resist the temptation to move away from the new clause.
§ Mr. Campbell-Savours
Is my hon. Friend aware that the hon. Member for Stirling (Mr. Forsyth) has huge private health contracts? Yes, they are declared in the Register of Members' Interests, but they are vast contracts and it is suggested that a series of them with one 92 organisation are worth £80,000 per annum. If that is inaccurate, perhaps the hon. Member for Stirling will deny it in the Chamber.
§ Mr. Maxton
I shall be brief. Of course I knew that. I am well aware of it. Indeed, the Government are vindictive about the Greater Glasgow health board because, despite the fact that it has a Conservative majority, it flatly refuses to privatise any services.
The Government have imposed massive charges on the patient, or user, of those services. Incidentally, I and no doubt many of my hon. Friends have reservations about the whole contractor system within the NHS. In future, we may well want to consider whether that is the best way of ensuring that such services are provided within the NHS. I should like to see much greater direct control of them by NHS management without any contracting out. But the Government believe in the contractor system. They, more than any other Government, have taken us down that road. It seems strange that a Government who want more privatisation and more use of contractors in the NHS can then apparently turn themselves on their heads and create a situation that is unfair within that very system. We argue not that the contractors are always right, and certainly not that the contractor system is the right way of operating, but that, given the system, it must be fair to all those who provide the service.
Under the Bill, the Government can determine a price to be paid to the contractor and in, say, eight years' time can decide that the profits were higher than reasonable. The Government can then reclaim those profits. The problem with that is that they will not always be reclaiming those profits from the contractor who provided the service.
When the idea was first mooted, chemist shopowners in my constituency wrote to me saying that when they bought their shops 18 months ago they also bought the goodwill. However, they did not buy the fact that under the terms set down by this Government, the last owner was paid what the Government considered to be excess profits. The Government are now apparently asking them to repay the money. There is nothing in the Bill to prevent that, and it is unfair.
The price is fixed, with the sole reservation that regard may be had to the number of years involved, and the Minister could say that what was charged was excessive, and that the Government would take back the money. The new clause is very reasonable. We say only that there should be negotiations. The Government should work out, in negotiation with the contractors, exactly what the price should be. Having determined that, they should stick to it. Of course, underpayments and overpayments may be made, but that may be taken into account in later negotiations. If we have an adjudicating body, the price should be right when that decision is taken. That is the point at which it should be done—not at a future date, on a retrospective basis, hitting people who may not have made any money from the deal. It is a grossly unfair clause and we must have a system that is properly negotiated.
The Minister said that negotiations took place. If so, why not build that into legislation? Many sections in Acts 93 state that negotiation should take place, and a similar provision should be included in the Bill. There is no reason why that should not happen.
If the Minister now said that the Government, in another place, would include a provision to allow for negotiation between themselves and the professional bodies, and for an adjudicating body to deal with the decision between them, we should be happy to withdraw our new clause. The Minister made great play of the fact that negotiating machinery existed, so why does he not include it in the legislation? Obviously, the Minister does not intend to respond, and so I urge my hon. Friends to vote for the new clause.
§ Question put, That the clause be read a Second time:—
§ The House divided: Ayes 68, Noes 180.94
|Division No. 213]||[9.27 pm|
|Adams, Allen (Paisley N)||Hogg, N. (C'nauld & Kilsyth)|
|Alton, David||Howells, Geraint|
|Atkinson, N. (Tottenham)||Hoyle, Douglas|
|Banks, Tony (Newham NW)||Jones, Barry (Alyn & Deeside)|
|Beckett, Mrs Margaret||Kennedy, Charles|
|Boyes, Roland||Lamond, James|
|Brown, R. (N'c'tle-u-Tyne N)||Lewis, Terence (Worsley)|
|Bruce, Malcolm||Livsey, Richard|
|Caborn, Richard||McGuire, Michael|
|Callaghan, Jim (Heyw'd & M)||McNamara, Kevin|
|Campbell-Savours, Dale||McWilliam, John|
|Clay, Robert||Madden, Max|
|Clwyd, Mrs Ann||Marek, Dr John|
|Cohen, Harry||Maxton, John|
|Cook, Robin F. (Livingston)||Meadowcroft, Michael|
|Corbyn, Jeremy||Michie, William|
|Cox, Thomas (Tooting)||Millan, Rt Hon Bruce|
|Craigen, J. M.||Patchett, Terry|
|Crowther, Stan||Pike, Peter|
|Cunliffe, Lawrence||Powell, Raymond (Ogmore)|
|Davies, Ronald (Caerphilly)||Raynsford, Nick|
|Davis, Terry (B'ham. H'ge H'l)||Robertson, George|
|Dixon, Donald||Short, Ms Clare (Ladywood)|
|Dobson, Frank||Skinner, Dennis|
|Dormand, Jack||Smith, C.(Isl'ton S & F'bury)|
|Dubs, Alfred||Soley, Clive|
|Eadie, Alex||Spearing, Nigel|
|Eastham, Ken||Stott, Roger|
|Evans, John (St. Helens N)||Thompson, J. (Wansbeck)|
|Fatchett, Derek||Thorne, Stan (Preston)|
|Field, Frank (Birkenhead)||Wallace, James|
|Fisher, Mark||Wilson. Gordon|
|Garrett, W. E.||Tellers for the Ayes:|
|Hardy, Peter||Mr. James Hamilton and Mr. Frank Haynes.|
|Heffer, Eric S.|
|Alexander, Richard||Bowden, Gerald (Dulwich)|
|Amess, David||Braine, Rt Hon Sir Bernard|
|Arnold, Tom||Bright, Graham|
|Ashby, David||Brinton, Tim|
|Aspinwall, Jack||Brooke, Hon Peter|
|Atkins, Robert (South Ribble)||Brown, M. (Brigg & Cl'thpes)|
|Baker, Nicholas (Dorset N)||Browne, John|
|Batiste, Spencer||Bruinvels, Peter|
|Beaumont-Dark, Anthony||Budgen, Nick|
|Bellingham, Henry||Burt, Alistair|
|Bendall, Vivian||Butterfill, John|
|Benyon, William||Carlisle, Kenneth (Lincoln)|
|Biggs-Davison, Sir John||Carlisle, Rt Hon M. (W'ton S)|
|Blackburn, John||Cash, William|
|Blaker, Rt Hon Sir Peter||Chapman, Sydney|
|Bonsor, Sir Nicholas||Chope, Christopher|
|Bottomley, Peter||Clark, Hon A. (Plym'th S'n)|
|Bottomley, Mrs Virginia||Colvin, Michael|
|Conway, Derek||Lyell, Nicholas|
|Coombs, Simon||McCurley, Mrs Anna|
|Cope, John||Macfarlane, Neil|
|Cormack, Patrick||MacKay, Andrew (Berkshire)|
|Corrie, John||MacKay, John (Argyll & Bute)|
|Couchman, James||McLoughlin, Patrick|
|Cranborne, Viscount||McQuarrie, Albert|
|Crouch, David||Malins, Humfrey|
|Currie, Mrs Edwina||Malone, Gerald|
|Dickens, Geoffrey||Maples, John|
|Dicks, Terry||Marland, Paul|
|Douglas-Hamilton, Lord J.||Marlow, Antony|
|Dover, Den||Marshall, Michael (Arundel)|
|Dunn, Robert||Maude, Hon Francis|
|Eggar, Tim||Maxwell-Hyslop, Robin|
|Emery, Sir Peter||Mayhew, Sir Patrick|
|Evennett, David||Merchant, Piers|
|Eyre, Sir Reginald||Miller, Hal (B'grove)|
|Fairbairn, Nicholas||Mills, Iain (Meriden)|
|Fallon, Michael||Miscampbell, Norman|
|Favell, Anthony||Moate, Roger|
|Finsberg, Sir Geoffrey||Moore, Rt Hon John|
|Fookes, Miss Janet||Moynihan, Hon C.|
|Forsyth, Michael (Stirling)||Mudd, David|
|Forth, Eric||Nelson, Anthony|
|Franks, Cecil||Norris, Steven|
|Fraser, Peter (Angus East)||Onslow, Cranley|
|Freeman, Roger||Ottaway, Richard|
|Gale, Roger||Page, Richard (Herts SW)|
|Galley, Roy||Pawsey, James|
|Gardiner, George (Reigate)||Peacock, Mrs Elizabeth|
|Gorst, John||Percival, Rt Hon Sir Ian|
|Gower, Sir Raymond||Pollock, Alexander|
|Greenway, Harry||Porter, Barry|
|Gregory, Conal||Portillo, Michael|
|Griffiths, Peter (Portsm'th N)||Powell, William (Corby)|
|Ground, Patrick||Powley, John|
|Hamilton, Neil (Tatton)||Price, Sir David|
|Hampson, Dr Keith||Proctor, K. Harvey|
|Hargreaves, Kenneth||Raffan, Keith|
|Harris, David||Rathbone, Tim|
|Hawkins, C. (High Peak)||Renton, Tim|
|Hawkins, Sir Paul (N'folk SW)||Rhodes James, Robert|
|Hawksley, Warren||Rhys Williams, Sir Brandon|
|Hayes, J.||Ridsdale, Sir Julian|
|Hayhoe, Rt Hon Barney||Sackville, Hon Thomas|
|Hayward, Robert||Sainsbury, Hon Timothy|
|Heathcoat-Amory, David||Sayeed, Jonathan|
|Heddle, John||Shaw, Giles (Pudsey)|
|Henderson, Barry||Shaw, Sir Michael (Scarb')|
|Hicks, Robert||Silvester, Fred|
|Hind, Kenneth||Sims, Roger|
|Hirst, Michael||Skeet, Sir Trevor|
|Howard, Michael||Smith, Tim (Beaconsfield)|
|Howarth, Gerald (Cannock)||Soames, Hon Nicholas|
|Hubbard-Miles, Peter||Spicer, Michael (S Worcs)|
|Hunter, Andrew||Squire, Robin|
|Jackson, Robert||Stewart, Andrew (Sherwood)|
|Jones, Gwilym (Cardiff N)||Thompson, Donald (Calder V)|
|Kellett-Bowman, Mrs Elaine||Thompson, Patrick (N'ich N)|
|Key, Robert||Thorne, Neil (Ilford S)|
|Knight, Greg (Derby N)||Thurnham, Peter|
|Knight, Dame Jill (Edgbaston)||Townend, John (Bridlington)|
|Knowles, Michael||Twinn, Dr Ian|
|Knox, David||Waller, Gary|
|Lang, Ian||Watson, John|
|Latham, Michael||Wells, Bowen (Hertford)|
|Lawler, Geoffrey||Whitney, Raymond|
|Lawrence, Ivan||Wood, Timothy|
|Leigh, Edward (Gainsbor'gh)||Yeo, Tim|
|Lennox-Boyd, Hon Mark|
|Lester, Jim||Tellers for the Noes:|
|Lilley, Peter||Mr. Tony Durant and Mr. Peter Lloyd.|
§ Question accordingly negatived.