Grand Committee Report of 3 March 2004

Official Report of the Grand Committee on the

  Health Protection Agency Bill [H.L.]
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Tordoff) in the Chair.]
  The Deputy Chairman of Committees (Lord Tordoff): Before I put the Question that the Title be postponed, may I remind Members of the Committee of two points of procedure? Noble Lords will speak standing, and the House has agreed that there shall be no Divisions in Grand Committee. Unless, therefore, an amendment is likely to be agreed to, it should be withdrawn.
  Title postponed.
  Clause 1 agreed to.
  Clause 2 [Health functions]:
  Earl Howe Earl Howe moved Amendment No. 1:
  Page 1, line 8, leave out "(or any part of the community)"
  The noble Earl said: In moving Amendment No. 1, I begin our Grand Committee proceedings by reiterating the general welcome that I gave to the Bill at Second Reading and by making it clear that I approach our debates today in an entirely constructive spirit. I hope that that will become even more evident as we proceed. Where I flag up our genuine concerns, I hope and trust that the Minister will be able to reassure me sufficiently on those matters. I look forward to hearing what he and the noble Baroness, Lady Andrews, have to say.
  I must start by apologising to the Minister for tabling what may seem a somewhat oblique and elliptical amendment. It is not my purpose to dissect the meaning of "community", although no doubt that would be an interesting debate were we to have it. I have homed in on,
  "any part of the community",
  as a means of highlighting a number of concerns relating to the ability of the new agency to operate not only on a national basis but, as it needs to, in a truly local way.
  The agency's ability to respond rapidly to an outbreak of infection—whether from a food-borne organism, a virus transmitted from person to person, or whatever it happens to be—and to monitor what is going on day to day will depend critically on the networks put in place on the ground and on the efficiency with which the information can be communicated up the chain. That may seem a statement of the obvious but there are worries among some of us that the local mechanisms for controlling communicable disease have been disrupted by the recent reorganisations.
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  Much will depend on PCTs, which, as we know, have their hands full in all sorts of ways unrelated to public health. Many—I am one—feel that PCTs are in any case too small, in terms of population, to have the full range of specialties needed to produce effective health gain and effective local control. Indeed, the consultants in communicable disease control—the very people who know most about the day-to-day business of health protection—have been removed from the PCTs and relocated into the Health Protection Agency. The direct involvement of those individuals with the local arms of the NHS and with environmental health departments of local authorities has thereby been done away with.
  I strongly question the wisdom of that. Although one can produce a lot of good arguments for overarching structures, staffed by professionals, those overarching structures can work only if there are people with both the skills and the authority on the ground to get things done as they should be done.
  Whoever is charged with those day-to-day tasks needs to be monitored, but how will we know whether or not they are doing a good job? In theory, the strategic health authorities are there to performance-manage. I am not the only one who regards strategic health authorities as too large and too distant to have the knowledge of what can effectively be done at ground level. In the main, they are not staffed with grass-roots experts on health commissioning and delivery. That, combined with the fragmentation of commissioning and delivery, will prove a serious barrier to driving up standards in public health.
  We will drive up standards only by having clinically-led service improvements, speciality by speciality, across wider perspectives than single hospitals or single PCTs. Medical management should find ways of recreating the necessary integration of hospitals and PCTs in that sense. Unless that happens, the laudable aim articulated for the agency in the clause—that it should have, as it were, fingertip control at a local level—cannot be fulfilled properly.
  It is not clear to me how communicable disease consultants will link up with PCTs. Other than in emergencies, there is no clear command structure. Even then, as I shall say later on, there are all kinds of grey areas. I have heard it said before that if we look at this country's record of infectious disease control, it is only because we have had extremely competent people dealing with it that that we have got by without a major epidemic. In other words, we have got by despite the system, not because of it.
  We are in danger now of making the system a good deal less joined-up than before at local level. It would be very helpful if the Minister could tell the Committee something about the day-to-day practical arrangements—the allocations of responsibilities for lines of command and so on—that will overcome the structural shortcomings to which I have referred. I beg to move.
  The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): The words which are the subject of the amendment were put in to make it clear beyond peradventure that the HPA may

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  undertake functions in relation to not only the population as a whole, but particular localities—as it will do in its support for primary care trusts in England—and in respect of other sections of the community, such as children or workers in a particular area.
  The noble Earl perhaps understated the capacity of the SHAs to monitor the work of PCTs. There are, after all, 28 strategic health authorities and 303 PCTs, a ratio of about 10 to one or 11 to one, which is not a huge span of control in terms of monitoring activities. Certainly we are not looking for a command-and-control model between the HPA and communicable disease consultants.
  It has always been our intention that the agency should play a hands-on role in supporting local services in England. The consultation exercise carried out before the Special Health Authority was set up showed that we needed to explain more clearly—it may be the cause of some of the problems—that the role would be active and not simply advisory. Misunderstandings about that have caused some concern and I can understand why the noble Earl is probing the issue.
  Certainly the agency has worked closely with local NHS bodies since its establishment as a special health authority to achieve a clearer understanding of its role in relation to local services. It has been negotiating memorandums of understanding and putting them in place with primary care trusts. Those have been based on a standard model. I should be happy to show the noble Earl the standard model if it would help him. That standard model allows adjustments to take place to take account of local variations, but it will introduce a pretty standard set of arrangements for how the HPA will relate to people locally. Further work is in hand to refine the memoranda of understanding for future years.
  There will always be the issue of what balance of the resources available to the HPA is allocated to local and national issues, but the H PA's plans, which have been discussed and agreed with the Department of Health, project it, broadly speaking, spending just over 20 cent of its total resources in 2004–05 on local and regional services. So there is a clear intent to identify a chunk of resources that is committed to local areas.
  I think I mentioned at Second Reading that the agency had identified 10 key gains. One of the 10 key gains that it has committed itself to achieving states:
  "from Cumbria to Cornwall, the same high standards of response to an outbreak or incident".
  So it is conscious of the need for standardisation of quality of response in different parts of the country. Historically, it would be fair to say that different PCTs and their predecessors have taken different decisions about the funding of health protection. The noble Earl expressed concerns about that at Second Reading. None of us would disagree that there have been variations around the country in that response. The HPA's existence, with the memoranda of understanding that I mentioned, offers the opportunity to work towards more uniformly high standards throughout the country.
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  So what we have is a pragmatic solution in which there is a clear allocation of resources by the HPA to the work of local and regional services; a pretty standard memorandum of understanding, but one tweaked to take account of local circumstances, as is right; and a commitment by the agency as one of its key priorities to produce a more standardised response where there are local control or infection incidents, so that it can respond around the country in a consistent way. That strikes me as a considerable improvement on what existed previously. I do not underestimate the contribution made by consultants on communicable diseases, but we had a less consistent service. The existence of the agency offers improvements in that area. I hope that that provides some reassurance to the noble Earl.
  Earl Howe: I am grateful to the Minister. His answer clarifies a number of dark corners in my mind. I shall obviously read his reply when it is printed, but what he had to say about the allocation of resources was especially helpful. Also, the memoranda of understanding ought, as he said, to put in place uniform protocols and standards across the country, if the system works as intended. I am a little sceptical about the ability of strategic health authorities to manage performance in the same tight way that they do for acute services, but we shall have to see how that works. It is important that the performance management role is conducted in as an informed and expert a way as possible.
  I do not intend to delay the Committee further on this amendment. It has been useful to flag up the issues to which the Minister has helpfully responded. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  3.45 p.m.
  Lord Clement-Jones Lord Clement-Jones moved Amendment No. 2:
  Page 1, line 10, at end insert "including zoonosis"
  The noble Lord said: One of the most important parts of the Bill is the clause that deals with the health function of the HPA. This amendment goes to the heart of the Bill as currently constructed. It is designed to ensure that the HPA's remit includes diseases which can be transmitted from animals to humans, such as SARS and avian flu.
  I did a quick printout of some of the headlines from the past few months. SARS and avian flu have been right at the centre of not only domestic public health concerns, but also international health concerns. In parenthesis, I should like to say that I attempted to make the amendment refer to "zoonoses". Unfortunately, there appear to be too few Greek speakers in the Public Bill Office; the amendment should read "zoonoses" as opposed to "zoonosis". That is what I am reliably told, not having had a very strong classical education.
  Because zoonoses can pose such serious public health threats, many of which are newly emerging diseases, the HPA certainly should have a responsibility for preventing their spread. That point was made strongly in the report entitled Getting Ahead of the Curve, in 2002. I

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  shall not weary the Minister by repeating the words in that report, but it was a very interesting tour d'horizon on some aspects of public health. I think that the Minister might find paragraph 2.48 of the report quite helpful.
  By including zoonoses in the Bill, we would ensure that the HPA can draw resources not only from agencies dealing solely with human health, but also from those with animal health and food safety concerns, such as Defra and the FSA. With the HPA, we have an excellent opportunity to bring together surveillance information and prevention approaches to infections that cross the borders of human, animal and food-borne disease.
  I hesitate to quote at great length from the House of Lords Select Committee report, Fighting Infection, in the presence of the noble Lord, Lord Soulsby, who I know will be making a contribution later. Page 27 of the report authoritatively states that,
  "many emerging human infections are zoonotic and in order to predict possible outbreaks more accurately it is essential to have good collaboration between specialists in human and animal infection".
  The report recommended,
  "that the HPA be provided with resources to take on specific and primary responsibility for integrating surveillance related to human, animal and food-borne infection at national, regional and local levels in order to bridge the gaps that currently exist between these areas of specialties".
  Including zoonoses clearly within the remit of the HPA would help to bridge those gaps and strengthen surveillance networks. In response to Fighting Infection the Government produced another document that I shall also pray in aid. It agreed that close collaboration is needed between human health and animal health in the investigation of zoonotic diseases, referred to on page 15.
  More generally, we understand that the New and Emerging Infections Panel has been set up to assess infectious disease threats. I believe that the panel met in November 2003. It will be an advising body to the Department of Health and the HPA. It will also coordinate activities with the UK Zoonoses Group. Therefore, including zoonoses in the remit of the HPA would help to formalise the existing ties between the HPA and zoonosis surveillance. I understand that the HPA already is working with veterinary laboratories to set up formal communication networks to bring together the UK Zoonoses Group and local specialists in infectious disease and veterinary health.
  Finally, co-operation between agencies is extremely important in handling the animal/human interface of disease transmission. I hope that I am not anticipating the Minister too much; I am sure that he will say that co-operation is working marvellously and will continue to do so, and so forth. But it is vital that no gaps exist for surveillance or emergency planning. The importance of shared information and collaboration in the area of zoonosis is noted internationally. In the United States, which lacks a national public health surveillance system comparable to that of the UK, animal and human infection experts are required to share surveillance information for animal-borne infections such as West Nile fever.
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  Of course there is a strong case to be made for co-operation, but we need an agency charged with taking the lead role in respect of that co-operation. That is the crux of the matter and noble Lords who have put their names to this amendment believe that it should be HPA-led. I beg to move.
  Baroness Finlay of Llandaff: I start by expressing my thanks to officials in the Public Bill Office for their patience. I was slow to spot the drafting error in the amendment sent to them. They have been extremely helpful in seeking to make the correction to "zoonoses".
  I strongly commend the amendment. There is a need for joint working, in particular to develop adequate surveillance, sharing of intelligence, joint field investigations, joint risk assessment and the development of common control policies and advice over infections occurring in man that derive from animal sources.
  Over the years, attempts have been made to develop forums for medico-veterinary collaboration. The Zoonoses Order 1975 was passed to bring together the then Department of Health and Social Services, the State Veterinary Service and the Public Health Laboratory Service. At the local level, liaison groups were established, but the momentum was not sustained. Following the publication of the Phillips report, the Chief Medical Officer for England established the new UK Zoonoses Group. Within the former PHLS, the Zoonoses Advisory Committee, known as AC Zoo, was established in 2000. At the local level, a new initiative to revitalise local liaison groups was introduced by Defra and the Chief Veterinary Officer. However, it has been difficult to sustain a cross-disciplinary focus on the unique status of zoonoses infections at the national level. Indeed, at times the profile of such infections slips in terms of political importance.
  The Chief Medical Officer has set up a new high-level committee, the National Expert Panel on New and Emerging Infections. Much of its time will be devoted to zoonotic diseases, but the word "zoonoses" is not included in the title. What is lacking is a cross-disciplinary scientific core unit embracing the full spectrum of activity in order to provide leadership across disciplines as well as serving the UK Zoonoses Group and other relevant committees.
  It is important that this major group of diseases should fall under the remit of the agency to be charged with health protection. A zoonoses unit within the HPA should be given designated responsibility for co-ordination of zoonoses activities, including surveillance and contributing to the annual UK zoonoses report, field investigations and so forth. It should also establish the necessary cross-disciplinary expertise with Defra and the Veterinary Licensing Authority.
  I suggest that there should also be a standing conference on zoonoses. In 2001, the first international conference was held in Cardiff, headed "The Prevention and Control of Zoonoses: from Science to Policy". It was sponsored by Defra, the Department of Health, the National Assembly for Wales and the

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  European Society for Emerging Infections, and was an outstanding success. It set the tone and established the feel for the kind of collaboration required.
  I should declare an interest in that I am employed by the NHS trust which has incorporated the National Public Health Service for Wales. It has provided the Zoonoses Surveillance Centre for England and Wales and houses an extremely important reference unit in this area, in particular in relation to anaerobes, toxoplasma, cryptosporidia, hydatid and toxocara. Between 24,000 and 25,000 specimens per annum are sent from England to Wales for the Zoonoses Surveillance Centre, in particular the toxoplasma reference unit.
  I hope that, given the size of the problem of the zoonoses, not only those that have hit the headlines recently, the Committee will agree that it will be important for the Health Protection Agency formally to include this spectrum of diseases within its remit.
  Lord Soulsby of Swaffham Prior: I have great pleasure in supporting the amendment for all of the reasons that have been mentioned by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Finlay of Llandaff. The noble Baroness mentioned the Cardiff conference in 2001 on zoonosis. It was an outstanding event and demonstrated clearly that the medical and veterinary people concerned with infectious disease thought that diseases transmissible between animals and man could exist. The amendment is to make sure that collaboration between veterinary and medical authorities will provide a unity of surveillance of infectious diseases in animals.
  As the noble Lord, Lord Clement-Jones, said, so many of the new infections that we have—avian flu is the latest, SA RS is another—are zoonoses. However, there are others that we forget, such as human flu that occurs world-wide and was originally a zoonosis that came from animals in mainland China. Many of our food-borne infections are zoonoses. It is important that we have that insertion at the end of line 10 to include "zoonoses"—it is right that it should be "e" rather than "i"—so that we do not forget the importance of the relation between animal infections and human infections. I am sure that that will not be the case, but we must make sure that the word "infectious" of "infectious disease" is not forgotten and that so many of them devolve from animals, either through food-borne infections or other sources. I support the insertion of the two words "including zoonoses" into the clause.
  Lord Turnberg: I shall comment briefly on the amendment and I have to mention my special interest as a past chairman of the Public Health Laboratory Service.
  I understand why noble Lords have raised the amendment. Zoonoses are very serious diseases. They are quite common—more common than we think—and we have to take them seriously. The HPA—and its predecessor the PHLS—certainly takes the matter seriously and spends much time dealing with such
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  examples as SARS and Asian flu that the noble Lord, Lord Clement-Jones, mentioned; and the agency has teams specifically set up for them. There is no doubt that they are important, that the HPA is involved and takes them seriously.
  The real question is not whether the HPA takes the matter seriously or is involved, but how it can best work with other agencies such as Defra that are involved in animal health. Does the amendment encourage the solution that we seek? Will there be better working, a closer relationship and better co-ordination between the HPA and Defra? I am not sure that the amendment will achieve that aim. Should we not be looking at other ways of achieving that, perhaps by some mandatory arrangement for the degree of co-operation and co-ordination that the amendment seeks?
  Earl Howe: I support the amendment. The challenge is particularly great with regard to those infections that are asymptomatic in animals but cause overt disease in humans. Chief among those are some of the more serious food-borne pathogens. Surveillance of both wild and companion animals, as well as livestock, is essential, if such hazards are to be predicted and controlled. The key to that is good collaboration between public health doctors and the veterinary profession. Vets are an under-utilised resource in disease surveillance. In my view, vets have a crucial part to play in ensuring that the new agency is capable of meeting its preventive responsibilities to the full.
  But a joined-up approach of this kind is perhaps not as simple as it might appear. As the House of Lords Select Committee noted last year, the extent to which surveillance of animals takes place is usually determined by the economic impact of a disease on animal health rather than its potential to damage human health. That means that an organism which does no harm to an animal might not attract the kind of surveillance effort that in a wider context it deserves. Campylobacter has no economic relevance to agriculture whereas it has a considerable impact on human health. There is therefore a critical need for medical and veterinary personnel in adequate numbers to collaborate, under the agency umbrella, in an integrated approach to those threats, not only at a laboratory level but at a surveillance level on the ground.
  4 p.m.
  Lord Warner: It is already clear that it has always been our intention that the HPA should be concerned with zoonoses. It would be impossible to disagree with virtually all the remarks made by noble Lords in this mini-debate.
  But the HPA already has that responsibility within its remit under the terms of the Bill as presently drafted. I have checked that with parliamentary counsel, who assure me that "infectious disease" already covers zoonoses, so the amendment is not necessary to ensure that the HPA has authority to operate in the area.

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  The HPA already has plentiful powers under the terms of the Bill to secure information to enable it to do its job. As its predecessor bodies were also active in this area—for example, in work on foot and mouth disease and BSE—so it has been contributing to international efforts to combat avian flu. That is another example which shows that it is already active and obtaining information.
  I draw the Committee's attention to Clause 5, which requires mutual co-operation between the HPA and relevant bodies. So there is already provision in the Bill to ensure that the HPA co-operates with all relevant bodies.
  Zoonoses are already included in the term "infectious diseases". The HPA is already active in that area and the Bill places a duty on it to co-operate. As to the concerns expressed by the noble Lord, Lord Clement-Jones, about whether it will always do this work as part of its planned work programmes, the agency will have to agree its work plans in relation to its budget with the Department of Health. Therefore, we can formalise those arrangements in the work plans to be agreed with the HPA. There will be no problem in regard to a mechanism to ensure that it takes an active part in the area. Neither the chairman nor the chief executive, who have been listening to the debate from the end of the Room, will be in any doubt whatever of the Committee's views on the subject.
  As to another point made by the noble Lord, Lord Clement-Jones, there is nothing to stop the HPA from generating income from a variety of sources when carrying out work for a non-traditional health body. We shall come on to that income-generating power later in our discussions.
  Against that background, the Bill already adequately meets the concerns expressed by Members of the Committee, and I am not sure whether the addition of the words would improve its provisions. When I consulted parliamentary counsel on the matter, lie advised that the inclusion of a reference to a particular example of infectious disease could have the effect of casting doubt on the scope of the generality of "infectious disease". Unqualified, it is actually broader than qualified.
  Lord Clement-Jones: I thank the Minister for that reply and in particular, speaking as a lawyer, for the sui generis sting in the tail known to all lawyers as somewhat spurious on occasion. Nevertheless, it was a very useful coda—a warning signal that we should not further amend the already immaculate clause—which was very salutary. His reply was carefully considered, and I thank Members of the Committee who took part in the debate. I am very pleased that the senior executives from the HPA are present today to hear the debate. Clearly, there is the intention—it appears from what the Minister said that the draftsmen certainly intended it—that zoonosis is included within the remit of the HPA.
  A number of points have been made that give me slight pause for thought. There may be ways in which we want to bring back some of the substance of the debate on Report, for the simple reason that the noble
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  Earl, Lord Howe, made a very important point about the relative priorities in the matter and the relative impact on the animal world and on human health. That made quite an impact on my thinking on the matter.
  A second point, which derives from what I said earlier, concerns the whole issue of accountability. Of course, if the matter is within the remit of the HPA. that simply makes it primus inter pares—we have been bandying Latin and Greek words around in this debate—with the other agencies dealing with zoonosis. It does not necessarily put it in pole position. When we come to the likes of avian flu and SARS, there may well be—I shall not be totally adamant about it—a good case to put the HPA in the leading role, and give it the accountability and responsibility for dealing with such matters.
  We may not be in the right part of the Bill for that; I take the point of the noble Lord, Lord Turnberg. Perhaps such a provision should be a subsection in the clause on the duty of co-operation, stating specifically that the lead role in the area should be taken by the HPA. My words were taken out of my mouth because my response would have been about the detailed work plans, but the Minister addressed that point. That is extremely helpful, and a useful signal for his colleagues when they approve the work plans of the HPA, the budget and so on. Whether that is enough of a signpost for future administrations, I do not know. Again, I wonder whether something in primary legislation to deal with the matter would not be desirable.
  The Minister has very helpfully elucidated some of the area, but I am not totally satisfied that we should not go rather further and be utterly explicit. We shall obviously debate the matter on a future occasion hut, in the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  The Deputy Chairman of Committees: I am not in any way calling order, but I wonder if I might suggest a piece of gentle advice as a Member of your Lordships' House. It has always been my understanding that it is not considered proper to refer to people in the Public Gallery, however distinguished they may be.
  Earl Howe moved Earl Howe moved Amendment No. 3:
  Page 1, line 15, after "Wales" insert "and such other persons as he considers appropriate"
  The noble Earl said: In moving Amendment No. 3, I shall speak also to Amendments Nos. 5, 9, 10 and 11 Clause 2(2) allows the Secretary of State and the National Assembly for Wales to confer new health-related functions on the agency, and stipulates that the Secretary of State should consult the Assembly and vice versa whenever either initiates such action. I merely pose the question of whether it is really enough for the consultation envisaged to be interdepartmental in the broadest sense and nothing further. I should have thought that we ought to provide for wider consultation, especially bearing in mind that the

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  functions that may be conferred on the agency under the subsection could be any functions whatever relating to health.
  At the very least, the Secretary of State or the Assembly should consult the agency itself, but they might also wish to consult relevant parts of the National Health Service and other government departments or agencies in order to ensure that those materially affected by the change were signed up to it, and that there were no unforeseen logistical complications. I hope that the Minister will look constructively on the amendments, which are in no way intended to fetter the authority of Ministers in England or Wales, but rather to give them the opportunity to listen to the advice of key individuals whose experience and views were relevant and important.
  I shall move on to Amendments Nos. 9 to 11, which are of purely a probing nature. However, they raise some issues of importance. Subsections (6) to (12) of Clause 2 bring us face to face with one of the anomalous features of the Bill: the effect on it of devolution. To the extent that the principal functions of the agency set out in subsection (1) are matters that have already been devolved to Scottish or Northern Ireland Ministers, the Bill is unable to say anything at all beyond the fact that it is up to those Ministers themselves to confer the functions on the agency, should they choose to do so.
  It is a truism to say, as we often do in our debates, that the hazards of infectious diseases and other public health dangers are no respecters of national boundaries. Quite why we then have a situation in which a supposedly national agency—a UK-wide agency—will find itself performing potentially different roles under potentially different remits depending on which part of the country it operates in is something that only the Minister can tell us. At best, it is an arrangement that is bizarre as well as administratively difficult. At worst, it is positively dangerous.
  If the Scottish Parliament were to choose not to confer the same functions on the agency as those conferred under the Bill for England, questions arise on, first, whether the agency would be able to work satisfactorily with such a split personality, and secondly, whether the Scottish Parliament will have the capacity to perform by itself all the responsibilities that it chooses not to pass to the agency. We simply do not know the answer to either of these questions, and they are very important.
  If the extent to which the agency is responsible for controlling the spread of infectious diseases north of the Border is in some way less than it is to the south. what risks to the population does that give rise to? The cardinal requirement for protecting the health of the population effectively across England, Scotland, Wales and Northern Ireland is full—not partial—coordination, yet this part of the Bill is a recipe not for co-ordination, but for lack of co-ordination.
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  The contrast between Clauses 2 and 3 could not be more glaring. In matters relating to radiological protection, the agency will operate on a truly nationwide basis, with a single remit and a single set of functions. That is entirely logical. In stark comparison, when it comes to infectious diseases, that will not happen. I do not believe that Ministers think that if terrorists were to release a quantity of smallpox bacteria in England, the progress of the disease would be miraculously halted at Gretna Green. If they do not believe that, what is the justification for allowing the Scots to opt out of using the agency in a manner that would maximise its effectiveness? I cannot see one.
  We then have to consider the phrase in subsection (6):
  "Subsection (1) does not apply to a function to the extent that it is … exercisable within devolved competence (within the meaning of the Scotland Act 1998 (c. 46))".
  Can the Minister explain to what extent the function of protecting the community against infectious diseases is exercisable within devolved competence and to what extent it is not? That is the question posed by this phrase. Where does the devolved competence in this area begin and end?
  The same questions could be asked about the other functions mentioned in subsection (1). Someone, somewhere, once said, "I think we should be told". Upon the answer depends our entire understanding of what the Bill will empower the agency to do both north of the Border and in Northern Ireland without the say-so of Ministers in either country. Indeed, for all I know, the position may be even more complicated than that. If we take, for example, the function of preventing the spread of infectious disease, we may find that the extent to which that function has been devolved is different in the case of Scotland than it is in the case of Northern Ireland. I do not know whether that is in fact the case, but if so, it is important to be clear about it.
  I turn now to what is for me a very obvious point. If any of the functions falling within the scope of subsection (1) are legally speaking devolved matters, there should be no two ways about it: they are devolved matters. Why, then, does subsection (8)(a) state that an order by Scottish Ministers may not be made unless they have first,
  "obtained the agreement of the Secretary of State?
  It would be helpful for the Minister to explain to those noble Lords whose understanding of the Scotland Act 1998 is limited why any decision or action that can be taken by the Scots under a devolved power should require the Secretary of State to agree to it. If Scottish Ministers wish to remove a function from the agency, they need only consult the Secretary of State. I do not know why there should be such a difference, but that is why I have tabled Amendments Nos. 10 and 11, which would bring subsections (8)(a) and (b) and (11)(a) and (b) into line with each other.
  Whatever answers the Minister may give, one point needs no elaboration: in the context of this Bill. devolution has created a minefield. That fact is much to be regretted given that the Bill presents the country as a whole with a golden opportunity to speak and act

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  with one voice for the good of the entire population. The Government have not allowed us to seize that opportunity, which I believe is a great pity. I beg to move.
  4.15 p.m.
  Lord Warner: Perhaps I may deal first with Amendments Nos. 3 and 5. I do not believe that these would add anything to the Bill. If there are people whom the Secretary of State or the National Assembly for Wales believe need to be consulted, they will be able to do so whether or not that is required by the Bill. These amendments do nothing to extend or facilitate the Secretary of State consulting those with whom he needs to consult before taking action. I suggest that all they do is add to the length of the Bill without actually fulfilling a useful function.
  I turn now to the more substantial amendments, Amendments Nos. 9, 10 and 11. I understand where the noble Earl is coming from. As he was speaking I had a slight sense of déjà vu during which I relived some of those glorious hours on the Health and Social Care (Community Health and Standards) Bill. However, I should say that agreement has been reached between the UK Government and the devolved administrations that the Bill should be introduced as it is. Perhaps I should go over the ground on this point.
  The structure of Clause 2(1) gives the HPA the functions of the UK Government and the National Assembly for Wales but, under Clause 2(6), not the functions of the Scottish Ministers and the Department of Health. Social Services and Public Safety in Northern Ireland. It creates quite consciously procedures by which Scottish Ministers and the department in Northern Ireland may give the HPA the devolved or transferred functions included in Clause 2(1) in their parts of the UK, subject to the agreement of the Secretary of State and to scrutiny by the Scottish Parliament and the Northern Ireland Assembly. I shall return later to the Secretary of State's functions, an issue that the noble Earl raised.
  I recognise that the noble Earl and some colleagues take the view that it would be desirable for the HPA to carry out Clause 2(1) functions for Scottish Ministers and the Department of Health, Social Services and Public Safety, in Northern Ireland, as well as for the Secretary of State and the National Assembly for Wales. However, whether we like it or not, it is a feature of the devolution settlements—that is water under the bridge—that the devolved authorities take their own decisions in certain areas. The Bill reflects that; the amendments do not. In effect, they try to rewrite slightly the devolution settlement that, for better or for worse, Parliament agreed.
  Nevertheless, it must be recognised that, for the first time, we will have a body that has a legislative basis for exercising health protection functions in every part of the UK. It may not be in quite the legal format that the noble Earl would prefer, but it enables those functions to be co-ordinated by the HPA. I shall give some examples in a few moments. Many of the responses to
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  our 2002 consultation exercise argued that there were benefits from having radiation protection services provided on a UK-wide basis, as Clause 3 allows. It would be unfair of me not to acknowledge that some argued essentially for the noble Earl's approach. We have achieved much of what is necessary through the structure of the Bill as drafted.
  There is no doubt that Scottish Ministers and the department in Northern Ireland intend to make use of the health protection services to be provided or commissioned by the Health Protection Agency. Scottish Ministers plan to give the agency certain responsibilities for providing advice on chemicals and for commissioning advice on poisons, by means of the procedures in Clause 2(7). Their rationale is that that capitalises on the formation of the HPA to maintain high standards for these specialist services.
  Northern Ireland will look to the HPA, as now, to commission services for it from the National Poisons Information Service and to provide advice on chemical incidents. The intention is that the Communicable Disease Surveillance Centre in Northern Ireland, which is currently part of the HPA and funded by the Department of Health, Social Services and Public Safety, will transfer to the HPA and continue to operate in Belfast. A lot of such joined-up work is happening, although the Bill may not be structured exactly as the noble Earl would like.
  The UK-wide approach for which the Bill allows is already reflected in working practices. For example, there is unified HIV/AIDS surveillance across the whole of the UK. There is also a Five Nations Working Group, comprising the UK plus Ireland, which agreed, when SARS first emerged, that the HPA should establish a SARS task force. Calls from the World Health Organisation for assistance over SARS are channelled via the HPA. The various Chief Medical Officers also agreed that the HPA should set up an expert working group, with representatives from each part of the UK, to co-ordinate work on SARS. The HPA convenes weekly teleconferences on current topics, such as avian flu, which involve Wales, Scotland and Northern Ireland; it is also working with the devolved administrations on developing planning, training materials and running scenario planning exercises on preparedness. Similarly, the UK Government and the devolved administrations work together very closely on preparedness for bio-terrorism.
  I am trying to tell the noble Earl that, in the hypothetical case that he cited, there would not be a void north of Gretna Green. There is a planning system that reassures the people of Gretna Green and people north and south of it that is a system is in place for co-ordinated and joined-up work in this area. The situation is not quite as bad as the noble Earl suggests. The structure of the Bill provides for co-ordinated work across the UK. I hope that I have given examples to show that it works in practice.
  The noble Earl asked in passing why it was necessary under the Bill for the Secretary of State to give consent when Scottish Ministers and Northern Ireland departments wished to confer functions on the

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  HPA. That matter is covered in the noble Earl's latter amendments. It is highly unlikely that the Secretary of State would refuse a proposal by Scottish or Northern Ireland Ministers to confer a Clause 2(1) function on the agency. As I have said, we are trying to secure a totally co-ordinated approach across the UK, but there could be times when it would be sensible to agree that a particular function should be conferred only after the HPA had time to absorb other pressures. This is a timing issue; it gives the Secretary of State the opportunity to phase a transferred function to the HPA if workloads or priorities suggested that that was necessary. That is the significance of the provision.
  I hope that I have reassured Members of the Committee that we have a co-ordinated approach, and that the amendments are not necessary.
  Earl Howe: Once again, I am grateful to the Minister, particularly for the examples that he gave of the joined-up approach north and south of the border. Those examples are extremely welcome, but they lead me to ask why they should not be codified in the legal structures in the Bill. If that is the intention, why should it not be reflected in the Bill? The Minister referred to previous debates that we have had on devolution. I hasten to reassure him that the point is not so much that I wish devolution had not happened—although I freely admit that in an arena such as public health, devolution seems the last thing one would choose to bring into the melting pot—but that in Clause 3 we appear to have surmounted the legal obstacle of devolution, because for the purposes of radiation protection the agency will genuinely act as a pan-UK body. For all its other functions, however, it will not. That seems to make no sense. I still have not heard from the Minister a satisfactory explanation of why there should be that difference and why Ministers did not insist that there should not be a difference.
  As I understand it, the Scotland Act 1998 can be overridden by any Act of the UK Parliament. Given that Clause 2(8) provides for an effective veto by the Secretary of State over the Scottish Parliament, why are we messing around and having to go through hoops in apparent deference to devolution, when all the time it is being overridden in other ways in other parts of the Bill?
  I am still baffled. From the Minister's answer, I sense that I am knocking at a door that is firmly shut, so I shall not continue at length, but we may well want to return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  4.30 p.m.
  Earl Howe Earl Howe moved Amendment No. 4:
  Page 1, line 15, leave out "directs" and insert "may by order provide"
  The noble Earl said: I shall speak also to Amendments Nos. 6, 7, 8 and 12 and, with the leave of the Committee, defer speaking to Amendments
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  Nos. 45 and 46 until we reach a later amendment. They are not an important ingredient in what I shall say.
  Clause 2 contains significant powers for the Secretary of State and the National Assembly to issue directions. Subsection (2) contains powers to make directions for the creation of new health-related functions for the agency; and subsections (3) and (4) contain further direction-making powers to enable the agency to exercise functions previously conferred on either the Secretary of State or the Assembly by statute.
  When I tabled my amendments, I had not had the advantage of reading government Amendment No. 36, which I thoroughly welcome, because I believe that it meets the substantive point at issue in my amendments. If I am right, I am most grateful to the Government for paying heed to the express views of the Select Committee on Delegated Powers and Regulatory Reform, which was clear that directions should be expressed by way of a statutory instrument.
  I therefore pass on to Amendment No. 12. Clause 3(3) permits the appropriate authority to direct the agency to exercise any other function in relation to protection from radiation risks, in addition to those set out in subsection (1). My amendment questions whether a power of direction is necessary or desirable. The department's memorandum to the Select Committee sought to make the case for a power of direction on the grounds that such a power is desirable—which I have no doubt that it is to those who want to use it—and that it would correspond well with the approach taken for NHS bodies.
  The Government need to be more persuasive than that. Yes, one can say that any extra functions conferred on the agency must be limited by the scope of subsection (1)—in other words, they would have to be in some way related to radiological protection. But the corresponding section of the Radiological Protection Act 1970, which contains a power for Ministers to confer extra functions on the NRPB, makes that power exercisable by affirmative resolution. So we are moving from affirmative resolution to a power of direction with no parliamentary scrutiny.
  I do not suggest that the affirmative procedure is necessary in this context, but I question whether it is appropriate to abandon the order-making procedure altogether. Speed of action cannot be a reason for wanting to do so. Even under the clause as drafted, provision is made in subsection (6) for prior consultation before a direction is given—which cannot be done overnight. If we consider Clause 2, in which the Government agree that conferring additional functions should involve the negative order-making procedure, there is a good case for making the different ends of the Bill tie up with each other.
  I hope that I am not being too uncharitable, but I cannot help thinking that the department allows itself to use one set of arguments when it suits it and abandon it when it does not. One reason cited for Scottish Ministers obtaining the prior consent of the Secretary of State before conferring functions on the agency under Clause 2(7) is apparently to ensure that

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  the agency is not overwhelmed by being given too many functions at once. If that is a fear when an order-making power is in force, as there is under Clause 2, the fear should be even more real under Clause 3, where no parliamentary scrutiny is provided.
  I hope that the Minister will be able to view the amendment constructively and say that she will give it further consideration. I beg to move.
  Baroness Andrews: I am grateful for the warm welcome offered to government Amendment No. 36 by the noble Earl. It meets what he has in mind. We were completely influenced by the noble Earl's attempts to change the Bill. We also have in mind the scrutiny given to the Bill by the Select Committee on Delegated Powers and Regulatory Reform. We are all of one mind and clearly Amendments Nos. 4, 6, 7 and 8 will not be necessary.
  Just as we are minded to take account of the scrutiny given by the Select Committee to our Amendment No. 36, so we are in relation to Amendment No. 12. The Delegated Powers and Regulatory Reform Committee recommended a change only to Clause 2 and sensibly left Clause 3 alone. However, I should like to soften the blow by explaining to the noble Earl—he has gone into the matter in some detail—what Clause 3(3) of the Bill seeks to do and why we have made changes in response to drivers.
  Basically, the noble Earl is quite right that the power provided in the subsection is similar to that currently provided by Section 1(6)(a) and (c) of the Radiological Protection Act 1970. Both allow the body concerned—the NRPB in the case of the old power and the HPA in the case of the new power—to be required to carry out extra functions in the area of radiation risks. The scope for directions under Clause 3(3) is defined by reference back to Clause 3(1). We wish to reserve that power in order to have flexibility if new functions are identified in future. That is the core of the clause.
  As the noble Earl said previously, we had the ability to provide for additional consultation by affirmative resolution, but let me explain why that has changed. Before using the old power, the 1970 Act required us to consult with the Atomic Energy Authority and the MRC. That requirement reflected the historical fact that the NRPB originated in a unit run jointly by the AEA and the MRC. The public consultation exercise that we conducted in 2002, and which we have tried to take into account as much as it is relevant and helpful, confirmed that there are no arguments for retaining this requirement. So we are reinforced in our decision by that evidence.
  Secondly, the old power allows the Secretary of State for Health to confer additional radiation protection functions on the National Radiological Protection Board while the new power, to take account of devolution, allows any of the appropriate authorities to direct the HPA to carry out additional radiation protection functions.
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  Thirdly—this is a variation on that theme—the old power provided for the Secretary of State to confer a function on NRPB. The new power provides for the appropriate authority to direct the HPA to exercise a function. We shall come to the reasons for that change when we debate Amendment No. 14.
  Finally, the old power was exercised by the making of an order subject to the affirmative resolution procedure, as the noble Earl said. Our proposal to remove that procedure and replace it by direction was explained in the memorandum to the Delegated Powers and Regulatory Reform Committee. As regards consistency with the NHS as a whole--I know that the noble Earl is well aware of this—the direction as a concept has worked well for NHS bodies to which the agency will be closely akin. It is consistent with the powers sought elsewhere in Clause 3 and it recognises that the functions in relation to which directions under this power might be made are limited by the reference to subsection (1). The Delegated Powers and Regulatory Reform Committee accepted these proposals and has not recommended any change.
  We are used in this House to the arguments about negative and other resolutions offering a flexible response, and the noble Earl's point about speed is particularly relevant in this area because of the speed of scientific development across this corpus of work. But that is not the complete argument.
  The extra functions that could be conferred under Clause 3(3) are relatively limited compared with those conferred under Clause 2. Just for proportionality. we can make the case that a direction-making power is more appropriate. Finally, I revert to the fact that we are following the recommendations of the Delegated Powers and Regulatory Reform Committee. I am sure that the noble Lord would not want to go against that; we believe that Amendments Nos. 45 and 46 would do so.
  Earl Howe: In her customary way, the noble Baroness has more than gone through the motions of making me believe that I have got a point. As a result, I feel warmer, although, in the end, I am not comforted. This clearly is a matter on which I shall need to reflect. I recognise that the Delegated Powers and Regulatory Reform Committee did not go as far as I am seeking here but that is not a reason for us not to revisit the issue, especially since your Lordships' Committee—I have read the report—did not appear to consider the various aspects that I have tried to highlight.
  There is an inconsistency here with the treatment in Clause 2. I fully take on board the point made by the noble Baroness that perhaps the two clauses are not on all fours with each other. For now it is time to move on. I reserve the right to perhaps come back to this issue at a later stage. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 5 to 11 not moved.]
  Clause 2 agreed to.
  Clause 3 [Radiation protection functions]:
  [Amendment No. 12 not moved.]
  Earl Howe Earl Howe moved Amendment No. 13:
  Page 3, line 1, leave out from "Agency" to "out" in line 2 and insert "and a Health and Safety body with the purpose of ensuring that the Agency carries"
  The noble Earl said: In moving Amendment No. 13, I shall speak also to Amendments Nos. 14 and 16. Amendment No. 13 is a very simple amendment designed to highlight what appears to be a questionable provision in Clause 3(4) whereby the agency may be directed to agree with a health and safety body to carry out one or more of that body's statutory functions.
  I was always led to believe that one could not, as a matter of law, bind someone to agree with another person about anything. If the other person is an independent agent, it is open to him to refuse to agree to whatever is proposed. If that is so, no instruction to agree can bite. I simply question whether the Secretary of State can direct the agency to agree with the Health and Safety Commission that the commission should relinquish any of its functions in favour of the agency. That is a simple point. I recognise that this provision is carried over from other statutes. Nevertheless, we should hear why it is thought to be appropriate.
  There may be a good case for such a transfer of functions in an emergency. If that is so, and if speed is thought to be of the essence, surely a power of direction is required over both the agency and the health and safety body, and not only the agency.
  Moving on to Amendment No. 16, it may be a surprising and unusual turn of events for an amendment to be tabled that proposes substituting the word "may" for the word "must". However, I make no apology for having done so because it enables me to ask the Minister why Clause 3(9) is worded as it is and what lies behind it. The Government have tabled an amendment to take out Clause 3(9), which I found something of a surprise. Presumably, in the first instance, subsection (9) was inserted in the Bill by design with the approval of Scottish Ministers. While my amendment was designed as a probe, I do not understand why there should now be a change of heart.
  My understanding was that Scottish Ministers had agreed to subordinate or relinquish to English Ministers their right of direction in relation to radiological protection matters. They recognised that it made sense for the relatively simple and straightforward accountability mechanisms of the NRPB to be carried over into the new agency. So what happened to alter that?
  Rather than Members of the Committee agreeing to the Government amendment today, as we have not had very long to think about it, I wonder whether it would be better to put this matter to one side until Report. I look forward to hearing what the Minister has to say. I shall do so with an open mind. I beg to move.
  4.45 p.m.
  Lord Warner: I shall turn first to Amendment No. 13 but I will try to answer the noble Earl later over why there has been a change of direction in the government amendment.
  Amendment No. 13 would alter Clause 3(4). That provision is based on Section 7A of the Radiological Protection Act and continues a provision that was made in the past. I shall not describe all the details but we have followed that model closely. I can see where the noble Earl is coming from but we are trying to legitimise the HPA in taking on a particular function. It is not necessary to replace the current provision to direct the agency and the health and safety body because the Health and Safety Commission already has the power to enter into agreements with such bodies as the HPA under Section 13(1)(a) of the Health and Safety at Work Act 1974. We are trying to mirror that in relation to the HPA.
  We are continuing a practice that has been in National Radiological Protection Board legislation for more than 30 years. There is no reason to think that the HPA and the Health and Safety Commission would not agree, but the direction legitimises HPA activities. There is nothing more significant in the provision than that.
  Amendment No. 14 seeks to delete subsection (8)(b), which provides that the giving of a direction under subsection (2) or (3) does not prevent the exercise of the function by the appropriate body. I understand where the noble Earl is coming from but I am not sure that he is right. Clause 3(1) gives the HPA certain functions in the area of radiation protection. Those are similar to the functions currently given to the NRPB by the Radiological Protection Act, although the agency's functions go wider in that it will also be able to undertake activities in relation to ultrasound.
  The functions in subsection (1) are functions of the agency given to it by the Bill. They cannot be exercised by the appropriate authorities—the Secretary of State or the devolved administrations—except in the extreme and unlikely circumstances provided for by Clause 4(8). Subsection (8)(b) of Clause 3 applies not to those Clause 3(1) functions but to the additional functions which the agency might be directed to exercise under Clause 3(2) and (3). I hope that I can reassure the Committee that the possibility of such functions being exercised by an appropriate authority as well as the agency poses no threat to the agency's independence.
  We set out in our memorandum for the Select Committee on Delegated Powers and Regulatory Reform the ways in which we expect to use the powers in subsections (2) and (3). I shall briefly quote from that. Of subsection (2) we noted that:
  "This power can be used only in relation to functions exercisable by the National Radiological Protection Board at the date of commencement. The Board currently provides a secretariat for one advisory non-departmental public body (the Committee on Medical Aspects of Radiation in the Environment) and a support unit for another (the Administration of Radioactive

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  Substances Advisory Committee). The intention is that the power will be used to direct the Agency to take over those functions. thereby ensuring continuity".
  That remains our intention. However, as I have said previously, we are conducting a review of all arm's length bodies and we need to keep open the possibility that the way things are done now is not necessarily the way that it will be sensible for them to be done in the future. So flexibility is provided.
  Clause 3(3) provides a power for the appropriate authority to direct the agency to exercise other functions in relation to protection from the risks mentioned in subsection (1). The power is very similar to that currently provided under the Radiological Protection Act 1970. We are making sensible provisions with a degree of flexibility, but that in no way affects the independence of the HPA in taking over the radiological functions.
  Noble Lords have not objected to the approach where we have made similar provisions in relation to health functions in Clause 5; they have done so only in relation to the radiation protection functions in Clause 3(8). I hope that what I have said explains why we do not think there is any reason to object.
  I shall now outline the thinking behind government Amendment No. 15. The noble Earl is right; the Bill as introduced reflected originally the Scottish Executive's view that they would not need the power in Clause 3(4) because health and safety is largely a reserved matter. However, in the interests of consistency across the UK, and to reflect the existing statutory provision in the 1970 Act, Scottish Ministers have decided now that it would be appropriate for the power in Clause 3(4) to extend to them, as it extends to the other appropriate authorities. That means that subsection (9) can be deleted, which is what Amendment No. 15 provides for. To put it bluntly, there has been a change of mind on the part of Scottish Ministers in this respect.
  The effect of deleting subsection (9) is that, under subsection (4), Scottish Ministers will be able to direct the agency to enter an agreement with a health and safety body. subject to the consultation required by subsection (6). The other appropriate authorities will need to consult Scottish Ministers before they issue such a direction themselves. I can assure Members of the Committee that the other appropriate authorities are content with that. The change would render Amendment No. 16 inappropriate, so it would fall. I shall not therefore go through the arguments relating to Amendment No. 16.
  I understand that Members of the Committee may wish to consider the amendment further. I am in the Committee's hands as regards whether we effectively withdraw the amendment and do not move it at a later stage. I shall wait to hear from the noble Earl.
  Earl Howe: I thank the Minister for his replies. On Amendment No. 13 he said that the Health and Safety Commission already has the power to make agreements with other bodies and that there is no reason to think that the agency and the Health and Safety Commission would not agree. I cannot dissent from that, but the point I sought to make was perhaps
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  the more legalistic one: that the provision purports to bind the agency into making an agreement. From my limited legal knowledge I think that that is an odd provision to put into statute. Perhaps I may be so bold as to leave the matter with the Minister to reflect upon before Report.
  I was grateful for the Minister's remarks on Amendment No. 14 and particularly government Amendment No. 15. Because the tabling of the government amendment was so recent, I suggested that it might be good for Members of the Committee to have a chance to reflect on the implications of it before Report, thus deferring the amendment of the Bill until then. It is not a matter of huge controversy, but I cannot help observing that it is a pity that what I thought was the subordination of the powers by Scottish Ministers in favour of Ministers in Westminster will be diluted, albeit in this modest way. Surely the more joined-up the radiological protection functions, the better it will be for everyone.
  If the Minister is content not to move his amendment at present, perhaps I might have the advantage of speaking to him further before Report. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  The Deputy Chairman of Committees: Until we hear further from the Minister I shall be in some difficulty, because I ought to advise the Committee that, were Amendment No. 15 to be agreed to, I should not be able to call Amendment No. 16 because of pre-emption.
  [Amendments Nos. 14 to 16 not moved.]
  On Question, Whether Clause 3 shall stand part of the Bill?
  Earl Howe: If I may, I should like to spend a short time looking at some of the issues surrounding the absorption of the National Radiological Protection Board into the HPA. Although the decision is not something I intend to oppose in any way, it is important that the concerns expressed in relation to it are squarely confronted and, so far as possible, put to bed.
  If we look back at the work of the NRPB over the past 30 and more years, no one can level a criticism of any significance about the service it has given to the nation, or of the ability and dedication of the men and women who have worked to deliver that service--quite the contrary. The NRPB has been an outstanding success story, and for that very reason we need to be extremely careful that, in abolishing it, we do not jeopardise the effectiveness of the radiological protection work that must continue under the broader umbrella of the new agency.
  There are perhaps two dangers against which Ministers must guard. One is that the expertise present in the NRPB will leach away and disperse once the agency assumes its new shape. In a large organisation, staff tend to get seconded into all sorts of different areas of work, often necessitating a move of home and

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  office by the individual. For NRPB staff that would be little short of disastrous because they are concentrated in particular locations and such expertise most certainly does not grow on trees. One cannot simply go along to a university and replace a radiological expert in the same way that one might replace someone with a knowledge of infectious disease control. Instead one must ensure that the bank of expertise is nurtured and replenished by a continuing programme of research.
  The maintenance of that programme is best assured by having a discrete, ring-fenced budget for radiological protection work which can be allocated appropriately year by year. Without a certain critical mass, not only would we lose effectiveness at home, we risk losing it internationally, where our advice on radiological protection is respected and we have active networks, involving named individuals, which can be deployed rapidly if need be. It was primarily for those reasons that the NRPB, in its response to the Government's consultation paper, asked that the board should remain as a discrete entity within the agency. I do not think, even at this late stage, that the logic of its arguments can be seriously faulted. It would be helpful to hear from the Minister how those concerns will be addressed.
  The second danger of absorbing the board into the agency is that the additional layers of bureaucracy associated with a larger organisational structure may impede the ability of staff on the ground to deliver advice to the Government as rapidly and fully as they would wish. Within the current NRPB, access to Ministers is immediate, because the chairman is directly accountable to the Minister for Public Health. I hope that the Minister can assure me that the fear of additional organisational barriers identified by the NRPB is imaginary, and that the reporting lines to be put in place within the agency will ensure that access to Ministers, when required, is as speedy as may be necessary and as it has been hitherto.
  5 p.m.
  Lord Warner: I, too, would like to associate myself with the tributes paid by the noble Earl to the work and staff of the National Radiological Protection Board. There is certainly no intention on the part of the Government or the HPA in any way to weaken its international reputation. It is still intended that its work will be a discrete entity within the HPA, as the Chief Medical Officer's strategy proposed.
  Will it be as effective as in the past? We see no reason why the agency should not be at least as effective as is the NRPB in carrying out radiation protection responsibilities. Its advice on radiation protection should be just as authoritative as the board was and continues to be. But there will also be benefits from the synergies achieved by bringing responsibility for radiation protection and other aspects of health protection into the same organisation and by the modern set of powers that we propose for the new agency.
  We agree that the board's reputation for independence and impartiality should not be undermined, and have tried to take that into account
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  in proposing that the new agency should be established as a non-departmental public body, as is the NRPB now, and by giving it more explicit power to publish its advice and information than the NRPB currently has. So we have strengthened that aspect of the board's work.
  We also value the NRPB's international reputation. We believe that the new agency will be at least as well equipped as is the board to maintain that reputation. Indeed, it should be more effective, given its ability to work across subject boundaries. The Bill gives it clear powers to make staff available for international work.
  I have always said that we believe that the board has worked well over 30 years, but I ask the Committee to recognise that the Government have a responsibility to ensure that we can deal with new challenges, including threats of terrorism. It was clear from our consultation that many involved in health protection and emergency planning, including the emergency services, welcomed the inclusion of the NRPB's functions in the HPA as a way to achieve that. From the work that has been done so far, I see no reason to believe that radiation protection will receive a lower priority as part of the HPA's work. As I said earlier, the work plan of the HPA can be formalised in a way that ensures that that does not happen.
  To summarise, we do not agree that we have in any way weakened the position of radiation protection. The agency will be an independent, non-departmental public body. The good thing is that in other respects, incorporation in the HPA will mean positive gains for radiation protection work. The HPA's local and regional structure will facilitate communication with the public about radiation protection. There will be benefits for staff, who will be able to broaden their scientific expertise and take advantage of extra opportunities for career development in a larger, dynamic organisation.
  As I said, there will be clear synergies between the work of the HPA and the NRPB, especially in emergency response and in relation to radiation and chemical hazards. In general, things have moved on since some of the comments made in the consultation exercise. I understand that staff are now positive about those developing interactions, and that the establishment of the HPA's headquarters dealing with chemical hazards at the NRPB's Chilton site has been welcomed.
  From my briefing, I understand that the board has already established a good working relationship and is now actively involved at executive group level in a wide range of HPA planning groups. In the view of both organisations, it would be a retrograde step not to proceed as we propose. It is also worth mentioning that by bringing together the two bodies as proposed under the Bill—bringing the board into the new agency—we can economise a little on some back office functions, which will produce resources for more front-line work. That will increasingly be a feature throughout the public service, as people consider how to economise on back office services such as finance, human resources, IT and estates management, so that

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  they can free up resources for the frontline services provided by any particular public service body. There is scope for doing that, and it has already been realised in the joint working between the board and the Health Protection Agency Special Health Authority.
  I hope that I have been able to reassure the noble Earl that we have a thought-out position. There is no intention to diminish the independence and authority of the work done on radiation protection.
  Baroness Finlay of Llandaff: I want to ask the Minister about the freeing-up of resources from more streamlined back office provision. My information from people in radiation protection is that the moves that the Minister outlined are occurring and are generally welcome and that working relationships are good. The scientific weight of the National Radiological Protection Board has been added to the chemical hazards and poisons work of the Health Protection Agency.
  I want some reassurance that those freed-up resources will still be available in radiation protection training. There is a potential problem with the interface at local and national level. At a local and regional level, people will have to know the point at which their expertise runs out and they should seek help from the Health Protection Agency. There is an ongoing, long-term training issue for staff, if we are to make sure that the interface between local services and the Health Protection Agency is clarified, so that the agency can function effectively.
  Lord Warner: The noble Baroness will be surprised to know that I do not, I confess, have that level of detail at my fingertips. I will look into that point and write to her. I shall copy the letter to other Members of the Committee.
  Earl Howe: The Minister's reply was, in large measure, reassuring. I recognise the synergies that the Minister referred to and the savings on back office costs, which are obviously desirable. However, my main concern was that there was a risk of loss of critical mass—perhaps inadvertently and for the good reason that staff might be seconded within the agency—and that, therefore, the discrete function of radiological protection might be weakened, albeit subtly. Much of what the Minister said has reassured me that such matters have been taken fully into account, and I thank him for going into the detail that he did.
  Clause 3 agreed to.
  Clause 4 [Functions: supplementary]:
  Baroness Barker Baroness Barker moved Amendment No. 17: Page 3, line 33, at end insert—
  "( ) ensure that specialist services at a local level are adequately resourced to enable them to provide appropriate services"
  The noble Baroness said: When I was preparing for today's debate, my mind went back to an occasion a long time ago, when I was involved in doing some work on older people and HIV/AIDS. I took part in a conference that was organised by a hospital in the West Country. I met the two formidable ladies who
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  ran the department of infection control and who had organised the conference. I asked, "What do you do?", and they said, in unison, "We listen to the experts. and then we tell people to wash their hands". In a way, that sums up a lot of what I will talk about today. The amendment would ensure that there were adequate resources for specialist laboratory services and that expertise, which is of fundamental importance—as anyone who has listened to the debate so far will know—was widely available not just in specialist services in the NHS but to those involved in the provision of community services, including diagnosis and management of conditions that arise from infection.
  In the Select Committee report, there was a great deal of evidence from specialists that many of the difficulties then being experienced in fighting infection would continue, because of the shortage of qualified staff and the lack of access to specialist knowledge. The Government's response to that report will, I think, cause noble Lords to share that concern: it was somewhat lukewarm.
  The main concern is that the integration of staff at local level—especially those who were employed by the Public Health Laboratory Service—into the HPA, rather than into primary care trust laboratories, is being done on the basis of inadequate resources. It is important, if that transfer is to go ahead and be effectual, that there are adequate resources. Throughout our debates, we have talked about the increased threat of biological incidents and biological terrorism, but there is a great deal of day-to-day work that continues and grows, as a result of infections. For example, Members of the Committee who have taken part in other debates in the House on, for example, the incidence of sexually transmitted disease will know about the ongoing, ordinary work—if one can call it that--of those laboratories. We are placing additional demands on them.
  The Faculty of Public Health of the Royal College of Physicians provided an extremely useful briefing on the matter, in which it said that it understood that the Bill was to be introduced on a cost-neutral basis, which failed to take into account the fact that there was an existing deficit in the resources available to the laboratory services. When the last survey was carried out on behalf of the NHS Executive in an attempt to establish a baseline for those services, it was found that, in many areas, services were below that baseline. It is against that background that the Bill proposes to give people working in primary care trusts additional duties.
  Primary care trusts are, as we know, a major focal point in the detection of the incidence of disease and in the management of disease. I note from some of the discussions that we have had that we are talking about incidences of disease that are extremely difficult to predict. Such diseases may occur in widespread and diffuse ways, which has an impact on detection. I draw to the Committee's attention the difference between the incidence of diseases such as pneumoconiosis, which occurred, by and large, in geographical areas in which it was possible for specialist knowledge to be

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  developed, and the incidence of diseases such as mesothelioma, which occurs all over the place. Healthcare professionals know what the disease is, but they may not have come across an incidence of it for a long time and may have to start to learn about it all on their own.
  The report of the Select Committee also raised an important aspect of all this. It talked about the need for surge capacity—the need to amass very swiftly a body of expertise within a particular area when an infection breaks out. It stated in the report that it doubted very much whether a system that was already coping with chronic underfunding could do that.
  Finally, as Mr Derek Wanless said in his report last week, the role of PCTs and the HPA is as yet somewhat unclear. The memorandum of understanding between the two is unclear and needs to be further clarified. In many of our discussions so far we have focused on the diseases and infections which cause acute problems, but there are many infections and zoonotic agents, to which my noble friend Lord Clement-Jones referred, which cause chronic conditions. It is the management of chronic conditions that primary care is all about.
  It is therefore important, not only for detection but also the management of cases, that there is quick, ready access by non-specialists throughout the health service to specialist facilities. It is for that reason that we believe there is a practical and laudable case for looking again at the resourcing of those specialist services and access to them. I beg to move.
  5.15 p.m.
  Lord Fowler: The noble Baroness, Lady Barker, is right to raise this issue and I should like to add to one aspect of what she said. If services in this area break down it will be at the local level. I am very much in favour of devolving responsibility for, say, the management of hospitals to the local level.
  But it is not only a matter of resources; it is also a matter of the willingness of local organisations—and PCTs in particular—to use those resources. When it comes to the issue of public health, I have my doubts about devolution. I say that because I believe that the old Public Health Laboratory Service did well in this area and because public health is a crucial central government responsibility. That means that the Department of Health must act very speedily and very decisively.
  Finally, I am not encouraged by the evidence so far that local priority is being given to these issues. Governments can appear embarrassed enough in areas such as sexual health, where they can be criticised or, worst of all, lampooned, but in many ways it gets worse in local areas. I seriously doubt whether, at the moment, primary care trusts are giving the right priority to these areas.
  Let me give an example of what I mean. The second annual survey from three of the major agencies involved in sexual health in the United Kingdom—the British HIV Association, the providers of AIDS care and treatment and the Terence Higgins Trust—has
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  just been published. They say, basically, that there are clearly instances of good practice and growing understanding, but in too many responses there are clear signs that the need at the local level is outstripping the ability of services to respond. That is their finding.
  The key findings are, basically, that the United Kingdom's health planning system is continuing to fail to give the issues of sexual health and HIV the attention they deserve. That comes as no surprise. HIV and sexual health services do not have the resources they need to implement government policy; the majority of clinicians continue to warn that things are getting worse rather than better; and many services are at crisis point and in urgent need of modernisation.
  The surveys found that almost a third of PCTs had carried out no assessment of needs around sexual health and HIV since their inception, despite the rising numbers of people needing those services. Somewhere between a third and a half of all PCTs have spent less per case in 2003 on sexual health and HIV, although the numbers have increased. That is not an encouraging picture of what is happening around the country at local level. I say to the Minister that there is a serious warning in those figures. Devolution by itself does not mean effective action or adequate resources. But at the local level it is a matter of priority being given to those areas. At the moment, no one can argue that that priority is being given. The Government, and we in Parliament, should be warned about what is now happening.
  Baroness Finlay of Llandaff: I, too, would like to speak to the amendment and to build on some of the remarks already made by noble Lords. Clause 4 outlines what the agency may do, but to fulfil all those functions costs money. The importance of resources should not be underestimated. If the agency becomes strapped for resources, one would have to ask where the services would be squeezed, cut or downgraded. But that is not the only concern. Services need to keep developing and to keep modern, and that requires ongoing investment. Good equipment costs money. Training of specialist registrars, technicians at local level, epidemiologists and scientists all takes money.
  New diagnostic techniques are emerging all the time, especially for viruses and fungal infections, some of which are notoriously difficult to diagnose. If there are insufficient resources locally for accurate diagnosis, lives will be lost. I am not trying to be a scaremonger, but it is a reality that if a diagnosis is missed, someone will die. If it is missed several times, several people will die.
  The other difficulty is that new diseases are emerging annually—outlined in the report Fighting Infection—especially given the changes in travel, industrial exposure and zoonoses, which was mentioned earlier; that is, the mutation of organisms, particularly in the animal kingdom, which are transferred to humans. The contracting arrangements appear to be increasingly complex for services and create some difficulties. It is important to ensure that services delivered directly affecting patient care have

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  the resources they need. The services need to be delivered not only today, but also tomorrow, next year and thereafter. There needs to be a modern service, not one that just ticks over.
  Baroness Masham of Ilton: I have a query on the amendment regarding the local level. As has been said, there are some infections and diseases that are so complex and difficult that I do not believe that they could all be dealt with at the local level.
  Lord Warner: A number of issues were raised during the debate on this amendment, the scope of which became rather wider than that of the Bill.
  The noble Baroness, Lady Barker, raised issues relating to the transfer of the old PHLS laboratories back into the NHS. That is not essentially an issue for the HPA. I am not saying that there have not been disagreements; there have been disagreements with the Department of Health about the transfer of resources to primary care trusts. We hope that the final discussions on the issue are taking place, and that the transfers will then be put in place. I hope that we will then be able to draw a line under that activity. I do not think that we will resolve the issue by amending the Bill; it is about reassuring the PCTs about the adequate transfer of funding when they take over responsibility for laboratories.
  Lord Clement-Jones: I do not wish to allow the Minister to misinterpret what has been said. There have been transfers in the other direction, with resource implications for the HPA.
  Lord Warner: My understanding of the noble Baroness's point was that laboratories at local level were her concern. If we are talking about laboratories that the HPA has taken over, that is a question of local management decisions. As I said during our debate on the earlier amendment about local services, 20 per cent of the HPA budget is allocated to local and regional services. As an example of how some of those are being strengthened. the HPA is already addressing the matter through its plans to deliver radiological protection support and training to its local and regional services divisions, in close collaboration with the National Radiological Protection Board. That is an example of where local specialist services are being strengthened as a result of the HPA.
  In debating this Bill, we cannot go through the detailed operational financial arrangements between the HPA and other parts of its services, although I will be happy to make more enquiries and to write to Members of the Committee.
  I am full of admiration for the commitment of the noble Lord, Lord Fowler, on HIV/AIDS, and his ability to take every opportunity to remind us of the issues involved. It is easy to say that there are problems in the area, but it is equally easy to forget that there is a government strategy on the matter, which is hacked by an initial investment of £47.5 million, plus a further £40 million committed over the next two years. In addition, a further £ 11.4 million was announced in response to concerns raised by the Health Select Committee and
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  stakeholders, plus a further £15 million capital to modernise premises for genito-urinary medicine. In the context of a sexual health strategy, a substantial amount of new resources is being allocated. We share the noble Lord's concerns about the poor state of sexual health. but we do not agree that there is a crisis, or that the response has been inadequate.
  People have been saying a lot about concerns regarding funding for local services and specialist services. We now have a situation in which 75 per cent of the resources available to the NHS are allocated by PCTs. This is now a health service in which PCTs shape their spending on the basis of local priorities. We must simply accept that devolution in this area means that PCTs will reshape their budgets and expenditure plans to meet their service needs and the needs of their local community. That is not something that we shall continue to prescribe in great detail from the centre.
  I am not sure exactly what the amendment means. There is no definition of specialist services. Does it mean that there are specialist services that the HPA should provide across all parts of the country? I have already said in response to an earlier amendment that the HPA has been constructing a memorandum of understanding with all PCTs, so that there is consistency of service provision across the country in health protection. We must allow those memoranda of understanding to play out and be more confident that the joint working between the PCTs and the HPA will be beneficial.
  It is easy to view change as being for the worse. I would say that we are moving into an era where combined working between the HPA and PCTs will mean a more consistent approach to health protection across the country as a result of the initiatives being taken by the HPA. I suggest that the amendment is unnecessary.
  5.30 p.m.
  Baroness Masham of Ilton: Yesterday, I attended a meeting in Portcullis House on the health problems of Greater Manchester. I sat next to the chairman of a local hospital who said that it was in total crisis over sexually transmitted diseases. The Government may be pouring in more and more money, but there needs to be a national campaign. The public do not know; young people do not realise what they are doing. The situation is out of control and at crisis level.
  Lord Warner: I am sorry but I simply do not agree with the noble Baroness that there is a crisis. The issue is serious. I remind the noble Baroness—I will send her details—of the sexual health strategy and the "Sex Lottery" campaign that is being run with a good deal of success, as I explained at an international conference only a couple of weeks ago in a European Union meeting. We are doing much more to educate our young people in that area than many other countries. We may not always be as successful as we would like, but it is misleading to suggest that nothing is being done. We will monitor the results of that campaign and publish them later.

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  The noble Baroness's intervention also allowed me to find a bit more briefing in my folder which may be of use to the Committee. To reassure the noble Baroness, Lady Barker, and others, the HPA has some ideas about how it will use its resources in 2004–05. For example, nearly £54 million will go on regional laboratories; about £41 million on local and regional services; and nearly £21 million on specialist laboratories. I could go on but I say that just to reassure the Committee that we have an agency that is considering the local and regional dimension and, through its work plans and budgeting system, is providing adequate funding for those services.
  Baroness Barker: I thank the Minister for his reply. I apologise if there was any misunderstanding or lack of clarity on my part. I was trying to direct my comments to the level of concern that exists about those public health laboratory service operations that have been transferred to the HPA. I return to the point made by the Faculty of Public Health that many local teams inherited by the HPA are well below the level of resource that they were deemed to need. It was on those teams I mainly focused.
  I return to the fact that in his report last week, Mr Wanless pointed out that the roles of the HPA and PCTs in health protection need further clarification. He pointed out that directors of public health and chief executives of PCTs are concerned that, although health protection teams have been transferred to the HPA, PCTs are still expected to perform some of the functions previously undertaken by those teams—for example, emergency planning under Section 47 of the National Assistance Act 1948.
  I may be more of a devolutionist than many Members of the Committee, but I have a great deal of sympathy with the remark of the noble Lord, Lord Fowler, that public health remains a government responsibility. I have always believed that devolution in the health service should involve more than the shifting of blame and passing of the buck. That was the disappointing tenor of the Minister's remarks. The memoranda of understanding require clarification.
  The Minister was somewhat disparaging in his treatment of my amendment—why spoil the habit of a lifetime?—and the term "specialist services". I refer him to the points made by the faculty of health. We are talking about improving national priority inspections, which include STDs. That does not just mean HIV/ AIDS; I refer the Minister to our recent debate on undetected chlamydia. It is a huge public health crisis which, as we know, has immediate but also latent effects that may be incalculable in their cost to health.
  On providing a service that covers chemical and environmental hazards at local and national level, the Faculty of Public Health is clear and unambiguous. It states that it believes that the inherited resource cannot manage such a service. As we know from Getting Ahead of the Curve, several major instances of widespread public health problems have emerged from chemical incidents. If we have learnt nothing else from
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  the Camelford disaster of 1988, we must surely have learnt the need to be prepared for such incidents. We need improved training for HPA staff and their partners in the NHS.
  I talked to PCT staff during the SARS outbreak last year. We were extremely fortunate, but for around 10 days staff envisaged most of their work stopping while they were hauled off to be trained in what to do about the problem. That must have been a great disruption to their normal ongoing activity, such as research and development. Any PCT that manages to prioritise research and development activity—in particular, integration with university research facilities—above immediate demand is pulling off something of a miracle in the current financial climate. Providing information to the public is also a specialist function which, the Faculty of Public Health makes clear, remains to be addressed.
  We have made clear that there is a problem that needs to be addressed. I do not find the Minister's response wholly convincing. As we are in Grand Committee, I shall withdraw the amendment, but we will be back to discuss the matter later. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 18 not moved.]
  Lord Warner Lord Warner moved Amendment No. 19:
  Page 4, line 16, at end insert—

  "(d) for the purposes of sections 13 (payments by NHS bodies towards certain local authority expenditure) and 14 (payments by local authorities towards expenditure by NHS bodies on prescribed functions) of the Community Care and Health (Scotland) Act 2002 (asp 5) as if it is an NHS body within the meaning of that Act:

  (e) for the purposes of section 15 of that Act (delegation etc. between local authorities and NHS bodies) as if it is an NHS body within the meaning of that Act."

  The noble Lord said: I shall speak to Amendments Nos. 19 and 22. They arise because Scottish Ministers have asked for the amendments, which add details of the Scottish equivalents to the legislation already mentioned here. It will enable the HPA, NHS bodies and local authorities in Scotland to enter into agreements and to make and receive payments to and from each other. The powers provided by the amendment are not new. They are powers which NHS bodies currently have and which the Bill now also makes available to the HPA. The amendments are a straightforward tidying-up operation regarding the relationship between Scottish health authorities and the HPA. I beg to move.
  Earl Howe: Amendment No. 20 is included in this group and I shall also talk about my Amendments Nos. 45 and 46, which have a bearing on the matter.
  It would be remiss of the Committee to pass over subsections (7) and (8) of Clause 4 without comment, as they raise quite deep-seated questions about the extent to which the Health Protection Agency will really be able to operate at arm's length from Ministers and thereby give the Government and the public independent, authoritative and impartial advice. We

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  need to remind ourselves of the importance of that point because, unless at all times the agency commands the trust and respect of the public, its pronouncements will not be valued as they ought to be and in some cases they will not be believed. The surest way to achieve that undesirable result would be for Ministers to interfere in the way that the agency sets about its work, so that it is seen merely as a tool of central government.
  The power set out in subsection (7) appears to be broad. It does not seek to limit or qualify the degree to which Ministers will be able to direct the way in which the agency's functions are performed. So what kind of direction is envisaged here? I think it would be helpful if the Minister gave us some possible examples. The Government's memorandum to the Delegated Powers Committee says that the content of any direction is likely to relate to matters of operational detail. We understand that there need to be default powers built into the Bill. But how are we to ensure that default powers are not used as a more regular mechanism for resetting the priorities of the agency or diluting in some way the force or content of its advice?
  We see the same thing in Schedule 1 where, in paragraphs 11 and 13, wide powers of direction are included to enable the Secretary of State to dictate how the agency should conduct its internal business, including such matters as the composition of committees and how much committee members should be paid. There may be circumstances in which the Secretary of State feels the need to take action of that kind, but it is surely generally undesirable. At the very least, we are entitled to ask why he should not be subject to parliamentary scrutiny if he does. The use of directions appears unnecessary in this context.
  The main message is simple. The more that healthcare professionals, management and staff within the agency are made by Ministers to jump through hoops in order to meet politically-based objectives, the worse it will be for us all. If the agency is to be regarded as the champion of the health of the public it deserves to be left alone, as far as possible, to get on with that job.
  Lord Clement-Jones: I rise briefly to support the noble Earl, Lord Howe. I share all of his misgivings about the two subsections. There may well be a halfway position on the matter. There are certainly circumstances which do not impugn the independence of the HPA if a direction is given. The Faculty of Public Health takes that view. There are perfectly legitimate circumstances where the HPA could be directed to carry out work in areas which the Secretary of State feels are currently neglected.
  The trouble with the two subsections is that it is also possible for the Secretary of State to direct the HPA not to undertake work. That seems to be extremely dangerous. If the HPA believes that certain work needs to be carried out and the Secretary of State overrides that, that will damage the independence of the HPA and would certainly cause public concern of the kind that the noble Earl has mentioned. We will consider later the issue of publication of information,
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  which is closely allied to the issue of public trust. If we are going to the trouble of setting up the new statutory body in the manner that the Bill intends, we need to get the aspect of independence absolutely right.
  5.45 p.m.
  Baroness Finlay of Llandaff: I rise briefly to support those comments and to underline that health protection services, both in England and Wales, are the responsibility of the Health Protection Agency and the National Public Health Service for Wales. There has to be an inter-relationship, but there must be openness in what the agency is asked to do or not to undertake.
  Lord Warner: I had an uneasy feeling that we would have this debate when I was reading the papers. Some of my comments will be familiar to one or two noble Lords who joined me in the wee small hours on the Health and Social Care (Community Health and Standards) Act 2003.
  The particular powers that would be deleted are pretty much a standard feature of legislation on many NHS and non-departmental public bodies. Essentially, the argument is that the appropriate authorities under the Bill need that power in relation to the HPA for reasons of accountability. The HPA, like many other bodies that carry out not dissimilar functions, will largely be funded by grant in aid from the appropriate authorities and in particular by the. Department of Health, which currently provides over £120 million of public money for its predecessor bodies.
  We are accountable to Parliament for ensuring that those funds are applied only to the extent and for the purposes authorised by Parliament. Most of us would agree that it is most unlikely that the HPA would propose to use public money for any purpose other than that for which Parliament had voted. Nevertheless, it is normal practice to have in place the mechanisms for dealing with such an eventuality if it were to arise. The devolved administrations have similar responsibilities to their Parliament or Assembly.
  Having the powers of direction and exercising them are not necessarily the same. It does not mean that we shall make frequent use of it. The Department of Health has not stockpiled a long list of activities on which we are aching to give directions to the HPA. The provision is not about micro-managing the HPA. If people had any concerns about that, I hope that they were reassured by my comments at Second Reading about the reduction in the size of the Department of Health. Our capacity to micro-manage and direct agencies will not exist in the way it may have done in the past.
  We are also doing no more in the provision than continuing the powers of direction that were available to Ministers in relation to the predecessor bodies. That applies not just to the National Radiological Protection Board, but bodies like the Public Health Laboratory Service and the Microbiological Research

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  Authority. Those reserve powers to ensure public accountability for resources given to NDPBs have been a feature of legislation.
  Effectively, we took a different course in relation only to the Food Standards Authority and the Commission for Health Audit and Inspection. Their functions are quite different, and there were special circumstances in relation to both those bodies. We emphasised that those bodies, because of their nature, should not have these powers of direction in the exercise of their functions. They are different from the HPA, which is much more in line with the reserved powers of direction of other NDPBs carrying out similar functions. That is the basis for this; there is nothing sinister about it. We are continuing the previous practice and are in line with much legislation where there are NDPBs similar to the HPA.
  We do not believe that Amendments Nos. 45 and 46 are appropriate. They would control the minutiae of some of the proceedings, which is not the kind of detail that needs to be controlled through the processes involved in those amendments.
  Earl Howe: I am a little surprised to hear that, because there needs to be accountability to Parliament and because of the payment of grant in aid, there needs to be a broadly drawn power of direction in the Bill. One of the trumpeted virtues of foundation trusts was the absence of a power of direction; yet there was no suggestion that parliamentary accountability was absent in the case of those bodies. I do not think that that argument washes.
  If anything, I am less concerned with the clear default power set out in subsection (8) than I am with the unfettered power of direction in subsection (7). I very much take on board the powerful point made by the noble Lord, Lord Clement-Jones, which, to be frank, I had not thought about in quite the terms in which he put it. Despite the Minister's resistance to the amendment, would he agree to consider whether the power of direction could be tightened up to ensure that it is deployed only when Ministers have a genuine concern that the agency may not be performing its functions properly; namely, that there is a real need for direct intervention? At the moment, it appears to be a carte blanche.
  Lord Warner: Certainly, I am happy to reflect on the debate and to read the remarks made by noble Lords carefully. I shall consider whether we could look at the drafting of this provision in a way that will Find a little more favour among Members of the Committee.
  On Question, amendment agreed to.
  [Amendment No. 20 not moved.]
  Earl Howe Earl Howe moved Amendment No. 21:
  Page 4, line 23, at beginning insert "Subject to the provisions of the Data Protection Act 1998 (c. 29),"
  The noble Earl said: I hope that the Minister will reassure me straight away that Amendment No. 21 is unnecessary. But there is clearly a balance to be struck between allowing the agency to pursue its active
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  operational links with local authorities, as it must certainly do, and conferring carte blanche on the agency to disclose confidential patient data to anyone on a local authority's payroll.
  As I read the clause, it is not at all clear whether, for the purposes of Section 31 of the Health Act 1999, or of the duty of co-operation in Clause 5, arguments of expediency with regard to the sharing of information override the accepted norms of confidentiality and data protection as set out in the Data Protection Act. I shall cover Clause 5 in more depth later, but one of the most striking aspects of it is that, apart from local authorities, it does not specify the bodies and organisations with which the agency has a duty to co-operate.
  There will be many such bodies. It is simply not good enough to say, as Clause 4(9) appears to do, that, provided the agency is engaging in this type of practical co-operation, it does not matter what information it discloses, or to whom, and what information is disclosed to it. In some situations there may be a need for such disclosure to take place in the public interest, but not, I suggest, as a routine, unquestioned procedure. I should be grateful if the Minister could throw some light on this provision in Clause 4 and, it is to be hoped, reassure me that we are not entering coach-and-horses territory. I beg to move.
  Lord Clement-Jones: Unusually, I rise to give some support to the noble Earl, Lord Howe. Normally, the noble Earl is a hawk in these matters and I am somewhat of a dove in terms of the use of personal information for purposes such as public health and so forth. But the noble Earl has raised an interesting and important point. My bias would be very much in favour of ensuring that patient records and so forth are available in circumstances where there are threats to public health and it is important to trace contacts to determine the origin of an infectious disease or whatever it may be. In general, I am against having too much of a trammel on such exchange of information.
  On looking at the subsection, it is extraordinarily unqualified in the way in which it operates. There is no judgment of proportionality. It may be that the department lawyers would say, "Well, actually, there is a duty of proportionality, a duty of overriding public interest, that is brought in aid in these circumstances. Therefore, whether information is released properly is subject to a set of general principles". I am concerned that I see nothing of that in this provision. It is one thing if information is exchanged for the purposes of preventing epidemics and the transmission of infection in crisis circumstances, but if there is the day-to-day exchange of information, without higher purpose, and disproportionate to the damage that it is trying to prevent, the noble Earl may have a good case.
  Baroness Finlay of Llandaff: Perhaps I may briefly put a balance on the spin of this argument. I can see a situation arising where someone may have brought something into the country as part of an illegal activity and in that process introduced either an infection or a noxious substance, resulting in treatment for the

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  infection or toxicity. For the Health Protection Agency effectively to trace, it will have to cross some boundaries of confidentiality. One of the difficulties is at what point this can be got right. I hope that the Minister will be able to reassure us that some guidance will be enacted to allow the Health Protection Agency to ferret out problems and to protect the population. We must ensure that its powers are used for that and not potentially abused by over-zealous investigation that goes beyond the boundaries of privacy and, in fact, privacy as outlined in the Human Rights Act.
  Baroness Masham of Ilton: This is an interesting amendment. I know that it is a different subject, but in the Soham case, as regards the Humberside police, the confusion was the Data Protection Act. The reason for not giving necessary evidence was that Act. Therefore, it is a serious amendment that needs to be looked at.
  6 p.m.
  Lord Warner: Dealing with the narrow point of the amendment itself, I shall make two separate comments. First, we think that the amendment is unnecessary because it is our clear understanding that there is no reason to think that there would be any need for information of the kind with which the amendment of the noble Earl seeks to deal to be exchanged under these arrangements. As I understand it, we are not talking about that kind of personal information being passed in a non-anonymised form. It is not an issue and therefore the amendment is not necessary.
  However, we have entered the complicated territory of the inter-relationship between the Data Protection Act and the Human Rights Act. At this point I am reluctant to go into a long dissertation on the subject, but I will say that, essentially, parliamentary counsel sees this as a matter where if the information was used against the authority in the Data Protection Act and it was not proportionate, this could bring it within the terms of the Human Rights Act. So the judgment would be concerned with the proportionality of dispensing with the safeguards of the Data Protection Act.
  I am happy to write giving the legal opinion which underpins this argument rather than go into its lengthy detail now. I agree with noble Lords that it is an interesting issue, but it is probably not something for the delectation of the Committee at this hour. However, I shall write to noble Lords with the detail of parliamentary counsel's arguments on this issue.
  Lord Clement-Jones: That would be very helpful. However, I wanted to elicit from the Minister whether he was saying that the usual procedure will be not to use non-anonymised data.
  Lord Warner: I may have forgotten to say the negative.
  Lord Clement-Jones: So they will use non-anonymised data; that is, personal data.
  Lord Warner: I have confused the noble Lord with my negatives. Where this was being used, it would be anonymised data. But there is no expectation that personal, identified data would be passed.
  Lord Clement-Jones: Speaking as a layman in this area, it seems quite extraordinary that that would be
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  the case. The whole purpose of tracing would be to lead directly to individuals. Whether one thinks of TB or another disease, one needs to know not only the postcode but the person and their address in order to trace them. That is what gives this debate a particular point.
  Lord Warner: I shall be happy to revisit the point with my experts, but that is my understanding of the position. However, I shall clarify matters and write to noble Lords so that we are not further detained.
  Earl Howe: Perhaps I may say to the noble Lord, Lord Clement-Jones, that, perhaps unusually, I am completely at one with him. I am grateful to all noble Lords who have spoken in this short debate.
  The issue is one of proportionality and the noble Baroness, Lady Finlay, made an extremely helpful suggestion when she proposed the issue of some form of guidance or protocol to govern these difficult situations. If it is envisaged that there will be no need to pass on the kind of sensitive information to which I referred, a way should be found to prevent that from happening in the wording of the Bill. Perhaps that is easier said than done.
  The aim of my amendment was not simply to provide a hook with which to raise this issue but to make the point that the Data Protection Act does not prevent the dissemination of personal data when that is necessary in the public interest. The problem raised by the noble Baroness, Lady Masham, in relation to that Act was, as I understand it, that the provisions of the Act were misunderstood by the parties involved and that the Act did not prevent the retention and dissemination of the information at issue in that case.
  However, I welcome the Minister's offer to show us the legal opinion he has received. That will be illuminating. Without further ado, I shall withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Warner Lord Warner moved Amendment No. 22:
  Page 4, line 25, after "(5)(c)" insert "or (e)"
  On Question, amendment agreed to.
  Clause 4, as amended, agreed to.
  Clause 5 [Co-operation]:
  Earl Howe Earl Howe moved Amendment No. 23:
  Page 4, line 34, leave out "(including local authorities)"
  The noble Earl said: In moving Amendment No. 23, I shall speak also to Amendments Nos. 24 to 26 inclusive. In moving the amendment I should like to take a little time to open up the issue of co-operation both by and with the agency, this being the subject covered by Clause 5, and to say something about the issue of accountability in relation to public health protection.
  The work of the Health Protection Agency will be a mixture of the planned and the unplanned. Much of the planned work will be routine. That is not in any way to belittle its importance; it is merely to point out that the agency will have ongoing programmes of

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  monitoring and surveillance, the collation of data, and the preparation of advice for Ministers and the public which will comprise its day-to-day, bread and butter work. It will also be involved in horizon scanning and in commissioning and interpreting research.
  From time to time, it will be faced with a local or national emergency to which it will be necessary for it to respond at short notice. Work of that kind is necessarily unplanned, although the agency must be prepared for it. In all these facets of its work, however, the agency cannot act in glorious isolation. There is a multitude of different bodies and agencies, national and local, on which it will depend and which in turn will depend on it to ensure that the public is protected from biological, chemical and radiological hazards in the most effective manner possible.
  Against that background, Clause 5 is a little strange. It alludes in general terms to the nexus of relationships but does not go to the trouble of specifying any of them. The only relationship which it chooses to highlight is that between the agency and local authorities. That interdependency will certainly be of huge importance, but it is not the only one of importance. I have listed some others. The list set out in Amendment No. 26 is not one compiled at random but is taken from the Civil Contingencies Bill, which takes as its starting point the need for proper, structured arrangements for dealing with civil emergencies.
  In that Bill, one of the types of emergency explicitly covered is an event or situation that may cause loss of human life or human illness. Another is damage to the environment from harmful biological, chemical or radioactive matter. A duty is placed on those bodies and individuals listed in Schedule 1 to that Bill to assess the risk of, and plan for, civil emergencies. A Minister of the Crown is given powers to issue guidance to any of those bodies or persons whose duty in turn is to give advice and assistance to the public. There are ministerial powers of direction in the Bill and powers for Ministers to make emergency regulations.
  The first question that we must ask is how the provisions of the Civil Contingencies Bill interrelate with those in this Bill. The Health Protection Agency will have a major role to play in many types of civil emergency, yet the most that is hinted at in the Bill is that it will be obliged to,
  "co-operate with other bodies … which exercise functions relating to health or any other matter in relation to which the Agency also exercises functions".
  The vagueness of that provision is a surprise, not simply in the light of the Civil Contingencies Bill, but because it glosses over one of the key issues in the administration of public health protection—accountability.
  I am not sure how many Members of the Committee will have read the report on public health by the Nuffield Trust that was published last year. If one overriding concern is expressed in that report, bestriding all others, it is,
  "the fact that there is no clear answer to the simple question 'Who is responsible for the control of communicable diseases in these islands?"'.
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  The report argues that although we have a Minister for Public Health who is accountable to Parliament, there is no formal framework, however tight or loose, to link Ministers with public health professionals and others working on the ground; nor is there a single body with a duty to monitor and advise on the health of the people of the UK or its constituent parts.
  The creation of the agency may prove to be a step towards creating that framework and single channel of communication. However, one need only look at my amendment and the multiplicity of bodies and individuals with responsibility for one aspect or another of public health protection to appreciate that there is still a very long way to go. Simply to say, as the Bill does, that these bodies, whoever they are, must all co-operate with each other ignores the need for there to be someone or some body with their hands on the key levers for maintaining standards of public health protection and driving them up.
  Where are the formal links, for example, between local authorities, who have many of the legal powers in relation to public health, and the NHS, which is responsible for commissioning and delivering health care? What will be the organisational links between the agency and local environmental health departments? Why will there apparently be no service-level agreements between the agency and local NHS trusts? At a national level, whose job will be to co-ordinate public health issues across government? Who is there whom Parliament and the public could call to account if there were a major failure to protect the nation's health? Unfortunately, the Bill as drafted does not deliver any answers and one could argue that Clause 5, although acceptable as far as it goes, merely serves to muddy the waters further.
  We also need reassurance that the critical work of the agency will actually get done. The Minister will know that there has been considerable anxiety about the absorption of many of the former PHLS laboratories into the NHS. I have no wish to beef about that; it is done, and that is it. But without service level agreements between the HPA and NHS trusts, what confidence can we have that work such as the monitoring of food poisoning outbreaks, or of MRSA, will continue in the way it always used to? What contractual arrangements are in place to ensure that NHS laboratories continue these important programmes? I ask this because we hear worrying stories coming out of the NHS to the effect that some laboratories have proved reluctant to prioritise public health work in the way that the HPA would like, and that this has obliged the agency to relocate the work associated with food poisoning outbreaks. The obvious downside to that is that if suddenly the agency loses its local networks of monitoring and surveillance, the task of determining the geographical extent of an outbreak becomes all the more difficult.
  Against that background, are the Government really telling us that a simple duty for unspecified people to co-operate with the agency, as set out in Clause 5, is a sufficient reassurance that all will be well? I confess that I am extremely hesitant about that proposition. So, although I would not necessarily

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  suggest that the kind of elaboration proposed in my amendment is the only way forward, I would like the Minister to consider whether in Clause 5 we need something rather beefier than we have at the moment. I beg to move.
  The Deputy Chairman of Committees (Lord Lyell): I apologise to the Committee; I should have raised two housekeeping points relating to this group, which I hope are acceptable. If Amendment No. 25 is agreed to, I would not be able to call Amendment No. 26. Furthermore, I am advised that Amendment No. 26 has been misprinted and should read, "leave out", but miss out the word "from". Those two housekeeping points may be of interest to noble Lords as matters of detail; nevertheless the amendment has been moved.
  6.15 p.m.
  Baroness Barker: I rise to speak to Amendment No. 27, which is an amendment to Amendment No. 26. I echo everything said by the noble Earl, Lord Howe, about his amendment.
  The brevity of the clause is fine. I have no wish to pre-empt what the Minister will say but no doubt she listened closely to the words of her noble friend when he addressed an earlier amendment and pleaded the cause of a lack of detail allowing greater flexibility. Nevertheless, the points made by the noble Earl, Lord Howe, are valid. A great number of bodies are involved in health protection in its wider sense. There is a case not only for making them more explicit, but for adding to the list the names of the two bodies we have identified in our amendment.
  The first is the Chief Medical Officer. The inclusion of the Chief Medical Officer on such a list goes without saying. Indeed, in the Government's response to the report on fighting infection, on page 31 one finds a most interesting press notice of 9 June 2003 stating that the CMO is to step up the fight against hospital infections. It does not go on to say that the CMO is doing it alone—it suggests that there is a team behind him—hut, nevertheless, it is a small indication of the importance of' the Chief Medical Officer in the whole process.
  I agree with the noble Earl, Lord Howe, that the concern is not only about the range of bodies involved in health protection, but where the accountability for co-ordination lies and where exactly the buck stops. Quite often the buck stops with the Chief Medical Officer.
  In addition, we have included Defra in the list. I have no wish whatever to repeat the debate we had earlier today on zoonoses—fascinating and grammatically correct though it was—but there is a particular reason for including that department. Within Defra there is now the Drinking Water Inspectorate and quite a number of the infections we are discussing are water-borne. So there is a clear technical reason for Defra to be involved.
  Moreover, as those who have read the report on fighting infection, Getting Ahead of the Curve, will know, at the last count, made when the report was
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  published, some 400 diseases could be transmitted from animals to people. I am sure that number has risen by now. No one needs to go over in any depth at all the importance of farming now to public health.
  I agree with the noble Earl, Lord Howe, that it is important to state the names of these bodies quite clearly, not least because there is a need for the public to know the range of responsibilities for public health. Part of the reason for that is because the reporting of instances of infectious diseases does not always happen within the health service. People may go to their GPs, but if' they come across environmental infections they do not quite know where to go or what to do. I believe that there is a public education and information role, which is important in a list like this. Those who are in the business clearly are in the know. Those who are not in the business could do with a hit of explanatory help, which is important.
  Baroness Finlay of Llandaff: My name is added to the amendments spoken to by the noble Baroness, Lady Barker. I have a slight concern about having a list in a Bill such as this. Public health is everyone's concern. Just about every department can be seen to impact on public health. For example, buildings and bad air-conditioning systems lead to Legionnaire's disease. We also know about the impact of bad housing, poor transport and so forth on health.
  While I commend the noble Earl, Lord Howe, for extracting a list of key players, I have a slight reservation that if someone is not on the list, it might be said that public health is not their major concern. I should like everyone to be concerned with public health in every government department. However, the reason I put my name to the insertion of the Chief Medical Officer and Defra obviously relates to zoonosis and the very specific responsibilities there.
  I should also like to draw attention to the bodies established outside the United Kingdom. The relationship for our public health services with their colleagues in the World Health Organisation is crucial to our being able to function effectively. It is not only about the exchange of information, it is also about personal relationships and knowing who to contact very early on when there is an index of suspicion, but long before there is any alert. Those interpersonal relationships have stood us in good stead.
  I remind Members of the Committee that Dr Meirion Evans's work on SARS was commended. He comes from these isles and had a huge influence on the handling of that epidemic. Those interpersonal relationships are extremely valuable. In having a specific reference to bodies outside of the United Kingdom, I hope that the Bill will empower the agency to work more closely with the WHO. When I visited WHO with the Select Committee on Science and Technology, we were concerned that, from the WHO perspective, there was not as much placement of our professionals and expertise on secondment as it would like. We may miss out if that is not increased.
  Baroness Masham of Ilton: Only yesterday, with regard to a Question about Munchausen syndrome by

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  proxy, the Minister said how important it was for bodies to work together. I am sure that he will be interested in this amendment or Amendment No. 26. One never knows what will be around the corner: one only has to look at cryptosporidium in water, which suddenly appears in different parts of the country. As regards Amendment No. 27, we must consider BSE and what it has done to the country. It has cost billions of pounds. There are so many issues; it is better therefore to have a blanket and have them all there, rather than to leave some out.
  Baroness Andrews: I have enjoyed this debate. It has been about the nature of life and accountability, as well as the nature of legislation and what it can and cannot achieve. In itself, that has been interesting. I am sorry that I shall be addressing a slightly narrower scope than the noble Earl addressed in his wide-ranging speech.
  My noble friend Lord Turnberg pointed out earlier that one could invent all the structures in the world. Ultimately, delivery happens through people cooperating effectively within sensible structures. It is important to keep that in mind.
  The noble Earl raised several specific questions about the nature of those relationships and how they would work in the absence of service agreements; that is, how things would be governed. Perhaps I may reflect on what he said and respond in writing to some of the more specific queries which I cannot address now.
  However, I shall answer his point about civil contingency. The noble Earl made the distinction between the routine work of the agency, which is extremely important in terms of surveillance and the emergency response. Part 1 of the Civil Contingencies Bill is concerned with preparedness for contingencies and covers the HPA, so clearly there is a relationship in place. However, Clause 5 of the Bill before us applies to all HPA activities, thus providing a sound locking-in of the two functions.
  We should not forget that the creation of the HPA in itself addresses some of the major questions raised by the noble Earl. I can say that we appreciate the concern of all noble Lords and we are sympathetic to the intentions behind these amendments. However, the sad fact is that the amendments themselves do not achieve what is being sought in two quite specific ways.
  First, Amendments Nos. 24 and 25 would make the duty of co-operation one-way, which is a contradiction. Here I address the point raised by the noble Baroness, Lady Masham: we are certainly in favour of co-operation, but co-operation is a two-way street. The agency would be obliged to co-operate, but other bodies would not. That could seriously hamper the agency's effectiveness, so we must be able to ensure that all the relevant bodies are under a duty to cooperate. Special health authorities are already under a duty to co-operate with NHS bodies and local authorities. Section 26 of the Health Act 1999 puts NHS bodies under a duty to co-operate with each
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  other, while Section 22 of the National Health Service Act 1977 creates a duty of co-operation between NHS bodies and local authorities.
  Therefore, aside from the difficulties arising from the accidentally exclusive nature of the amendments, is the fact that the Bill is consistent with the way we are used to dealing with the issue of co-operation. We have had several examples this afternoon, not least those cited by my noble friend, of how co-operation operates so successfully in practice. It is due to goodwill and sensible structures.
  Secondly, we have to face the curse of the list. Almost every health Bill provides, with the best of intentions, the temptation to prescribe inclusiveness. The noble Baroness raised a point about public information and education. While I see the aim, would argue whether setting out a list in legislation is the right way to inform people. There are many ways in which we can be open about co-operation and what effects that will have. However, a list set out in legislation is not necessarily the best way to reach people, even when it flags up such august persons as the Chief Medical Officer and brings in Defra. To include such persons and bodies would mean that, technically, we should add to the list everyone engaged in infection control. We would have a very long list.
  I want to address precisely the issue raised by the noble Baroness about the range of bodies that would have to be included. This list, however forbidding in length and complexity and however thoughtful in substance, is not complete. For example, no reference is made to the health and social services boards in Northern Ireland, or to the Northern Ireland health and safety bodies. Moreover, as new bodies are formed, the list would become even more incomplete. Were we to go down this road, how would we keep the list up to date? Who would we include and where are the boundaries of public health? The list would have to be amended by further primary legislation, a point noted by the noble Baroness, Lady Finlay.
  I conclude by referring to the second point made by the noble Baroness. The amendment would not achieve what I take to be its aim: that is, by identifying by name all the specific bodies affected. I would challenge the notion of vagueness and unnecessarily robust generality here. That is how new international bodies should be able to be included, for example, as well as the WHO, obviously, with which we have worked and continue to work extremely closely.
  For all those reasons, I hope that, bearing in mind what I have also said about trying to answer some of the noble Earl's more specific questions, he will see tit to withdraw his amendment.
  6.30 p.m.
  Baroness Masham of Ilton: With all their machinery behind them, the Government could find a way to embrace all the bodies so that none is left out, without listing them individually. That would cover them all before the next stage of the Bill's consideration.
  Baroness Andrews: The whole point is that, by not specifying any body, we are free to specify all by

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  implication. That is the nature of the inclusivity. Once we start trying to identify bodies, we are by definition bound to leave people out.
  Earl Howe: I completely accept that the amendment is flawed, and I am grateful to the Minister for pointing out the ways in which it is flawed. However, she may want to reflect on the wider points that I sought to make by tabling the amendment, not least on the relationship of the Bill to the Civil Contingencies Bill, because I am still not quite clear whether the Bill will be subject to that Bill once it is enacted. Perhaps she will clarify that when she writes to me.
  I am well aware, as is any other Member of the Committee, of the curse of the list. As the noble Baroness, Lady Finlay, put it, there are always drawbacks in having limited lists. However, my goodness the list in the Bill is limited. It contains only one type of body—local authorities—and I question whether that is appropriate. Perhaps we should reflect on that before Report.
  One issue on which I would be interested to hear the Minister's comments is whether she thinks that there is any overlap between the work of the agency and that of other bodies. For example, we have a Health Protection Agency, a Health Development Agency and a Food Standards Agency. I am sure that each has a mission statement which is different from that of the others, but can we say that their work is entirely distinct and discrete in all respects? If it is not—Clause 5 strongly implies that there could be some overlap between the work of the HPA and other bodies—what questions does that raise for the effectiveness and efficiency of public health protection?
  Without going on too long, I should say that the wider background is of course the position of the UK in the world. The noble Baroness, Lady Finlay, alluded to that. We cannot as a country act in isolation from others. In future, it is likely that the EU will become a major regulator and legislator in public health. There is to be a communicable disease centre, I understand, in Sweden, which will act on behalf of all member states. In an increasing sense, competency in the area will lie with the EU. Therefore, as we legislate on a national UK agency, it is necessary to bear in mind how the structures that we put in place will enable us to fulfil our responsibilities on the international stage and, where appropriate, to take a lead on that stage.
  The framework of UK law surrounding public health is way overdue for reform. The Bill is one step in that reform, but there are very old laws on the statute book relating, for example, to the role and powers of local authorities, which are completely anachronistic. Legally speaking, local authorities have enormous powers that are hardly ever used, but those powers sit at odds with modern scientific knowledge and with the modern NHS. My point is that, unless and until we have a root-and-branch reform of the law surrounding communicable disease control, we cannot hold our heads up either at home or internationally and state truthfully that we have a UK system that is firing on all cylinders. Reform must define precisely
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  the responsibilities and lines of command—day to day and in emergencies—and make clear who is in ultimate control. It is simply not enough to talk about co-operation and to hope, as the clause seems to do, that somehow all will be well; the issue is much wider. I hope that I have left the Minister with some interesting food for thought.
  Baroness Andrews: I wish to reassure the noble Earl about a couple of matters. We will certainly write to him on the specific point about the civil contingencies plan and the intervention with the HPA. Secondly, on overlap, the flip answer would be to say, "For that, we read 'co-ordination'". In fact, the arm's-length body review is looking precisely at areas of overlap and will include—I am sure that my noble friend will ensure that it does—some of the issues on which the noble Earl has touched.
  The noble Earl is absolutely right to say that it is hard to foretell how other EU countries will address the challenging issues of communicable disease, and whether there will be more institutional organisations to do that. That is a very good argument for not being rigid or exclusive in our definitions.
  As regards the reform of structures, it is interesting to hear the noble Earl call for more legislation—I think that that was the call we heard. I hope that we can sort some of those matters out by correspondence.
  Earl Howe: I thank the noble Baroness. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 24 to 27 not moved.]
  Clause 5 agreed to.
  Clause 6 agreed to.
  Clause 7 [Publication of information]:
  Lord Fowler Lord Fowler moved Amendment No. 28:
  Page 5, line 20, leave out paragraph (a).
  The noble Lord said: In moving this amendment. I shall speak also to Amendment No. 29. With the Committee's agreement and the prior agreement of my noble friend Lord Howe, we wish to decouple Amendments Nos. 32 and 57, so dealing with them immediately afterwards in a separate debate.
  The purpose of Amendment No. 28 is to probe and to understand the limits of this subsection, which concerns the Data Protection Act. To some extent, we have dealt with some of those issues under a previous amendment. My assumption is that information gathered at public expense should be made available to the public. It is important that the public have as much information as possible, for otherwise they have no way of judging what is happening in a number of areas; the dangers to which they are exposed; and, above all, whether the Government's response to the challenges is adequate. I recognise that we must meet the requirements of the Data Protection Act, but, as has already been pointed out, we have had examples in other areas where the requirements of that Act seem to have been misinterpreted. It is crucial that we are clear on what the Act specifies and its impact and effect. In

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  essence, I want the Minister to give a clear explanation of the kind of information that, in the Government's view, contravenes the Data Protection Act, and that would not be published under this provision.
  Amendment No. 29 continues on very much the same theme. Again, I would work on the presumption that information gathered should be published, because these are important health issues; and, most importantly, that published information is the only way that the Government can be held to account for the policies that they pursue. We can judge whether the Government's response is adequate only if we know the full picture. If information is withheld, that process clearly becomes impossible. That certainly would not be in the public interest.
  Subsection (2)(c) provides that if the publication is not in the public interest, it can be withheld. I am concerned to know what information can be withheld on that basis. Is information gathered already that is withheld from publication? If so, what kind of information is that? If not, what information is it envisaged will be withheld that is already published? Above all, what I really want to know from the Minister is who actually decides what is in the public interest. Where is the decision made? How is it processed?
  My belief is that, generally, publication is in the public interest for holding governments—any government—to account; informing the public of the dangers; and advising them on the action that they may take. In essence, I really want to know from the Government what kind of information can be banned on public interest grounds; by what process that decision is made; and how it can be challenged. How can it be challenged if information is withheld on public interest grounds? How are we to know and challenge the idea that it is not against the public interest?
  We do not want a position in which any government can withhold information on the grounds that it may be embarrassing to that government. That is the temptation—that governments intervene and say, "This information is embarrassing to us; we believe on public interest grounds that it should be withheld". I do not define that as the proper public interest, and I want reassurances on those crucial points in the public health debate. I beg to move.
  Earl Howe: I support my noble friend in all that he said. On the question of public interest, I was trying to think what circumstances might arise in which it would be unwise or unhelpful to allow information into the public domain. As my noble friend said, it would be helpful if the Minister could give us some possible examples.
  On the whole, I hope that the Minister will agree that public confidence is engendered by maximum transparency. To insert a provision, as in the Bill, to allow information to be suppressed on the grounds that its release would not be in the public interest begs the question of who makes that judgment and on what grounds the judgment is made. If it is Ministers who
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  make it, that needs to be spelled out. If it is the agency itself, we need to know whether it will be operating under any sort of guidance in that and, if so, what that guidance will say.
  I have considerable sympathy with the two amendments in the names of the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Finlay. They would effectively prevent the agency taking the decision to suppress information on anything other than a carefully considered basis, as it would be obliged to account for its actions if it did so.
  Another fear that runs parallel to that is that consultants in communicable disease control will effectively become civil servants, and that as such they will be debarred from speaking out when they feel it necessary. Healthcare professionals should not be put in that position. They should be able to speak their minds publicly in appropriate circumstances because, unless they can, public confidence in the agency will be diminished. Can the Minister tell us whether those consultants officially hold their positions within the agency as civil servants?
  Lord Clement-Jones: We have had a very impressive double-barrelled approach on Amendments Nos. 28 and 29, and I suspect that the Minister may get an equally impressive double-barrelled approach on Amendments Nos. 30 and 31. They are slightly different, but the underlying concern is exactly the same.
  I shall not go into the murky depths of the Data Protection Act, but shall stick to Amendment No. 30. However, I sympathise very much with what the noble Lord, Lord Fowler, said in probing Clause 7(2)(a). The key question arises with paragraph (c). As both the noble Earl, Lord Howe, and the noble Lord, Lord Fowler, have emphasised, it is: what constitutes the definition of "public interest"?
  As the agency's remit includes fairly sensitive areas—health threats from bioterrorism and radiological sources, to name but two—understandably some information handled by the HPA will need to be kept confidential. But the agency—and, indeed, the Secretary of State—should not be able to use "public interest" as a blanket device to prevent the publication of information without a proper process to check and justify a decision not to release the information. Not only ourselves but the Faculty of Public Health, which is well versed in this area, and many others have asked who decides whether or not publication is in the public interest.
  We on these Benches have carried out research on other Acts of Parliament to see whether there were any precedents for this kind of approach. We have looked at the Food Standards Act, the Data Protection Act and the NHS Act 1977 to see how legislation defined or used the term "public interest" in relation to publishing information and advice. The Data Protection Act does not contain a working definition. The most useful comparison that can be made is the approach taken in the Food Standards Act, which states:
  "Before deciding to exercise that power"—

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  that is, the power to publish advice and information in such manner as it thinks fit—
  "the agency must consider whether the public interest in the publication of the advice or information in question is outweighed by any considerations of confidentiality attaching to it".
  It is not perfect, but at least it gives a mandatory process through which the Food Standards Agency must go.
  I have considerable sympathy with what the noble Earl, Lord Howe, and the noble Lord, Lord Fowler, have said. I prefer our approach, which is that if the Health Protection Agency is to use public interest as justification, it should bear the burden of showing why it wishes to suppress information.
  I shall leave it to the noble Baroness, Lady Finlay, to deal with Amendment No. 31, which adds an extra safeguard.
  We are all in some difficulty in discussing this group of amendments. When we met the Minister on 20 January, he said that he would undertake to provide a working definition of "public interest" and the underlying definition that would be used by the Secretary of State and the HPA in such circumstances.
  The noble Earl, Lord Howe, is absolutely right that this is not a trivial matter; it is a key matter of public confidence. If there is any suspicion that information is being suppressed for the wrong reasons, the credibility of the HPA will instantly be called into question. Teasing out the precise nature of "public interest" in these circumstances is of great importance.
  6.45 p.m.
  Baroness Finlay of Llandaff: The amendments go right to the heart of the issues of open government and professional freedom. Such decisions are extremely difficult in terms of any information that is withheld.
  I concede that there could be a situation where it would be deemed to be in the interests of national security for some information to be withheld to avoid panic, particularly where safe disclosure is planned, or to avoid impeding security investigations at a delicate point or even while verification of some data occurs. So there may be situations where extremely sensitive data emerge from the agency.
  However, we must ensure that a sound process in regard to the reasoning behind such a decision—similar to the one outlined by the noble Lord, Lord Clement-Jones, in regard to the Food Standards Agency—is in place. This is the time when the board comes into its own in taking responsibility. The non-executives on the board have a crucial role. They must be informed. It would be incredibly dangerous for suppression to occur at any layer below board level. The board must be able to question, work through and understand the issue and why something must be withheld. So the processes of the debate must be minuted. Those minutes can be kept confidential, but they must be available for scrutiny later, if that is felt necessary.
  It will also be important for the Chief Medical Officer and the Secretary of State to be kept in the information loop. The board should have a
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  responsibility to report its decisions and actions. Of course, it will be up to the Secretary of State to inform Ministers in the devolved administrations about such decisions and how they have been taken. That would allow decisions to withhold information to be relatively impartial, not subject to political expediency. It would ensure that full responsibility was taken at board level for withholding information and that it was truly in the public interest, not a political interest.
  Baroness Masham of Ilton: In public health, tracing is vital—if possible; sometimes people just disappear. There are so many dangerous conditions—SA RS and Ebola being examples. This is surely an opportunity for the Committee to lead other departments in sorting out the issue of the Data Protection Act 1998 and Human Rights Act 1998. When tracing people, it is possible to use code names or numbers rather than names.
  Lord Warner: I am extraordinarily nervous about the challenge thrown down by the noble Baroness, Lady Masham, in her last remarks. Brave man as I am, I am not sure that I want to lead the Committee down the path of sorting out the Data Protection Act.
  Perhaps I may start by putting the matter in context and work my way through the arguments about each of the amendments. Let me say at the outset that we are absolutely at one with the noble Lord, Lord Fowler, on the importance of making information available to the public. There is no disagreement between us on that.
  Clause 7(1) provides a clear path for the agency proactively to publish advice and information. As far as we have been able to establish, such a power does not exist in the founding legislation of any other body, apart from the Food Standards Agency and, to some extent but in more limited form, in the HPA as a Special Health Authority. That is the position from which we start. The agency's power to publish information is stronger under the Bill than it was as a strategic health authority. We have strengthened that power and, as the Bill is currently framed, the discretion of judgment in Clause 7(1) is left with the agency, subject to the caveat in Clause 7(2). So there is a clear responsibility on the agency to make that judgment.
  I shall now go through the caveats in Clause 7(2), to which the amendments tabled by the noble Lord, Lord Fowler, relate. Clause 7(2)(a) and (b) simply make it clear that the power to publish granted by subsection (1) does not override other legislation in which Parliament or the democratic institutions in Scotland and Northern Ireland have set out prohibitions on publication. Similarly, the power in Section 19 of the Food Standards Act for the Food Standards Agency to publish its advice and information is,
  "subject to the requirements of the Data Protection Act 1998",
  and may not be exercised if publication is,
  "prohibited by an enactment".

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  So those constraints in Clause 7(2)(a) and (b) pretty much reflect the constraints placed in the Food Standards Act.
  I hope the noble Lord will accept that reassurance. As I said on an earlier amendment, I will set out the legal position on the Data Protection Act in relation to the Human Rights Act as it touched on our previous discussions. I do not want to go over that ground again because I have undertaken to write to all Members of the Committee with our legal opinion.
  I shall pick up on other points raised along the way by the noble Lord. I turn to paragraph (c) of Clause 7(2) which has also caused concern. I shall check my sources, but my understanding of the "public interest" is that it tends to be defined in terms of case law when challenges are made in the courts. I believe that the words mean what the dictionary definitions say they do, but there is case law on what determines the public interest. Under the terms of this legislation, that judgment is to be left to the HPA.
  I turn now to the relevant point about the interaction between this legislation and the Freedom of Information Act 2000. Seekers of information about public bodies will be able to do so from January 2005. That Act will bite upon the HPA as a public body when, as is likely and assuming that the legislation goes through, it becomes an agency under the terms of this legislation in April 2005. When it comes into being, it will have to conform with the requirements of the Freedom of Information Act, which is an important consideration.
  Let us reflect for a moment on what the agency will need to do to conform with freedom of information legislation and any request to release information. Under the FOI Act, for the first time there will be a statutory general right of access to all types of recorded information held by public authorities. It will mark our move away from a culture of secrecy. The Act includes provisions governing the limited circumstances in which access to information can be refused. The agency, along with other public bodies, will need to maintain an audit trail showing how it has dealt with requests for information. In particular, under the terms of Section 17 of the Act, if it refuses a request to release information it will need to tell the person asking for that information whether it is withholding the information sought and, if so, under which exemption in the Act. The legislation therefore deals with situations where the agency reacts to requests to release information.
  However, there is a pretty clear expectation that all public bodies—when they know that these demands can be made—will themselves have to reflect on the way they release information more generally rather than having it, so to speak, dragged out of them. So the FOI will impact on the behaviour of public bodies because the ability to get at information will be on the
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  statute book and operational. We have to hear that in mind because it introduces another dimension to the way Clause 7(2) would operate.
  Lord Fowler: Can information now be withheld on public interest grounds? In other words, was information withheld under the old Public Health Laboratory Service, or is the provision entirely new? As I understand it, the Minister says that the decision is made by the agency. In the real world, if information is withheld, will that not be an issue of some importance? Will not the agency be in contact with the Government through the Department of Health? I would be very surprised if it was not.
  7 p.m.
  Lord Warner: Absolutely right. I was going to come to the circumstances in which it is highly likely that particular types of information, both now and in future, would not be put in the public arena. The HPA is the possessor of much sensitive information—not sensitive in the sense of embarrassing to Ministers, but in the sense of security issues of one kind or another. I shall name a few.
  There is the whole area of radiological protection information, some of which is very sensitive. Some information relates to bioterrorism, the planning to anticipate it and how the HPA would work in terms of some of the mechanics of emergency planning in such circumstances. On the whole, one does not tell one's enemy the response mechanisms and detail. A similar example is that of matters such as the details of where stocks of vaccine are held. Those are the kinds of issues on which the HPA would have information that would clearly not be in the public interest. Indeed, it would probably be restrained by other legislation in terms of its ability to put such information in the public domain. Such constraints exist now and will exist in future.
  I shall respond as openly as I can to the noble Lord, Lord Fowler, about the relationship between the HPA and government. There will be areas where the HPA, for good and legitimate reasons, may be uncertain in its own mind about whether it is crossing the line. In those circumstances, it would no doubt wish to consult government lawyers about the rights or wrongs of making information available. The noble Lord has been in government; he knows how the system works. There would have to be some degree of interchange, privately, in such circumstances. One is not trying to disguise that that would be the case.
  This statute places very clearly a responsibility for thinking such matters through on the agency itself. That is a difference in many ways. It is a very clear statement, as with the Food Standards Act, of where the responsibilities lie.
  I turn to Amendments Nos. 30 and 31, which were argued for very persuasively by Members of the Committee. Amendment No. 30 puts the "onus of proof' on the agency if challenged to demonstrate why information should not be made public. There is a good deal of overlap in the amendment with what I said about the Freedom of Information Act. The noble

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  Lord needs to reflect on the extent to which his needs are actually met by the provisions in that Act. Many of his concerns are dealt with by that legislation and the codes of practice around it.
  Amendment No. 31 would require any decision to be reported to the Chief Medical Officer and the Secretary of State. They will no doubt be flattered that they have been singled out for such special treatment, and I understand the intention and the need for an audit trail. I sympathise with the spirit of the amendment, but I hope that I can persuade Members of the Committee that it is not necessary to add it to the legislation.
  Let us consider first the situation where the agency needs to react to a request to release information. As I said, under the FOI Act, there is a set of rules by which it has to deal with that. There will have to be an audit trail. Ultimately, in these cases, there is a right of appeal to the information commissioner. So there are processes under the legislation.
  However, it would be bureaucratic in the extreme to write into the legislation a requirement on the agency to go through the processes envisaged by Amendment No. 31, which assumes that it would only ever be the board that would take a decision not to publish information or advice—that is, that such a decision could never be delegated to the agency's officers. That is undesirable. Where information falls into categories that should not be published—for example, personal medical information—there is no need for a decision not to publish to be referred to the board. Those kinds of decisions are not made on public policy issues; they are matters of interpretation and can be left to officers, I suspect.
  The amendment would require any decision not to publish to be reported to the Secretary of State, and reports would need to go to him every time the agency complied with the requirements by not publishing personal medical information. That is a pointless exercise. For the reasons I have given we believe that such a requirement on the agency is not necessary. I hope that when noble Lords reflect on my arguments they will feel able to withdraw their amendments.
  Lord Clement-Jones: I shall leave the thunder to the noble Lord, Lord Fowler. I found what the Minister said about the Freedom of Information Act of great interest. However, as he acknowledged, it needs careful consideration.
  The problem is not to do with the clear issues of public interest that anyone would regard as falling within the definition—for instance, the issues that he and I raised about bio-terrorism, radiological warfare and so on. But a problem could arise if, for instance, a survey which embarrassed the Government—which perhaps did not come up with the right conclusions—was carried out by the agency and was withheld on the grounds that it was not a matter of public policy for the agency to publish it. There are many more grey areas. One is not looking at obvious public interest matters but at the interface between the Freedom of Information Act and what it defines as "public interest".
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  It worries me that under the Bill the procedure is mandatory. It does not state that the agency shall consider whether or not something is in the public interest; it simply states "is not in the public interest". It is not on all fours with the procedure contained in the Food Standards Act, which is more about weighing issues and the way in which the FSA comes to a conclusion. There would be great merit in translating that to reflect these circumstances.
  I am not totally convinced. There is considerable food for thought under the Freedom of Information Act. There is one other major flaw, but I am not quite sure how to get out of it. It is a Catch 22 situation. How can you ask for information if you do not know it exists? That is the great conundrum of government versus individuals that we encounter in this area. It is the knot that the noble Baroness, Lady Finlay, was trying to untie. It is not quite untied but we are certainly some way towards doing so. It is an issue with which we shall all continue to wrestle.
  Lord Warner: Perhaps I may clarify one point for the noble Lord. I should have mentioned earlier that we went to parliamentary counsel and asked whether there was a legal difference between this wording and the wording in the Food Standards Act. He said that the outcome was exactly the same. But I am happy to come back to him if it is believed that there is some merit in the way it is framed in the Food Standards Act. I agree that it is different legislation, but his argument was that the wording is essentially the same.
  Lord Clement-Jones: That is a helpful offer because, certainly in governance terms, the FSA duty has a wholly different flavour from that of the duty here. I accept some of what the Minister has said about the levels at which these decisions are made, but with something like this—a question of whether the public interest is outweighed—such a decision may go to a higher level precisely because of the FSA-type wording rather than the provision as currently set out in the Bill.
  Baroness Finlay of Llandaff: Perhaps I may raise one concern. I would be grateful if the Minister could respond to it when he looks at this matter again. Will he consider the role of the board in relation to any information being withheld? I am concerned that the decision to withhold information should not be taken only by the executive officers of an agency. The non-executive officers on a board have a specific responsibility at board level and that responsibility should be exercised. I should be grateful if the Minister would look into that point and get back to me.
  Lord Fowler: The fact is that we shall all want to look carefully at what the Minister has said and almost certainly we shall return to the issue on Report. This has been an important debate. At times I was reassured, but as the discussion continued, I was rat her less reassured. I thank the Minister for the reply and for his words about the Data Protection Act. I dunk that it was the noble Lord, Lord Clement-Jones, who said that this is a grey area. At times it became even

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  greyer. We learnt, for example, that the agency makes the decision, but who is the agency that makes that decision—is it the board or is it the executive?
  The Minister referred to my experience in government. In my time, if an agency such as the former Public Health Laboratory Service had something that was extraordinarily sensitive, it would come to the Secretary of State. It might not result in a formal decision, but a decision would be reached one way or another. I think that the Government will be involved in this and therefore it will repay us to look at this matter and the Minister's reply rather more carefully.
  I am very attracted to the argument put by my noble friend Lord Howe. Confidence in the agency will be diminished if it can be suggested that information is being unnecessarily withheld. Moreover, while I accept that security, bioterrorism and stores of vaccine are matters about which, prima facie, publication should be prevented, I still do not have a reply to the question I put about how we can check on this. I am unclear about how the public, Members of Parliament and Members of the House of Lords will know what information is being withheld. There are some big questions here.
  I thank the Minister for his courtesy, but I should say that we shall want to examine his reply, to think about it carefully, and to come to it on Report. At this stage, however, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 29 to 31 not moved.]
  Earl Howe Earl Howe moved Amendment No. 32:
  Page 5. line 27. at end insert—

  "(4) The appropriate authority must respond as soon as is reasonably possible to any advice that it receives from the Agency.

  (5) The appropriate Authority must publish any such response unless—

  (a) publication would contravene the Data Protection Act 1998 (c. 29) or an express restriction contained in any other enactment; or

  (b) it considers that it is against the public interest to do so."

  The noble Earl said: I see that my noble friend Lord Fowler and I have been thinking along similar lines as regards the kind of leverage which the agency will be able to exert in practice. The agency may do its job superbly well, but unless there is a duty on Ministers to deliberate and act upon the advice that they receive, the effects of the agency's good work may not be felt to the fullest extent.
  When the Government receive advice from the HPA, surely they have a duty at some stage to tell us what they are doing to address the issues which the agency has highlighted. Preferably they should be obliged to do so before the publication of the agency's annual report, because that might well be 18 months down the road from the submission of a particular paper. I am deliberately talking about the Government, rather than
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  any single Secretary of State. Many public health concerns impact on several departments. The response therefore needs to be co-ordinated across government. If there is neither a requirement on Ministers to act on the advice that they receive nor an obligation to publish the action that they have taken—or the lack of it—the successive reports of the agency will begin to resemble so many others that are put on the shelf and quietly left to gather dust.
  Derek Wanless remarked in his recent report that that is exactly what has happened to every public health policy report for the past 30 years. I hope, as he does, that his thoughtful report breaks that mould, but the brutal fact is that there is no requirement on the Government to do anything at all in response to it if they choose not to.
  One obvious answer is to have the agency report directly to Parliament, and for Parliament then to instruct the Government to consider the recommendations, to act on them appropriately and to report back at a suitable level. I am attracted to that idea, but another answer is to approach the issue in the manner attempted through the amendments. Either way, a central point is at issue. We must recognise that the protection of the public is, in the end, down to elected Ministers—a point already made by my noble friend Lord Fowler. The public have a right to know what policies and initiatives those Ministers are putting in place to fulfil that obligation.
  I can detect no sense in the Bill that the Government recognise that element of the public health equation. That is a decided shortcoming that should be remedied. I beg to move.
  7.15 p.m.
  Lord Fowler: I shall speak to Amendment No. 57, which stands in my name. The question is what follows the collection of information; that is the point. What action will be taken? I shall again concentrate for a few moments on HIV/AIDS and sexual disease as an example of what I have in mind. My major concern is that the collection and the analysis of information on sexually transmitted infection is excellent, but it is not some theoretical exercise; it must be accompanied by statements of action on how the problems are to be remedied.
  What concerns me—and my noble friend Lord Howe—is that the Bill places many duties on the agency. All kinds of duties are placed on the agency—that it must produce an annual report and send it as soon as possible to the Secretary of State, and it must provide the Secretary of State with such other information and report as he directs. There is no question about the emphasis from the Government. But no duty is placed on the Secretary of State to respond to any reports, however serious, that reach him. That is what is lacking.
  We had a short debate on another amendment when the noble Baroness, Lady Masham, raised the issue of whether there was a crisis in sexual health. The Minister said twice that there was no crisis. I must say that that is not my view but, much more importantly,

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  it does not seem to be the view of many people in the field. It is certainly not the view of the House of Commons Select Committee, which stated:
  "We have been appalled by the crisis in sexual health we have heard about and witnessed during our inquiry. We do not use the word 'crisis' lightly, but in this case it is appropriate".
  There is also the letter from Professor Michael Adler, who, as the Committee will know, is a world expert in the area. He wrote to the Times in December:
  "The Department of Health's desire to shift the balance and devolve responsibility to primary care trusts … means that no one takes responsibility for sexual health … The time has come for strong central political leadership and recognition that we are dealing with a major public health crisis".
  The Minister does not gain much by denying what is the widespread view of most experts on the ground. On 12 February, the Health Protection Agency produced a press statement to accompany its monthly board meeting, in which it stated that newly diagnosed cases of HIV had increased by 20 per cent between 2002 and 2003, and that, although the figures will rise further as late reports are received, 5,000 new diagnoses have so far been reported for 2003, compared to 4,204 at the same time last year.
  According to indications, the rate of new diagnoses in 2003 will have been the highest ever—there were more than 7,000. Exactly the same position applies with sexually transmitted diseases. The figures on chlamydia, for example, are horrifying—a 141 per cent increase since 1996 and a 14 per cent increase over the previous year—and there are similar figures for gonorrhoea. The biggest increases of all have been in infectious syphilis.
  I do not think that one needs to underline the point that there is a crisis; therefore, it is important that in policy terms we have some means of tackling that crisis. We are getting the information; there is no difficulty about that. I pay tribute to the staff, because in this country we get excellent information to guide policy. The trouble is a lack of policy. I am trying to tackle that issue through this amendment.
  I do not claim that by placing a duty on the Government—or any duty on any government—to respond to the Health Protection Agency's report we will solve all the difficulties, but I certainly believe that it would help. I notice that the agency's own report of November 2003 contained 10 specific proposals, ranging from reducing waiting lists at clinics to increasing prevention efforts directed at gay and bisexual men. Again, what is lacking is the fact that the Government are not responding to those reports.
  The point that I make in my amendment, which is in the same spirit as that of the noble Earl, Lord Howe, is that after a report has been published, there should be a requirement on government to respond and to say what they are going to do. That is the big deficiency in our defences at present. There is a crisis, and the Government should wake up and respond to that crisis.
  Lord Clement-Jones: I support what the noble Lord, Lord Fowler, so eloquently said in his introduction to Amendment No. 57. The concept of the Secretary of
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  State being obliged to respond was one of the most useful things said at Second Reading. We are all still reading our way through the Wanless report, whose serious nature is apparent for all to see. It is excellent that it has the profile—and, no doubt, the Treasury backing, which will be helpful in future—to promote public health, which historically has had a fairly lowly position compared to acute care and secondary care. Preventive care, public health and so on are now firmly moving up the political agenda.
  If we set up those bodies, they may be rationalised in due course, as mentioned in the Wanless report. But if we are to set up powerful bodies, particularly in the areas for which the HPA will have responsibility, we must ensure that there is a political response. There cannot just be one-way traffic; the HPA cannot simply be expected to submit endless reports without having a proper reaction from the Secretary of State. After all, when the Health Select Committee publishes a report, we expect the Government to produce a response in a reasonably timely fashion, which allows us to have a debate on it.
  We need to make sure that the HPA has, in a sense, the entitlement to have that equal level of attention paid to its recommendations. For me, a very important perception came out at Second Reading that the noble Lord, Lord Fowler, has enshrined in an amendment. It has considerable merit.
  Baroness Masham of Ilton: Last year I suggested that there should be a national service framework for sexually transmitted diseases. I wish that the Government had listened because, as the noble Lord, Lord Fowler, has said, the numbers are going up. The people on the ground are in a desperate situation. I repeat: there is a crisis. We would not say that had we not been told it by the people working on the ground. I hope that we can do something to stimulate the Government into doing more in the Bill about that very serious situation.
  Lord Warner: I shall respond to a number of remarks about the Wanless report, which has been flourished during the afternoon. It is worth bearing in mind that it was the Government who commissioned Derek Wanless to produce that report; it has not come out of the blue. We will consider it very carefully and we will take many of the ideas forward in the public consultation on public health that my right honourable friend the Secretary of State announced fairly recently. We hope that that process of consultation will result in a White Paper on public health.
  I did not mean to imply that we were complacent about HIV/AIDS and sexually transmitted infections. I was quibbling a little about the word "crisis", but we take the matter very seriously. I did not mean to imply that we did not. We are taking some pretty strong action in this area. I want to put that clearly on record.
  Amendment No. 32 is about responding to advice, whereas Amendment No. 57 is about responding to the annual report. On Amendment No. 32, I am not sure whether Members of the Committee appreciate

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  quite how frequent the contact is between the Department of Health and the HPA in terms of what could be called "advice". I certainly do not have a count of the number of contacts but there is a very large amount of contact in which the agency responds to questions from the department. The Government may, in writing material to put in the public arena, ask for information and advice from the HPA.
  There is frequent contact in very sensitive areas of the kind that we discussed earlier, of which information is not put in the public arena, with advice coming from the HPA. There are large amounts of informal advice. Frankly, the amendment would be unworkable. The other amendment is more workable but, if we are trying to use a term such as "advice" and to require the Government to respond to every piece of advice that they may get from the agency, it is not a practicable proposition to enshrine that in legislation. I ask the noble Earl to think about that.
  Amendment No. 57 contains a very specific proposition—that is, to take the focus of the annual report and require a response within two months. I cannot use the same arguments I did in relation to Amendment No. 32, and even I would not try to do so.
  I ask the noble Lord, Lord Fowler, to reflect on the fact that it is not standard practice to get government departments to respond to annual reports either as a standard practice or within that type of timescale. I am not in any sense trying to get the noble Lord to feel sorry for us. He would say that it was self-inflicted, but he played his part in some of that in a previous incarnation. The department now has more than 30 executive agencies, NDPBs and special health authorities, a large number of task force and ad hoc groups, and about 50 advisory NDPBs. A large number of people give us their thoughts on their work for annual reports.
  We would say that the position has existed for a very long time. The reports are in the public arena. They are available to Parliament. There is a parliamentary process with parliamentary Questions, Select Committees, and debates, which hold Ministers to account on whether they have responded to those reports. Amendment No. 57 is unnecessary. It is not necessary to take the HPA annual report out of that context and have a special set of arrangements. We try to make those kind of responses fit for purpose when there is a parliamentary occasion or the public interest requires.
  7.30 p.m.
  Lord Fowler: Perhaps I may respond further to what the Minister has said. If the Minister does not mind me saying so, basically, it is a weak argument. All he has said is that it is not standard practice in Whitehall to do so. Perhaps the answer to that is that if it was standard practice in Whitehall we might get rather better government—I do not particularly criticise just this Government. I see absolutely no point in the HPA and its skilled staff collecting information in the detail that it does and putting forward the important policy
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  proposals that it does, if then, somehow, the whole thing just vanishes and, as I think that my noble friend Lord Howe, said, simply gathers dust.
  We do not want some bureaucratic reply. We do not want page after page of text. We want a succinct statement of government policy saying what they are going to do and how they intend to respond. That is what we want. This particular area is not really a matter of enormous party politics—at least, I hope not. What we want is some action. It seems to me that the amendment could trigger such action. Again, this is an issue to which we should return on Report.
  Earl Howe: In the interests of time, I shall not say much except to thank everyone who has taken part in this debate, which has been extremely important. It has provided us with an opportunity to discuss a major point of principle and practice in the delivery of the public health agenda. I am prepared to concede that my noble friend's amendment is much more workable and practicable, but I make no apology for having tabled mine. It enabled Members of the Committee, as did my noble friend's amendment, to focus on this very important area. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 7 agreed to.
  Clause 8 [Transfer of property and staff etc.]:
  Earl Howe Earl Howe moved Amendment No. 33:
  Page 5, line 29, leave out "one or more schemes" and insert "one, or more than one. scheme"
  The noble Earl said: This is a very simple amendment designed to address what I perceive to be a grammatical infelicity in the Bill. I beg to move.
  Baroness Andrews: France has the Académie Francaise and we have the parliamentary counsel. There is some disagreement between those grammarians about what is grammatically correct. All I would say is that we will consider it further.
  Earl Howe: I am most grateful. I am very surprised that there is any disagreement that "one schemes" constitutes good English. But, in the light of the noble Baroness's undertaking, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 34 not moved.]
  Baroness Andrews Baroness Andrews moved Amendment No. 35:
  Page 6, line 11, leave out paragraph (a) and insert—
  "(a) any provision of or instrument made under an Act of the Scottish Parliament;"
  The noble Baroness said: We have had problems with Greek already today; now we have problems with English. Amendments Nos. 35 and 37 would provide greater clarity, with a consistent definition of the word "enactment" throughout the Bill. The term is also used in Clause 7(3). I commend the amendments to the House for their scrupulous nature. I beg to move.
  On Question, amendment agreed to.
  Clause 8, as amended, agreed to.
  Clause 9 [Directions]:
  Baroness Andrews Baroness Andrews moved Amendment No. 36:
  Page 6, line 17, at end insert—

  "(2) A direction under section 2(2), (3) or (4) must be given in regulations made by statutory instrument.

  (3) A statutory instrument making regulations giving a direction under section 2(2)(a) or (3) is subject to annulment in pursuance of a resolution of either House of Parliament."

  On Question, amendment agreed to.
  Clause 9, as amended, agreed to.
  Clause 10 agreed to.
  Clause 11 [Commencement]:
  Baroness Andrews Baroness Andrews moved Amendment No. 37:
  Page 7, line 28, at end insert—
  ( ) Enactment includes—

  (a) any provision of or instrument made under an Act of the Scottish Parliament;

  (b) Northern Ireland legislation."

  On Question, amendment agreed to.
  Clause 11, as amended, agreed to.
  Clause 12 agreed to.
  Schedule 1 [Health Protection Agency]:
  Earl Howe Earl Howe moved Amendment No. 38:
  Page 8, line 7, leave out "of the Agency"
  The noble Earl said: This again is an extremely simple amendment designed to apply Occam's razor to what may be some unnecessary words in paragraph 1. I beg to move.
  Baroness Andrews: I am delighted to accept the amendment.
  On Question, amendment agreed to.
  Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 39:
  Page 8, line 9, at end insert ", one of whom is an employee of the equivalent public health organisation in Wales"
  The noble Baroness said: I do not wish to detain the Committee for long. I am most grateful to the Minister for indicating that we might discuss this issue further outside the Committee. I should like to record that the relationship between the specialist services in Wales and the specialist services in England is so inter-related and so complementary that for the working and development between the two to occur smoothly, a great deal would be gained if we were to have an executive as well as a non-executive director from the service in Wales. I beg to move.
  Baroness Andrews: I am very grateful to the noble Baroness. She will appreciate that we have not had an opportunity to discuss the amendment with the National Assembly for Wales, which we intend to do. However, I have to flag up that we have some reservations, because it would require the HPA executive members to include an employee of the equivalent public health organisation in Wales—in effect, the National Public Health Service.
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  Rather than go through all our reservations, perhaps I can write to the noble Baroness and explain some of the issues. I hope she will be happy with that.
  Baroness Finlay of Llandaff: I am most grateful to the Minister. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Fowler Lord Fowler moved Amendment No. 40:
  Page 8, line 11, at end insert "and after public advertisement and subject to independent checks on political impartiality'
  The noble Lord said: Now that the Minister is accepting amendments and making encouraging noises, perhaps I may commend these amendments to her. They are entirely non-controversial and are intended to be helpful to the Government.
  The purpose of the amendments is very simple. I should add that there is nothing personal in what I say about former or present chairmen of the Health Protection Agency. In the business world, much concentration is being placed at the moment on the issue of corporate governance. Attention is paid to the process by which non-executive directors are appointed and, in particular, to the independence of non-executive directors. Some very detailed rules have been laid down and recruitment is by nomination committees—probably set up with the help of independent head hunters. All this is designed to establish independence and independence of judgment.
  That is strongly supported by the Government. The Government, Ministers and the Department of Trade and Industry lose no opportunity to say how important it is that that should be so in the private sector. My sole purpose therefore is to check whether the Government are following their own rules in that regard. Clearly, they would be open to some criticism if they were not.
  Secondly, and more importantly, the case for independence is important in its own right. We do not want political placemen on the board of an important organisation of this kind, whether they are chairmen or directors. People who simply do the bidding of the Government are not independent in what will be quintessentially an independent organisation which will be judged by the quality of the independent information that it provides. So, basically, I need to be convinced by the Minister that the procedures used by the Department of Health meet that test. She may prefer simply to accept my amendments, and we can all go home happy. I beg to move.
  Earl Howe: My amendments, Amendments Nos. 42 and 43, are grouped with those of my noble friend. They relate to an issue that appears to be acquiring the status of a hardy perennial in the flower bed of House of Lords Committee amendments—at least for health Bills. That is the issue of independence—in this case, the extent to which the independence of the agency may be unnecessarily compromised by the ability of the Secretary of State to appoint the chairman and an unspecified number of the non-executive directors.

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  These days, as the Government handsomely conceded when we debated the Health and Social Care (Community Health and Standards) Act 2003 in the previous Session, there is seldom a need for Ministers to make such appointments themselves, especially where a perception of political bias could do considerable harm. The NHS Appointments Commission has been established precisely with a view to avoiding that trap; we warmly welcomed that step. It is inconsistent for the Welsh Assembly to be given power to delegate its appointment function to the NHS Appointments Commission but for there apparently not to be a similar power accorded to the Secretary of State—unless it is by virtue of another statute. My amendment would redress that inconsistency.
  Baroness Barker: I shall speak to Amendment No. 56. I merely observe that the duel over the preceding amendments ought to be fought between parliamentary counsel and the noble Earl, with copies of Lynne Truss's Eats, Shoots and Leaves at 50 paces.
  We return to familiar territory for health Bills, as the noble Earl said. Although it may not appear so, my amendment also concerns the independence of the agency. Various bodies that have commented on the Bill have had at the root of their concerns the independence of the agency. I understand the genuine difficulty for government, in that the functions of the agency are so specialist that it is sometimes difficult to apply the normal rules of open appointment to it. None the less, the noble Lord, Lord Fowler, is right: specialism cannot override due process in appointment.
  The purpose of my amendment is to require an outline strategic plan to be published by the HPA. The reason for that is to establish that it is a proactive agency—albeit one that must behave from time to time in reactive fashion to emergencies. One strength of the current set-up has been the strategic way in which the existing body has worked in developing models and planning. It has been sufficiently expert at that to export them to other organisations overseas. The publication of a strategic plan would facilitate not just the agency's accountability to Parliament but its independence from the Chief Medical Officer. That would be a wise thing for the Government to do to maintain public confidence in the body, much of the work of which can never be made fully public. Therefore I believe that a strategic plan would be a valuable document for that body to produce.
  7.45 p.m.
  Baroness Finlay of Llandaff: I do not wish to detain the Committee for long. I simply wish to emphasise that my amendment refers to an outline strategic plan. It uses the word "outline" because it recognises the commercial sensitivities there may be around issues that are to be developed but that there is a place for openness regarding the overall direction in which the agency would wish to go. It allows for an audit trail in the commissioning that will then occur. If there is inadequate funding for developments that the agency
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  feels are important to public health, that information can be recorded because it will have been laid down ahead of time. It will not be a retrospective "We would have liked to have done something" but a justification of the reason for a bid.
  Baroness Andrews: First, I shall deal with the amendments tabled by the noble Lord, Lord Fowler. I wish I could accept them, but if I explain why not I am sure that he will agree with me.
  Amendment No. 40 would write into primary legislation a requirement to advertise publicly the post of chairman. We are already committed to following the guidelines issued by the Office of the Commissioner for Public Appointments. There is already such a requirement, so I am sure that, with that reassurance, the noble Lord will be able to withdraw the amendment.
  Amendments Nos. 40 and 41 would both write into the primary legislation a requirement for "independent checks" on the "political impartiality" of the chair and non-executives. Our problem with that is that it goes further than the current position, which concerns political activity. We have taken advice from the OCPA about the matter and it shares our concerns. If we go down that road we will be looking at the voting preferences of applicants, and the concepts of politically impartiality are very sensitive. I hope that the noble Lord will agree that we do not want people who lack views, but we need people who are there because they merit the appointment.
  The current position is that OCPA guidelines require that applicants for public appointment should answer a standard question about political activity, which has been designed by the Commissioner for Public Appointments after consultation. That question would concern whether people have canvassed, stood for office, donated funds and so on. The information is not considered by appointment panels but is used for monitoring purposes.
  We have some interesting statistics. For example, in 2002–03, 18.6 per cent of those taking up public appointments declared that they had undertaken political activities. So we are on our way to a true understanding of the extent of that.
  As to the noble Lord's comments about the comparison between the corporate sector and the public sector, I would point out that the creation of the NHS Appointments Commission was set up to resolve the kind of problems that he identified. To some extent it has done so and we are looking at having fewer people now who are politically active than there were in 1999–2000. I would be happy to write to the noble Lord because there is some interesting background on the matter.
  As to Amendments Nos. 42 and 43, tabled by the noble Earl, Lord Howe, I am sorry, but he will also have heard this before. They are not necessary, because under the Health and Social Care (Community Health and Standards) Act 2003 the Secretary of State already has the power to delegate appointment functions to a special health authority. In

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  practice the NHS Appointments Commission is that body. We expect to delegate NHS appointment functions.
  The noble Earl drew attention to the National Assembly for Wales. The Assembly has a power to delegate its appointment functions under the Bill—and it is for the Assembly to decide whether to make use of that power—but the Bill does not give the other devolved administrations the power to delegate their appointment functions. Both we and they are content with that. The guidance published by the Commissioner for Public Appointments will apply to all non-executive appointments to the HPA boards, whoever makes them. I hope that that will partly satisfy the noble Earl.
  Government Amendment No. 44 would enable regulations made by the Secretary of State on the conditions to be satisfied before a person is appointed as a non-executive member to apply to the chairman also. The chairman is referred to expressly in Clause 8(1)(3) and Clause 10(1), but in paragraph (a) reference to the chairman was inadvertently omitted. We are putting that right. The best of men can forget sometimes.
  I shall now respond to the amendment moved by the noble Baroness, Lady Barker, and the point raised about the strategic plan. I understand the intention behind the amendment. I wish to clear up two points. First, it is important to make the distinction between information about the strategy and information in general that is available. The amendment would ensure that information about the agency's future plans and past activities is put into the public domain. However, perhaps the amendment confuses the two types of information and is not the best way of ensuring that information is put into the public domain—it links the publication of information about the future to the publication of information about the past. The end of the financial year, when one produces an annual report, is perhaps not the best point in the year at which to set out future plans.
  My second point relates to the strategy. The amendment implies that a strategic plan should be produced each year, and can be seen as a contradiction in terms. Obviously, there is a strong case for producing strategies less frequently, making them more strategic.
  Thirdly, writing into the legislation precisely what the agency should include in its annual report could be seen as a sort of micro-management, which possibly we should try to avoid. But I assure the noble Baronesses, Lady Barker and Lady Finlay, that we expect the agency to publish information about future plans as a matter of good practice. I have been deeply impressed by the extent to which the HPA already puts information into the public domain, both in writing and on the web; there has been extreme openness. For example, it published its first five-year plan last August, and it operates a very powerful code of openness. The hoard meetings are open and the papers
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  that it considers are placed in the public domain. I am very confident that those who want to find out what the HPA is doing will have access and opportunities to do so, and not just to comment on strategic plans. We have every expectation that the agency that is to be established will carry on that very good tradition.
  Lord Fowler: I am very disappointed that the Minister has not accepted all of what I said. However, from what she said, I felt that we were on the same side in principle. My concern is that we should have people of independent judgment, which was, I think, very much the Minister's concern also. She offered to write to me on what she described as the interesting background to all of this. I accept that offer with alacrity; it will enable me to bring back a better-drafted amendment on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 41 to 43 not moved.]
  Baroness Andrews Baroness Andrews moved Amendment No. 44:
  Page 8, line 35, after "appointed" insert "as chairman or"
  On Question, amendment agreed to.
  [Amendments Nos. 45 to 49 not moved.]
  Earl Howe Earl Howe moved Amendment No. 50:
  Page 11, line 34, leave out "it" and insert "the Department"
  The noble Earl said: In moving this amendment, I should like to speak also to Amendments Nos. 51, 58 and 59. The amendments are designed to correct what I perceive to be ambiguities in the wording. I beg to move.
  Baroness Andrews: I understand that the amendments are intended to improve the drafting of the Bill. I am advised by parliamentary counsel that there is no real risk of confusion arising, and that we should retain the current style of the Bill.
  Earl Howe: I am truly astonished by that. We may have to discuss the matter outside the Committee, because it seems that there is a fundamental point that the agency could exploit to its advantage, if it chose to do so. I shall not detain the Committee further. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 51 not moved.]
  Baroness Andrews Baroness Andrews moved Amendment No. 52:
  Page 12, line 20, at end insert-
  "( ) The Department of Health, Social Services and Public Safety in Northern Ireland must lay a copy of the accounts and of the Comptroller and Auditor General's report before the Northern Ireland Assembly."
  The noble Baroness said: The Department of Health, Social Services and Public Safety in Northern Ireland asked for the amendment, which will require it to lay a copy of the agency's annual accounts and the report of the Comptroller and Auditor-General before

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  the Northern Ireland Assembly. There is already an equivalent requirement, where appropriate, on the other authorities. I beg to move.
  On Question, amendment agreed to.
  Baroness Andrews Baroness Andrews moved Amendments Nos. 53 to 55:
  Page 12, line 26, leave out "may" and insert "and the Auditor General for Scotland may each"
  Page 12, line 30, after "Wales" insert "and the Auditor General for Scotland"
  Page 12, line 31, leave out "he" and insert "each"
  On Question, amendments agreed to.
  [Amendments Nos. 56 to 59 not moved.]
  Schedule 1, as amended, agreed to.
  Schedule 2 [Transfer of Property and Staff, etc.]:
  Baroness Andrews Baroness Andrews moved Amendments Nos. 60 and 61:
  Page 14, line 24, leave out "XI" and insert "XII"
  Page 14, line 28, at end insert "or Order"
  On Question, amendments agreed to.
  Schedule 2, as amended, agreed to.
  Schedule 3 [Amendments]:
  [Amendment No. 62 not moved.]
  Baroness Andrews Baroness Andrews moved Amendment No. 63:
  Page 16, line 38, at end insert—
  "9A (1) The Health and Safety at Work (Northern Ireland) Order 1978 (S.1. 1978/1039 (N.I. 9) is amended as follows.
  (2) In Article 18(2) (consultation before approving code of practice). in sub-paragraph (a) for "the National Radiological Protection Board" there is substituted "the Health Protection Agency".
  (3) In Article 46(3) (consultation before submission of proposals for regulations), in sub-paragraph (a) for "the National Radiological Protection Board" there is substituted "the Health Protection Agency"."
  On Question, amendment agreed to.
  Baroness Andrews Baroness Andrews moved Amendments Nos. 64 to 69:
  Page 17, line 2, at beginning insert—
  "( ) The National Health Service and Community Care Act 1990 is amended as follows."
  Page 17, line 2, leave out from "4" to end of line.
  Page 17, line 5, at end insert—
  "( ) In section 21(2) (bodies in respect of which schemes may be made for meeting certain losses and liabilities) before "but a scheme under this section" there is inserted the following paragraph—
  "(d) the Health Protection Agency,"."
  Page 17. line 14, leave out "(da)" and insert "(db)"
  Page 17, line 16, leave out "(db)" and insert "(dc)"
  Page 17, line 23. leave out sub-paragraph (4).
  On Question, amendments agreed to.
  Baroness Andrews Baroness Andrews moved Amendment No. 70:
  Page 18, line 19, at end insert—
  "( ) In subsection (4)(d)—

  (a) after sub-paragraph (ii) omit "or";

  (b) after sub-paragraph (iii) there is inserted "or (iv) the Health Protection Agency.""

  On Question, amendment agreed to.
  Schedule 3, as amended, agreed to.
  Schedule 4 [Repeals]:
  Baroness Andrews Baroness Andrews moved Amendment No. 71:
  Page 19, line 7, at end insert—

  "Health and Safety at Work etc.

  Section 77"

  Act 1974 (c. 37)

  On Question, amendment agreed to.
  Schedule 4, as amended, agreed to.
  Bill reported with amendments.
  The Committee adjourned at two minutes before eight o'clock.