HEALTH SERVICES BILL

HL Deb 10 November 1976 vol 377 cc441-643

House again in Committee on Clause 4.

8.16 p.m.

Baroness YOUNG moved Amendment No. 47:

Page 6, line 12, at end insert— ("() that the authorisation of any such accommodation under those provisions for use in that connection should be revoked only if sufficient accommodation affording privacy to the patient is otherwise reasonably available at NHS hospitals to meet the reasonable demand for it in the district or districts served by the hospital or hospitals in question;").

The noble Baroness said: I was moved to put down the Amendment, which is concerned with amenity beds, very largely as a result of what the noble Lord, Lord Wells-Pestell, said at Second Reading on the 21st October last, as reported at column 1578 of the Official Report: I could have done with an amenity bed, and so could a good many of the others. One knows how important this is, and it is part of Government policy to try to do something about it when these beds become available. The noble Lord, Lord Amulree, also referred to amenity beds at Second Reading. He said, as reported at column 1490 of the Official Report: … I should like to come back to the pay bed question and to refer to the strange tale of the amenity beds. These were mentioned in Section 4 of the National Health Service Act, the provisions of which would allow hospitals to use single rooms or small wards to provide accommodation for people who wanted them—provided they were not needed urgently for general medical purposes—on the payment of a relatively small weekly charge.

It seems to me that in the whole of the Bill there is no proper consideration of the question of amenity beds, and yet it is perfectly clear that the use of, and the need for, amenity beds is, if anything, much more likely to be greater after private facilities have been phased out. There is no reason at all for not supposing that the demand for amenity beds might rise very sharply, particularly in places where the private facilities are perhaps some far distance from the centres of population, so causing difficulties for families visiting patients; or there may be a great many other reasons why someone might wish to have an amenity bed. The reasons and the wish for amenity beds seem to me to be those which we should all understand. After all, some people want solitude or quiet, and some people do not enjoy sharing a room when they are well, let alone when they are ill; and this seems to me a perfectly reasonable point of view.

As I understand it, amenity beds have not been used very extensively since the 1946 Act, and it would appear to me at any rate that there have been two reasons for this. One is that, as I understand it, it is perfectly possible to ask for an amenity bed, but a hospital will never give a guarantee that an amenity bed will be available, and therefore people who would like the privacy of a room may feel that at the last minute they may not he able to get the amenity bed and so would not risk not having the privacy they would like.

The other point, I understand, is that you may be admitted and have an amenity bed, but there can be no guarantee that you will remain in that amenity bed for the whole of the time you are in hospital because if it is required by somebody who needs privacy for medical reasons you can he turned out of the amenity bed and put somewhere else in the hospital. So there are obviously great disadvantages, and this may well be why they have not been as used as they might have been in the past. Yet I think that modern hospitals are now being built in which there are single rooms for everybody going into them, and a much greater degree of privacy than there ever was in old hospitals. This reflects, of course, what is a perfectly natural desire for most people, and that is to have a room of their own. At any rate, it seems to us on this side of the Committee that, as the pay beds are to be phased out of the hospitals, the only way in which a number of people would be likely to get privacy in hospitals would be by the use of amenity beds.

I think it would be very unfortunate, therefore, if at no point in our deliberations did we discuss the issue of amenity beds, and I hope that the Government will look favourably upon Amendment No. 47, which is designed to ask the Board, when it is considering phasing out beds, to have regard to the need for amenity beds and to keep amenity beds available for those who would like this particular form of accommodation in hospital. This, after all, is something which is a part of the National Health Service and which was introduced in 1946. I therefore beg to move Amendment No. 47.

8.23 p.m.

Lord WELLS-PESTELL

I do not think I would take issue with the noble Baroness on a single word that she has said other than to say that this matter exercises our minds every bit as much as it does the minds of other Members of your Lordships' Committee; but the short answer is that we do not think it is necessary for this to be incorporated in a Bill—in other words, in legislation—because this is really the function of the Secretary of State. The noble Baroness remarked that there is not a great deal of occupancy of amenity beds at the present. This is perfectly true. In fact, at present these beds are little used. There was a 16 per cent. occupancy in 1974, and I have no doubt at all in my mind that the two reasons which the noble Baroness gave are probably the main reasons why they have been under-occupied.

However, may we look at the position as it is now and the position as it will be when pay beds are phased out? More than two-thirds of hospitals with authorised pay beds have five or less such beds, and they are usually to be found in single rooms or small rooms attached to or adjacent to general wards. As authorisations are withdrawn from these beds, most of them are likely to be absorbed into the general bed strength and become available for National Health Service patients. Whether or not they are used as amenity beds, the privacy previously afforded to private patients will generally be available to National Health Service patients; because if you have 66 per cent. of such hospitals with five or less pay beds and they are in single rooms attached to wards, I think of necessity they will become available, and will be used, for amenity purposes.

The noble Baroness may well say, "This is not good enough; there ought to be some obligation on the hospital to sec that they are used for that purpose". What I should like to do is to repeat a statement made by my right honourable friend in Committee in another place, when he said this: I believe we should have more beds designated as amenity beds, that they should be more fully used, and that their availability should be more widely publicised. I never felt that the purpose of this legislation was to deprive people who needed it for medical reasons of the privacy that an amenity bed can provide. I shall be bringing the question of amenity beds to the notice of the health authorities and indicating my view that it is desirable that there should be increasing use of them. I shall bring that to the attention of the health authorities when the pay bed issue has been settled. This really is the function, the responsibility, the duty, of the Secretary of State, and he recognises that in most hospitals it is going to be just one, two, three, four or at the maximum five beds. They will be conveniently situated to be used as amenity beds where hitherto they have been used as pay beds. I suggest—not, as I say, that there is anything between the point of view of the noble Baroness and that of myself other than the fact that I do not think this is a matter to be included in the Bill, to be embraced in legislation—that this is really the function of the Secretary of State, who is prepared, because he himself feels strongly about it, to see that hospitals are informed that they should be so used.

Lord O'HAGAN

I am sure all Members of the Committee are most grateful to the noble Lord, Lord Wells-Pestell, for what he has said because, whatever may be the case with other points in this Bill, this is a subject on which there is very little, if any, political division of opinion. I base that comment on the remarks made at the Second Reading of this Bill by the noble Baroness, Lady Lee of Asheridge. She said at column 1527 of the Official Report for the 21st October: I agree with the noble Lord, Lord Platt, that the amenity bed has not done the job that Aneurin Bevan and the other founders of the Health Service wanted it to do". She then went on to say: We have not nearly enough amenity beds"; and that was very much in tune with the thinking behind the comments of the noble Lord, Lord Wells-Pestell.

The point I want to put to the noble Lord is this. He has said that the question of amenity beds is one on which it is for the Secretary of State to give guidance to health authorities. Could he perhaps go a little further than he has done already and say that, so far as possible, it will be suggested by the Secretary of State to health authorities that pay beds, as they are phased out, become amenity beds? Will there be any form of guidance, circular, or whatever the correct terminology is, so that there is a general understanding among those responsible that this is the intention of the Government? The noble Lord read out what his right honourable friend said in another place in Committee, and of course that is an important statement, but those Committee proceedings may not have been the daily reading of all those who will be concerned with this matter. I wonder whether the noble Lord could give some assurance to this Committee that this intention, which is shared on all sides of the Committee, that the number of amenity beds should be made more public and increased, if possible, where pay beds are phased out, will be expressed in some form of guidance or public statement by the Secretary of State, so that what we all want to see achieved is in fact brought about by those responsible.

8.30 p.m.

Lord WELLS-PESTELL

Knowing the membership of the Committee in another place, I am pretty certain that steps will be taken to see that the Secretary of State honours all the undertakings that he has given. I know a number of people in this House who would soon be asking questions about what directives or suggestions have gone out to the Area Health Authorities and what efforts are made to see that they have been complied with. I speak with some knowledge on this matter in view of the Questions I have answered. Having said that, I will give an undertaking, for I know there is strong feeling on this matter by a number of people, to see that what the noble Lord and others have said is brought to the notice of my right honourable friend.

Lord PLATT

I spoke on the question of amenity beds at the Second Reading. I myself have been very disappointed at the lack of use of amenity beds. For a long time I served in a very large teaching hospital in the Provinces and the trouble was that we had only very few beds that we could use for this purpose. They were nearly always occupied by somebody so desperately ill that you had to nurse them in a single room, sometimes because of rather undesirable things which you did not want to introduce into a general ward. It just did not work; that was the trouble. If the Government could say that they are going to abolish all private beds and are going to fill them with people paying ten guineas a week instead of £200, then they would be very popular indeed.

The thing that troubles me—and this is not a Party political point—is the waiting list. Either there are going to be so many amenity beds created by this change that if you put your name down for an amenity bed you get it the clay after tomorrow, instead of after two years, for your hernia, or there will be so few beds that you dare not put your name down for an amenity bed because you know that you will have to wait five years instead of two years. Nobody has answered the question which I raised on Second Reading, and I should like to know what the Government answer is. If there is a bed going for ten guineas a week, then I have got to be in it one of these days.

Baroness WARD of NORTH TYNESIDE

I was pleased with the rather sympathetic reply of the noble Lord on amenity beds. Naturally, I accept his guarantees that the views of this House will be handed to the Secretary of State, but personally I think it would be very much better if we had the provision included in the Bill. Having regard to the statement made by the Minister, I can see no reason why we cannot have it in the Bill. I always like something in writing in a Bill. In a few years' time when, I hope, everything settles down, there will be many people concerned with the Health Service who will not have the slightest idea of what went on here or in another place. I think it is far better to have something in a Bill that one can show to people or discuss with people, particularly as sometimes there can be tremendous arguments in all parts of the country over what is in the Bill, what is the law and what is desirable, et cetera It would be far better for those responsible (who probably will not be anybody connected with this House at all) if it were then to be in the Bill. So I hope the Minister will not only undertake his guarantee but will be sufficiently inspired to suggest this to the Secretary of State. In any case, I think it is a bit odd that a Secretary or State has got to decide about amenity beds. I should have thought it would be perhaps an Under-Secretary or somebody. The idea of a Secretary of State having to decide on amenity beds is laughable.

Perhaps as so many people in all these debates have been saying what has happened to them, I may give a personal example. I had always understood that if you had appendicitis, you felt a terrible pain; but I remember a few years ago not feeling very well although I had no pain at all. My secretary telephoned my doctor—this was in the North of England—who came straight away and said that I must see a consultant. I asked him when, and he said "Now". He rang up the appropriate consultant who quickly arrived and I was operated on: otherwise I should have died by 10 o'clock. I remember very well that when the ambulance came and all my friends rallied round me, I said "Good gracious! I don't know where my BUPA card is". They told me not to worry. I was put in an amenity bed in the Royal Victoria Infirmary at Newcastle. It is an excellent hospital and I was marvellously looked after. That is all very well but I should still much prefer to have the provision in the Bill.

If I may say so, it was rather difficult to follow the figures produced by the noble Lord. In the Schedules are listed all the hospitals where pay beds are going to be phased out. I should like to know how many amenity beds are to be in each hospital. I like to have details. I have learned from being in politics for more years than I can remember that you must have the details very carefully set out. Much as I like a great number of Ministers —those in my own Party, naturally, and in Opposition occasionally—I have always thought it was much better to have every detail settled because sometimes Ministers get changed. You may have a great admiration for a Minister and think he is a perfect man or woman. Then he is whisked off and you get another Minister whom you do not like as much and perhaps do not trust as much.

I do not want the whole of this debate brought to the attention of the Secretary of State. Let him have a rest for once! Let us put the provision in the Bill, so that the people who come after us and who look at the development of the National Health Service know what we really did. Let them know that we put this important matter of amenity beds in the Bill. That is what I should like. I hope I can press the Minister not to bother about the Secretary of State but to bother about the Bill. Let us have it in writing.

Baroness FISHER of REDNAL

I do not want to detain the Committee for too long. I have a long experience of amenity beds. My husband was confined to hospital for eleven months—I was not a Member of this House or of another place when this problem arose—and because of his special medical condition he was placed in an amenity bed. This was merely because of the seriousness of the condition; it had nothing to do with whether one had a BUPA card or some other card. It was purely a medical decision, taken on whether a hospital patient needed an amenity bed. It worries me a little, listening to the debate tonight, that there is a suggestion that amenity beds might take the place of the private beds in hospitals.

While I sympathise entirely with the noble Baroness who suffered from appendicitis, I hope that "Mr. Brown, Mr. Smith and Mr. Jones" received exactly the same treatment, even if they did not have a BUPA card or some other card. I hope the amenity bed is used in the hospital on purely medical grounds because of the condition of the patient, and that the responsibility regarding the use of amenity beds will be taken by those who know the medical conditions, and not for any other reason or because one has a card of some description.

Lord HUNT of FAWLEY

One point about the occupation of amenity beds which is not generally known is this. An elderly relative of mine was admitted to a National Health Service hospital a few years ago. She was very ill and asked for privacy. An amenity bed was available but the sister said that she was short of nurses, and they could not keep such a good eye on my relative in the amenity bed as they could in the ward. My point is this: if there is a marked increase in the number of amenity beds in any ward, for people who are very ill, then more nurses may be needed.

Baroness MACLEOD of BORVE

My noble friend Lady Ward asked the Minister how many amenity beds the Government envisage. The noble Lord said that two-thirds of the hospitals have five or less pay beds, as I understand it. What about the other third? There was also emphasis that the beds should be used for medical reasons and presumably the amenity beds are allocated only by the sister of the ward or the doctor. But some people need amenity beds for social reasons which even the doctor does not know about. A member of Her Majesty's Government might be seriously hurt in a car crash and would need an amenity bed at a local hospital. That is a hypothetical situation, but it could occur. When the pay beds are phased out, how many amenity beds will be provided? Will there be amenity beds in every hospital in the country?

Lord SANDYS

My noble friends have brought out some practical points, and I should like to refer to the relationship of this Amendment to Amendment No. 16, which was concerned with putting pay beds withdrawn from National Health Service hospitals to the best possible use. The noble Lord, Lord Wells-Pestell, was pleased to acknowledge that there was a problem here. He gave a sympathetic answer, but he choked on the word "resident" in the Amendment. Reference was made to the use of beds for resident patients who were not private patients. My noble friend Lady Ward, speaking from a wealth of Parliamentary experience which none of us can equal, believes that this aspect of the matter should be embodied in the Bill. Her argument is conclusive, and I need say no more.

8.44 p.m.

Lord WELLS-PESTELL

One has to bear in mind that it is impossible to devise a form of words to go into a Bill that can provide for the effective use of amenity beds. Once you embark upon doing that, you have to put down all sorts of qualifications. It would be wrong to assume that because there are amenity beds in X number of hospitals where the cost is, say, £10 a week, that anybody going into hospital and able to pay £10 a week has the right to demand an amenity bed.

An amenity bed is in the hospital for a variety of purposes: for people who want privacy and to be on their own. There are a large number of people who go into hospital for serious operations where it is necessary for them to have quiet. I am thinking—and I speak with some experience—of neuro-surgical wards, where people have had craniotomies and do not want to be in a public ward, not immediately, anyhow. Therefore for medical reasons—not because the patient wants it—they are put in amenity beds.

There are many people who would be a menace in public wards for all sorts of reasons, not least for personality reasons. You cannot set this out. All one can say is that there should be available as many amenity beds as possible. The health authorities should be told clearly that as pay beds are released they ought to have regard for the need to use as many as possible for amenity beds. One has to leave it to the doctor to decide on health grounds whether or not a person should have an amenity bed. This does not mean that every amenity bed is going to accommodate somebody because of the nature of their operation or because they are temperamentally unsuitable to go into a public ward, or that there is never going to be an amenity bed for the ordinary person who in the normal way probably would not qualify but who says: "I should like some privacy and I am prepared to pay". You cannot embody this in legislation. I do not think that I can say that it would be feasible to do this, and I do not think that I can go much farther than to say that I will bring this discussion to the notice of my right honourable friend.

The noble Baroness, Lady Macleod of Borve, asked whether some figures could be given, This is extremely difficult. My first reaction was to say that if there are two-thirds of the hospitals with less than five beds, then one-third must have more than five; but it does not work out like that. I cannot give a total number of hospitals with more than five pay beds. University College hospital has 87 pay beds. Bradford Royal Infirmary has 75 pay beds. There are more than 3,000 amenity beds, but I cannot give a breakdown. If we are eventually going to release something like 4,444 pay beds, the number will increase considerably. The prospect of people being able to get an amenity bed in the future should be a great deal rosier than at the present time.

Baroness WARD of NORTH TYNE: SIDE

The noble Lord said definitely and very nicely that he would hand on this discussion to the Secretary of State. But what good is it if he cannot do anything about it? The noble Lord practically said that he could not do anything about it, so what is the advantage of handing this on to the Secretary of State? I do not think that is at all good. In this day and age, it is a little odd to say that it is impossible to devise an appropriate scheme. I support the Amendment to provide words in the Bill to make the situation clear that we wish to have amenity beds in our National Health Service. Frankly, I do not think very much about the people who draw up Bills—I have been on Statutory Committees and I know something about it. To say that it is impossible in 1976 to find words to put in an important Bill makes me feel that the situation is quite ridiculous.

Lord HARVINGTON

Can the noble Lord help me? I cannot find anything about amenity beds as such in the Bill. Is there a reference to them or a definition, or would the noble Lord care to give a definition?

Lord WELLS-PESTELL

I do not think I can keep on hopping up and down—what is more important I am not going to do so. We spent a long time on this—I will not say unimportant matter—and there are many other important matters before us. I think everybody on both sides of the Committee wants to make as much progress as possible. As I understand it, an amenity bed, in comparison with a pay bed, is one for which a small charge is made. Any person going into a National Health hospital is entitled to ask for an amenity bed if one is available. An amenity bed is invariably one bed in a small room, very often at the end of the ward or just off the ward, and if that bed is not wanted for any other purpose and is not in use the National Health Service patient can have it. That has been the position since 1948.

Lord PLATT

As I understood the question by the noble Lord, Lord Harvington, it was: is there any mention of it in the Bill?

Lord WELLS-PESTELL

There is no mention at all in the Bill.

Lord STONE

May I correct my noble friend. Amenity beds in many hospitals I have seen do not entirely comply with what he said. They are not in special rooms. Often one finds small wards compartmentalised by screens so that there are from four to six beds; they are not all in individual rooms. From an amenity bed point of view, let me warn your Lordships that due to shortage of staff very often you will find that attention in a public ward will be much greater and more at your disposal than if you are confined to bed in a side ward.

Lord HILL of LUTON

We have expressed dissatisfaction with so many statements made by the noble Lord, Lord Wells-Pestell, that we ought to reflect that on this occasion he has given us the strongest assurance that we have had on any section of the Bill. Although I may be quite alone in this matter, I think he has gone as far as he can reasonably be expected to go. Of course the end of private practice within the National Health Service hospital will make available a number of beds; most, if not all, in private rooms. It is a matter for local decision whether those beds are needed for general hospital patients, whether they go to the exceptionally ill on medical grounds or whether they are available for those who want privacy. I do not think it is capable of a formula. I do not think we shall get any more from the noble Lord, nor in his position would I give any more. Bearing in mind his forthright statement, I think we ought to concentrate our attention on the more unsatisfactory parts of the Bill. The statement by the Secretary of State may not convince us all or convince us all for long, but at least there is one strong statement on this subject which affords some modest reassurance.

Baroness ROBSON of KIDDINGTON

May I add just one word? I am speaking as the regional chairman and, like most members of this Committee, I am very concerned that the greatest possible number of private beds should be converted into amenity beds. I do not think we have enough. We must be very careful not to embody something in the Bill which could create out of amenity beds a covert form of queue jumping identical to the problem that has given rise to the present Bill dealing with private beds. I also believe there is a certain amount of misunderstanding in this Committee about amenity beds. Of course a person coming into hospital who wants privacy is entitled to ask for an amenity bed. If it is available, that patient will be granted an amenity bed. But—and I hope that this applies all over England, and I am sure it does—if there is the slightest need by someone for medical purposes for that amenity bed the patient who has the amenity bed purely from a privacy point of view is warned when he takes the amenity bed that he may be turned out. I hope we shall keep the amenity beds along those lines.

I also hope—and I am a little frightened of this—that there will not be a direction from the Secretary of State that private beds should be turned into amenity beds. There may be enormous problems in turning some of them into amenity beds, particularly taking the example which the noble Lord, Lord Wells-Pestell, used of the UCH private hospital block. To turn all those private beds into amenity beds would cost the National Health Service an enormous amount of money. If the private beds were ever phased out it may be better to change the use of that block. It is my further desire that in that particular hospital they will not be phased out. It is dangerous to lay down a directive. It is important that the authorities who administer the service should be given a certain amount of freedom to use the beds to best advantage.

Baroness YOUNG

I feel that we have had a very useful debate on the subject of amenity beds. I am well aware that amenity beds as such are not mentioned in the Bill, so of course they are not defined. But I agree with the noble Lord, Lord Hill, that the noble Lord, Lord Wells-Pestell, has said very helpful things in this matter, and I, at any rate, would like to believe that as many as possible of the phased out beds will be used as amenity beds. I think my noble friend Lord Sandys was right when he drew our attention to the linking of this Amendment with Amendment No. 16.

The most discouraging thing about the Government's reply to Amendment No. 16—which as the Committee will recall was an Amendment to make sure that the 1,000 beds phased out will in fact be used for patients—was that they could not give us that assurance. The thought that we might be phasing out the beds to find that they are going to be used as offices is most depressing. I could not be more pleased to think that as many as possible will be used as amenity beds. I believe it is quite right that hospitals should have discretion in this matter.

I entirely took the point of the noble Baroness, Lady Fisher, who said that in the particular circumstances of her husband he required an amenity bed for his medical condition. This is understood by everybody. But there are a number of people who, for a variety of reasons, would like privacy. I forget now who it was on Second Reading—I am not sure that it was not the noble Baroness, Lady Lee of Asheridge—who said that of course one group of people who wanted privacy was Government Ministers themselves. When they go into hospital, the first thing they want is a telephone. They are not the only ones. All sorts of other people wish to conduct their work while they are in hospital and require solitude in which to do it. If we are really anxious to promote the general wellbeing of the country, I should have thought it was not unreasonable that their case should be catered for. Of course, as the noble Baroness, Lady Robson, said, once we have more amenity beds we are up against the problem of queue jumping. Somebody eventulaly will find himself in an amenity bed for other than medical reasons and then the question will be: what are the reasons for that and how did he get there?

I am grateful to all those who have taken part in this debate, because it has been very valuable to have the views of the Committee on this matter. It is encouraging that the noble Lord, Lord Wells-Pestell, has said that he will draw this debate to the attention of his right honourable friend. I think all of us—certainly my colleagues and I—would be glad, if there is a circular on this matter or some Ministerial directive, if the Government would send us a copy so that we may know the final outcome of this amenity bed question. As I indicated in my opening remarks, once the pay beds are phased out, the demand for amenity beds will grow, and I think all sides of the Committee share the conviction that this is a valuable provision, not only for medical cases but also on social grounds, and it is one that ought to be met. This is not an Amendment I intend to press to a Division, but I hope it is one the Committee will feel was worth debating and spending some time on. We hope that the Government keep to the words of the noble Lord, Lord Wells-Pestell, and do bear in mind the needs of those who require privacy, for whatever reason. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.2 p.m.

Baroness YOUNG moved Amendment No. 48: Page 6, line 13, leave out paragraph (c).

The noble Baroness said: I put down Amendment No. 48 because I wanted to ask the Government what this clause of the Bill really means. It is perfectly clear that paragraphs (a), (b), (c) and (d) of Clause 4(8) are in fact the four principles which the Goodman proposals laid down in paragraph (3)(d). Those proposals were: In determining the phasing out of pay beds and facilities from the National Health Service, the hoard shall be guided by the following criteria— and then it went on to list the criteria. Those are translated into paragraphs (a), (b), (c) and (d) of Clause 4(8). Turning to paragraph (c), we find that what the noble Lord, Lord Goodman, wrote into his proposals is lifted almost entirely intact and without alteration into the Bill.

Reading it, one finds that the grammar is rather curious, to say the least. The subsection begins: The principles referred to above are—"… (c) that the continued authorisation of any such accommodation or services under those provisions for use in that connection should depend on there having been or being taken all reasonable steps to provide, otherwise than at NHS hospitals, sufficient reasonable accommodation … and so on. That is, of course, in the impersonal passive tense, which seems a curious way of writing something into a Bill, and I should like to ask the noble Lord what it means. For example, who is expected to take steps, what steps should they be expected to take, and who is expected to do anything about it? Are steps supposed to be taken by the patients, the doctors, the dentists, BUPA, those developing private hospitals? It really seems very strange and I am afraid I do not understand what the words mean.

It goes on in paragraph (d) to talk about people who are being affected. I should like to ask to whom "due warning" is likely to be given. Who is likely to be warning them and what will they be warning them about? Are they warning them about building private hospitals, or not building private hospitals? Are they perhaps warning BUPA that they should build more private hospitals? Once again, the language is extraordinary, and as this Bill is no doubt intended to be read and, I assume, understood not only by doctors and members of the medical profession but also by those of us who struggle terribly hard to find out what it means, I think it would be helpful if we had it put into English which would be intelligible to those of us who try to take, at any rate, a layman's interest in these problems. I beg to move.

Lord WELLS-PESTELL

Perhaps with your Lordships' permission I can deal with Amendments Nos. 48 and 49 together. As the noble Baroness said, they seem to go together. It is important to establish why these two paragraphs were in the December proposals and are now in the Bill. In a part of the country where there is a reasonable demand for accommodation and facilities for private practice but not sufficient private sector hospitals to meet that demand, the Board would not be able to propose the removal of pay beds by reference to paragraphs (a) and (b). In other words, pay beds would stay in the National Health Service hospital in spite of there being scope for private sector facilities to be provided. It is the Government's aim to give the private sector a reasonable opportunity to provide its own facilities in such a case and for the pay beds to go. It is not the Government's intention to allow the pay beds to continue because the private sector is not willing to take the necessary steps. Therefore paragraph (c) says in effect that any continuation of pay beds should depend on there being taken all reasonable steps by the private sector to provide beds to meet reasonable demand.

The Board does not have to be satisfied that the volume of private sector places being provided is sufficient to meet an enormous and hypothetical demand, but only "a reasonable demand". If steps are not being taken in a reasonable way to meet that demand by providing for it outside the National Health Service, then under paragraph (d) the Board would by justified, after due warning, in phasing out the pay beds. The responsibility, as I understand it, is on the part of the doctors and the consultants and all others who are involved in this matter to take these steps. When the noble Baroness asks me who was responsible for this, the answer is that it is the doctors, the consultants and the others involved.

Lord O'HAGAN

Who gives the warning?

Lord WELLS-PESTELL

In this particular case it would be the Board, because the Board will be undertaking the responsibility.

Lord HILL of LUTON

I am really puzzled about this. Does it mean that in an area where there are no other private facilities, because of the character of the area and the difficulty of getting the necessary buildings, or the poverty of the area, if for good practical reasons it is difficult or impossible to establish private facilities, and the Board so thinks, then the private facilities at the hospital can be destroyed without there being any others in the area? Is this not really going too far in this matter? Is it consistent with the desire to provide private practice? I can think of areas where, for reasons that would be generally accepted, it is exceedingly difficult to establish private facilities. In such areas, through no fault of their own, there would be a denial of existing facilities in the National Health hospital; there would be a withdrawal of service because it was impossible to establish private facilities. Am I right? Does it mean that? If so, is it not intolerably unfair to a certain kind of area which has difficulty in establishing the alternative facilities?

Lord WELLS-PESTELL

I think it would he unfair if the Board were to decide to take this step without giving the private sector an opportunity of providing the facilities. The noble Lord himself uses the word "difficult". It would be their task to overcome the difficulty. It is not the function of this Bill to continue pay beds indefinitely. It is not the function of this Bill to see that there should always remain a certain number of pay beds, but only as long as it may be necessary for the private sector to make other arrangements. No time limit has been set on it, but I think it must be made perfectly clear to the private sector that if they are simply not prepared to do something—in certain areas they might not be prepared to do something—and continue in that way, they may lose the facilities. We recognise that in some areas—I could mention them and the noble Lord could mention many more—there will he difficulties. There may be difficulties of distance and travel, but let me be quite frank about it, those difficulties will have to be overcome.

Baroness ELLIOT of HARWOOD

If you are putting the responsibility on the private sector to build a hospital or a nursing home, it was not the doctors and the surgeons who built nursing homes or private hospitals in the old days. That was done by private enterprise. Until the 1946 Act there was not the same co-operation—if one may put it like that—between the private sector and the National Health sector. It was after 1946 that there was this excellent combination which was worked out by Mr. Bevan. It so happens that at that time my husband was on the Conservative side which produced the National Health Service as we know it. Are the Government going to say that we shall have to go back to what happened in 1920 to 1930, or something of that kind, where we had to get people to raise great quantities of money to build nursing homes and hospitals which were then not required when the National Health Service started?

You are really putting the clock back to something which, admittedly, at the time was thought to be good, but, when it started, the National Health Service was much better. It seems to me, if you take areas—which, as the noble Lord, Lord Hill, was saying, we all know—even very widely spread rural areas, where it is difficult to raise money and start projects, you are simply condemning people to having no choice of any kind at all. It looks to me as if you are really putting the clock back to something which happened before the introduction of the National Health Service. The National Health Service did a very good job in improving the whole health service of the country. It is very sad if the responsibility has to go to people who cannot put up these buildings because they do not have the facilities or the money.

9.14 p.m.

Baroness WARD of NORTH TYNESIDE

May I ask one question, because this is very important? If in one of these deprived areas—and there are many of which I know in my part of the country—a hospital is built by private money and private people, and is established as appears to be necessary, will the Government give an undertaking that that will not then be taken over by the National Health Service? I ask that question, because earlier in this House I raised the matter of the Sanderson home for crippled children in the area in which I live, which was built and endowed by private money. Fairly recently the people living in my area gave a great deal of money to provide a swimming pool for the crippled children, but that did not prevent the National Health Service from taking the whole lot, endowment and all.

Can we have an assurance that if people provide a hospital in a deprived area—and I am glad to say that there are people who are only too willing to provide such hospitals, if they have the money—and do what the noble Lord has said, it will never then be taken over and put into the National Health Service? I understand the difficulty about the shortage of money, but if the National Health Service cannot provide proper accommodation in deprived areas and other people can, will the hospital remain the property of the people who have given the money and arranged for it to be built, or will the National Health Service at some time say, "We want that in the National Health Service"? It may improve the National Health Service, and I know that there are arguments for it, but we ought to know what will be the result if private people provide the necessary hospital accommodation in deprived areas.

Lord WELLS-PESTELL

I do not think I can add a great deal to what I said when I tried to answer the noble Lord, Lord Hill. I am not being facetious when I say this, because I have said it many times, but the purpose of this Bill is to separate private practice from the National Health Service. There will eventually be a responsibility on the private sector to provide the beds that are needed. Meanwhile, there will be certain facilities within National Health Service hospitals available for private patients who, if they need specialised treatment, can have it provided in them if there are no similar facilities available in the private sector. Eventually all pay beds have to go, but no time limit will be fixed. If there is a tendency for some of the pay beds to stay on, then the Board and the Secretary of State will want to know why they still exist. We know that the private sector has a great many development plans and is building hospitals, certainly in London, but at this stage we are not concerned with that; we are concerned with what will be the situation in some of the remote parts of the country. The onus will be on the private sector to establish the facilities, if it feels there is a sufficient demand for private medicine in an area.

Lord HILL of LUTON

Will the noble Lord forgive me for interrupting again? What worries me is this. In many cases private beds, usually a small number, are the most valuable, because of the inability of the area to provide a nursing home or other private accommodation for one reason or another. A few private beds in the kind of area I have in mind are immensely valuable, because of the impossibility, for one reason or another, of creating private nursing homes and the like. If the situation which made the development of private accommodation unlikely or impossible in the past still persists, does it mean that, because of a decision that no reasonable efforts have been made—a very vague phrase—those private beds can be closed down? That would be a deprivation in an area, denying people who need more than most that private provision. I think this point should be looked at again for two reasons; first, for the reason that I have put forward, and secondly because if you are putting a responsibility on someone through a clause such as this, at least you should name on whom the responsibility is placed, instead of using a vague phrase.

Baroness ROBSON of KIDDINGTON

May I add another question? It has been stated—and I do not think anyone doubts it—that two-thirds of the hospitals have only five private beds in each. We can all visualise many areas of Britain where the private section of the medical profession would not attempt to build a hospital of five or ten beds. It would mean therefore that in time that part of Britain would be completely without any private accommodation for the people living there. The noble Lord, Lord Wells-Pestell, used one word which gave me some hope. I should like him to qualify it. He said there is no time limit. If I interpreted that correctly, does it mean that those five beds in those hospitals could go on for ever?

Lord WELLS-PESTELL

I would hope I said that there is no time limit fixed at present, and not that there is no time limit, because obviously, eventually, there must be one. What we need to bear in mind is that there are many people wanting the services of private medicine and private hospitals and pay beds who at present travel a considerable distance, some coming from the North of England to London. This is not unusual. We must not think that a person who wants a pay bed, or who wants a private physician or a private consultant, is prepared to go only x number of miles. They go a good many miles. Let us face the fact that in an area where there are few pay beds at present, if the private sector cannot eventually provide—and, as I say, no time limit is fixed at the moment, although would personally expect and hope that someone would fix a time limit—private facilities, then they would have to be prepared to travel to a vicinity where those facilities are available.

Lord PLATT

There were one or two rather remarkable statements in that last speech. One is that there is no time limit fixed at present, but there must be one fixed some day. Why? Because a minority of people in this country want this Bill, I suppose. What other reason is there for fixing a time limit of any kind? The noble Lord now raises the question of time-wasting travel. This is just the effect that the Bill will produce. Consultants in London, instead of doing all their work at Guy's Hospital or U.C.H., will have to travel backwards and forwards through the London traffic to see their private patients in some nursing home in a nice area of London. It does not make sense.

Lord WELLS-PESTELL

They do not have to travel at all. They can leave private practice and come into the National Health Service whole-time.

Lord PLATT

That is an absolute contradiction to what you said on the first Committee stage. You said there was no objection to private practice, that the Government had no objection to it, and all you wanted was that people should pay for it. I pointed out that they paid for it already. That is in absolute contradiction of—

Lord WELLS-PESTELL

There is nothing inconsistent in what I said. I said that the Government did not want to get rid of private practice, and that the people who want to be involved in private practice can do so. If they find it so inconvenient, as the noble Lord, Lord Platt, says, my reply is that they could consider coming whole-time into the National Health Service.

Baroness HYLTON-FOSTER

Speaking as an ex-nurse, I am very concerned about the attitude of the patient who, so far as I can gather, does not seem to have been considered very much. It is sometimes a patient's choice that he has his own GP, who may or may not be a member of the National Health Service. In a rural area it is not very easy for a very ordinary, humble person living in a little cottage to travel many miles for special treatment—not necessarily to be in a private ward but merely to be looked after by the GP or consultant of his choice. That we may have Arabs travelling from all over the world to this country to come into our pay beds is a very different matter, but they are not the only people who want a little special attention. Patients sometimes have more confidence in their own doctor who may or may not be a member of the National Health Service.

9.26 p.m.

Baroness YOUNG

I am grateful for the support that this Amendment has received from all parts of the House. There are two points about it. The first is the way that the particular paragraph is drafted. I do not blame in any way the noble Lord, Lord Wells-Pestell, or the noble Baroness, Lady Stedman, who have been given an impossible task in having to defend the drafting of this paragraph. Whatever else the noble Lord, Lord Wells-Pestell, discusses tomorrow with his right honourable friends, I think that he should get them to look at this paragraph.

I was grateful for the noble Lord's explanation of it because what he said is not what the Bill says. As the noble Lord, Lord Hill of Luton, quite rightly remarked, the Bill does not say who is supposed to have taken the reasonable steps. That is the danger of it. We now discover, if I have understood the noble Lord, Lord Wells-Pestell, correctly, that the Board is going to say either to the doctors or to BUPA, "We are going to take away the private facilities in hospitals and we trust that you will produce private facilities somewhere else." If that is the intention of the Government, it ought to be written into the Statute. This kind of language will not do. May I ask the noble Lord to look again at … on there having been or being taken all reasonable steps to provide, otherwise than at NHS hospitals …". It does not say who is to take the steps, who is to provide them and who is to decide whether or not they are reasonable. Apart from anything else, it needs redrafting, and for that reason alone I think that the paragraph ought to be removed from the Bill.

There is a much more serious point. Since the noble Lord has identified what it means, which it is exceedingly difficult to do by reading the Bill, we discover that it is a threat ultimately that pay beds will be withdrawn from hospitals when there are no private facilities. No amount of talking and double-talking about it and saying that it is not the intention of the Government to phase out private medicine, something which I accept, will alter the fact that pay beds will be phased out if there are no alternative private facilities. If the obligation is to be put upon BUPA, or private enterprise, or the doctors, or somebody else it must be stated in the Statute.

As I say, I do not in any way criticise the noble Lord, Lord Wells-Pestell. I am sure that he did not draft the Bill and I am also sure that he has been left to defend an unintelligible statement in the Bill, one which I would say to him is unworkable. The only people who will profit from it will be the lawyers who I think w ill have a field day—and good for them! They will certainly earn plenty of private fees from it. However, the serious point is that the statement ought to be understood.

Therefore I must press the Amendment because I think that it is badly drafted and because, now that we begin to understand what it is, it does not do what the Bill says. Before I do so, I should like to say that exactly the same criticisms apply to paragraph (d). Nowhere does it say that failure in the circumstances mentioned in paragraph (c)—to take all reasonable steps that could be taken to provide, as mentioned in that paragraph—would itself be grounds for the Board to revoke authorisations, after giving due warning to the persons likely to be affected thereby. Nowhere does it say whose failure; nowhere does it explain who is to give the due warning, nor indeed who the persons are. Again it is a completely unintelligible paragraph which the noble Lord is left to defend, and I am extremely sorry for him. In fairness to the Committee I think that both paragraphs ought to be deleted.

9.30 p.m.

On Question, Whether the said Amendment (No. 48) shall be agreed to?

Their Lordships divided: Contents. 75: Not-Contents, 42.

CONTENTS
Abinger, L.	Greenway, L.	Onslow, E.
Alport, L.	Gridley, L.	Orr-Ewing, L.
Ampthill, L.	Hacking, L.	Platt, L.
Auckland, L.	Hanworth, V.	Rankeillour, L.
Balerno, L.	Harvington, L.	Reay, L.
Barrington, V.	Hill of Luton, L.	Robson of Kiddington, B.
Belstead, L.	Hornsby-Smith, B.	Rochdale, V.
Berkeley, B.	Hunt, L.	Rochester, L.
Blakenham, V.	Hunt of Fawley, L.	Ruthven of Freeland. LY.
Boyd of Merton, V.	Hylton-Foster, B.	St. Aldwyn, E. [Teller.]
Chelwood, L.	Inglewood, L.	St. Just, L.
Clifford of Chudleigh, L.	Kemsley, V.	Sandys, L.
Clitheroe, L.	Long, V.	Savile, L.
Colwyn, L.	Lucas of Chilworth, L.	Selkirk, E.
Cork and Orrery, E.	Macleod of Borve, B.	Sempill, Ly.
Denham, L. [Teller.]	Margadale, L.	Southwell, Bp.
Devonshire, D.	Melville, V.	Strathclyde, L.
Drumalbyn, L.	Monk Bretton, L.	Swansea, L.
Elliot of Harwood, B.	Monson, L.	Strathcona and Mount Royal, L.
Elton, L.	Morris, L.	Tranmire, L.
Exeter, M.	Mottistone, L.	Vickers, B.
Faithfull, B.	Newall, L.	Ward of North Tyneside, B.
Falmouth, V.	Northchurch, R.	Westbury, L.
Foot, L.	Northesk, F.	Winstanley, L.
Gray, L.	O'Hagan, L.	Young, B.

NOT-CONTENTS
Allen of Fallowfield, L.	Hale, L.	Peart, L. (L. Privy Seal.)
Ardwick, L.	Houghton of Sowerby, L.	Phillips, B.
Arwyn, L.	Jacques, L. [Teller.]	Raglan, L.
Birk, B.	Janner, L.	Ritchie-Calder, L.
Blyton, L.	Kirkhill, L.	Snow, L.
Brockway, L.	Lee of Newton, L.	Stedman, B.
Champion, L.	McCarthy, L.	Strabolgi, L.
Collison, L.	McCluskey, L.	Taylor of Mansfield, L.
Davies of Leek, L.	Maelor, L.	Walston, L.
Davies of Penrhys, L.	Morris of Kenwood, L.	Wells-Pestell, L.
Fisher of Camden, L.	Murray of Gravesend, L.	Willis, L.
Fisher of Rednal, B.	Noel-Buxton, L.	Wilson of Radcliffe, L.
Gregson, L.	Oram, L.	Winterbottom, L. [Teller.]

Resolved in the affirmative, and Amendment agreed to accordingly.

9.39 p.m.

Baroness YOUNG moved Amendment No. 49: Page 6, line 22, leave out paragraph (d.)

The noble Baroness said: I have already spoken to this Amendment which we took with the preceding Amendment No. 48. If the Committee would like me to do so, I am quite prepared to speak further to this Amendment. However, as I have already indicated, this Amendment is one I would press. I do not wish to withdraw it, but I take it that the Committee do not wish to divide again on it. I beg to move.

On Question, Amendment agreed to.

Baroness YOUNG moved Amendment No. 50:

Page 6, line 30, at end insert— ("() that the authorisation of any such accommodation or services under those provisions for use in that connection should be revoked only if in the opinion of the Board those attempting to provide alternative accommodation or servirce have met with no unreasonable obstruction from any planning authority or other organisation;").

The noble Baroness said: Amendment No. 50 is on a different point because it concerns planning permissions for the alternative facilities. The purpose of adding this further principle to which the Board should have regard is, I hope, clear from its wording. It is much to he regretted that in the recent past there have been examples of local planning authorities which have produced specious and sometimes unconvincing reasons for refusing or postponing the granting of planning permissions for developments in the private sector of medicine.

I do not think that I need remind the Committee of some of the statements that have been made, at any rate by NALGO, on this subject, even if, as I understand, NALGO has changed its mind about this. I hope very much that that is so. However, the fact is that it ought not to be possible for planning authorities to refuse planning permission on any other than planning grounds. It is, of course, perfectly reasonable that a planning authority should refuse planning permission because there are obvious planning objections to the case. However, the objections must be valid objections on planning grounds and not objections as a matter of principle to private medicine. I hope very much that the Government will give their full support to this principle because they continually tell us that they want to ensure that private medicine survives in this country. Its survival under this Bill entirely depends on alternative facilities being provided.

I hope that, following upon the view taken by the noble Lord, Lord Goodman, when all reasonable steps are taken the independent Board will take note if there is any obstruction by any local authority on other than planning grounds to the provision of these alternative facilities. It is probably unnecessary for me to remind the noble Baroness. Lady Stedman, of the now rather celebrated case in Southwark where precisely this happened. There it was the intention to provide private facilities and permission was refused by the planning authority on grounds other than planning grounds. As a consequence, the private hospital could not be built. That is a very serious matter. One of the important features of legislation is that all contingencies should be provided for. We cannot assume that all planning authorities will always act reasonably. This would be a longstop to make quite sure that they were not exceeding their powers for any reason at all. I hope that this Amendment will be given sympathetic consideration by the Government because I believe it to be an Amendment of considerable public importance and very necessary for the proper working of the Bill.

Lord O'HAGAN

In one sentence, I should like to support my noble friend in pressing this Amendment on the Government and suggesting that they should consider it very seriously. My reason for this is a remark made by the noble Lord, Lord Wells-Pestell, when answering the debate on Amendment No. 48. The noble Lord said—and I hope that I wrote the words down correctly: There will be a responsibility on the private sector to provide what it needs. If the private sector is to provide what it needs, it must be given planning permission to do so in all reasonable circumstances. This Amendment ensures that the private sector will be able to provide what it should, and I therefore hope that the Government will accept it.

Baroness FAITHFULL

I wonder whether I might ask for clarification, in order that I can understand the whole question of application for planning consent. This Amendment, as I understand it, is to some extent tied to Amendment No. 109 and also to Clause 13 on page 16 of the Bill. If a planning committee accepts an application, as I understand it, the Board has already agreed that the application may be made. That being the case, suppose the planning committee then turned down the application for a planning reason, which is, unlike the Southwark case, an oblique reason, it is not the real reason. I think it was said by T. S. Eliot: It is the greatest treason to do the right thing for the wrong reason". I have had representations made to me from another part of the country where a planning application for a nursing home or hospital in the private sector was turned down on the ground of the building line. In fact, it is very difficult to understand this because the nursing home is opposite a building which is four times the size that the new building would have been.

Taking it one stage further, there is an appeal against the planning order, which I imagine would go to the Department of the Environment. Then the Department of the Environment is brought in, so that (a) it is not really to do with planning, it is to do with political belief, and (b) the patient is not then being considered, nor, as Lord O'Hagan said, is the need of the private sector. I should like clarification on this, because it is tied up with so many other parts of the Bill at a later stage. May I say that this does not apply to one belief or another belief; it could apply either way. A reason could be given because people do not want the private sector built up, but equally, with another council of a different colour it could be that they did want the private sector built up. It seems to me there is slight confusion here, and I should be very grateful for clarification.

Baroness STEDMAN

The effect of this Amendment would be to add a fifth principle to those to which the Board has to have regard in formulating proposals for the progressive revocation of authorisations. This proposed additional principle would require the Board to form a view as to whether the local planning authorities were exercising their planning powers reasonably, and, where they considered they were not doing so, to withhold their proposals for revoking the pay bed authorisations.

We think this Amendment is both inappropriate and unnecessary, because it would note appropriate to imply in legislation that a planning authority was misusing its statutory powers or otherwise behaving unreasonably. Any applicant for planning permission at the moment who can produce evidence to support a claim has a right of appeal to the Secretary of State for the Environment, and, where it seems clear that a local planning authority is acting ultra vires, even to the courts. It would be inappropriate, therefore, to require the Board to involve itself in matters which ultimately might be the concern of the courts. The Amendment is unnecessary, we believe, because the third principle in paragraph (c) of subsection (8) allows the continuation of an authorisation while all reasonable steps are being taken to provide alternative facilities. It does not require that such steps shall proceed smoothly or be successful within any given time.

However, any so-called obstruction of such steps which caused delay but not the abandonment of the attempted provision of the facilities would therefore tend to defer the withdrawal of the relevant pay bed authorisations. I must remind the House that planning authorities are solely concerned with planning and environmental considerations and not with whether there is a need for a private nursing home or hospital in their area. I know that there were problems with Southwark[...] and this subject was raised in another place. The Secretary of State in his reply reminded the House that it was not the purpose of the Bill to interfere with the statutory powers and rights of the local planning authorities.

Baroness YOUNG

It is relatively easy for the Government to say that it is not for the Board to interfere with the local planning authority, and, wearing my local government hat, I can see why they would make such a statement. On the other hand, one must consider this matter from the point of view of the applicant. As I understand the Bill, it is perfectly possible for BUPA or somebody to apply to build a private nursing home. First of all, it must get the Board's approval for this. Let us assume that it gets the Board's approval. Then it must get planning permission from the local authority. As the Bill stands, the local authority could turn the private nursing home down on the very grounds that the Board had approved it.

The noble Baroness says that the answer is, of course, to go to appeal. She will know as well as I that going to appeal is not something that one enters into lightly. To begin with, it will take a long time, possibly two years. When I was in the Department of the Environment the settling of planning appeals often took, I believe, very nearly two years. It was a very long procedure after the appeal itself had been heard, during all of which time money is tied up, interest is lost, the site is vacant and all sorts of problems arise. Moreover, the applicant must pay the costs, which can run into thousands of pounds on planning appeals. Therefore, not only has the wretched applicant to raise the money to provide the nursing home but he must raise the money to pay for the costs of an appeal—an appeal on grounds which could be regarded as unfair because, after all, the Board which is supposed to have decided these matters has decided them and it is the local authority which in that particular case is being obstructive.

I cannot believe that this can possibly be regarded as a just principle. In the course of our last Division I was "told off" by one of our lawyers for saying that this is the type of situation which provides more work for the lawyers, and they at least should he satisfied with it. I hesitate to repeat the argument again, but this is a very serious matter. I am bound to say that I find it most disappointing that the noble Baroness should have given the answer that she has given.

I fully appreciate that the Bill applies only to private nursing homes of over 100 beds in London and over 75 beds outside of London and that under those numbers it would be possible to provide the nursing home without going to the Board. Nevertheless planning permission will enter into the situation yet again. Although it will not be necessary to go to the Board, it will always he necessary to get planning permission if the building is to be put up at all. Therefore, there are two types of cases where the applicant could get into difficulties. I am bound to say once again that this is a matter which we, on this side of the House, feel most strongly about. It could, I think, lead to great injustice, and on reflection I do not feel able to withdraw this Amendment.

Lord WINSTANLEY

Before the noble Baroness sits down and the noble Baroness opposite replies, I should like to be enlightened on one matter, and perhaps the sponsors of the Amendment could assist me. I take the noble Baroness's point about possible obstruction from the planning authorities. It seems to me that anyone who has ever been in contact with any planning authority has invariably met with unreasonable obstruction. One does not want to be facetious at this hour of the night, but it seems to me that this is what planning authorities are for—to present unreasonable obstructions until such time as citizens manage to overcome them. The Amendment goes on to say "or other organisation". Will the sponsors of the Amendment tell me which particular organisation they have in mind: is it NUPE, CHASE, NALGO, one of the building trades organisations or what? Before I decide my attitude to this Amendment, I should like to know a bit more about what the sponsors of the Amendment have in mind.

Baroness YOUNG

The short answer to the noble Lord's question is that recent experience has shown that NALGO in fact instructed some of their officials not to give planning permission for private hospitals, and this might be a case in point. There could be others. It is perfectly possible to see that perhaps people, for some extraordinary reason, objected on principle to private medical facilities; people in an organisation quite different from any we have named. Therefore that is put in. The more important part of the Amendment is the reaction of the planning authority to this kind of representation.

Baroness STEDMAN

I am sure that the noble Baroness will let me wave my other hat at the Department of the Environment, and would not expect me to depart from the statement that it is not for this Bill to interfere with the statutory powers and rights of the planning authorities. I hope that the Committee will reject this Amendment.

9.57 p.m.

The DEPUTY CHAIRMAN of COMMITTEES (The Earl of Cork and Orrery)

The Question is that Amendment No. 50 be agreed to. As many as are of that opinion say "Content". To the contrary "Not-Content". I think the "Contents" have it. Clear the Bar.

Tellers for the Not-Contents "have not been appointed pursuant to Standing Order No. 50. A Division therefore cannot take place, and in accordance with Standing Order No. 50 I declare the Motion agreed to.

10 p.m.

Lord SANDYS moved Amendment No. 51:

Page 6, line 30, at end insert— ("() that the authorisation of any such accommodation or services under those provisions for use in that connection should not be revoked if the revocation would result in a substantial reduction in the freedom of resident or non-resident hospital patients to engage the services of medical or dental practitioners of the sex, race, colour, language, religion or national or social origin of their choice.").

The noble Lord said: We are still on Clause 4(8), and it may come as a surprise to some noble Lords to learn that the Department has been good enough to furnish notes on clauses. I read mine with appreciation and interest until I came to the notes on the provision with which we are dealing, where it contained the following remarks: Subsection (8) requires the Secretary of State to furnish the Board with information reasonably required in carrying out its functions under this clause. This duty will extend to health authorities carrying out the Secretary of State's functions". There is a sort of blandness about that passage which I think your Lordships will appreciate, in that it in no way reflects the difficulty we have had in the last two and a half to three hours in examining this important subsection, which of course relates to the principles referred to earlier in the clause.

I return again to the question of drafting, because it is absolutely fundamental to Clause 4 especially and to the Bill In, general. I draw the attention of the Committee to a document which I regard, and which I hope the Government will regard, as a rade mecum, and that is Cmnd. 6053 entitled The Preparation of Legislation. Chapter 11 on drafting techniques starts with an important and fundamental principle concerning simplicity of style and three quotations are worth making. In this connection, the noble and learned Lord, Lord Simon of Glaisdale, … formulated the idea on the following terms: Desirably, the language of legislation should be as near to ordinary speech as precision permits but he recognised that … most ordinary terminology contains ambiguity". Another formulation by Mr. Arthur Percival, QC, MP, who is well known to your Lordships, is that … wherever possible, what is intended should be set out in the simplest terms in the language nearest to that which would be used by those affected by it". The third comes from the Statute Law Society which suggests: Clarity of expression, of grammar and construction, should be a primary consideration". I recommend Cmnd. 6053 very highly as compulsory reading for the Parliamentary draftsmen's department because, however expert they may be, that chapter is well worth having a look at if we are to be presented with legislation of this complication and which has been so much the concern of your Lordships for the whole period we have been debating the Bill up to now.

I come to the Amendment. Here we are dealing with the question of revocation where it … would result in a substantial reduction in the freedom of resident or non-resident hospital patients to engage the services of medical or dental practitioners of the sex, race, colour, language, religion or national or social origin of their choice … to quote the words of the Amendment. Once again I believe that this is a fundamental principle that ought to be written into the Bill but, for reasons best known to the Government, they have seen fit not to do so. We have had the Sex Discrimination Act, the Race Relations Act 1968—the well-known Act concerning racial discrimination—and we have the Race Relations Bill which is currently before your Lordships' House. In regard to these particular areas where discrimination can arise great delicacy is needed. After all, in regard to personal and private affairs, what affair is more personal and private than that which touches upon a person's health.

I feel that one can look at it from the point of view of the white majority patient, or from the point of view of the black minority patient. That is the way in which I prefer to look at it in the present context because I believe that it can be argued equally on either side. Let us take the situation of a Pakistani patient living in Nottingham where, I understand, there are quite a large number of Pakistanis who could conceivably be patients. Is it not fair and reasonable that a sick Pakistani should, if he or she so wishes, seek out a practitioner of the sex, race, colour, language, religion or other social or national origin of his or her choice? I should have thought that this was a fundamental principle and one to which the United Kingdom has given its name and signature, for the European Convention on Human Rights and the International Convention on Civil and Political Rights of 1966 have recently been ratified by the Government of the United Kingdom. This took place in March 1976, I understand. It may perhaps be worthy of note that the USSR is also a signatory. I believe that if we took these problems in their order we could consider them in detail. I do not know whether the Committee would wish to do that but perhaps other noble Lords, better versed than I, will be able to touch on aspects of sex and race. I should like to deal with a matter of language because I feel it to be fundamental in matters of communication.

Let us imagine that the particular patient concerned is one who speaks the Gujarati dialect. That is a very special dialect of the Indian language. It is used by a substantial number of people in India but by comparatively few in the United Kingdom other than those in the immigrant community. I believe that it should be a matter of fundamental choice for the potential patient to be able to seek out a practitioner who speaks his own language in order to be able to communicate with him, be he doctor, dentist, or practitioner in some other field of medicine.

Let us also consider the question as it touches upon the Race Relations Act at present. The Race Relations Act 1968 gave rise to a number of particularly celebrated cases when it passed into law. One of the first, and one which came in for a great deal of public attention, arose over an advertisement where the advertiser was particularly anxious to acquire the services of a Scottish cook who was going to be able to cook some porridge. This was the subject of a prosecution under the Act because it was felt that the advertisement showed racial prejudice. It seems absurd that this should take place. Nevertheless, with the Act as it stands, this is the sort of possibility that can arise. That case is, of course, part and parcel of case law. But let us consider the situation as it I would be if a person of the black minority community was anxious to place an advertisement in a newspaper to acquire services. This would, equally, be under similar threat, and therefore it is very necessary, so far as the arrangements in the Bill are concerned, to state very clearly and categorically what should be the options open to those of all races, languages, sexes, religions and other national characteristics—

Lord BROWN

May I interrupt the noble Lord in order to assist him in his endeavours to extend his speech? I should like to remind him that he mentioned Gujarati, but he has not introduced the Cornish or the Gaelic minority languages.

Lord SANDYS

I must apologise to the noble Lord, Lord Brown, because indeed those are very important languages as practised in the United Kingdom. But one must stress here that this Amendment is of a perfectly serious nature, as indeed I believe his intervention was also intended.

The Lord Bishop of NORWICH

If noble Lords do not feel that it is rather a change of atmosphere for one of the Bishops to intervene in this debate, I should like to say that one tries to look at all these issues with a benign impartiality which is suitable to the Bishops' Bench. This particular matter is one on which I should like, with the good will of your Lordships, to say something. It touches on quite a wide area of national wellbeing. I suppose that the right reverend Prelate beside me should be speaking because he has Pakistani Gujarati speaking people in his diocese, but I will speak on his behalf as well. I ought to declare an interest here, in that I am the husband of a Guy's trained sister, and I am the father of an eight weeks' old new Guy's nurse—I mean that she has been training for eight weeks. So naturally this Bill is one which is often discussed in our home and there I am the listener because I am the non-professional.

Having said that, it seems to me that it would be very good if the Amendment were put into the Bill, and I hope very much that the Government will see the wisdom of inserting it because of the quality of the opportunities we offer to the nation both under the National Health Service and in the private sector. The Amendment would help humanise our whole approach to medicine. It would show straight away concern for minorities, and I gather that this is something which increasingly we are feeling in the country we have a right and proper duty towards.

Secondly, it seems to me that the Amendment would show our concern for race and racial minorities. I am thinking here of the Moslem world. As we know, in the educational field they find it difficult for boys and girls of Moslem persuasion to go to mixed schools, and again in the medical world they prefer to go to doctors of the same sex. So far as I know, there are only two, but none the less one or the other is provided. Thirdly, on a more serious level of religion, I believe that the Roman Catholics in particular would feel that this Amendment would be a help and an ease to them in some of the medico-religious problems that they face today; and indeed that is true for members of the Church of England as well. Therefore, on the general grounds of liberty, compassion, good care and relationships between staff and patients, I hope that the Government, in their wisdom, will not wish to divide the Committee on this Amendment hut, with good sense, will accept it.

10.20 p.m.

Lord WINSTANLEY

I have gone a considerable distance in the course of our discussions on this Bill in agreeing with noble Baronesses and noble Lords on the next Bench, but I am sorry to have to tell them that I cannot travel along this particular route. I am sorry, too, to have to disagree with the right reverend Prelate on this matter. It seems to me that this new subsection, if it does anything, puts our race relations policies almost into reverse. We have anti-discrimination policies of a number of kinds. The Sex Discrimination Act makes it unlawful to treat less favourably anybody on grounds of sex. The race discrimination laws make it unlawful to discriminate on grounds of colour, race, ethnic origin and so on. Here we seem to be putting into the Bill something which appears actively to encourage people to do this, to encourage people to discriminate in their choice of a doctor.

I really think that we should be travelling down a dangerous path if, by putting words into a Bill, we did anything to encourage people to believe that it was right or sensible that all Pakistanis should choose Pakistani doctors, that all Catholics should choose Catholic doctors, and so on. Indeed, I am delighted to be able to tell your Lordships that what goes on in practice is rather different. Catholic patients tend to choose Jewish doctors, particularly when they go in for family planning advice, and so on. One finds that there is a great deal of cross-fertilisation in this field—and I welcome it. I should not like to think that we all went here, that we all went there and that we all went to the other place. I do not see the point of this. It seems to me to go in a direction opposite to the direction in which society is now travelling.

Of course I recognise that one must see to it that there is a maximum range of choice of doctors for patients. One hopes there is always that range of choice. I should like to see a lot of women doctors and a lot of men doctors. I should like to see a lot of different kinds of doctors, so that different patients have different choices; and I should like to see them exercising those choices. But to put into a Statute language which appears to say that it is necessary for Pakistanis to have Pakistani doctors, for Nigerians to have Nigerian doctors, and so on, seems to me to be undesirable, to say the least.

Lord SANDYS

I think the noble Lord, Lord Winstanley, who we all know has his heart in the right place in this regard, has taken the drafting of this Amendment in a sense different from that which was intended. It is intended that it should be the doctor or medical practitioner of their choice. This does not indicate that it should be the doctor or dentist of their race or their religion; it is of their choice.

Lord WINSTANLEY

But they should choose a doctor, surely, on medical and doctoring grounds, and not on grounds of race, colour or ethnic origin. This is my point.

Lord HARVINGTON

I wish to apologise for the absence of the noble Duke, the Duke of Norfolk, who unfortunately cannot be here this evening as he has to be in attendance at a function which concerns his capacity as Earl Marshal of England, and he felt that on this occasion he had to give that priority. He has therefore asked me if I would speak for him—and, indeed, I had hoped in any case to speak for myself—but in speaking for him I am of course speaking with the authority of the Catholic Association, which is the mouthpiece of the Catholic denomination throughout Great Britain. I am asked by His Grace to say to your Lordships that the Catholic community hopes most sincerely that the Government will accept this Amendment.

Earl ST. ALDWYN

I wonder whether I might interrupt the noble Lord. In your Lordships' House and Committee every noble Lord speaks for himself and for himself only. He cannot speak on behalf of any other body or collection of people.

Lord HARVINGTON

I am obliged to the noble Earl. I must apologise for any indiscretion that I have made. Both the noble Duke and I are newcomers to your Lordships' House and I therefore ask for the forgiveness of the Committee for saying anything which I ought not to have said. Of course, I am speaking for myself and I am a member of the Committee of the Catholic Union which deals with all matters which are brought before either House of Parliament which might have a bearing on Catholic belief or dogma or anything of that kind.

In doing so, I should like to think that I am almost certainly speaking for our Anglican brethren and, as my noble friend Lord Sandys has said, for other denominations and peoples, too, right down to the simple case of the woman who wants a woman doctor to look after her. We feel that unless this Amendment is accepted by the Government there will be in the long run the very greatest difficulty of establishing the certainty of a Catholic woman wanting a gynaecologist or obstetrician of her own faith being able to obtain one. That, I think, is something we should regret and which might lead to very great religious feeling in this country.

Something which both Houses of Parliament, throughout modern history, have been very careful to avoid is a confrontation of a really serious character with religious denominations. I refer to the Education Acts where the situation of the denominational schools has always been respected by the Government of the day, and I believe that this is akin to that. I feel that this particular Amendment which seeks to provide a choice for (in this case) the woman in childbirth and so on ought to be accepted.

Man years ago when the National Health Service was being designed it so happened that Mr. Bevan was a patient in the Hospital of St. John and Jerusalem in St. John's Wood. In the next room was the Archbishop of Westminster who also was ill and being nursed back to good health. They got to know each other and became great friends. One has always believed that because of the understanding which developed between the Archbishop and the Minister the policy that was enshrined in the 1949 Act, indeed the policy which the majority of people in this country really wanted, was that there should be private practice alongside the National Health Service. It is that principle which has come to be thought of in the same way as denominational education. It is because of that principle that the members of my denomination are utterly opposed to the situation as it is and they hope sincerely that the Government will accept this Amendment which my noble friends have moved.

I do not think there is anything more I wish to say. I hope to speak again later when we come to consider Part III wearing another hat, as I shall be, for the disclaimed hospitals. I hope that we shall have for once a kind thought from the Minister and that, even if he cannot accept the Amendment now, he will have another look at this issue to see what can be done to meet our wishes. If he does not do so there is going to be in this country a tremendous outcry among many thousands of Her Majesty's loyal subjects.

10.25 p.m.

Lord PLATT

In this instance I find it difficult to understand this Amendment. I should like some clarification of it. Much has been said about Pakistanis and Catholics, but this is a Bill abolishing pay beds in National Health Service hospitals. Is it supposed that at the present moment there are people on the staff of these hospitals who happen to be Catholic gynaecologists or Pakistani neurosurgeons, or something of that kind? I do not see how any ill-effect is going to come of this Bill regarding race, sex or anything else. If every hospital was so staffed that it had a Catholic gynaecologist and a Pakistani neuro-surgeon, there would be a reason for this Amendment. The ordinary person has the choice of a general practitioner. General practitioners are not influenced by this Bill. We are discussing the question of hospital beds. A Pakistani patient can go to a Pakistani doctor if there is one in the district. Nothing in the Bill will prevent him from doing so. I do not understand the Amendment.

Baroness YOUNG

It may be helpful if I explain. To the noble Lord, Lord Winstanley, may I say I was surprised by his remarks which were, in a sense, not as liberal as I should have expected. Nobody is obliging anybody to go to any particular doctor. All we are saying is that if you are a Roman Catholic and there is a Roman Catholic consultant whom you would like to see, you should be able to do so. When the pay beds are phased out we do not want the situation to be worse than it is now. Assuming we are in a perfect world—and we realise that we are not—there are circumstances in which people are able to choose, and where this happens we are saying that the pay beds should not he phased out if it would make the choice worse.

I appreciate that not everybody has the same view I have about freedom of choice. There should be as much freedom of choice as possible. Innumerable Questions are put to the noble Lord, Lord Wells-Pestell, regarding the Elizabeth Garrett Anderson Hospital. Whatever may be the merits or otherwise of those, the point is that a lot of women like to be treated by women doctors. I wish that the noble Baroness, Lady Summerskill, were here tonight. She has been the staunchest supporter of this, for she has said that a lot of women like to he treated by women doctors. This may be peculiar of them, I do not know. If this has been a possibility where there have been private beds, I cannot see why, under this Bill, women should be denied this freedom of choice. I am at a loss to know why anybody would object to it. It is not giving them something they do not have at present.

The Amendment says: … if the revocation would result in a substantial reduction in the freedom of resident or non-resident hospital patients to engage the services of medical or dental practitioners … It is very important, because it is concerned not only with patients in hospital, but with out-patients as well. This is particularly important for the immigrant communities. If there is a consultant of their choice, who speaks their language, and they wish to see him, they should have the right to choose to do so. I should have thought that this was the sort of thing that would commend itself—if I may use what I hope is a generic term that applies to us all—to all good democrats.

Lord CLIFFORD of CHUDLEIGH

I should like to support the Amendment. If the Bill as drafted goes through, everyone gets fed into the sausage machine and devil take the hindmost. Surely this Amendment is designed to give sonic freedom of choice to the minorities, and, like the noble Lord, Lord Harvington, I am a minority. It is not only the case of Catholics and their particular desire—especially when it comes to women patients and gynaecological problems—for a Catholic doctor; it applies also to the other denominations and other religions. Take the case of people we have been talking about, the Gujaratis. If a Gujurati has to have a prostate operation, the first thing he will need will be a doctor who can explain the difficult implications for his family from the point of view of his beliefs. Surely the only thing this Amendment is trying to do is to give some right to the minority beliefs in this country. I think it should be supported and accepted by the Government.

Baroness VICKERS

I should like to refer to what the noble Baroness, Lady Young, and the noble Lord from the Liberal Benches, said. I think it is not being quite fair to minorities. I should like to refer to the question of hospitals for women. As your Lordships know, there are two hospitals for women. One, the Elizabeth Garrett Anderson Hospital, was mentioned by the noble Baroness, Lady Young. One ought to think why these hospitals were started. One was started in 1886, primarily because it was necessary to get women qualified as doctors. It also had a dual purpose, not only to give women the opportunity to train and to practise as doctors but to provide treatment for women in all branches of medicine by a medical staff of their own sex. I regret to say that after 90 years women are still being discriminated against, and women's services and special needs have been neglected. As has been mentioned by other speakers, many would like to have the choice of being treated by their own sex. In this respect at the present time large sections of the health services for women are second rate.

Lord PLATT

May I intervene to say that I have on at least three occasions spoken in favour of keeping the Elizabeth Garrett Anderson Hospital.

Baroness VICKERS

I should like to thank the noble Lord for what he has said; he is very courageous in everything he does. I think it is marvellous that he stays up night after night to support this Health Services Bill. Of course, perhaps staying up night after night discussing the health services is not the best way of improving our own health. This is Age Concern Year, and looking round the Chamber perhaps we might he a little concerned ourselves.

I am referring to this hospital particularly because it is threatened with immediate—and I mean immediate—closure. Psychiatry is another section in which women's needs are best met by women. Fifty per cent. more women are likely to need psychiatric care than men, and twice as many women have to have special drugs. Very often they find it difficult to explain their symptoms to a male therapist.

These two hospitals, the one in South London and the Elizabeth Garrett Anderson, are used by the Women's National Catholic Control Campaign for the excellent work they are doing. I am worried by the fact that it is anticipated that at the end of December the women will be evacuated—if I may put it that way—to the Whittington Hospital. I daresay that the noble Lord, Lord Wells-Pestell, knows that the maternity wing was evacuated by ambulance, as I understand it, arriving at the hospital without any notice to the staff concerned. I think it is very regrettable. They are naturally very worried about the future. I understand that the whole thing depends on a lift shaft, and that will cost between £30,000 and £100,000 to repair.

Lord WELLS-PESTELL

If the noble Baroness will allow me to interrupt her, I have dealt with the situation of the Elizabeth Garrett Anderson Hospital in your Lordships' House a number of times. With the greatest respect, I would say that it does not arise on this Amendment.

Baroness VICKERS

It is a question of sex. The two hospitals I have mentioned cater for one sex, and I thought this Amendment referred to the need to keep facilities for women if they wished to have them. However, perhaps I need not say anything more. The noble Lord will obviously remember what an important matter this is, and I hope that he will be able to reconsider the whole question with his right honourable friend, and to see that women are allowed to retain the hospitals to which they can go.

Baroness MACLEOD of BORVE

I should like to intervene very briefly, if the noble Lord will allow me to. He mentioned that people travel to hospitals. I should like to suggest that they would also like the opportunity of travelling specifically for a special surgeon, and also a medical practitioner, and sometimes also a dental practitioner. A number of your Lordships, I understand, have undergone hip operations. Up to now there have been very few surgeons in this country who were brilliant at performing hip operations—at one time there were only four, though there are more now. I should like to make certain, through this Amendment, that people will have freedom of choice not only as regards a hospital, but as regards a consultant and surgeon.

Another reason for supporting this Amendment is that, to my certain knowledge, we are now a multi-national society and a great many people of the first generation in our midst now are not English speaking. The question of speech has been brought up before. I think it is very important that people—and I have Greek-Cypriots particularly in mind, because they have practically no English—should be able to consult people who speak their language. The second generation seem to be able to speak better English, but certainly in my courts I have endless translaters and so I feel it is vitally important to be able to go not only to a hospital of one's choice, but also to a particular consultant. That is absolutely vital to the welfare and wellbeing of the patient. I therefore support the Amendment.

Lord HARVINGTON

I should like to add just a brief postcript. This Amendment applies to most religions but, as a Catholic Peer, I should like to say that we already have a somewhat limited freedom of choice in the National Health Service. Without this Amendment, the Bill will make the position a great deal worse, so I would implore people to vote "Content" if the Question goes to a Division.

Lord WELLS-PESTELL

In case the noble Lord, Lord Winstanley, thinks he has been damned by faint praise by the noble Lord, Lord Sandys, I think he has not only his heart in the right place, but his mind also. I hope the noble Lord, Lord Harvington, will forgive me for saying—perhaps it is an observation I ought not to make, but as a member of the Anglican Church, and not a High Anglican, I, like all other Anglicans, consider myself a member of the Holy Catholic Church, which means universal—that I think that those Members of your Lordships' House who are Roman Catholic ought to say they are Roman Catholics and not just "Catholics".

Having said that, no representations have been made to the Department by any religious organisations about the proposals in this Bill, and I want to ask your Lordships whether it was seriously being maintained that 2 per cent. of beds that are private are a significant factor in helping people to see a doctor, if they feel strongly about it, who understands their religious standpoint. For the great majority of patients who use the National Health Service and have never wanted or could afford to do otherwise, that sympathy and help will always be available in the National Health Service. There has been a very long discussion on the matter before your Lordships, and I do not want to say a great deal other than that this Amendment, if accepted, would complicate the task of the Board.

The noble Baroness has made clear the concept of the patient's freedom and choice of consultant. In practice, all of us know—and in this I received some support the other day from my noble friend Lord Stone, who as a family doctor has had some experience in these matters—that the patient's freedom of choice more often than not is effectively limited by the advice and opinion of his family doctor. I realise that the noble Baroness is going to remind me that a patient must feel free to ask for a second opinion, and I would not quarrel with her about that at all. Of course he must; no one disputes that. All patients have that right now where for some reason they are unhappy about their first choice. But if they want a second opinion, in almost every case they will need to go back to the family practitioner for advice and guidance. How will the general practitioner decide on the choice of a consultant? I suggest that he would be guided largely by his knowledge of the patient's needs, and the expertise and special skills of the consultant rather than by considerations of sex, colour, language, religion, nationality or ethnic origin.

Of course, if his patient expresses a preference for a lady consultant, or one of his own faith or ethnic origin, I have no doubt that the general practitioner will do his best for his patient, always with the reservation that what his patient would like may not necessarily be available at the hospital in his home area. None of this is likely to change as the result of the separation of pay beds from the National Health Service hospitals.

I wonder if anyone seriously believes that it is realistic to ask the Health Service Board to assess whether, as a result of recommending the revocation of a pay bed authorisation at a particular hospital, it might conceivably make it more difficult than at present for a patient, irrespective of whether he were a private or National Health Service patient, to be treated by, if I may give an example, a female consultant who was an Australian aborigine by birth who happened to be a practising Mormon. Yet I suggest that this would be the effect of the Amendment. I could go on, but I do not think there is any point in doing so. The only thing I want to say is that no management, however efficient, could guarantee to satisfy the requirements of this Amendment. That being so, it seems to be unreasonable to seek to tie the Board's hand more securely than Parliament has tried to tie the hands of the health authorities over the last 30 years. Therefore, I do not think that the Amendment itself is a realistic one, although I know a good many of your Lordships feel otherwise.

Baroness VICKERS

I would not mind whether she was an aborigine or a Mormon so long as she was a woman doctor.

Lord SANDYS

I think that the Government misunderstand the terms of the Amendment, because the Board is not asked to guarantee that in each individual case the patient w ill have the best possible solution. The Amendment is conditional and says: … if the revocation would result in a substantial reduction in the freedom of resident or non-resident hospital patients to engage the services of medical or dental practitioners of the sex, race, colour, language, religion or national or social origin of their choice.". I do not believe that that will be such a burden upon the Board as the noble Lord suggests, but it opens another door, the door of freedom, to those who wish to take advantage of it. I am very much struck with the words of my noble friends and of the right reverend Prelate the Bishop of Norwich, who was kind enough to support the Amendment on the first occasion when the Bishops' Bench has participated in this debate. I believe that my noble friend Lady Young has replied to the problems raised by the noble Lord, Lord Winstanley, and I feel that I cannot withdraw the Amendment and will seek to press it.

On Question, Amendment agreed to.

On Question, Whether Clause 4, as amended, shall stand part of the Bill?

10.47 p.m.

Lord AUCKLAND

May I come back briefly to Amendment No. 50, which dealt with the planning of a private hospital? The question which I should like to put to the noble Baroness, Lady Stedman, is—

Lord WELLS-PESTELL

May I interrupt the noble Lord? I may be wrong, but I think that once an Amendment has been dealt with it is not within the competence of a Member of your Lordships' House to come back to it.

Lord O'HAGAN

May I intervene for one second? I wonder whether the noble Lord could give us some more guidance about the meaning of the word "proposals" as used in this clause. We have had a series of very long debates on this very long clause, and I believe that there has been some uncertainty as to the exact meaning of this word, which occurs in line 3 of the clause. I understand it to mean, "proposals for the progressive revocation of" et cetera, and that is all.I wonder whether the noble Lord would care to give a definitive judgment of the meaning of the word.

Lord WELLS-PESTELL

I am grateful to the noble Lord for raising this matter, because it allows me to refer to an answer which I gave to the noble Lord, Lord Hill, when we were dealing with an Amendment to this clause. Let me say, frankly, that my reply to the noble Lord, Lord Hill, was wrong and, in consequence, I unintentionally misled your Lordships. Having said that, I should now like to answer the noble Lord, Lord O'Hagan, and probably give a much more satisfactory reply to the noble Lord, Lord Hill, although it is not in keeping with what I said originally.

I fully accept what the noble Lord, Lord O'Hagan, said, that the words, "proposals for the progressive revocation of … authorisations" mean precisely what they say. Each submission which the Board makes to the Secretary of State must contain some proposal, or proposals, for revocation, if the Board is satisfied that it cannot propose authorisation because the criteria specified in Clause 4(7) cannot be met. If that is the case it will report its reasons accordingly to the Secretary of State. I believe that should answer the noble Lord. Once again I apologise to the noble Lord, Lord Hill of Luton.

Viscount KEMSLEY

Before we leave the clause, may I refer to its drafting? I do not want to go over the ground already adequately covered by my noble friends Lady Young, Lord Sandys, and, indeed, Lady Elliot of Harwood. I want to limit myself to something which occurs no fewer than eight times in the last two subsections of the clause; namely, "reasonable" or "reasonably". In five cases it means something quite different. I have taken the trouble to study a dictionary for the possible meanings, because there is no definition in the Bill which would adequately cover the use of those words. The first part refers to, a reasonable demand for accommodation". "Moderate" is one synonym for "reasonable." I believe "moderate" might suit there. In the next subsection we have, facilities reasonably available". I suggest there the words in the dictionary "not expecting too much" would cover that position. In the next section we have, all reasonable steps to provide". Again the dictionary helps us with, possibly, "sensible" to substitute "reasonable". In the next line we have, reasonable accommodation ", which might possibly be covered by "not absurd," which is another definition of the word "reasonable". Finally, in subsection (9) we have, such information as it may reasonably require". There I suggest the words "not greatly less or more than might be expected" could be substituted. Finally, I request the noble Lord to ask those responsible for drafting Bills to bear in mind this matter, which would seem to me to be "essentially reasonable". That is to say, "moderate", "sensible", "not absurd", "not greatly less or more than might be expected", and, "not expecting too much".

Lord HILL of LUTON

I am grateful to the noble Lord, Lord Wells-Pestell, for the correction and the way in which he supplied it. However, I am still puzzled. As I understand it, taking the previous example, radiology, at the end of the 12 months period, following the initial period, the existing services outside the hospital having been scrutinised, the requirement is that "there shall be a proposal". As I understand his words, "proposal" must mean action in the direction of the reduction of private facilities. He so defined the word. Indeed, subsection (7) says that each set of proposals under the clause shall specify the accommodation and services authorisation which should be revoked. In other words, at the end of a certain period, whether the alternative services are available or not, there shall be a "proposal". I now understand it that that "proposal" must involve the revocation, the destruction of existing private facilities.

This is a curious situation based, I venture to say, on the noble Lord's recent statement. Is it really intended that at the end of a 12 months period, the alternative facilities having been examined and found to be inadequate to justify the destruction of the private facilities, there must be a "proposal" which withdraws the existing private facilities in the hospital? Does the noble Lord's answer mean that whatever the alternative—whether it be a good, a had or a non-existent one by way of private services—the services within the National Health Service hospital are to be destroyed at the end of that time period? I believe this to be a fundamental question that is related to the proposition that only when alternative facilities are known to be available shall the existing facilities in National Health Service hospitals be destroyed.

10.55 p.m.

Lord WELLS-PESTELL

First, may I say to the noble Lord who raised the question of the wording that I should like to discuss it with my right honourable friend. I am not saying whether there is something in it, but take the noble Lord's point. Other noble Lords have also made comments about the drafting during the debate. Perhaps the noble Lord will allow me to deal with it in that way to see whether anything can be done along the lines he has suggested.

With regard to the point of view put forward by the noble Lord, Lord Hill of Luton, he will realise that only recently have I discovered that I was wrong in my answer to him. Therefore I am not going to venture to answer his question now. Tomorrow I should like to read carefully in Hansard what the noble Lord has said, take advice and then write to him in the hope that he will get my letter before the Report stage, so that if it is unsatisfactory in some way he can say so.

Lord HILL of LUTON

I am grateful to the noble Lord for his courtesy, but would he go a step further? If I may say so, a letter to me is not a sufficient answer to the point that I have raised. Will the noble Lord go so far as to say that if my interpretation of his answer is right, the matter will be reconsidered before a subsequent stage of the Bill is reached? This is a crucial issue that should not be dealt with in private exchanges, however courteous and well-informed. It should be dealt with publicly before finally we dispose of the points in this clause.

Lord WELLS-PESTELL

I take the noble Lord's point. My difficulty is that we may examine it and come to the conclusion, on advice, that it is not necessary to do anything, in which case we would reach the Report stage and there would be nothing there; then we should have to go through this again. It would be much more satisfactory from the noble Lord's point of view—and perhaps from the Government's point of view—if I wrote to him quickly to let him know our comments and observations so that, in the event of it not being satisfactory and the noble Lord wanting to do something about it, he would be free to do so.

Baroness YOUNG

I appreciate what the noble Lord has said and I, too, would like a copy of the letter. The point is very important because it arises in conjunction with the Amendments which we carried to leave out the important lines, from the noble Lord's point of view, lines 29 to 33. The confusion has arisen because this section of the Bill was added by a Government Amendment at the Report stage. I believe the interpretation of the noble Lord, Lord Hill of Luton, to be precisely right. We are concerned about the Government's second thoughts on the matter. Now that the noble Lord has explained them more fully, we understand—as I believe to be correct in the first instance—that the services of diagnostic pathology and diagnostic radiology will be phased out within 18 months of the passing of the Bill, regardless of whether alternative facilities are available, and that the only service which will not be phased out within 18 months will be radiotherapy, on the ground that it would be impossible for private nursing homes to produce alternative facilities within a very short period of time.

We have asked the Government to put back the Bill to what it was when it was originally published. Then, if I may say so, they had a much greater understanding of what was intended by the proposals of the noble Lord, Lord Goodman, when he spoke about equal private facilities being made available for the private practice of medicine.

Clause 4, as amended, agreed to.

Clause 5 [Restrictions on Secretary of State's potters under ss. 1 and 2 of 1968 Act]:

11 p.m.

Baroness YOUNG moved Amendment No. 52: Page 6, line 42, leave out from ("granted") to end of line 45 and insert ("or").

The noble Baroness said: I beg to move Amendment No. 52, which is consequential on Amendment No. 17.

Lord WELLS-PESTELL

I imagine that the noble Baroness would feel that we might take Amendments 52, 53, 54 and 55 together. I find myself in the position of having to recognise that these are consequential Amendments, and had the previous Amendments not been carried I would have asked your Lordships to resist these, since I am advised that they would allow the Board to recommend the granting of new authorisations of facilities for private patients in National Health Service hospitals.

There is one matter to which I should like to draw the attention of the noble Baroness. As your Lordships know, the Government take the view that the purpose of the Bill is the progressive withdrawal from National Health hospitals of facilities for private medical practice, not its extension and certainly not its maintenance. However, I accept that for the time being your Lordships have decided otherwise and that consequently the logic of the position in which I find myself is not to resist this particular group of Amendments. However, I must point out to the noble Baroness that as they stand the Amendments, I am informed, are defective inasmuch as Clause 5(3)(b) as it is proposed to amend it, refers to "subsection (2)(b) above". If the noble Baroness will study Amendments Nos. 52 and 53 she will see that she is proposing to remove subsection (2)(b) altogether and amalgamate it with subsection (2)(a). Perhaps at some stage the noble Baroness would look at that.

Baroness YOUNG

I am always, of course, prepared to look at the drafting of Amendments. In my experience it is impossible for anybody to draft an Amendment which is ever acceptable to any Government of any colour, even when the Amendment is professionally drafted, as was the case with this particular Amendment. However, I will accept that and I will certainly look at the point made by the noble Lord. I am glad the noble Lord appreciates that these are in fact consequential on Amendment No. 17.

Once again it is an important matter that we should consider all these Amendments, because Amendment No. 17, which would give power to the Board, if it so wishes, to increase the provision of private beds as well as to decrease them in National Health hospitals, was one of those Amendments that was tied on a vote in Standing Committee in another place, guillotined on Report, and once again it is only this House which has the opportunity to debate it. We shall be the only House of Parliament debating this matter because no doubt it will be guillotined once again when it goes back to another place. I do not think the Committee will want me to go over all the arguments on this matter again.

On Question, Amendment agreed to.

Baroness YOUNG moved Amendments Nos. 53, 54 and 55 en bloc:

Page 6, line 48, at end insert ("or subsection (4) below, or on a temporary basis by virtue of subsection (5) below.").

Page 7, line 3, leave out from ("granted") to ("to") in line 6 and insert ("or").

Page 7, line 7, at end insert ("or subsection (4) below, or on a temporary basis by virtue of subsection (5) below.").

On Question, Amendments agreed to.

11.5 p.m.

Baroness YOUNG moved Amendment No. 56:

Page 7, line 41, at end insert— ("(c) proposals for securing that in any case where, after the passing of this Act, any new NHS hospital is put into service, a number of beds are authorised under section 1(1) of the 1968 Act and accommodation and services are authorised under section 2(1) of that Act sufficient in each case to satisfy any reasonable demand for accommodation and facilities for the private practice of medicine and dentistry in the district served by the hospital in question which is not already met by accommodation and facilities which are otherwise available at a satisfactory standard and at reasonable cost, and are reasonably accessible to patients and the practitioners of their choice;").

The noble Baroness said: This Amendment in effect follows on from Amendment No. 17 and might in some respects be regarded as an alternative to that Amendment. The point of it is that where there is an area in which there is a growth of population and in which there might well be a National Health hospital which includes pay beds, if those same pay beds arc pleased out, there might not be a population sufficient to justify private nursing facilities and therefore in those particular circumstances the Board would not have to authorise the phasing out of the pay beds.

I am thinking, of course, quite particularly of new towns. For example, if one takes a situation where the population has moved out of the centre of London and gone to Stevenage, Hemel Hempstead or Bracknell, or even to Peterborough, as I see the noble Baroness, Lady Stedman, is to reply, and the population is building up, obviously included within the new town facilities will be a hospital. It might well be one in established use in a nearby town, with private beds in it. If those beds were phased out it would be some time before the population would justify having a private nursing home. Therefore, we would leave a case in which the private facilities could not be produced because the population did not justify it, and the principle of the Bill that the private facilities should be available to those consultants who wish only to work part-time in the National Health Service and to have the opportunity to leave private practice, would not therefore be available. It seems to me that there are a number of places where this particular circumstance could apply. Therefore, it seems that it would he useful to have this Amendment included in the Bill. I beg to move.

11.7 p.m.

Baroness STEDMAN

As the noble Baroness, Lady Young, has said, this Amendment would require the Board to ensure that, whenever a new National Health Service hospital is commissioned, facilities and accommodation will be set aside for private patients if existing facilities in the district served by that hospital are inadequate. A new hospital would be placed therefore, at least for the time being, in a privileged position compared with other hospitals in the National Health Service. The principles which the Amendment proposes to apply to such a new hospital would so far depart from the criteria in the proposals of 15th December 1975 that the burden of meeting any demand which might exist locally for private practice would be laid either wholly, or to a significant extent, on the new National Health Service hospital rather than, as is intended by this Bill, wholly on the private sector. Furthermore, the Amendment lays on the Board the duty of causing the Secretary of State to set aside in a National Health Service hospital facilities for private patients which that hospital may not set out to provide for its own National Health Service patients.

The Health Services Board is not the guardian of standards either in the National Health Service or the private sector. This is for the professions and for those providing services to patients, subject in the case of private nursing homes to the requirements of the Nursing Home Act 1975. Nor would the Board be in a position to determine what is a reasonable cost in the private sector. Do noble Lords opposite really expect the Board to employ the inspectors who may be appointed under Clause 16 in assessing whether private patients are getting value for money in private nursing homes and hospitals? I question whether it is necessary for the Board to do this at all; surely if the cost of treatment in a private nursing home is unreasonably high, the managers will soon find the demand declines. Equally, I suggest that if standards are regarded as inadequate consultants will not be prepared to practise at that nursing home, and consequently patients will not go there either.

The failure of the private sector to measure up to the requirements of its potential clientele is no reason for seeking to make good that deficiency in National Health hospitals at the expense of the taxpayer. The purpose of the present Bill is the separation of private medical practice from National Health Hospitals: it is not to ensure the indefinite continuation of present arrangements. As to the case of new towns such as the noble Baroness referred to, in those new towns of which I have any knowledge she would find that the development corporations were extremely co-operative with the local doctors and consultants, and would go out of their way to help by every possible means if there were a need and demand for private nursing homes or hospital facilities.

The Government Amendment agreed to in another place enables the Board to recommend transfer of authorised facilities from hospitals which are closed permanently and which are not authorised as part of a group. But the Government Amendments w ill not enable the Board, nor was it ever the Government's intention that they should, to expand private practice in National Health Service hospitals as would the present Amendment. Therefore, it is the Government's view that the Amendment is inconsistent with the whole purpose of the Bill and I cannot commend it to your Lordships' Committee.

Lord AUCKLAND

I have listened with care to the reply of the noble Baroness, but I find it rather puzzling. One of the inherent weaknesses of the Bill is the extent to which little consideration seems to have been given to development areas such as new towns. I shall, of course, read very carefully what the noble Baroness said. At one time I lived near the new town of Stevenage and it is only recently that a new hospital has been built there. There are new towns where National Health Service hospitals are scarce. Indeed, with the shortage of money and the capital outlay, that situation is certainly not likely to improve in the near future. I do not necessarily suggest, and I do not think that these Benches suggest, that new towns should be made a special case, but there is the matter of planning permission, which relates back to Clause 4. There are new towns and particularly potential new towns where planning permission may be ear-marked for items other than hospitals, vital though we all recognise hospitals to be.

I should like the Government to reconsider, particularly in relation to new towns at present under construction—and I instance, for example, Milton Keynes and any others which the Government have in mind—the terms of the Amendment which my noble friend has moved. The Government should give those towns rather more consideration than, admittedly, the areas around London where the problem may not be quite so acute.

Baroness WARD of NORTH TYNESIDE

I ask the noble Baroness to bear one matter in mind. From all the discussions we have had, all the Amendments moved and replies given, it seems that more responsibility has been placed on the Board, which means that it will have a great deal of work to do. An Amendment was moved earlier on the number of professional people there should be on the Board. We did not believe that there was a sufficient number of professional people on the Board who could do all that was required of them. That Amendment still stands, which I think is very wise, although it has to go to another place.

I wonder whether the Board will have either sufficient people on it or sufficient staff to deal with everything with which it is supposed to deal. The same applies to Secretaries of State; they have been given more responsibility. As I said previously, they will all drop dead as a result of all the responsibilities that they are asked to undertake. On Report it might be worth while to consider increasing the membership of the Board if we are to have a reasonable Bill, which is very necessary in the Health Service.

Baroness STEDMAN

If I may reply to the noble Baroness, of course we have discussed the question of the number of people on the Board, and I am quite sure that when the Bill gets back to another place they will have further discussions on it. I would draw her attention to the fact that the Amendment we are discussing would, if passed, put another responsibility on the Board.

Baroness WARD of NORTH TYNESIDE

That is what I am asking the noble Baroness to remember.

Baroness YOUNG

I appreciate the trouble the noble Baroness has taken in replying to this Amendment. She has I not, of course, really answered the question as to what will happen in new towns except to say that the new town corporation will he very sympathetic to somebody wishing to provide facilities. The point is that if there is not sufficient population it is very difficult to envisage the facilities being provided and therefore people in new towns will have to do without. Weil, perhaps you may regard this as good for their characters; I do not know. It is the part-time consultant who will do without; he may not be able to get a full-time consultancy, and he could, therefore, be in trouble. When the noble Baroness comes to read her reply in Hansard she will see that quite a lot of it was addressed to a question that I did not ask at all. The reason why my Amendment is drafted as it is is that we on this side believe that we should write into the Bill the qualification to the alternative facilities that Lord Goodman suggested at Second Reading. So when we talk about alternative facilities we are talking about facilities at a satisfactory standard; we think no one would want facilities at anything but a satisfactory standard, facilities that are reasonably accessible to patients and to practitioners of their choice, and, of course, at a reasonable cost.

We have been over all that ground again, but nobody is suggesting that the Board should look at the failure of the private sector. The great thing is to see that there cannot be a failure because the alternative facilities would not be suitable under this Bill unless they were at a satisfactory standard. We have discussed this Amendment at considerable length. I have listened very carefully to what the noble Baroness has said and tomorrow I shall read it carefully in Hansard to see whether this is a matter to which we should return at a later stage. In the meantime I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

11.18 p.m.

Baroness YOUNG moved Amendment No. 57: Page 8, line 2, leave out ("may") and insert ("shall").

The noble Baroness said: This is again an Amendment which was a tied vote on Standing Committee in another place and was guillotined on Report. So again this House has an opportunity to debate it which has been denied to another place. It is one of a series of such Amendments. As we know, our deliberations are already being guillotined again, so this will probably be the only opportunity to discuss it. It is an important matter. It is again an Amendment to substitute the word "shall" for the word "may". This clause, in this subsection, is concerned with the situation where hospital accommodation is temporarily closed for whatever reason it may be, whether by the Secretary of State or what an insurance company would call, I suppose, an act of God. The subsection says: … the Secretary of State may, without the need for any proposals by the Board, grant on a temporary basis such authorisations"; that is to say, in those circumstances the Secretary of State may say that these beds need not be replaced. It seems to me that this is a very important matter. If something like this happens, I should have thought that in order to fulfil the understanding of the Goodman agreement the Secretary of State ought to replace the beds temporarily out of commission but not yet phased out.

That is the point of the Amendment. It would be useful to know in what circumstances the Secretary of State would not replace beds that are lost, but not yet phased out; and what the Government regard as "temporary". Obviously no one will concern themselves if they are closed for one day. However, a situation could arise which meant that the spirit of Goodman was not being fulfilled. As that appears to be the object of the Bill, I hope that the Government will consider this Amendment favourably. I beg to move.

Lord HARMAR-NICHOLLS

I hope that this will be one of the occasions when we shall have an Amendment granted. This is the old story that we have gone over before with the noble Lord, Lord Wells-Pestell, as regards where "may" and "shall" come into the picture. I believe that in these circumstances the Secretary of State ought to be obligated to grant this Amendment.

As regards the previous discussions we have had on this "flexibility", as it is described by the noble Lord, Lord Wells-Pestell, reference has been made to giving instructions, or guidance at any rate, to the Board. However, it may well be that for a temporary period, once this is temporarily out of existence, we may have a Secretary of State with views that are not in accordance with those expressed by the noble Lord, Lord Wells-Pestell. I do not think that in such instances an area should be robbed of very essential services. This is an occasion when an instruction ought to be given to any future Secretary of State that in certain circumstances such as described in this paragraph, he shall replace it rather than give him the "flexibility" which may rob an area of something which is truly essential.

Your Lordships' House is quite different from the one that I experienced for very many years. The one thing that surprises me as regards the Government wishing to get their legislation on to the Statute Book is that they do not see the great value in giving in—of occasionally saying, "Yes". I should have thought that in order to be obliged on some of the other matters that will arise later, it would be extremely helpful to be able to say, "We gave way on this. We recognised your point of view."

Give and take is part of the method of getting legislation on to the Statute Book. I do not know what has happened to these modern Governments who think that the only way they can do it is to bulldoze these things through in the belief that it shows a sign of strength by never agreeing that the other side has a valid point of view. This is not a big point, but it is an important one. I should have thought it would put the noble Lord and the noble Baroness in a better friendly relationship enabling them to get away with things they ought not to get away with if, on this occasion they said, "Yes". This is a good example.

Lord AUCKLAND

It is fair to say that most Secretaries of State are men and women of discretion and—to use a word we have heard a great deal of during this debate—of reasonableness. However, there are times when we must consider what may be viewed by some as almost nit-picking Amendments. One must consider the situation of a hospital—especially some of our older hospitals—which is severely damaged by fire, a boiler bursting or some fairly considerable reason for damage, bearing in mind the problems of the construction and repair industry these days, even by direct hospital labour. There is not always the opportunity for a job to be done quickly. Therefore, bearing in mind the need for medical services to be continued expeditiously and efficiently, an Amendment of this kind is certainly not unreasonable. I hope that the Government will consider it very carefully.

Baroness STEDMAN

There really is not any good reason for making this permissive power mandatory. Can we look at the hypothetical situation; a hospital with perhaps one pay bed whose authorisation the Board has not yet decided should be withdrawn which is suddenly closed because of an infection or a fire. If the local management, having regard to the current demand for pay beds in their area, is satisfied that it can meet the foreseeable demands for private patients without the need for a temporary authorisation, it would be a waste of everyone's time if my right honourable friend was compelled nevertheless to issue a temporary authorisation.

What we are considering here is essentially a short-term impermanent measure. To make the granting of a temporary authorisation obligatory irrespective of the local circumstances is taking a sledgehammer to crack a nut. More years ago than I care to remember I was told that when a lady says, "No" she means, "Maybe"; when she says, "Maybe" she means, "Yes"; and when she says, "Yes" she is no lady. I am sure the noble Lord, Lord Harmar-Nicholls, will take my point if I say that perhaps I am still a lady and I cannot say, "Yes" in spite of his blandishments.

Lord SANDYS

I think there is a point here despite the remarks of the noble Baroness, Lady Stedman, which the whole Committee has appreciated. Under Clause 5(4) there are arrangements where the Board may submit to the Secretary of State proposals when one or more beds authorised under Section 1 of the 1968 Act cease to be available. That is a temporary situation also. There the Board is acting under a permissive power. The present Amendment relates to the different situation where the Secretary of State may act on his own without advice from the Board. We believe that the Bill should include a compulsion for this reason; we suggested in Amendment No. 46 that there should be an authorisation, and here the noble Lord, Lord Wells-Pestell, said: It was not included in legislation because it was a function of the Secretary of State". I use his exact words. If it is the function of the Secretary of State under Clause 4 could it not be phrased in a clearer manner? I think we have a strong element of the right side of the argument here because the Secretary of State is given permissive powers but very few mandatory powers to increase the limits of private beds.

Baroness YOUNG

I congratulate the noble Baroness, Lady Stedman. Site is the first on either side of your Lordships' Committee who has been able to answer my noble friend Lord Harmar-Nicholls. Perhaps it is because they both come from Peterborough that she has been able to effect this remarkable achievement. I am not as happy about the rest of her reply because it is not just a question of taking a sledgehammer to crack a nut. There have been quite a number of cases in which, for one reason or another, there has been a fire at a hospital, or some reason why beds cannot be used. Therefore, it is not really one of those circumstances which is unlikely ever to arise. I feel that it would be to the advantage of the good faith behind this Bill if it were to be made obligatory on the Secretary of State in these circumstances to replace pay beds that are temporarily out of commission. I believe that this is one of those Amendments that I should press.

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

11.30 p.m.

Viscount LONG moved Amendment No. 58: After Clause 5 insert the following new clause:

Sale for use for private treatment of premises no longer usable by NHS

.—(1) If and so often as the Secretary of State is advised by the Board that, by reason or in consequence of the revocation, pursuant to any provision of this Act, of any authorisation under section 1(1) or 2(1) of the 1968 Act any premises vested in the Secretary of State have become incapable of further use as, or as part of or in connection with, any NHS hospital, the Secretary of State shall offer such premises for sale by tender for use as premises for the prevention, diagnosis and treatment of illness under private arrangements.

(2) Part III of this Act shall not apply to any premises sold under subsection (1) above.

The noble Viscount said: We now come to the question of the sale of premises no longer usable by the National Health Service, and the first thing we should like to know is how soon and how many of these premises will come on the market. When a property is wound down by a Government Department it usually passes from one Department to another, for months or perhaps two or three years, and during that time it generally gets in a very had state, possibly with water leaking in, windows being broken and so on. We hope the Minister will persuade his right honourable friend to hurry up the process of getting these properties on the market. We have seen how these properties quickly deteriorate—this is especially so with Ministry of Defence property such as airfields and hangars—if they are not looked after. May we also be assured that when these properties come on the market they will be put out to tender so that everybody has a chance of buying them; that is, after the Departments have said they have done with them? If we could be given that information we should feel happier that these properties will not just be left to rot.

Lord O'HAGAN

I support the Amendment. I speak from experience, having been a member of the management committee of a housing association which had charitable status and was recognised by the Housing Commission. The association of which I speak commended itself to the Government and I wrote to the then Secretary of State for the Environment, Mr. Crosland, on the subject and he replied that he hoped it would act as a pioneer for the use of accommodation that could not be put to other useful purposes. The association attempted to use for housing purposes buildings which had been condemned or had been taken over by the local authority under compulsory purchase powers but which would not be pulled down immediately. The noble Lord who is in charge of the Bill for the Government may recall that I wrote to him insisting that he come and see the work of the association and the way in which it was contributing to the housing stock by using buildings which were otherwise useless. In its endeavours the association received co-operation from local authorities in London of both Conservative and Labour persuasion.

So far, the Committee may consider that what I have been saying is not strictly relevant to the Amendment, but the point is that this housing association wished to acquire some permanent accommodation of a fairly large character and one of the buildings we were particularly interested in was a redundant hospital. This had not been used for some years and we applied to the Department of the Environment to see whether we could get our claws on it, because it was very suitable for the type of person for whom we were trying to provide. There was a paper chase from Department to Department trying to track down whether any conceivable Government body might still be interested. So far as I could make out, it was not a question of whether any Department definitely wanted it: every Department had to say definitely that it did not want it before a charity, how ever worthy, was allowed a sniff at it.

I believe that there is a very real point in my noble friend's Amendment: it is that if some of these buildings are no longer to be used in the National Health Service, they should be offered to others who are prepared to make use of them for the care of patients. I hope that the process whereby these buildings are released can be speeded up so that, as my noble friend said in moving the Amendment, the buildings do not deteriorate so much in the meantime that they become virtually worthless or extremely expensive to use.

In the particular case of which I had experience, the number of years that had elapsed since the building had been used as a hospital was seven or eight. If that sort of thing goes on, these buildings will become useless and the Government will get less money for them than they otherwise could. I beg to support the Amendment.

Lord WELLS-PESTELL

The Amendment occasions us some surprise for a variety of reasons, not least among them the fact that we have no idea at this stage whether any hospitals will be declared redundant or no longer necessary for NHS purposes. It is therefore very difficult to give a reply based on a sound judgment. I am further surprised because, if I understand the situation correctly, this is an Amendment that was moved in identical terms in another place in the Standing Committee. If that is so, the Minister of State said in the Standing Committee, This new clause is defective in certain respects. If it is defective in certain respects— and I hope to satisfy your Lordships that it is—I do not understand why it has been put down in this Committee without the defect having been removed. It does not, for instance, say what is to be the position if no person comes forward to tender for the premises in question for use as a private hospital. It cuts across the established convention that all surplus Government property—and that includes National Health Service—should be offered first to other Government Departments, secondly to local authorities and then to housing corporations before it can be offered for sale on the open market, and it effectively removes from local management responsibility for determining whether pay bed accommodation could be converted to other National Health Service use.

The clause overlooks the practical difficulties of disposing of an integral part of a hospital, which pay bed wings often are. More often than not, such premises are not readily separable from the main hospital, inasmuch as they depend on the main hospital for various essential services such as heating. There may also be problems in disposing of part of a property in that this could affect the future development and the value of the site. A lease, limited to the expected life of the buildings, is normally to be preferred to a sale in such cases.

Most important of all, it is likely that there will be a further NHS (though not necessarily a hospital) use for most vacated pay bed wings. Only rarely—I would go so far as to say if ever—would we expect there to be no further NHS use; and then probably only when the hospital is being run down for redevelopment or subsequent disposal, which would tend to preclude a sale of part of the premises as I indicated earlier. These practical considerations make it quite inappropriate for the Health Services Board to decide when land or premises are surplus, and for the Secretary of State to be bound, by their decision, to dispose of it in a particular way. With the greatest respect to the Board, I do not believe that it can ever be sufficiently conversant with local needs, local circumstances, and local authority development plans to make an informed judgment of this kind. We really cannot accept the Amendment. I say to the noble Viscount, Lord Long, that having regard to the fact that these defects in the Amendment were explained in another place, I should have thought that he would feel that this ought to be withdrawn and looked at afresh.

Lord HARMAR-NICHOLLS

This is not altogether a hypothetical case. I vividly recall making great efforts to try to preserve a small hospital, which was being used for geriatric treatment, and which was being closed because a new, bigger hospital had been built a few miles away, and it was felt that for pure administrative good sense this hospital could be closed because the service it was giving could be dealt with in the bigger, new hospital. But the small hospital, which would be well known to the noble Baroness, was giving good service, and while it was old it was in very good condition indeed.

We did not have the Bill in front of us at that time. We did not have these shackles put on the provision of good health and hospital services. Had the Bill then been in existence, then the case to which I refer would have been an ideal instance of where it would have been sensible and right, if one had good health and the preservation of good health and hospital treatment in mind, to have handed over to the private sector, which under the Bill is still to be allowed.

I would go along with the noble Lord, Lord Wells-Pestell, on one point. I would amend the Amendment so that it was not possible for the premises to be sold by tender, because I agree with the noble Lord that it would not be right, if premises become vacant, for the kind of reasons I have described, that they should be sold to a limited group and so reduce their true value. The proposal might be amended so that the premises were sold at a figure fixed by the district valuer or on the basis of some other assessment as to the true value, and whoever wanted to set up a private hospital under the part of the Bill where this is allowed, ought, if they were prepared to pay the price, to have the premises.

This is an instance where the premises ought not to be offered to other Government Departments—if that is the defective part of the Amendment to which the noble Lord, Lord Wells-Pestell, refers. I remember having very many arguments with the noble Lord, Lord Hill of Luton, when he presided over a sub-committee which was responsible for doing just this. He had to decide whether various other Government Departments had had an opportunity to take over Government premises. The noble Lord did the job very well, but not always in a way which some of us thought was right, when it affected our particular constituency. But let us consider a case such as the small hospital I have described, which is perfectly capable of continuing to give a hospital service under the private sector, and is being relieved by the National Health Service only because the National Health Service itself, in showing good administrative sense, says that there is no point in continuing it, with all the expense involved, when a more modern hospital has been built in the same catchment area.

In those circumstances, I believe that we ought to write into this clause, as the noble Lord will see that we can if he looks at it again, that where it can be preserved as a hospital and it can be done at a price which takes into account its true value (to meet the very proper point that he made) then it should be done. It would not really be robbing the Government Departments, because the particular premises I have in mind—and I have no doubt that there are many like it—would not truly be satisfactory for any other Government Department so far as I can see. I am not saying that certain Government Departments would not use them, because they have nothing else; but it would be doing more service to the community by remaining a hospital than by being used for those other things. I merely wanted to intervene to tell the noble Lord, Lord Wells-Pestell, that this is not a hypothetical case. I have certainly one set of premises in mind, and I have others in mind which I would imagine would be very similar in certain circumstances. It would be doing a real, good service to the cause of preserving hospitals in areas where they are needed if he could look at this again once the one point on which I agree with him, in terms of getting the true value, is covered by a district valuer's figure being the one which has to be accepted.

Lord WELLS-PESTELL

It is not for me to look at it again. It is not my Amendment. I have said that the Amendment is defective. It was put forward in Standing Committee in another place, when it was pointed out that it was defective, and it now comes before your Lordships' Committee unchanged. I think, therefore, that I must ask the noble Viscount, Lord Long, whether he does not feel that this is a matter that perhaps they ought to look at themselves.

Lord HARMAR-NICHOLLS

My noble friend may deserve chastisement for not having looked in detail at what went on in another place, but that does not alter the fact that, if a good idea has been produced now, then, even though somebody has been remiss—and I am told that in the other place it was a case of the casting vote of the Chairman of the Committee having to decide it; it was as near as that—the sort of answer I should like to hear from the Treasury Bench is, "Yes, the idea is right; the words do not fit in, but we will have another look at it and will produce the words that put the good idea into practice". Why not try it?

Baroness WARD of NORTH TYNESIDE

If I heard aright, I think the noble Lord said that it was unlikely that any good hospitals would now be closed. I just want to put on the record that in Newcastle-on-Tyne the Fleming Hospital, which is in very good condition indeed, is being sold. It may have already been purchased for all I know, but it is certainly being sold. The other one, of course, was the Sanderson Home, to which I referred, which, so far as I understand it, is more than likely to be sold. I thought I should like those two on the record, because I never believe in letting anything pass which is helpful to the cause that I have in mind.

Lord HILL of LUTON

May I say a word in support of what the noble Lord, Lord Harmar-Nicholls, has just said? I am not going to follow him in his nostalgic reminiscences about the aftermath of Crichel Down; and I am not going to accept the argument that the noble Lord, Lord Wells-Pestell, seeks to put by a repetition of the word, "defective". The notion in this is perfectly simple and straightforward. Here is a building which is incapable of further use as, or as part of, or in connection with, any NHS hospital. The Hospital Service does not want it. Surely it is reasonable that that hospital shall be on offer to private bodies who would continue to use it as a hospital. Why is common sense so often opposed by the use of such words as "defective"? It is a perfectly sound notion, in the case of a building which has been part of hospital premises but which is no longer needed in any part of the NHS, to use that building or to offer that building to a body that seeks to continue its use for the purpose of treating patients therein. Surely that makes simple, sound sense. I am not going to follow Lord HarmarNicholls into the mode of sale. He knows about these things and I do not; but the simple notion here cannot easily be dismissed without denying the fundamental sense which lies behind such a proposition.

11.50 p.m.

Lord AUCKLAND

It seems to me that the substance of this Amendment to some extent depends on how many hospitals the Government propose to close over, say, the next six or 12 months. I say this because there is a Sword of Damocles constantly over certain cottage hospitals. There is one in Surrey, very near where I live, which has been under at least veiled threats of closure several times. There is no indication as to what the Government, of whatever Party, would do with that hospital if it were closed. As it happens, they are the kind of premises which would be very suitable for the terms of the Amendment. While not being entirely happy about this Amendment in every respect, I would say that, of course, the National Health Service should have every priority if the usage of the hospital is to be altered.

However, there are times when hospitals are closed or threatened with closure and nothing happens to them for a long time. I am thinking particularly of a case, several years ago, of a famous children's hospital in Chelsea of which my late father was chairman for nearly 30 years. I was on the house committee for several years. That hospital was unused for a very long time. During that time it could easily have been taken over as a diagnostic unit or something of that sort. But that is past history and we are looking to the future. Much of this must depend on the future policy of the Government in dosing or redesignating hospitals. One hopes that the Government will have proposals fairly soon so that there is not the situation of hospitals, be they cottage hospitals or not, not only having the threat of closure over them hut, when closed, lying fallow for long periods of time.

Lord WELLS-PESTELL

I am quite prepared to envisage that with the passing of pay beds, when they are finally gone, we may have property on our hands that we cannot put to proper use. There seems to be this anxiety always to write something into a Bill. The acid test must be always whether it is necessary to do so. I am quite prepared to believe that hospitals occasionally have stood empty for some time; but the references in the debate have always been to somebody or something that happened years ago. We are talking about the present moment. What I was saying is that the proposal cuts across the established convention that all surplus Government property, including NI-IS property, should be offered to other Government Departments and to local authorities. This convention has worked extraordinarily well in the past. There will be the occasional property that is not wanted immediately; but in these days, taking into account the costs of replacing buildings, it might be worth hanging on to property if it is to be used, say, 18 months or two years later. If the convention had not worked, it would have been a different matter; but why replace a convention which has worked very well by something that we do not know to be necessary?

Lord HARMAR-NICHOLLS

It would relieve me very much in terms of good Government if the noble Lord could say that his right honourable friend who is responsible for the health legislation of this country has said he has tried to get something like this in the Bill but other Government Departments would not let him do it for the technical reasons that the noble Lord has just maintained. I should like to see a Minister of Health battling for his Department, saying that the good health of this country, and good hospitalisation, is much more important than keeping to a convention or offering things to Government Departments, just because it has been neat in the past. If he can tell me that this has not been done because he has been overruled by Cabinet colleagues for bigger and wider Governmental reasons, I would feel happy. I should like to see a battling Minister of Health who on good, common sense grounds, as the noble Lord, Lord Hill of Luton, said, is prepared to go a little against convention and ask for an amendment of something which is rigid if, in the overall, it is better for the nation. In this instance, I believe that it is.

Lord WELLS-PESTELL

The noble Lord is completely out of touch with reality. Is he is saying in this Committee that we have not a Secretary of State in the Health and Social Security Department who is battling for health? If he is, I take exception to that.

Lord HARMAR-NICHOLLS

I did not say anything of the sort. I asked the noble Lord a question. The answer he gave gives the impression that we have a Minister of Health who is not prepared to battle as hard as I should like him to battle. The answer he gave was not a Minister of Health answer; it was a Governmental answer, and if such an answer relating to health gives the impression that we have a Secretary of State who is not battling as hard as I should like him to, then I should like to know why. This Governmental answer does not give the impression that on this instance we have a battling Minister of Health.

Viscount LONG

We turned up a tricky one there. I do not apologise to the noble Lord because suddenly we found something which was rather important to discuss on property. We were quite right to air this particular Amendment simply because we always leave it to the last moment regarding a particular building, and then we look round to find that the roof has fallen in. Your Lordships have aired this point extremely well. I apologise to the noble Lord, Lord Wells-Pestell, that I had not seen that this point was raised in Standing Committee D. I have looked it up since and I found that when it came to a vote it was tied. So it was obviously left for us to have another look at it.

I am convinced that we already have enough office blocks for Departments. In these days we need to cut down on public expenditure. Rather than sell some of these buildings when they become vacant to the different Departments, they could be moved on to the market immediately. We might have a little tax rebate, because the Ministry might find they can sell a good property in the middle of a town. If there is a building which is for sale, it should be sold as soon as possible and not he left until the last moment when the roof falls in. I am grateful to my noble friends and to noble Lords who have taken part in this debate. I did not realise that so many speakers were going to take part. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 6 [Recommendations on arrangements for securing use of NHS facilities on basis of medical priority]:

12 midnight

Lord O'HAGAN moved Amendment No. 59:

Page 8, line 45, at end insert— ("(4) The Board shall make no recommendation which (were it to be carried into effect) would or might require any medical or dental practitioner to disclose to any person any information obtained by him in confidence from any patient (whether resident or non-resident and whether private or not) and the Secretary of State shall not carry into effect any recommendation which would or might require any such disclosure.").

The noble Lord said: The Committee now moves to Clause 6, and we start to consider a new aspect of the Bill. I shall not attempt to cover the whole of the ground to which this clause refers, but in moving the first Amendment on this clause I must try to give some pointers to the way in which my Amendment fits in with the rest of the clause. Clause 6 concerns the recommendations on common waiting lists. I do not want to use emotive phrases such as cheque book and queue jumping, nor to pre-empt any wider debate that we may have on the Question that the clause shall stand part of the Bill. But before dealing with the Amendment itself I should like to make one or two points.

The key proposal in Clause 6 is that from now on admissions to NHS hospitals must be on the basis of medical priority alone; whether patients go in as private or NHS patients that shall be the sole criterion. It is this objective of medical priority and nothing else that this clause is striving to reach. The device by which the Government are attempting to achieve this objective is the common waiting list. A common waiting list does not mean, as one might imagine when looking at the phrase for the first time, that any particular hospital will have one overall waiting list. It would be ludicrous to have a waiting list that covered every single type of complaint. There will be a list, based on medical priority alone, for each specialty, to cover all those who are in need of that particular treatment. I hope what I have said so far in attempting to explain the basis for the clause raises no controversy.

This Amendment raises a matter of principle which flows from the device which the Government have chosen in order to achieve their objective of ensuring that admission is on the basis of medical priority alone. But who is to judge the medical priority? Only a doctor can judge whether somebody deserves treatment urgently, whether it is an emergency, whether the priority to be given to an applicant, private or National Health, should be high or low. The Amendment I am moving on behalf of my noble friends is an attempt to preserve the confidential relationship between the doctor and his patient.

The noble Lord, Lord Wells-Pestell, intervened earlier to comment on the use by one of my noble friends of the word "Catholic". I am not a Roman Catholic, but, to take a religious paradox, this Amendment is trying to preserve the confidentiality of the confessional, the privacy of the relationship between the patient and the doctor. If the question of priority is raised by other than doctors, there may be someone who says: "We do not believe this is a matter of medical priority or that such-and-such a patient is in urgent need of treatment. We believe that someone else is in more urgent need and has a higher priority. Why have you given this particular person a lower or higher priority than he deserves?"

The danger is that, without the safeguard my Amendment seeks to provide, there will be access to information that has been given in confidence, when that information should not be accessible—I am thinking of people who are not involved in the medical process—and the whole principle of confidentiality could be breached. It may be that the noble Lord dislikes a word, a phrase or a comma in this Amendment, but I hope he will agree that this principle of confidentiality is at the very root of the relationship between the doctor and his patient and that it is something that we should seek to preserve. Without this Amendment it could be at risk. I therefore hope the Government will accept this Amendment, and I beg to move.

Lord PLATT

I have had some difficulty in understanding Clause 6. So far as I can see, it has the apparently excellent intention of medical priority only. Let us take a man who is a clerk in an office. He has a hernia and is told: "You will have to wait a long time but there will be a bed eventually". He then gets a telegram saying: "Come in on Monday, 25th: we have a bed for you". Such a man is probably in a position to say to his chief: "They have got a bed for me now, so I'm going into hospital". But supposing he replies: "I am going to Paris on that day for a meeting of Foreign Ministers. I'm sorry"—is that a medical priority or a social priority? It is impossible, I think, to stick to medical priorities only.

Then there is the other point: a common waiting list, presumably between those who are going into a pay bed ward and those who are going into the National Health Service part of the hospital. Again, that is surely an impossibility, because the beds will be available at totally different times, and if I have my name down for a bed in a pay bed ward, that may come up early or late; it will depend on whether there is a vacancy in that particular part of the hospital. Again, it is quite impossible to have a common waiting list. Having said that, of course, I understand that there is abuse. I am not trying to say that the medical profession is entirely innocent in this, because I know it is not. But I do not think this is the right solution to the situation.

Lord WELLS-PESTELL

My right honourable friend gave an assurance that the situation which will exist in respect of the necessary handling of confidential information about patients by hospital staff will not be different, as a result of this Bill, from that which already exists. I should like to repeat that assurance. There are many complex aspects of operating a common waiting list to which the Health Services Board will have the responsibility of turning its mind.

In making their recommendations, it will be fully aware of the indignation which queue-jumping has provoked and the desirability of having a system which ensures, as far as practicable, that justice is not only done but—what is much more important—is seen to be done. It will also, as a result of its balanced composition, be aware of the need to ensure that this "openness" is not achieved at the expense of undermining public trust in the confidentiality of information which patients impart to their doctors, or of eroding the principles of clinical judgment which the professions rightly value and which the Government would wish to see preserved. These are difficult and important matters and, in the final analysis, any system of common waiting lists must rely upon trust, and upon the integrity of those concerned with making the decisions which influence the determination of priority between many seemingly equally deserving cases.

I recognise and respect the spirit of the Amendment. It would, however, be impracticable to operate any waiting-list system and to provide for the effective treatment of patients without some other members of hospital staff having access to whole or part of a patient's medical record. The noble Lord, Lord O'Hagan, will know that some considerable time ago we had a very long debate on the confidentiality of records, as they were affected by the changeover of medical social workers into the employ of local authorities. A large number of people have access to records, but, as far as I know—and I speak with some experience of the field—there has never been any serious breach, although I will not say that there has been no breach at all. Furthermore, it is not merely doctors and dentists who receive confidences and, if they will not mind my saying so, they are not the only people who can keep confidences. There are plenty of people in the community who recognise the importance and value of confidence, and the most junior nurse may often have to exercise considerable discretion about information which she receives in the course of her duty; whether, for instance, she should keep it to herself or, if it seems to have a bearing on her patient's treatment, whether she should pass it on to her superiors.

All information obtained from the patient—including his name, address and age—is confidential in some degree and treated as such by the NHS. Some information one patient may be more reluctant to disclose because of his circumstances than another. Some information is needed only by the doctor; some is essential to the whole treatment team. Only professional judgment can discriminate the one from the other. It cannot be done by Parliament through legislation. I do not know how it can be done. No legislation has ever been before Parliament in respect of confidentiality of medical records of patients, whether private or NHS. The issue is one over which the health professions, in accordance with their ethics, exert various safeguards. We do not think that the Amendment is necessary because, for the reasons which I have given, we believe that it will be very difficult to draft legislation on this matter. So noble Lords must decide what they want to do.

Baroness YOUNG

I rise to support my noble friend Lord O'Hagan who has moved this Amendment so ably. I think, as the noble Lord, Lord Wells-Pestell, will agree, that we are very fortunate to have him with us and speaking to so many points in this Committee. I very much welcome the spirit in which the noble Lord, Lord Wells-Pestell, has replied to this Amendment, because he recognises, as we do, that there is a very real problem of confidentiality. The whole principle of confidentiality between doctor and patient must be the oldest of the medical ethics. I speak as someone who supports Clause 6 and the principle of common waiting-lists. It would be unfortunate if something which I believe would be useful should falter because people believed that medical confidentiality was or could be broken.

I have had my attention drawn to what Dr. Owen said in another place, that, as they would discuss later, there are great problems in preserving both the doctor and patient relationship and the confidentiality of information; this is an area for which it is incredibly difficult to legislate; we must be clear about that. If it is not to be written into legislation then there must be some other way of getting the confidence of all patients because everybody will be on the common waiting-list. I do not know what my noble friend is proposing to do, but it is a matter about which we on this side feel strongly. If he felt inclined to press the issue, that would be my advice to the Committee.

Lord O'HAGAN

I read what the right honourable gentleman told the Committee in another place. Of course, I accept that the Government have given an assurance on this point. I hoisted in fully the various predations into confidentiality with those involved in treating the sick, and into access to the confidential information that they must have. I accept that there must be a sliding scale of access. Nevertheless, I believe this is a fundamental matter. It is important we should make it clear by inserting it into the Bill. The noble Lord, Lord Wells-Pestell, did not say there was anything which really stood in the way of embodying this matter in legislation. He said it had not been done before and gave assurances that it was not necessary. I believe it would restore confidence all round if we had it in the Bill.

On Question, Amendment agreed to.

On Question, Whether Clause 6, as amended, shall stand part of the Bill?

Lord HILL of LUTON

Before we leave Clause 6, may I underline what the noble Lord, Lord Platt, said? We all agree that we should seek to give medical priority as the basic criteria. But it is not that simple. It will not work universally. I cite a simple example of a man or woman with immense public responsibilities, Minister or other. Are we really saying he or she must take their place on a long waiting-list regardless of their commitments and all the burdens upon their time and effort? It cannot be the whole story. I do not dissent for one moment from the general purpose of medical priority, but it would be unreal to suggest that in the world in which we live there must not be other considerations from time to time related to the individual, his burdens, timetables and demands.

Clause 6, as amended, agreed to.

12.20 a.m.

Baroness YOUNG moved Amendment No. 60: After Clause 6, insert the following new clause—

Reduction of waiting times for admission or access of patients to NHS hospitals

.—(1) It shall be the duty of the Board to submit to the Secretary of State from time to time in accordance with this section proposals for the progressive reduction of waiting times for the admission or access of resident or nonresident patients to accommodation and services at NHS hospitals and it shall be the duty of the Secretary of State to give effect to all proposals so submitted.

(2) The Board—

1. (a shall submit its first proposals under this section within the initial period or such longer period as the Secretary of State may allow; and
2. (b) shall in the six months beginning with the date on which the first proposals are submitted, and in each successive period of six months thereafter, submit further proposals under this section or, if in all the circumstances it decides that the submission of further proposals in any particular period of six months is unnecessary, shall instead prepare and submit to the Secretary of State a report explaining the Board's reasons for that decision.

(3) In formulating proposals under this section the Board shall consider any representations made to the Board by—

1. (a) the Secretary of State; and
2. (b) any body which is representative of medical practitioners or dental practitioners or of persons employed in or concerned with the interests of patients at hospitals; and
3. (c) any other person having a substantial interest in the proposals;

and in deciding what advice to give the Board in connection with the formulation of any such proposals the Scottish Committee and the Welsh Committee shall likewise have regard to the said principles and consider any such representation made to the Committee.

(4) The Board in formulating proposals under this section in respect of accommodation or services at any particular NHS hospital or hospitals, and the Scottish or Welsh Committee in deciding what advice to give the Board in connection with the formulation of any such proposals, shall have regard to the purposes and specialties for which the accommodation or services in question are available or required for use in connection with the treatment of resident or non-resident patients, and the Board shall formulate separate proposals in respect of different purposes or specialties.

(5) Each set of proposals under this section shall specify—

1. (a) whether any accommodation or services should be authorised under section 1(1) or 2(1) of the 1968 Act or whether any such authorisation should be revoked; and
2. (b) the date before which any such authorisations or revocations should take effect,

and may specify different dates for different accommodation or services so specified.

(6) It shall be the duty of the Secretary of State to furnish the Board with such information as it may require for the proper discharge of its functions under this section.

The noble Baroness said: I tabled the Amendment because it seemed it would be valuable to have a debate on the whole question of waiting-lists. The purpose of the Amendment is to require the Board from time to time to submit to the Secretary of State proposals for reducing the times for admission to National Health Service hospitals.

As I have already indicated, I am one of the people who welcome in principle Clause 6. I think that there is a great deal to be said for having common waiting lists between private patients and National Health Service patients, and I hope very much that these will work. However, the ostensible reason for the Bill is that there has been a great deal of what has been described as cheque book queue jumping.

I am not a medical practitioner and I may not be fully conversant with all the circumstances, but I understand from my reading that there are three groups of people. First, there are the people who have some kind of minor ailment which eventually cures itself so that nothing needs to happen to them. Nearly everybody in your Lordships' Committee seems to be suffering from colds or from sore throats and we hope that we shall all get well again. Secondly, there are those people who do not need to go into hospital. Thirdly, there are the emergencies, and if you are an emergency it makes not the slightest difference whether you are a National Health Service patient or a private patient. You will be carried off to hospital, you will get a bed, just like that, and everybody will agree with it. I believe that the same applies to obstetrics, where at least it can be said that one has nine months' notice that one will be going into hospital. Therefore the queue can be ordered quite sensibly.

However, there are a great many cases in between where somebody is not an emergency but requires hospital treatment, and it is only these cases about which at any point it can be said that there is any question of queue jumping. There are all kinds of reasons why one person would get to the top of a queue rather than another. The kind of reasons I am thinking of are mothers with children. It might be much more convenient for them to go into hospital while their children are at school rather than while their children are on holiday. It might be much more convenient for school teachers, on the other hand, to go into hospital during the holidays rather than during term time. If I may venture to say so, it might be much more convenient for Government Ministers to go into hospital during the Parliamentary Recess rather than when the House is sitting, although at this stage I should think that many Members of your Lordships' Committee feel that they would welcome a hospital bed—pay bed or otherwise!

The point of these illustrations is that there are innumerable reasons why some body might need to have priority over somebody else, and would find himself moving up the queue rather than somebody else for whom no particular circumstances could be made out. I support very much what the noble Lord, Lord Platt, and the noble Lord, Lord Hill of Luton, have said: that the question of queue jumping and of queues is not straightforward. It is not a kind of ladder, with everybody moving up it at exactly the same pace. There are a great many special circumstances which could arise and which quite justifiably could mean that one person would get to the top of the queue rather than somebody else.

It is my own belief, and I am sure that of my colleagues, that the real scandal is that there should be any queue at all. Probably the most disgraceful reason of all is that I believe that, with the notable exception of Sweden, we are the country in Europe with the longest queues for hospital beds and we should take steps to do something about it. I am bound to say that I find it very difficult to believe that the phasing out of 1,000 pay beds will make the slightest difference to the National Health Service queue. It is only likely to put the people who might have been in private beds in the queue as well, thereby lengthening rather than shortening it, so we may well find that the phasing out of these pay beds will not achieve what it sets out to achieve.

The purpose of the Amendment, as I have indicated, is to require the Board to make recommendations on how the waiting times could be made shorter. I think it would be very helpful to the Committee to hear what the Government think about the matter and what ideas they have about reaching decisions on these important matters. I beg to move.

Lord PLATT

May I just ask one question: when we have finished with all this what will the Royal Commission have to do?

12.25 a.m.

Lord SANDYS

I should like to support this Amendment because it is positive and it supports the proposal that waiting lists should be reduced if possible. But there is one basic problem. We believe that the Government are suffering from an illusion which in the words of Voltaire is that faste of pleasures, because there is not a single waiting list, there are dozens of waiting lists—waiting lists divided into the various categories which your Lordships must know much better than I do, and with different priorities within those categories. For instance, there are hernias, spare part surgery, hip joint replacement, every kind of neuro-surgical operation, obstetric operations, varieties of operations which are non-urgent. One can go on at very great length, but the concept of a single waiting list is really an impossibility. If it is an impossibility we should be glad to hear what the Government's notion is on this: whether it is possible to divide the waiting list into, perhaps, a few categories of different varieties of operation or whether they have some other scheme to enable this to be a practicality.

Of course it is a scandal that there are very long waiting lists in Britain, and this is not the only country where there are long waiting lists. It is rather interesting to note that the other country in Western Europe where there are long waiting lists is Sweden. I do not know what conclusion one can draw from that scant piece of information. I have not examined the Swedish waiting list; I do not know what types of waiting list they adopt or what schemes they promote, but I believe there may well be some lesson to he drawn from the Swedish experience and there may well be some lesson to be drawn from our partners within the European Economic Community. So I wait with interest to hear what the noble Lord, Lord Wells-Pestell, has to tell us.

Lord WINSTANLEY

Before the noble Lord replies, perhaps I might add a word about waiting lists in general because I believe that in the last clause, Clause 6, and in the new proposed clause we have in fact arrived at the only area in which there was a substantial need for some kind of Government action, because I think that with private practice and National Health Service practice existing side by side in the same hospital it was perhaps necessary that somebody should try to do something about the possible abuses which arose.

I said earlier in this Committee that Nye Bevan believed that it was important to keep private practice in the National Health Service hospitals because that was far preferable to creating a separate private service outside. We are now of course going back to do precisely what he said we should not do. But what was necessary, I am sure, was to do something about the apparent abuses, and I think it was these apparent abuses which stimulated people to introduce this kind of legislation: the fact that some people appeared to be jumping queues, and so on.

I support fully the views of the noble Lord, Lord Hill of Luton, that one cannot judge waiting lists solely on medical priority. All sorts of factors creep in. My experience as a general practitioner, still practising medicine, sending people to hospital, putting people on waiting lists, is that the speed with which any patient gets into hospital varies according to a whole number of factors: perhaps first of all, where he lives, which is a very important factor indeed. You can send people to certain areas in which waiting lists are very short, whereas you know that in certain other areas the waiting lists are very long and the patient will inevitably wait a long time.

It depends, too, on the nature of the complaint and the particular waiting list in that area for that kind of medicine. It depends quite substantially on the energy, enthusiasm and initiative of the general practitioner. Perhaps the general practitioner has influence with local consultants, with waiting lists and those who control them, because there is no doubt that the general practitioner, where he sees that a patient is suffering substantially as a result of waiting, can very often bring perfectly proper pressure to bear in order to get that person elevated up the waiting-list. The general practitioner often does that, and he points out to the consultant in charge that this particular patient has this particular problem, which may not only be a medical problem but a social problem of some kind as well, and therefore there is justification for that person being elevated up the waiting-list. That happens quite frequently and is necessary. This has to be encouraged.

But the point in referring to waiting-lists in general—and I see no reason why we should not refer to them, since we are having an extended debate on "Clause stand part", a Clause that is already standing part; it is in addition to Clause 6—is that what has struck me over and over again is that our waiting-lists are longer than in many other countries, and many of these waiting-lists remain precisely the same year after year. Therefore, one has the feeling that if one eliminated waiting-lists there would be no waiting-lists at all. It is a matter of resources. In certain areas, a waiting-list accumulates, and if it remains the same length year in and year out, substantially we are keeping pace with the workload. If only we could somehow provide the resources with which to get rid of the waiting-lists with which we are faced, we would have no waiting lists at all. I can quote examples of specialists and consultants who have sometimes made special efforts to eliminate waiting-lists by various means, manipulating the resources at their disposal to have a bigger throughput of patients so they could eliminate the waiting-list. I am sure that with concerted action we could get rid of the waiting-list in many ways, and I welcome the opportunity to debate this question in general, because that is what the noble Baroness has asked us to do.

Looking at the new clause, it would appear that it transfers all the responsibility for these matters from the Secretary of State to the Board. Whether that is a wise provision I am not entirely sure, but at least it directs attention to something with which I am quite satisfied—and I am speaking now as a general practitioner practising medicine—is an important cause of frustration, resentment and of general dissatisfaction.

I feel it necessary before I sit down to say that this is not wholly a matter just of private patients. There is no substantial evidence that private patients get into hospital more quickly. There is a suspicion that private patients get into hospital more quickly, and this suspicion often causes many of the difficulties. If I as a general practitioner ring up a consultant in a particular hospital and say, "This child is waiting to have the tonsils removed and has had a number of severe attacks. I really do think you should get this child into hospital more quickly", and if he does so, immediately there is the suspicion by all who are down the queue that somehow some kind of corrupt practice has entered into the business.

Here we are not concerned with private patients within National Health Service hospitals, but with the area in which patients have private consultations with consultants, and merely go into the consultant's rooms to be examined; he then decides perhaps that the patient needs admission for an operation at a later stage, and the patient is put on the waiting-list. There is a widespread assumption that patients who merely pay a private fee for a private consultation somehow manage to elevate themselves up the waiting-list. I myself would have said that that particular practice is not all that common, because I think there are watchdogs at the hospitals in the form of registrars and other people who do not like that sort of behaviour. If they see a consultant trying to manoeuvre his private patients up the waiting list, they will tend to take counteraction which will be effective, so I do not think it is all that common, but the suspicion of it is deeprooted and damaging to our Health Service.

Anything that can be done (and I do not say it can be done by this Bill or by this new clause) to remove the suspicion and to make it clear that patients are admitted to hospital in order of some kind of acceptable priority is a good thing. I agree with the noble Lord, Lord Hill of Luton, that it does not have to be a wholly medical problem; it could be partly social; it could arise in certain other legitimate and quite proper factors. Anything which can be done to that end would, I am sure, be to the benefit of our National Health Service.

Baroness YOUNG

We have had a most useful debate on this subject and it has been very valuable to hear the views of the noble Lord, Lord Hill, and the noble Lord, Lord Winstanley. One of the facts very much drawn to my attention is that this question is not only a matter of medical priorities; there are also a great many social reasons why someone may require to come to the top of the queue. The practical fact of the matter is that it is not so much a shortage of beds which makes the length of the queue; it is frequently shortage of staff, or time in the theatre, or shortage of time of the consultant. This is not an Amendment I had intended to press; it was useful to discuss it in order to test the view of the Committee. The concern about the National Health Service queue has been the reason for this Bill, and therefore it is right that we should debate the queue and whether it is possible to do anything at all about it.

There is one last point I would make. In preparation for this debate, I discovered that the one country in Europe which, so far as I know, has a full-time salaried service of consultants—Sweden—is the country which has the longest queues, and it is the service at the maximum cost; it is a 24-hour service with consultants working an eight-hour shift. The result is that there is always somebody there. It has become extremely expensive and thoroughly inefficient. That may be one of the consequences from which we shall suffer if we are pushed into the position where everybody has to become a full-time consultant. One conclusion to be drawn is that it is not just phasing out pay beds which will shorten the queue; it is a much more complex question which deserves a great deal of study, and I hope it is something to which the Government will address their minds. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 7 [Secretary of State's powers to provide services etc. otherwise than for purposes of services under National Health Service Acts]:

12.38 a.m.

Baroness YOUNG moved Amendment No. 61: Page 9, line 19, leave out ("satisfied") and insert ("advised by the Board").

The noble Baroness said: The purpose of this Amendment is to make it clear that in the particular circumstances of the provision of services it is the Board and not the Secretary of State who will decide whether or not the services should be supplied to private patients. This seems to me an Amendment which follows naturally from the other Amendments we have moved, because the fact is that if the Board is to be truly independent and is to perform some useful function then it would be right that the Secretary of State should exercise the powers described in this clause, and indeed in Clauses 8 and 9 on the advice of the Board rather than whenever he himself is satisfied. This is very much the kind of point that my noble friend Lord Harmar-Nicholls has been concerned with.

Whenever we read the words, "when the Secretary of State is satisfied" everybody immediately becomes alarmed, because we do not quite know under what circumstances the Secretary of State will be satisfied or not satisfied. The fact remains that in this clause, where we are concerned with the use of NHS facilities for private patients, it would be in keeping with the functions that we believe the Board should have that the Board should advise the Secretary of State on making provision for facilities in the National Health Service to be used by private patients. I hope that the Government will consider this Amendment favourably. It is an Amendment to which we attach some importance. It is important at all stages that the Board should have a power to advise the Secretary of State, as it is meant to be objective in its assessment whereas the Secretary of State, even if he should wish to be objective, will not be seen to be objective in the same way that the Board will.

On Question, Amendment agreed to.

12.41a.m.

Viscount LONG moved Amendment No. 62: Page 9, line 21, leave out ("to a significant extent") and insert ("substantially").

The noble Viscount said: May I move Amendment No. 62, and speak to Amendments Nos. 63, 93, and 94. In moving this Amendment, we are looking for more satisfactory words to use than the words, "to a significant extent", and we move to insert "substantially". We believe that if the Secretary of State has easier wording, he would be able to act more clearly in his mind as to how to operate this clause. In my view, the words "to a significant extent" are quite new, and if "substantially" was placed in the clause perhaps he would find it much easier. I beg to move.

Baroness YOUNG

I should like to support my noble friend. I am not a lawyer, but my understanding is that the phrase "to a significant extent", which occurs here for the first time but recurs frequently later in the Bill, is not an expression which is familiar in law. Whether something is significant presupposes a human observer to whom it signifies something, and it is therefore applying a subjective test. That is why the law has, in similar situations, preferred an objective test of whether something has substance. It is for this reason that the Amendment has been drafted in the way that it has.

I have already referred on several occasions to the numbers of instances in the Bill in which the lawyers will make a lot of money out of it, and I think on this matter the Government might feel that it is worth looking at. It will not in any way go against the principle of the Bill, but it will at least make it clearer to those reading it.

Lord WELLS-PESTELL

Perhaps I could take Amendment No. 62 with 63. The effect of both these Amendments would be to enable the Secretary of State to use his powers under the provisions noted in Clause 7(1) and (2) only if he is satisfied that to use them would not substantially interfere with his duties under the NHS or substantially operate to the disadvantage of patients seeking or afforded access to NHS facilities, as NHS patients. The purpose of Clause 7 is to ensure that the Secretary of State exercises the powers to provide and make available to the private sector certain NHS facilities, services and goods, substances such as blood and other substances and human tissue, in such a way that NHS patients are not thereby disadvantaged. It also gives effect to that part of paragraph 3(e) of the proposals of 15th December which said: The Bill would propose to allow health authorities to provide and charge for such specialised services for patients provided that they can satisfy the Secretary of State that there will be no disadvantage to NHS patients and seeks to remove as far as possible any advantage which paying patients using or seeking to use the NHS might have over non-paying patients, as a result of having more rapid or assured access to the facilities provided by the NHS. The powers listed in Clause 7 are all powers to provide for people who are not NHS patients, services or facilities or goods which are provided for NHS patients as well: the aim of the clause is to ensure that in using these powers the Secretary of State does not in fact detract from the availability of these services, facilities or goods to NHS patients.

The substitution of "substantially" for "to a significant extent would increase the amount of interference or disadvantage which the Secretary of State could allow to result from his use of these powers, although not providing any clear provision as to how far the amount would be increased, or what would be the limit. The use of these powers would almost invariably have some slight effect, either directly or indirectly, on the service available for NHS patients; but the words "to a significant extent" are intended to ensure that the Secretary of State is not bound to take account of minimal effects, but must be guided by whether or not there would be noticeable and effective interference or disadvantage.

On Committee in another place the then Minister of State said that it was a matter of judgment how" no disadvantage to NHS patients" should be interpreted, but his judgment was that "to a significant" extent was a more accurate interpretation than "substantially". He then said that the word "significant" gave the Secretary of State just that edge to allow some impairment while giving him enough freedom to make an overall decision which was to the advantage of the NHS, whereas "substantially" would significantly alter the pattern—in terms of what the layman thinks of the two words—but it would not make much difference as to how the Secretary of State would make his decision. It is clear that that explanation was acceptable to the Opposition because the Amendments which were being debated, which were in exactly the same terms as these Amendments, were negatived without the Opposition pressing them to a Division.

Viscount LONG

I was amazed to hear the noble Lord, Lord Wells-Pestell, say that in his view the word "substantially" in this context was not strong enough. Once again I feel that the Secretary of State may over-ride the Board and will not take their advice. I appreciate what the noble Lord said about various goods—blood and so on—but in view of what my noble friend Lady Young said about the present wording, it is clear that we need something stronger, more definite and more exact. I feel strongly about this and unless Lord Wells-Pestell can produce more information, I shall have to urge my noble friends to press the Amendment.

On Question, Amendment agreed to.

Baroness YOUNG moved Amendment No. 63: Page 9, line 25, leave out ("to a significant extent") and insert ("substantially").

On Question, Amendment agreed to.

12.51 a.m.

Lord SANDYS moved Amendment No. 64: Page 9, line 28, leave out ("otherwise than as private patients").

The noble Lord said: This Amendment deals with the disadvantages to private patients when caught under Clause 7. The Amendment suggests the deletion of the words, "otherwise than as private patients". I believe that it is self-evident as it stands, but, if we look back to subsection (2), we see that the Secretary of State is given two warnings. He is told not to interfere to a significant extent with arrangements to provide accommodation or services; then he is told that nothing which he proposes to do or allow must operate to a significant extent to the disadvantage of persons seeking accommodation or services at National Health Service hospitals.

In suggesting the Amendment, we seek to ensure that the provision would operate very much more satisfactorily. As your Lordships are aware, private patients will be admitted to out-patient facilities after the Bill becomes an Act, but there is this caution here and it militates against the provisions of previous Acts—notably Section 31 of the 1968 Act—where services are provided by virtue of the powers granted in previous Acts. There is a re-enactment of the 1946 Act.

I believe that the Government will have to justify subsection (2)(b) because it seems an unnecessary phraseology which tends to threaten the private patient when seeking to make use of facilities that are made available in an earlier part of the Bill. I beg to move.

Lord WELLS-PESTELL

The effect of this Amendment would be to delete the words "otherwise than as private patients" from Clause 7(2)(b). Thereby Clause 7 would enable the Secretary of State to exercise the powers referred to in the clause only if satisfied that doing so would not operate to the disadvantage of people seeking admission to National Health Service hospitals either privately or as National Health Service patients. If, as we think it must be, the principle is accepted that NHS patients must not be put at a disadvantage by the provision or sale of vital services to the private sector, the Amendment seems wholly irrelevant.

The Amendment seems to suggest that a private patient who is admitted to a NHS hospital under the "occasional arrangements" procedure needs some kind of statutory protection from disadvantage. There can be no discrimination against such a private patient because he will have been admitted on exactly the same basis as any other NHS patient for a specialised facility that is either not available in the private sector or, if it is, is not reasonably accessible to him, or because it is to the advantage of the Health Service for him to have his treatment in a NHS hospital. He will not be denied any treatment, facility or service that he needs. In that case, we feel that the Amendment can be regarded as unnecessary. It is also contrary to the basic aim of the Bill which is that National Health Service patients should have first claim on the resources of the National Health Service.

It is also contrary to the basic aim of the Bill, which is that National Health Service patients should have first call on the resources of the NHS. Any citizen of this country who needs treatment is entitled to receive it in the NHS in accordance with his medical priority, whether or not he has hitherto sought treatment in the private sector. No one, therefore, need fear that he will not receive any treatment he needs in accordance with his medical priority. If the NHS is to have first call on its own resources, it is frankly impracticable at the same time to guarantee that those who prefer to seek the treatment they need privately will never in any circumstances be significantly disadvantaged within NHS hospitals. There is no intention of deliberately refusing to provide a service or a facility which the NHS has undertaken to provide to the private sector when it is essential for the preservation of life. Nevertheless, the NHS cannot be put in the position that it is bound in all circumstances, and irrespective of considerations of relative medical priority, to supply the needs of the private sector. The Health Services Bill seeks to re-affirm the principle that the health services which this country provides should be freely available to all who need them on the basis of medical priority alone. I suggest that the Amendment is not compatible with that aim.

Lord SANDYS

I recognise what the Government have said: that they would make an exception of a situation where the preservation of life is concerned, but I think that there are situations which the Government should consider with some seriousness. There is, for instance, the question of the purchase of goods and supplies. Let us take a simple and quite ordinary example of the purchase by, say, a private charity of a quantity of serum or blood plasma from the National Health Service for use in an emergency situation, such as a disaster. The noble Lord will say that that involves the preservation of life and that therefore they would make an exception. But it so happens that charitable bodies and certain private bodies like to make purchases when there is not the immediate threat of the kind of situation I have mentioned; that is to say, it is not a designated situation in which a disaster or some other happening has occurred. In other words, these bodies are creating a stockpile against a future possible emergency.

Alternatively, it is quite possible that goods or supplies may be purchased for immediate use in the private sector, for a nursing home, or for some circumstances of perfectly ordinary administration. I wonder whether there is a case here for arranging the situation rather better, because it has come to my notice—and, I am sure, to the notice of many of your Lordships—that in a Sunday newspaper a few months ago there was a report that the National Health Service had stockpiled on certain very expensive items which it was unable to dispose of satisfactorily, and had sold at a price which was not beneficial.

I believe that the National Health Service, like a number of other national bodies, should trade and should stockpile, and should reduce stocks, and should manage its supplies in such a way that it does not have supplies of, for instance, special splints or other equipment, which are deteriorating, but that it should make goods available for sale on a turnover basis. This may not be a suitable moment to mention a matter of this kind in this connection, but I think it helps to illustrate what we are talking about. I do not think that the noble Lord's reply was particularly helpful in this regard. I think that he was concerned that the retention of the words "otherwise than as private patients" refer merely to the possibility of pay beds. It goes very much wider than that; it creates rather different circumstances. I hope your Lordships will feel able to support me in pressing this Amendment.

On Question, Amendment agreed to.

Clause 7, as amended, agreed to.

1 a.m.

Baroness YOUNG moved Amendment No. 65: After Clause 7, insert the following new clause:

Interference with treatment of NHS patients by treatment of private patients.

.—(1) It shall be the duty of the Board to investigate the extent (if any) to which the treatment of persons at NHS hospitals as resident or non-resident private patients has interfered with the provision of full and proper attention to persons seeking or afforded access otherwise than as private patients to any services provided under the National Health Service Acts.

(2) The Board shall submit to the Secretary of State not less than once in every period of twelve months beginning with the date on which this Act is passed a report setting out the results of its investigations during that period, together with its recommendations of measures for the reduction or elimination of any such interference as the report may disclose.

(3) The Secretary of State shall not carry out the reduction mentioned in section 3(1) above or revoke the authorisations mentioned in section 4(1) above except to the extent that such reduction or revocation is recommended in such a report as such a measure.

The noble Baroness said: This Amendment, again, is one on which we should like to test the feeling of the Committee. It suggests a new clause, and the purpose of the Amendment is that the Board should have a duty to investigate abuses of private practice within the National Health Service and that there should be no phasing out of the pay beds until it has undertaken this investigation. As in the case of the other Amendment which we moved, which was after Clause 6 and was concerned with hospital waiting-lists, this is an Amendment to discuss what we understood to he one of the main reasons for the Bill, which is abuses by way of queue-jumping and abuses within the National Health Service. In this Amendment, under subsection (1), it would be the duty of the Board to investigate the extent, if there is any at all, to which the treatment of persons in National Health hospitals as resident or non-resident private patients has interfered with the provision of services to patients who are in hospital as National Health patients; and under subsection (2) the Board would submit to the Secretary of State annually a report on the results of those investigations.

I think that one of the ways in which it is possible to overcome public concern about abuses, and indeed to identify whether or not there are abuses at all, would be if some outside organisation looked at the question and was obliged to produce a report upon it. This seems to us a function which could well be carried out by the Board. The Board, after all, as the noble Lord, Lord Wells-Pestell, has said on more than one occasion, is an independent Board. It is charged, it is true, with the rather narrow function of phasing out pay beds from the National Health system, but it would by no means he contrary, I think, to its terms of reference if included among those was the duty of looking at abuses, as to whether or not having private patients within National Health Service hospitals in any way affected the medical care of National Health patients. Rather like the problem of the queue and of queue-jumping, this is an Amendment to probe the view of the Government on this issue, to find out whether or not they have considered it and, if they have, what proposals they intend to make to do anything about something which seems to have been one of the major reasons for this Bill. I beg to move.

Lord WELLS-PESTELL

We do not feel able to accept this Amendment, and I hope that perhaps I might be able to say something useful in support of that view. This new clause seeks to impose an additional duty on the Board; namely, to investigate the extent to which the treatment of people as private patients at National Health Service hospitals has interfered, if it has so interfered, with the provision of services to National Health Service patients. It would require the Board to report annually on its investigations, making recommendations for reducing any such interference. Additionally, it would prevent the Secretary of State from carrying out, except as a result of recommendations made in such a report, the reduction of pay bed authorisations by 1,000, as provided in Clause 3(1), or the revocation of authorisations, as provided in Clause 4(1).

This new clause refers to all treatment of private patients in NHS facilities, and therefore includes their treatment in pay beds or private out-patient facilities authorised under Sections 1 and 2 of the 1968 Act, as well as their treatment under Clause 8. Its effects would therefore be to require the Board to monitor the extent to which the use by private patients of authorised pay beds, authorised outpatient facilities or facilities made available under Clause 8 of the Bill interfered with the provision of services to NHS patients. It would also require the Board to report the results of these investigations annually to the Secretary of State and to make recommendations for lessening or eliminating such interference, and, further, to prevent the Secretary of State reducing by 1,000 within six months of Royal Assent the total number of authorised pay beds, and to prevent him revoking authorisations of pay beds on the recommendations of the Board, unless such reduction or such revocation was recommended in one of the Board's reports as a measure for reducing interference with services to NHS patients.

In so far as this clause relates to private patients being treated in NHS facilities authorised under Sections 1 and 2 of the 1968 Act, and especially paragraph 3, it is manifestly absurd. It would completely alter the fundamental provisions about the phasing out of pay beds in the Bill which in turn aim to embody in legislation the proposals negotiated with the medical and dental professions and announced by the previous Secretary of State to the House of Commons on 15th December. It therefore cuts right across what we have come to call the Goodman proposals. The parts of those proposals relating to pay beds were set out in paragraphs 3(b) and 3(c) and 3(d) which read: Subject to Parliament's decision, it is accepted that there are some pay beds and facilities which could be phased out without undue delay, there being already reasonable alternative beds and facilities; and that the Government will publish in a Schedule to the Bill the location of 1,000 pay beds to be released to general NHS service within six months after the Bill has been received". It is clear that the Government could not possibly accept the new clause in its application to the use of authorised private facilities. However, the intention behind its application to the use of private patients of NHS facilities under Clause 8 draws more sympathy from the Government. In discussions with officials of the Department, the profession raised a question about the possibility of the Board being given a duty, or perhaps simply a right, to receive from people in any particular area or hospital—for example, health authority staff, doctors and other NHS staff—requests to examine retrospectively the working in that area or hospital of the arrangements for admissions under Clause 8, and advise informally by improvements it could suggest. The Department undertook to look at this suggestion. Clearly there might be incidental advantages to NHS staff and authorities in this: the help of an impartial but experienced body, who might be able to give helpful and clear sighted advice, could then be made available to local staff and managers who might be anxious, aggrieved by or dissatisfied with the working of the Clause 8 system. However, Ministers are anxious not to extend the scope of the Board's statutory functions to include this additional duty imposed on them by the Bill. One of the essential characteristics of the system of admissions under Clause 8 is that it is to be operated locally, and it is to be operated by the health authorities, to whom the Secretary of State's powers will be delegated.

The Department made it clear in a discussion paper on Clause 8 which has been considered by the professions and by the National Whitley Council Staff Side, that there will he discussions locally among the medical profession, other staff and the health authorities to determine the local operational policy in each area. After this policy has been established, the actual procedure for admissions will of course be implemented by the consultants; but it will be the responsibility of the health authority to monitor, retrospectively, how well the system has been working. We can well understand that if local problems or dissatisfactions arise which cannot easily be resolved by the local bodies involved, these bodies might welcome an independent source of advice. However, it would not he possible, under the Bill as drafted, for the Board to be able to take on this task if asked to do so on a particular occasion. The only way of achieving this "permissive" position would be to amend the description in Parts ft and HI of the Bill of the functions of the Board, and under them to include this.

We do not think that it would be appropriate to give the Board a statutory function in relation to the Clause 8 system, in view of the fact that responsibility for making available NHS facilities in the circumstances which satisfy all the conditions in Clause 8 will rest entirely with health authorities. Because of that—and I have gone through this very fully, because of the nature of the Amendment—the Government must resist this Amendment if it is pressed.

1.12 a.m.

Lord O'HAGAN

I followed the explanation of the noble Lord as well as I could at this hour of the morning. He went through in great detail the various provisions that my noble friend seeks to introduce after Clause 7 and explained the reasons why the Government did not see fit to accept them. He went on to say that, notwithstanding the view of the Government on this particular Amendment, they considered that there was a need to examine how the system set up under the Bill was working, and they would be taking advice from the various Area Health Authorities which would act as a monitoring system for keeping the working of the Act under review.

The noble Lord did not answer my noble friend's question. She moved this Amendment in a spirit of inquiry, to find out how the Government proposed to check whether the existence of private care was damaging the National Health provision. My noble friend specifically asked how they were going to check the consequences of the continuation of the private system, to which the noble Lord has committed the Government on various occasions, for the National Health patient if this Amendment were not accepted. The noble Lord rejected the Amendment. He gave an undertaking that there would be an informal system on the Area Health Authority level. But he did not appear to respond to her inquiry as to how the overall pattern and the effect of the continuation of the private sector would be kept under review by the Government. That is an important point, because many of the abuses which have been alleged from time to time have not been fully substantiated.

There is in this issue a great deal of emotion, as the noble Lord will recognise, and in order to prevent the sort of controversy that gave birth to this Bill—which is a legislative expression of a compromise achieved by the noble Lord, Lord Goodman, in order to prevent the need for this sort of Bill recurring—surely the Government should be bending their minds as to how they are to keep themselves informed of the effect of the continuation of the private sector, to which they have committed themselves, on the provision for the National Health patient. I wonder whether the noble Lord could respond to that inquiry, because I do not think he has done so as yet.

Lord WELLS-PESTELL

It can only be done by the Area Health Authorities. It must be their responsibility. They are going to deal with the situation, as they are with people who want to he admitted to hospital. They will have the responsibility for the waiting-list, and the monitoring of the other things mentioned by the noble Baroness must be at that level.

Baroness YOUNG

The noble Lord says it must be at that level: but is it really going to be at that level? That is the point, because if in fact it is not at that level, then no one will monitor the abuses, and we shall never know whether the allegations are true or false, or whether this Bill is not based on fact at all. Although it is quarter past one in the morning and I realise it is tiresome to have to address one's mind to this point, as we have been told we have been presented with this Bill because there were so many abuses of the National Health Service queue I think we ought to have an answer to the question.

Lord WELLS-PESTELL

I have given an answer. I said it was the responsibility of the local health authorities.

Lord O'HAGAN

The noble Lord is expecting a process of continual spontaneous combustion. He seems to be expecting the Area Health Authorities to take it into their heads to see the development of the Health Service in the national context from the point of view of both the private sector and the National Health Service, and to be observing how these developments are going on, comparing one with another and, on their own initiative, making reports to the Secretary of State, or whoever it may be. He seems to expect that they should carry out these duties when they feel like it, without any guidance and without any regular duty being imposed on them to do so. I wonder whether that is good enough.

Lord WELLS-PESTELL

I did not say without any guidance. The noble Lord is putting words into my mouth. I did not say that at all. Obviously, when this Bill is on the Statute Book a good deal of guidance has to be given.

Lord WINSTANLEY

I am sorry to intervene at this very late stage in this argument, and I hope the noble Baroness will not consider it impertinent of me if I ask her quite sincerely to withdraw the Amendment. I say that because she is seeking to establish elaborate machinery for seeking out something which does not exist. She knows it does not exist, but she wants everybody to look for it so that she can say afterwards: "There, you see, there isn't any!" We must get away from the idea that one person can have treatment only at the expense of some other person, and that private patients are all having unnecessary operations or unnecessary blood tests, which are preventing other people from receiving proper treatment under the National Health Service. The plain fact is that we have a total global volume of work to be done, and, unfortunately, the present resources with which to do it are inadequate. No amount of administrative manoeuvring within the shortcomings of our present inadequacies will put that right, and whether it is called "private" or "public" it does not itself create new resources. You will create new resources by getting rid of private practice only if you assume that private patients are having unnecessary treatment.

A private patient having his appendix out does not occupy two beds; he occupies only one, and to say that having his appendix out is somehow detrimental to somebody else who is not having his appendix out is nonsense. I accept that if I, as a doctor, spend five minutes with one patient, I cannot see another patient at the same time, so that anything that anybody does for anybody else is detrimental to a point. But I do not think that we should give credence to rumours of this kind, which are without foundation. Some people have treatment as patients under the National Health Service, while other patients have treatment privately. Let us accept that they all have to have treatment.

It is a point which even Nye Bevan acknowledged in the Second Reading debate way back in 1946. When one of his honourable friends objected that private patients should go along to laboratories for blood tests, his reply was, "Yes, and they can go along for the same blood tests as National Health Service patients—free", and he was right. If anybody is having treatment as a private patient, the presumption is that he can have exactly the same free treatment as a National Health Service patient. So where do we stop? Do we look at all the other patients, and see which patient is having treatment to the detriment of somebody else who is having to wait? I understand entirely the noble Baroness's reason: Let us have an inquiry to show that the reasons behind some of the things in this Bill do not exist. I accept that they do not exist. But to set up elaborate machinery gives credence to the rumours, rather than the reverse.

Baroness YOUNG

I might consider withdrawing my Amendment, but I certainly shall not do it after listening to the noble Lord, Lord Winstanley, if he does not mind my saying so, because I was quite unconvinced by his argument. I will refresh my argument with what the noble Lord, Lord Wells-Pestell, said was the purpose of the Bill—which I am sure was absolutely correct from his point of view—which was: The National Health Service exists to provide a comprehensive health service for all citizens, irrespective of their means. It is not, therefore, in business to meet the special needs of private patients. The fact that it has continued to set aside some of its resources for the benefit of private patients is regarded by many of the most ardent supporters of the Health Service as morally objectionable, socially unjust, and a potential source of abuse".—[Official Report, 21/10/76; cols. 1473–74.] Those were his words on Second Reading. My Amendment is simply designed to find out whether there is any abuse—for somebody should find this out, and as long as the Government go on talking like that everybody will think that there is abuse.

I am delighted to hear from the noble Lord, Lord Winstanley, that there is no abuse. Obviously, there will be some cases. We are all human and open to sin—even the consultants, the administrators and, dare I say it, the Government. But, on the whole, there is not the kind of abuse that has been talked about on this Bill, and all that my Amendment was designed to do was to provide a system for looking at abuse, to see whether there is any, and for investigating complaints. However, I take the point—the noble Lord will be pleased to hear—that subsection (3) of the Amendment is defective and would, in some respects, go against the principle of the Bill. I think I have made my point. We have had a good debate on abuse, and I think I may leave the Government with the thought that this is a matter to which they should turn their attention. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 8 [Restrictions on power under s. 31 of 1968 Act to allow use of NHS facilities by private patients]:

1.24 a.m.

Baroness YOUNG moved Amendment No. 66: Page 9, line 38, leave out ("satisfied") and insert ("advised by the Board").

The noble Baroness said: Clause 8 is, in my view, one of the most important clauses in the Bill. This is one of the clauses put in at once to meet the basic concept of the noble Lord, Lord Goodman, that there shall be facilities within the National Health Service that will be available for use by private patients. Clause 8 states in subsection (2) that the Secretary of State will not exercise his power to phase out these facilities unless he is satisfied that the accommodation or services are required for the purposes of investigation or diagnosis of treatment, which is either of a specialist nature or is not privately available in Great Britain or in a place that is reasonably accessible to the patient. The point of my Amendment is that this is not a matter which should be left until the Secretary of State is, or is not, satisfied that these facilities exist. Once again we are on an important matter of principle in which it seems to us necessary that, when the Secretary of State is considering these criteria, he should be convinced by the Board and not simply himself be satisfied that certain circumstances exist.

As the Bill stands this is a vital matter, to which of course the consultants attach a great deal of importance—that their right to use private facilities in the National Health Service rests entirely on whether or not certain circumstances are satisfied in the opinion of the Secretary of State. In a sense this is another of what I might describe as Goodman Amendments. We believe it is important that in making these decisions the Secretary of State should be advised by the Board, and not just be satisfied himself that certain circumstances are fulfilled. I beg to move.

On Question, Amendment agreed to.

Baroness YOUNG moved Amendment No. 67: Page 9, line 41, after ("skills") insert ("or that the need for specialised equipment or skills is reasonably likely to arise during the course of treatment for another condition").

The noble Baroness said: I find myself in somewhat strange circumstances. Of course, I am delighted that the Government appear to have accepted my Amendment. But we are moving now at a rapid pace, and when I have not actually had a response to the last Amendment I moved, I find myself in the rather extraordinary circumstances of turning to the next Amendment when I hardly feel we have considered the first. I take it that it means the Government have accepted it? I do not wish to sound in any sense ungrateful; I am not. But I believe we shall get ourselves into some kind of procedural difficulty if we do not have a reply. I beg to move Amendment No. 67, which is consequential on Amendment No. 66.

Lord WELLS-PESTELL

I remind the noble Baroness, Lady Young, that when she spoke to Amendment No. 61 it was coupled with Amendment No. 66. That is why, as we did not vote against Amendment No. 61, we therefore did not vote against Amendment No. 66. The two went together.

Baroness YOUNG

I am delighted to hear that explanation. I am not sure that I would have coupled them. But we are in some difficulty because we never had a group list of Amendments and once again we find ourselves in difficulty. However, who am I to object? I am certainly not criticising this procedure.

Lord WELLS-PESTELL

They are the Amendments of the noble Baroness. She ought to know which goes with which. They are not the Government's Amendments. She really ought to know whether Amendment No. 61 goes with Amendment No. 66.

The Earl of KINNOULL

Could not the noble Lord have the courtesy to tell the Committee when my noble friend moves an Amendment, if I may suggest, with great clarity at this time of night, that it is coupled?—because some of us were listening intently and waiting for the noble Lord to reply.

1.30 a.m.

Lord WELLS-PESTELL

I was very surprised that the noble Baroness did not mention it herself. In fact, I thought that she did when she moved Amendment No. 61. If I am right in my supposition that the noble Baroness mentioned it when she moved Amendment No. 61, I should have thought that noble Lords would have made a note of it.

The effect of this Amendment would be to add to the description of the types of treatment or skills, the requirement for which would be grounds for the admission of a person as a private patient to a National Health Service hospital under Clause 8. The ground would thus be that the Secretary of State must be satisfied that the investigation, diagnosis or treatment is of a specialised nature, involving the use of specialised equipment, and that the need for the specialised equipment or skills is reasonably likely to arise during the course of treatment for another condition.

I am perfectly well aware that many consultants would prefer to be able to continue to use the facilities of the National Health Service for treating their private patients and hence would be glad to have the scope of admissions under Clause 8 widened. Nevertheless, I have to remind your Lordships, and I seem to have done so quite often, that we are following in this Bill the lines of a compromise very laboriously hammered out between the medical profession and the Government through the medium of the noble Lord, Lord Goodman. It is the nature of a compromise to be less than either party would have wanted, and it really will have to be accepted that this Amendment goes well beyond the relevant part of the Goodman proposals. If it were carried, noble Lords would be quick to realise that its effect would be to enable consultants to have almost any patient of theirs admitted privately to the National Health Service.

Who is to challenge the judgment of a consultant who says that his patient, although requiring only a fairly routine operation, nevertheless is reasonably likely during his treatment to stiffer from a secondary condition which would require more specialised treatment or specialised skills? For example, this could obviously be said of any patient requiring an operation for a hernia who also had a weak heart. Clause 8 itself represents a concession, as did the relevant part of the Goodman proposals. Clause 8 was included in the Bill because the Government acknowledge that some sophisticated, specialised form of diagnosis or treatment is highly unlikely ever to be provided in the private sector. This could be the case either because of the high cost, on account of the delicate or dangerous nature of the equipment required, or because of the degree of specialised expertise and teamwork required to carry out the techniques in question.

The Government had two aims in mind. They felt that in such cases the part-time consultants concerned could effectively be deprived of private practice if there was no possibility after the phasing out of pay beds of practising in the National Health Service. Also they were aware that in the same cases patients would equally be deprived of the choice between the National Health Service treatment or private treatment. However, since it has always been open to people who are resident in Great Britain to seek treatment as National Health Service patients, the Government do not accept responsibility for providing private accommodation and facilities within the National Health Service for patients who receive routine treatment, simply on the ground that complications could arise which would require more specialised skills. To do so would virtually negate the central purpose of the Bill, which is to separate the National Health facilities from private practice.

Baroness ELLIOT of HARWOOD

I should like to ask the noble Lord a question. I quite understand what he has said and I quite understand the reluctance to enlarge the services available to private patients through the National Health Service, but if we are talking about big cities where there are wonderful great hospitals, there are also probably other facilities which can be used by private patients without having to trespass on the National Health Service through the Hospital Service. But there are a lot of areas where those facilities and great hospitals are not available, and the subsidiary equipment which might be wanted for a private patient could not be obtained in a small urban area or a semi rural area. Would the noble Lord think that it would then be wrong for private patients to go to one of these great hospitals where there was this kind of equipment that they could not get anywhere else? It seems to me that would be a bit hard. I quite see that in an area where there is a lot of equipment and a large centre, such as Bristol, London, Manchester, Newcastle, there is no problem, but a lot of people do not live in those areas, and I hope very much that it might be possible for concessions to be made for people who live in areas where these facilities are not available except by going to a larger hospital or a place which has the necessary equipment.

Lord WELLS-PESTELL

The Government have always made it quite clear that a person who wishes to be treated privately and to have a private doctor or private consultant, if he or she needs some kind of specialised medical help that is not available either in the private sector where they happen to live or in a local NHS hospital, can he treated in a National Health Service hospital where that particular specialty happens to exist. It is not an uncommon thing for people in the North of England to come to the Midlands or to the South for that kind of treatment, and there is far more movement among patients from one area to another than I think many people realise. The facility is available.

Baroness YOUNG

The noble Lord has explained that this Amendment goes much too far and has gone right outside the Goodman proposals, which means that consultants could only use the specialist facilities within the National Health system in certain circumstances. But there is, of course, another group of people who will be greatly affected by this Bill, and it was a group that was referred to by my noble friend Lord Sandys earlier in the evening. Those are academic staff in teaching hospitals doing private work without accepting the fees. Such people of course are very anxious to make use of National Health Service facilities and their patients are private patients in the sense that they pay for the service they are getting, although of course the consultant does not receive the fees: as the noble Lord knows, the fees go to the hospital.

There are a number of unusual and interesting cases from abroad which come to this country because the consultant has built up an international reputation and therefore people come from abroad to be helped by the particular consultant, and if his work is to continue it could well be that in those circumstances this Amendment would be vitally necessary. As far as I can see, it is not covered by subsection (2)(a), or at any rate is not necessarily covered by it. Therefore, there are other cases which could he met by Amendment No. 67. Of course, such work which academic people do is very much in the interests of the National Health Service, because the National Health Service benefits from the consultant and his skills, and the National Health Service gets the benefit of the money that the patient is paying which then goes into the hospital or into further research. There are a great many benefits from it. I cannot believe that it is the wish of the Government that people working in these circumstances should be denied the use of the facilities, and before I consider what to do with this Amendment, I hope the noble Lord, Lord Wells-Pestell, will consider this particular point.

Lord WELLS-PESTELL

I do not know whether this meets the point of view of the noble Baroness, Lady Young, but I understand my right honourable friend will issue guidance to the National Health Service authorities in the matter of Clause 8 admissions when he has had further consultations with the medical and dental professions. My right honourable friend will be prepared to consider further any views that may be expressed on the definitions to be given in that guidance of the types of case that would be regarded as admissible under the terms of the Act, as it will then be. As drafted, the Bill admits to some flexibility, but I do not know whether that is a sufficient answer for the noble Baroness.

Baroness YOUNG

I do not think that that is a satisfactory answer. As the noble Lord knows, this is a very important section in that it is fundamental to the Goodman proposals that consultants should be able to use specialist equipment in hospitals that cannot be provided easily in all hospitals. This I think has been accepted, but it is not good enough to say that those consultants primarily concerned with research, and who have private patients from overseas who are known as private patients because they pay fees (although, of course, they are not private patients in the usually accepted sense of the term), may be deprived of their facilities simply because of the drafting in Clause 8. I really do not feel that we can leave it to the Secretary of State to have further consultations and discussions. This is an absolutely fundamental point in teaching hospitals and research, and fundamental to consultants who have an international

Resolved in the affirmative, and Amendment agreed to accordingly.

1.51 a.m.

Lord SANDYS moved Amendment No. 68: Page 9, line 45, after ("patient") insert ("and to the practitioner of his choice").

reputation and are accustomed to using these facilities in hospitals, facilities which may not be available in private hospitals for some considerable period of time. Under the circumstances, I feel I must press my Amendment.

1.44 a.m.

On Question, Whether the said Amendment (No. 67) shall be agreed to?

Their Lordships divided: Contents, 67; Not-Contents, 43.

CONTENTS
Abinger, L.	Gray, L.	Mowbray and Stourton, L. [Teller.]
Alport, L.	Greenway, L.
Ampthill, L.	Hanworth, V.	Newall, L.
Auckland, L.	Harmar-Nicholls, L.	Northesk, E.
Barrington, V.	Harvington, L.	O'Hagan, L.
Belstead, L.	Hill of Luton, L.	Onslow, E.
Berkeley, B.	Hunt of Fawley, L.	Pender, L.
Boyd of Merton, V.	Jellicoe, E.	Rankeillour, L.
Carrington, L.	Kemsley, V.	Reay, L.
Colwyn, L.	Kinnaird, L.	Redesdale, L.
Cork and Orrery, E.	Kinnoull, E.	Robson of Kiddington, B.
Crawshaw, L.	Lauderdale, E.	St. Just, L.
Denham, L. [Teller.]	Long, V.	Sandford, L.
Devonshire, D.	Lonsdale, E.	Sandys, L.
Effingham, E.	Lucas of Chilworth, L.	Sharpies, B.
Elles, B.	Lyell, L.	Stamp, L.
Elliot of Harwood, B	Macleod of Borve, B.	Strathcona and Mount Royal, L.
Faithfull, B.	Mansfield, E.	Swansea, L.
Falmouth, V.	Margadale, L.	Tweedsmuir, L.
Ferrers, E.	Monson, L.	Vickers, B.
Gainford, L.	Morris, L.	Westbury, L.
Gisborough, L.	Mottistone, L.	Winstanley, L.
Gowrie, E.		Young, B.

NOT-CONTENTS
Birk, B.	Jacques, L.	Oram, L.
Brimelow, L.	Kagan, L.	Peart, L. (L. Privy Seal.)
Bruce of Donington, L.	Kaldor, L.	Pitt of Hampstead, L.
Castle, L.	Kennet, L.	Ponsonby of Shulbrede, L.
Champion, L.	Kilbracken, L.	Raglan, L.
Collison, L.	Kirkhill, L.	Ritchie-Calder, L.
Davies of Leek, L.	Llewelyn-Davies of Hastoe, B.	Stedman, B.
Davies of Penrhys, L.	Longford, E.	Stone, L.
Delacourt-Smith of Alteryn, B.	Lovell-Davis, L.	Strabolgi, L. [Teller.]
Donaldson of Kingsbridge, L.	Lyons of Brighton, L.	Weidenfeld, L.
Elwyn-Jones, L. (L. Chancellor.)	McCluskey, L.	Wells-Pestell, L.
Fisher of Camden, L.	Morris of Kenwood, L.	Wilson of Radcliffe, L.
Gregson, L.	Murray of Gravesend, L.	Winterbottom, L. [Teller.]
Hale, L.	Noel-Buxton, L.
Harris of Greenwich, L.	Northfield, L.

The noble Lord said: This Amendment concerns the situation to which we have referred already this evening in which the patient should be permitted to consult the practitioner of his choice. This Amendment was also a tied vote in the House of Commons on Standing Committee. The private alternative must be accessible not only to the patient but to the consultant, and the arrangements in hospitals should be organised in such a manner and throughout the country that they should be allowed to be so. The noble Lord, Lord Wells-Pestell, said that Clause 8 represents a concession to the private sector, and we agree with him to a limited extent. He said that he believed it was a concession to the part-time consultant. This Amendment seeks to follow up what he has said, because we believe in order to fully justify his statement it must be written into the Bill that the practitioner of his choice should be clearly set out as stated in the Amendment. This is once again a Goodman Amendment. It was acknowledged in the Goodman proposals, and we believe that this should be written into the Bill. I beg to move.

Baroness ROBSON of KIDDINGTON

I should like to support this Amendment wholeheartedly. It is one of great importance in the Bill. We have listened for the whole of the day to the debate on the division of private practice from the National Health Service. To me that meant the division of the private provision within National Health Service hospitals of the actual physical bed complement. This is what I thought we were talking about. I have a terrible fear that, unless we accept this Amendment and include it in the Bill, we are running the risk of creating a completely separate Health Service from a medical point of view. I think that that would be the most damaging thing that could happen to the Health Service. If we lose a large percentage of our consultants because they go full-time private, then the loser will be the National Health Service. That is why it is essential for these facilities to be made available and easily accessible for the practitioner of the patient's choice, even more important than for their being made easily accessible to the patient.

It has been agreed by the Government that private practice must be allowed to exist, because people must have the right to take part in private practice and patients must have the right to choose, but one of those freedoms could be taken away because an essential part of that is being able to choose one's practitioner. One can choose a practitioner, but he does not necessarily have the same skills if he must move to a hospital and work in surroundings to which he is not used. Hip operations have been mentioned. There are many surgeons, experts in this field, who would not feel happy, even if the facilities and conditions existed at a hospital near the patient, working in a strange operating theatre. Part of their reputation and skill depends on the surroundings in which they are used to working. Thus, if we want to retain the freedom to choose one's practitioner, we must ensure that that practitioner is allowed to function in the surroundings to which he is used.

Lord HILL of LUTON

The Amendment raises a crucial issue. I fear that the results of this separation of private practice from NHS hospitals is likely to be, first, the lesser one that there will be a considerable waste of professional time in moving from one place to another and, secondly, the greater danger that there will be a withdrawal from the NHS and therefore from the NHS patient of a great deal of professional skill. Accessibility is, therefore, very important to minimise those dangers. The arguments for this are not merely incidental convenience but are based on the need to sustain the accessibility of patients to doctors, if possible in the same vicinity. In my view this is one of the most important Amendments before the Committee because this accessibility, this availability of doctors, is vital and I hope the Amendment will be accepted because it would make a really important improvement to the Bill.

Lord WELLS-PESTELL

I must say at the outset that this is not an Amendment which the Government can see fit to accept. Its effect would be to make one of the grounds for allowing the occasional use for a paying patient of NHS facilities for specialised investigation, diagnosis or treatment the inaccessibility to the patient's consultant of alternative private facilities. The purpose of Clause 8(2)(b)(i) is to ensure that a patient who is in need of a particular form of treatment, but cannot receive it from any private hospital accessible to him, can be given that treatment privately in an NHS hospital.

The Goodman proposals originally envisaged that specialised services would be provided to individual patients in specified circumstances, provided that the Secretary of State was satisfied that these services could not reasonably be provided in the private sector to a satisfactory standard in this country. During the debate in Committee stage in another place, the then Minister of State said: … the words in this country' are clearly meant to indicate … that the patient should be expected to travel to secure private treatment if it is available from a different consultant somewhere else in the country. He would have to travel in the NHS. This is the whole point about these specialised facilities. If one happens to be in a remote part of Cornwall one might have to travel many miles, say, to Bristol for some specialised facility. This is an acceptable factor in the NHS and we are trying to apply the same to the private sector".—[Official Report, Commons, 15/7/76; col. 1133.] The clause is not concerned with the continued provision of opportunities for private practice within the NHS to doctors who cannot reasonably reach alternative facilities in the private sector. Nor does this clause guarantee to a patient the right to be treated by the consultant of his choice at a NHS hospital. If he cannot be treated in the private sector at a place reasonably accessible then he may be admitted to a NHS hospital as a private patient. Whether or not he is treated by the consultant of his choice is a matter between him and the consultant. In short, the Government are prepared to allow a private patient to he treated in a NHS hospital in circumstances where it would be unreasonable to expect him to travel to the other end of the country in order to obtain it in the private sector. It is not prepared, however, to allow a consultant to use NHS facilities for the treatment of his private patients merely because it is less inconvenient for him. Acceptance of this Amendment would be tantamount to accepting the indefinite continuation of private practice in the NHS, and that is something that we have set our face against.

On Second Reading the noble Lord, Lord Goodman, said: It has been pointed out, validly pointed out, that this would be not only unreasonable but rather foolish. If there is a busy consultant in London and he has a patient in Bradford or in Newcastle it is an absurdity to suggest that he should travel to Bradford or Newcastle to carry out an operation with a brand new team of people, with equipment with which he is not familiar and in unfamiliar surroundings. I think this will be a very small concession to make, and I have a feeling from a conversation that I had with the Secretary of State—and I should like to pay a tribute to him, if I may, because I think from the outset he has approached this matter with a desire to restore confidence—that this was an arrangement he would like to accept".—[Official Report, 21/10/76; col. 1500.] I think, with respect to the noble Lord, that he exaggerated the difficulty. Of course it would he absurd to expect a London consultant to travel to Bradford or Newcastle to work in unfamiliar circumstances with an unfamiliar team. Surely no difficulty arises—it is the patient himself who would travel in these circumstances. Why should a patient in Bradford or Newcastle consult a London-based consultant unless he expects to be treated by that consultant in the latter's hospital with the heading of his own team, or unless that consultant happens to he the only man in the country who is in a position to deal with him? Having said that, I do not think that it is necessary to say anything more, other than that in the circumstances what is proposed is quite unreasonable and we cannot accept the Amendment.

Lord SANDYS

I did not expect the noble Lord to give a very different reply from that of his right honourable friend. In another context his right honourable friend said, at column 504 of the Official Report of Standing Committee D—I admit that it was on another Amendment: I rise to seek to persuade the Committee to resist all the Amendments. Not for the first time I fear I have to urge upon my honourable friends arguments showing why I do not believe that it would be wise to accept my right honourable friend's Amendment or similarly the Opposition's Amendment". The noble Lord, Lord Wells-Pestell, has taken a note out of the book of his right honourable friend. I think that in the circumstances the noble Lord does not have very much more than a quarter of the argument on his side. What the noble Baroness said in this context struck me very forcibly: that the consultant should be able to operate or carry out his consultations and treatments in surroundings and in circumstances familiar to him: and this was very strongly supported by the noble Lord, Lord Hill of Luton. So the accessibility to the doctor or consultant would perhaps be very much more easily satisfied in some circumstances than it would in others.

But when the noble Lord, Lord Wells-Pestell, turned to the arguments advanced on Second Reading by the noble Lord, Lord Goodman, he turned the argument the other way round and mentioned the absurdity of the doctor moving to see the patient. It may well be that the Amendment could be construed as affecting these particular set of circumstances, but I do not think that it would be altogether reasonable to do so, because if we read the Amendment as it stands we see that it seeks to do what in the circumstances is something that is rather different. Clause 8(2)(b) states: is not privately available in Great Britain, or if it is privately available there, either— (i) is not privately available there at a place which is reasonably accessible to the patient", plus the words: and to the practitioner of his choice if we add what is stated in the Amendment. The phrase "reasonably accessible" has been qualified by the noble Lord, Lord Goodman, and I think that several other noble Lords have quoted him, so I feel that it is not desirable to do so again.

But it seems here that some flexibility should be written into the Bill. The noble Lord sought to import a rigidity

into it when he said that the clause does not guarantee treatment to a NHS patient. This is not the purpose of the Amendment. The purpose of the Amendment was to import that degree of flexibility which would allow some satisfaction in the circumstances. What the noble Lord is saying is that it would be very much better if everybody was inconvenienced. We are saying that if circumstances allow somebody will have to move. The patient may have to move to see the doctor, or in other particular circumstances a mutual point at which the services are available and at which the doctor and the patient can meet might be decided upon. I must press the Amendment to a Division because I believe that there is a serious argument here. We have had the advice of the noble Lord, Lord Hill of Luton, who speaks from great experience in this field, and I feel that I shall have to test the views of the Committee.

2.10 a.m.

On Question, Whether the said Amendment (No. 68) shall be agreed to?

Their Lordships divided: Contents, 65; Not-Contents, 41.

CONTENTS
Abinger, L.	Hanworth, V.	Northesk, E.
Alport, L.	Harmar-Nicholls, L.	O'Hagan, L.
Auckland, L.	Harvington, L.	Onslow, E.
Barrington, V.	Hill of Luton, L.	Pender, L.
Belstead, L.	Hunt of Fawley, L.	Rankeillour, L.
Berkeley, B.	Jellicoe, E.	Reay, L.
Boyd of Merton, V.	Kemsley, V.	Redesdale, L.
Carrington, L.	Kinnaird, L.	Robson of Kiddington, B.
Colyton, L.	Kinnoull, E.	St. Just, L.
Cork and Orrery, E.	Lauderdale, E.	Sandford, L.
Crawshaw, L.	Long, V.	Sandys, L.
Denham, L. [Teller.]	Lonsdale, E.	Sharples, B.
Devonshire, D.	Lucas of Chilworth, L.	Stamp, L.
Effingham, E.	Lyell, L.	Strathcona and Mount Royal, L.
Elles, B.	Macleod of Borve, B.	Swansea, L.
Elliot of Harwood, B.	Mansfield, E.	Tweedsmuir, L.
Faithfull, B.	Margadale, L.	Vickers, B.
Falmouth, V.	Monson, L.	Westbury, L.
Ferrers, E.	Morris, L.	Winstanley, L.
Gainford, L.	Mottistone, L.	Young, B.
Gisborough, L.	Mowbray and Stourton, L. [Teller.]
Gowrie, E.
Greenway, L.	Newall, L.
NOT-CONTENTS
Birk, B.	Jacques, L.	Northfield, L.
Brimelow, L.	Kagan, L.	Oram, L. [Teller.]
Bruce of Donington, L.	Kaldor, L.	Peart, L. (L. Privy Seal.)
Champion, L.	Kennet, L.	Pitt of Hampstead, L.
Collison, L.	Kilbracken, L.	Ponsonby of Shulbrede, L.
Davies of Leek, L.	Kirkhill, L.	Raglan, L.
Davies of Penrhys, L.	Llewelyn-Davies of Hastoe, B.	Ritchie-Calder, L.
Delacourt-Smith of Alteryn, B.	Longford, E.	Stedman, B.
Donaldson of Kingsbridge, L.	Lovell-Davis, L.	Stone, L.
Elwyn-Jones, L. (L. Chancellor.)	Lyons of Brighton, L.	Strabolgi, L. [Teller.]
Fisher of Camden, L.	McCluskey, L.	Wells-Pestell, L.
Gregson, L.	Morris of Kenwood, L.	Wilson of Radcliffe, L.
Hale, L.	Murray of Gravesend, L.	Winterbottom, L.
Harris of Greenwich, L.	Noel-Buxton, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.

2.17 a.m.

Baroness YOUNG moved Amendment No. 69: Page 10, line 10, leave out ("his") and insert ("the").

The noble Baroness said: This Amendment is consequential to Amendment No. 66. I beg to move.

Baroness YOUNG moved Amendment No. 70: Page 10, line 10, after ("opinion") insert ("of the Board").

Baroness YOUNG moved Amendment No. 71: Page 10, line 17, after ("not") insert (",save on the advice of the Board").

Baroness YOUNG moved Amendment No. 72: Page 10, line 27, leave out ("Secretary of State") and insert ("Board").

The noble Baroness said: I beg to move this Amendment which would provide that the Board and not the Secretary of State should determine what charges there should be under Clause 8. Clearly, the charges that can be made for these facilities are something of great importance both to the consultants themselves and to the effective working of the private side of the Health Service. If this matter is left entirely to the Secretary of State, it would be possible to have charges suddenly put up—as, indeed, has occurred in the past—for no particular reason; whereas if the charges remain ultimately the responsibility of advice from the Board, I think that will be regarded by the consultants as being a fairer system and one more likely to encourage their trust in the working of this important clause, Clause 8.

The important part is that the Board should have the right to determine the accommodation charges. Of course, it has always been the practice that consultants should charge their own fees; we are not concerned with that. We are concerned with the charges for accommodation. I think this is an important matter, and I hope that the Government will consider it.

2.21 a.m.

Baroness STEDMAN

I think I am right in saying that the noble Baroness was also speaking to Amendments Nos. 73 and 74 with this Amendment on the same subject and within the same clause. The effect of these Amendments would be to transfer the function of determining under Section 31 of the 1968 Act charges for the purposes of patients admitted under Clause 8 in accordance with the provisions of that clause from the Secretary of State to the Board.

These Amendments would produce a wholly unacceptable situation. The discretion to afford patients access to NHS services and accommodation rests with the Secretary of State, and must be exercised by him (or in practice, by health authorities) on the conditions laid down in Clause 8(2)(a) and (b), concerned with the specialised nature of the treatment and skills required, and the availability of suitable alternative facilities in the private sector. The Health Services Board has no function in these matters as the Goodman proposals made perfectly clear. Paragraph 3(e) said that relevant NHS accommodation and services were to be made available to private patients, in appropriate circumstances, by health authorities.

As noble Lords will know, the powers on which Clause 8 rests, and under which private patients can be allowed to use NHS facilities and accommodation, were conferred on the Secretary of State by the Health Services and Public Health Act 1968. These powers were delegated to health authorities, and are already used and therefore charges are already levied under them.

There is no justification for making the Board determine the charges. Two of the criteria on which they are to be fixed are objective, that is, those specified in Clause 8(7)(a) and (b) and they relate to matters of which the Secretary of State is likely to have a much greater knowledge than the Board; namely, expenses incurred under the NHS Acts and costs attributable to capital account. And as to the third criterion, neither the Board nor the Secretary of State is likely to have or be able to obtain comprehensive information about amounts charged to private patients by part-time consultants. Health authorities, in fixing the charges locally, on the basis of a centrally agreed formula incorporating the provisions of Clause 8 will have to devise appropriate charges for whole-time consultant services with the help of local consultations.

In case there is any concern among your Lordships about the discretion allowed to the Secretary of State under Clause 8, may I remind you that the charging provisions in Clause 8 closely resemble provisions under Sections 1(3), 1(4) and 2(2) of the 1968 Act for charges in relation to authorised pay beds and private out-patient facilities.

Baroness YOUNG

I am certain that the noble Baroness feels that I should be comforted by the thought that the provisions in Clause 8 are based on the 1968 Act. The point of the Amendment is that we are by no means satisfied with the way the 1968 Act has been able to work. She will recall, no doubt more clearly than I do, that her right honourable friend Mrs. Castle, when she was Secretary of State, put up the charges that were made for accommodation for private patients in Health Service hospitals by as much as three times. They did that after the hospitals themselves had already put up the charges. If that is allowed under the 1968 Act, it is very desirable that it should not be allowed under this Act, because if it is so allowed we could easily get ourselves into a position where private patients were being priced out of the private hospital market and the whole basis of the Goodman agreements would be undermined because the charges would not be reasonable. Clearly, private facilities would not then be available to more than a very few people.

I entirely take the point that Clause 8(7), paragraphs (a) and (b), restrict very much the charges that the Secretary of State might require, because it is completely acceptable that there should not be a charge under the National Health system for this, and obviously any charges would cover the capital account. But, of course, it is paragraph (c) that is most worrying, and also the principle of the matter. This is not a matter which we on this side intend to press tonight, but we shall, of course, read very carefully what the noble Baroness has said and consider whether or not to come back to this matter on Report. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Lord O'HAGAN moved Amendment No. 75: Page 10, line 39, leave out paragraph (c).

The noble Lord said: I beg to move this Amendment. We are still on the subject of charges, and in Clause 8(6) is a list of four categories for which the Secretary of State may determine different rates or scales of charges. This Amendment deals with paragraph (c), which states: … in relation to patients who are, and patients who are not, ordinarily resident in Great Britain … the Secretary of State may determine different rates or scales of charges. This part of the Bill gives rise to a series of questions which I should like to put to the noble Lord, Lord Wells-Pestell, because I think the Committee needs more information about the likely effect of this paragraph. I wonder whether the noble Lord could say how many people he thinks this would apply to.

No doubt there are a number of patients not ordinarily resident in Great Britain who come here for medical services. They will, and do, bring a lot of money with them, which contributes to the balance of payments. They spend while they are here, and it is obviously in our interests that they should continue to come. Perhaps the noble Lord can begin by telling the Committee how many come at the moment and how the proposals contained in paragraph (c) are likely to affect that number. Is it the intention of the Government, in introducing this flexibility for charging people not ordinarily resident in Great Britain, to reduce the numbers of patients who are not ordinarily resident in this country, or is it their objective to continue to encourage them to come here for treatment? We should like to have information as to the purpose of paragraph (c), because at the moment there is some uncertainty as to how far the Government intend to use these proposals. If paragraph (c) is included, it must be the Government's intention to use the powers that they are giving themselves. What kind of differential do the Government intend to apply to these non-resident patients? Will it be a large differential, a small differential, or what kind of differential will it be? Perhaps the Cornmittee could have some information on that point.

I wonder whether the noble Lord could also tell the Committee whether the phrase "ordinarily resident in Great Britain" will apply to British subjects who are temporarily out of the country, perhaps working for a company abroad, or in the Foreign Service or in the Armed Forces, who come back to this country and are ill, or who when they contract an illness abroad may seek to come back to this country for medical treatment because they prefer to be treated here. Is it the Government's intention that those people who may be British subjects, who for reasons of their work are not ordinarily resident in Great Britain, should be caught under these higher charges?

My last point is something which I raised with the noble Baroness on an earlier Amendment, and that is whether the provisions in this Bill, which seek to distinguish between those who are ordinarily resident and those who are not, conflict with our obligations under the Treaty of Rome. Section 2 of Article 48 of the Treaty of Rome lays down: Freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Flowing from that Article, there has grown up within the Community a tradition of reciprocity of medical treatment, so that a national of one Member State can, and does, receive the same medical treatment as nationals of the Member State in which he happens to be living and working at the time. So that under the Treaty of Rome we, as British subjects, are entitled to the benefits of continental health services and vice versa.

The noble Lord may say that paragraph (c) says "ordinarily resident" and does not refer to nationality in so many words. It may be that the phrase chosen by the Government is not, therefore, in direct conflict with the wording of the Treaty, but as the reciprocity of medical services has developed there is now a hard and fast obligation on Member States to accord this complete reciprocity. If a Frenchman or a German objected to having to pay higher charges simply on the grounds that he was not ordinarily resident, I do not think he would be at all happy that the Government had devised a piece of legislation which excluded him from what he expected to be his right under the Treaty. Have the Government taken advice on this matter? Have they checked with the Foreign Office's legal department whether the phrasing of paragraph (c) is in conflict with our obligations under the Treaty? Could we be told whether or not they have done so, because if they have not the Government may find themselves in the embarrassing situation in which they are taken to court at Luxembourg under the Community's legal system, for not according full and proper equal treatment to our fellow nationals. I hope that the Government can give me answers to these questions. I beg to move.

Lord WELLS-PESTELL

I will try to cope with the questions put by the noble Lord, Lord O'Hagan. But my under- standing of the Bill is that it contains nothing to bring us into conflict with our obligations under the EEC Regulations. That being so, whatever our obligations are in respect of EEC nationals, we should have to acknowledge them. The effect of the Amendment would be to remove from Clause 8 the Secretary of State's power to determine different rates or scales of charges under Clause 8(6) in relation to patients who are not ordinarily resident in Britain. So far as that is concerned, the provision would not be applied to persons who are entitled to be regarded as normal residents here and who are entitled, therefore, to come to England for National Health Service treatment. When I say they are not ordinarily resident here it is because they go abroad to work for substantial periods. The provision would not apply because they would be regarded as ordinarily resident here.

The power, although similar to that under Section 17 of the 1949 Act, exercisable by Regulation, is one which the Secretary of State has not previously exercised in relation to charges for accommodation and services authorised under Sections 1 and 2 of the 1968 Act. It is only patients ordinarily resident in England, Wales and Scotland who may use the respective National Health Services free; that is, as National Health Service patients. There are reciprocal arrangements between Great Britain and Northern Ireland and Great Britain and the Channel Islands which provide that visitors to and from those countries are party to such agreements and receive free medical treatment under those countries' respective health services.

There is an informal arrangement with the Isle of Man which allows complete freedom of access for Manxmen to NHS hospitals on the mainland. Nothing in the Bill will disturb these arrangements. There are also arrangements for free medical treatment to be received by patients from EEC countries, again under the reciprocal agreement of the EEC Regulations, which confirms what I said earlier. In the past it has been a source of some controversy that there are standard charges for pay beds, whoever uses them, and that therefore people who are in any event entitled to use the National Health Service free are, when they choose to have private treatment, charged the same amounts for their private treatment as are foreign patients who would not have been entitled to use the National Health Service free, and who have not made the same contribution in tax over the years as have British residents.

However, the Government's intention in including this power in the Bill was not to impose uniformly different rates of charges on patients resident in Great Britain from those charged to foreign patients. It was simply thought desirable for the Secretary of State to be able, if he chose, to charge a higher rate to individuals, particularly wealthy foreign patients, who might come to this country for highly specialised treatment requiring expensive equipment and skills because such treatment cost less here than in other countries in the world.

In these circumstances, one might as well say that we wish to charge the market rate. There is not to be any new embargo on foreign visitors coming here if they want treatment, but we in this country feel that we have something very good to sell so far as our medical expertise is concerned. Therefore they must be prepared, as I am sure that they are, to pay for their treatment. And in fact they do pay for it. I cannot tell the noble Lord how many foreign visitors come here and I am not in a position to say how much we gain by it. My understanding of the situation is that we have no reliable figures or amounts. Probably we ought to have them because it is, in a sense, an invisible earning and we ought to know how much we gain by it. However, I understand that no reliable figures are available.

The Secretary of State has no plans at present to use the power in Clause 8(6) (b) and (c). If, however, the power is eventually used, the Secretary of State does not intend that patients from Northern Ireland, the Isle of Man or the Channel Islands should be made to pay higher charges under Clause 8 than patients who are resident in Great Britain.

Viscount KEMSLEY

I am still rather confused about this paragraph. If you read "in relation to" as meaning "about" or "with regard to", it applies to patients who are, and patients who are not, ordinarily resident in Great Britain. Surely that covers everybody.

2.42 a.m.

Baroness YOUNG

I rise to support my noble friend Lord O'Hagan who moved this Amendment very clearly. I do not think that we have had a very satisfactory answer. I suppose it is something to know that if you live in Northern Ireland, the Isle of Man or the Channel Islands you will be treated as a British subject, which is what I understand the noble Lord to have meant by his reply. It is comforting to know that people come to this country because it costs less. I suppose that this is the effect of devaluation; no doubt it is the cheapest place in Europe to come to for private medicine, as for everything else. However, it is extraordinary that the Government should feel that it is right to have different charges for the same accommodation, depending on whether you are British or foreign. This is what the subsection means.

If I may draw a comparison, one of the matters which has created the maximum ill-feeling in universities is that overseas students are charged far more for the same course than are students at home. Exactly the same course is provided but there is a differential charge. Therefore it appears to be very unfair. If you were working in a hospital you might think that it was an abuse if somebody from overseas was charged three times the amount for a hospital bed that somebody at home is charged. After all, we have no means of knowing whether he is a wealthy foreigner, unless he is asked on arrival to declare his income. I suppose that it will be a completely subjective judgment on the part of the Secretary of State. I should have thought that it would create the maximum amount of ill-feeling within the hospital if it were known that this kind of thing was going on.

Furthermore, we have not had a satisfactory reply to the important point about the EEC. The Government seem to forget that we are now in the EEC. It is all very well to say that we have various reciprocal arrangements. We are perfectly well aware that we have reciprocal arrangements, but I think many of us would feel very put out if, under the reciprocal arrangements, we found ourselves having to pay in an EEC country three times the price paid by a national of that country, simply because we were foreigners. One might have an accident abroad and find oneself unfortunately in hospital and, even more unfortunately, having to pay for it.

I feel that we have had a very unsatisfactory answer to a very serious point. It seems to me, if I have understood the noble Lord, Lord Wells-Pestell, correctly, that this provision is similar to one contained in the 1949 Act which has not been exercised and that there are no plans at present to use the power contained in this Bill. Therefore I cannot think why the noble Lord does not take it out of the Bill.

Lord WELLS-PESTELL

May I try to answer the point raised by the noble Viscount. If he will be good enough to look at the Bill, line 34 says: … in pursuance of subsection (5) above determine different rates or scales of charges … in relation to patients who are, and patients who are not, ordinarily resident in"— England. There is a difference. The patients who are resident and the patients who are not.

Viscount KEMSLEY

I entirely agree with the noble Lord that that is the intention of the subsection, but my contention is that the words "in relation" are not the proper words to use in this connection. There is no differentiation.

Lord SANDYS

The Government are obviously perplexed, and perhaps this is a suitable moment to mention another matter in this connection. I think all of us on going abroad, if we have fallen into some unfortunate situation, either needing medical treatment or being the subject of a mishap or something of that sort, and have required the assistance of a doctor or dentist, have been all too keen to return home to this country rather than to become subjected to a very heavy overcharge for services in that overseas territory. It may be unfortunate if I were to mention particular circumstances or particular countries, but all of us know of circumstances where a very high overcharge has taken place.

My noble friend Lord O'Hagan, who has considerable experience within the European Community, has pointed out that should we in this country start a situation which the Government have in mind, namely, differential charges, it is liable in the present circumstances and in years to come to give rise to a very unfortunate situation. I believe that we should set an example in this particular field. We have a very high reputation with countries overseas—so much so that a number of hospitals have been funded to a very large extent by grateful patients, and I think the Government should realise that patients have come here, have received of medical specialty, and in certain cases have given enormously towards research and the maintenance of that particular hospital. Hammersmith has been mentioned, but there are many others where an overseas donor has expressed gratitude far and away beyond the original cost of an initial treatment, given out of gratitude for a cure. I believe this is something which could conceivably, and often does, repeat itself year by year. I know of instances where patients have come to this country, have not anticipated a successful outcome and have been surprised beyond their wildest dreams at the advanced techniques.

I believe that the Government have fallen down here, because the noble Lord, Lord Wells-Pestell, has no idea of the invisible earnings involved. We would not press him at this hour of the morning to produce those figures, but this is a very valuable invisible earning, and in the present state of the finances of our country we should surely be looking at all the possible sources of invisible earnings of this nature.

Lord WELLS-PESTELL

I do not know whether I followed the noble Lord correctly. Is he saying that people who come from abroad and who have no claim on us at all by virtue of the fact that they do not come from EEC countries, where they have special rights and facilities if they come to this country, should be able to come here and should not be required to pay a special rate?

Lord SANDYS

I did not specify any particular territory. The noble Lord knows quite well that there is a reciprocal arrangement within the EEC.

Lord WELLS-PESTELL

Yes. I understood the noble Lord to imply that anybody coming from abroad should not be subject to, I think he used the word "exorbitant" charges, or higher charges.

Baroness YOUNG

I think that is a perfectly fair comment, and precisely what my noble friend did mean. I find it quite extraordinary, coming, if I may say so, from a Government who believe in good Socialist principles, that they should apply in this particular circumstance the very worst of monopoly practices.

Lord O'HAGAN

I do not want to tease the noble Lord, Lord Wells-Pestell, especially as he made one or two nice comments about me several hours, or it seems like days, ago. I will not persist much longer, but I want to suggest to him that paragraph (c) is an example of the dangerous mentality into which the Government are now drifting. This kind of thinking leads to a siege economy; this kind of thinking leads to the imposition of import controls without proper thought as to the effect that a single individual action will have on the standing of this country in relation to other countries, both economically and politically. It is a gut reaction, a vindictive feeling that some of these terrible foreigners are cheating us, and the Government will put something in to stop them cheating us, without thinking through the consequences. I am asking the noble Lord to make sure that these consequences are thought through before the Government take these powers.

The noble Lord talks about individual, particular wealthy foreign patients almost in the realms of the Gnomes of Zurich, speculators against the pound, mythical conspirators against our country—oh no! that is your Lordships' House; I had forgotten—the enemies of this country who have to be picked out and knocked off one by one. Are these people to know what is to happen? I am not asking for an answer now, but by the time we get to Report stage. Are these people to know before they come here whether they fit into this Government's list of men who deserve to be hated?— the individual, particularly wealthy foreign patients. Who is to know whether they fit into that category before they come here? At what point will there be guidelines or indications given as to what type of person will come into this country, so that they will know before they arrive? Otherwise we may get the situation in which someone turns up full of good will, wishing to take advantage of what this country has to offer in the way of medical treatment, and finds himself charged something he did not expect at all. I hope the Government will take this into account.

The other point, on which I will conclude, is the matter of the EEC. In the other place the Minister said: There are also arrangements for free medical treatment to be received by patients from EEC countries under reciprocal agreements and EEC regulations". He went on: I have indicated that I do not think these will be seriously affected". They should not be affected at all. And if it is in the mind of the Government that they might be affected at all, it is hardly the sort of spirit in which to begin a successful presidency of the Council of Ministers of the EEC, if we are still not fully committed to giving our fellow citizens from the Community proper, equal treatment. I will leave it at that tonight, but I hope to return to the matter on Report.

Lord WELLS-PESTELL

I have one comment on what the noble Lord, Lord O'Hagan, has said. It surprises me that he should feel this is unreasonable for a country which has a great deal of expertise, competence and ability in the medical field, which is known all over the world, and which already attracts a large number of foreigners to this country who want treatment, many of them paying something like £900 a week for a bed in a private hospital not three or four miles from your Lordships' House. There are no guidelines issued at present as far as I know to people who want to come over here for medical treatment. Most of them, presumably all of them, if they come, must know what they are coming to; they must know what the charges are; they must know even the kind of treatment they are going to get, otherwise they would not come.

It passes my comprehension that anyone, particularly on that side of your Lordships' House, should have this kind of outlook. I should have thought that, knowing we have something good that people want, it is right for them to pay the market price for it. And many of them do. I wish I had some figures. There are always an enormous number paying several hundred pounds a week for a bed.

Lord O'HAGAN

I am not saying they should not pay; of course they should pay. But if the Government are going to introduce a special system of payment, I hope at the same time as considering the narrow question of payment they will also consider what these people bring in in foreign exchange and other forms of benefit to this country, as well as what these people take back to their own countries—admiration for what this country has to offer, which may lead others to come and may have all sorts of economic consequences and promote good relations.

Lord STONE

They always know how much they have to pay. They cannot get into any hospital here without the introduction of some entrepreneur. I would claim to be in a small way an entrepreneur in those circumstances. They know the prices and they are prepared to pay them.

Lord O'HAGAN

Yes, but this subsection says that the Secretary of State may determine different rates or scales of charges. We have heard how many times Mrs. Castle altered the rates.

Lord STONE

But they are always known, because the patients are introduced by a British practitioner who makes the arrangements for them.

Lord O'HAGAN

The Government have not yet said in what circumstances these different scales of charges would or would not be introduced for non-resident people. We simply do not know what they have in mind. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

2.57 a.m.

Baroness YOUNG moved Amendment No. 76: Page 10, line 42, at end insert ("provided that the Secretary of State shall not determine the changes for the services of any consultant").

The noble Baroness said: I feel that my noble friend Lord O'Hagan has shown astonishing patience, because I am not certain that even now the Government have grasped the point he is trying to make, which he explained, I thought, very clearly. But we move on now to another point about charges which again we regard as a matter of considerable importance. Clause 8(6) makes clear that there are certain circumstances in which the Secretary of State may determine different rates and scales of charges. The circumstances are, different accommodation or services in hospitals, different forms or classes of treatment, different charges for foreigners or British patients. Going on to subsection (7), paragraph (c) suggests that it might be the intention of the Secretary of State on some occasions to interfere with the charges a consultant would make. It has always been accepted medical practice that, whereas the accommodation charges in NHS hospitals have been fixed by the Secretary of State, the consultant has been free to charge his own fee. This is extremely important to those who are in private practice because, as the Committee will be aware, consultants who work part-time for the NHS give up a proportion of their salary. They work as much as the full-time consultant for the NHS.

In exchange for giving up a proportion of their salary they are free to undertake private work after they have fulfilled their contract to the National Health Service. It is important that they should be able to fix the fee they charge, because in a real sense they make a personal contract with their patients for their fees and it is putting both the patient and the consultant in this particular respect in the right relationship.

It is also true that consultants who also undertake to look after patients from overseas—the consultants particularly in teaching hospitals who charge a fee but of course it is a fee that is not kept by the consultant but returned to the hospital either for research or the funds in the hospital—should also be free to fix the charges they make. This is something which is obviously of enormous importance to the consultants, and I hope that the noble Lord who is to reply will accept this distinction between charges for accommodation and the fees that a consultant would charge, because it is a very important matter of principle and I hope that we can be reassured that the Government accept it and are prepared to see it in the Bill. I beg to move.

Lord WELLS-PESTELL

The effect of this Amendment would be to add a proviso to the permissive power of the Secretary of State under Clause 8(6)(d), to determine different rates or scales of charges generally for different accommodation and for different services and in relation to different circumstances", to the effect that the Secretary of State shall not determine charges for the services of any consultant. So far as charges for services provided by part-time consultants are concerned, this Amendment is irrelevant: part-time consultants who treat private patients admitted to NHS hospitals under Clause 8 will continue to fix and charge their own fees as they do at present, and the level of these fees will be entirely a matter between consultants and their patients.

Where the services of whole-time consultants are concerned, the Amendment appears completely to ignore the provision in the next subsection, Clause 8(7)(c). This requires that the charges determined under Section 31 of the 1968 Act, in pursuance of Clause 8(6), in the case of charges for services provided to a private patient at a NHS hospital by a whole-time consultant shall be not less than would be charged by a part-time consultant for providing similar services in similar circumstances to a private patient of his.

Your Lordships cannot have forgotten that the provisions of this section follow the proposals announced on 15th December 1975. I trust therefore that noble Lords are also mindful of the fact that in paragraph 3e of those proposals, the following account of the charging provisions for this admission system is given: Charges will be made to these patients … and there will be no subsidy by the NHS. No professional fees will be received by whole-time NHS staff, for their personal benefit, but an appropriate element of the total charge will be retained by the health authority, or in the case of an academic unit, the university department, to be used for medical and dental research or development work". The charges to private patients admitted under Clause 8 are to be determined by the Secretary of State as the facilities and services provided for private patients admitted under that clause are to be provided by the Secretary of State. The one exception, of course, consists of the services provided by part-time consultants, who would be providing services and charging for them in the same way as they do for any other private patients of theirs. Whole-time consultants employed by the NHS are paid a salary by the NHS; it is therefore perfectly appropriate for their employer to fix an element of the total charges payable by patients which properly represents the services provided on any particular occasion to them by whole-time consultants.

In practice, the Secretary of State's powers under this clause will be delegated to health authorities. The health authorities will handle the Clause 8 admissions system in consultation with local consultants and other NHS staff. It is perfectly clear to the Government that when the amounts to be charged for the services provided by whole-time consultants are to be identified, the only method by which it could be discovered what would be the amounts which are not less than the fees which would be charged by part-time consultants in similar circumstances would be to ask part-time consultants. This matter has been discussed in some detail with representatives of the Joint Consultants' Committee, and there was general agreement that the fixing of this element of the charge would require close co-operation between consultants and health authorities. Therefore, although the determination will be in the hands of the health authorities, the amounts determined could rest solely on discussion with consultants.

Baroness YOUNG

Before I consider whether to press the Amendment, may I ask the noble Lord to explain where in the Bill it makes clear that part-time consultants will still be able to fix their own charges and fees? I do not want to bowl a fast one at the noble Lord at 3.10 in the morning, and I appreciate that he may wish to seek advice on the matter before answering, but if I understood correctly what he said, he assured me that I need not press the Amendment and we need not worry because part-time consultants would, as at present, be able to fix their own fees. I was delighted to hear that, but when I looked at the Bill I was not able to identify where that was said. The essential point is that that should be guaranteed in the legislation.

On the question of full-time consultants, of course there will be full-time consultants who at present charge fees, for example in teaching hospitals for private patients coming in. If I understood the noble Lord correctly, they will not be free to fix their own fees and charges, which is a very important matter. Perhaps at the same time when he is finding the answer to my first question he will be able to discover the answer to the second. Where does it say that full-time consultants will not be able to fix their own fees but will have to charge fees which, as I understand it, will tie determined by the health authority after consultation with the consultants? Perhaps I misunderstood the noble Lord, and of course I will look carefully at the Official Report of what he said, but it would be helpful to know whether my understanding of the position is correct and, even more important, where these matters are stated in the Bill.

Lord WELLS-PESTELL

I must confess I cannot find them in the Bill at all. I shall have to take advice on this point and let the noble Baroness know.

Baroness YOUNG

I find myself in a great difficulty about this. I appreciate that it is really very difficult when noble Lords ask questions in this way—I have been in a similar position myself—and I am quite happy to keep talking for some time if this will make it any easier to reach a decision about it. I would not press the matter any further if I did not regard it as a very important point. It seems to me that this underlies the Goodman proposals, and I think it is necessary to know that this assurance, which of course I was delighted to hear, is really in the legislation. I have studied the Bill as carefully as I can in the time which has been allowed and, not being a lawyer and not being a medical practitioner but just one of those lay people who have had to struggle through this legislation as best they can, even in the small hours of the morning, I am quite prepared to accept that I am quite likely to have missed it. We have not got an answer to it yet, but I think it would be very helpful if we could have one before I consider what to do.

Lord WELLS-PESTELL

In Clause 8(8) there are two paragraphs which refer to the whole-time consultant. I am wondering whether the noble Baroness would accept that the part-time consultant could come in by implication.

Baroness YOUNG

I can see we are in a great difficulty about this. Again, far be it from me to have to explain what subsection (8) means, but I should have thought that it is in fact saying what is the present practice, whereby the authority retain the fee that is paid to the whole-time consultant and use it, as it says,

Resolved in the affirmative, and Amendment agreed to accordingly.

3.21 a.m.

Viscount LONG moved Amendment No. 77: Page 10, line 46, after ("increase") insert ("or decrease"). for the purposes of research and development in medicine or dentistry".

This, I think, is re-enacting the point about the whole-time consultant which appears in the 1968 Act. It is, of course, the part-time consultant with which we are concerned. I am very sorry. I think I have gone as far as I can in this matter, but it is an important point and I feel I must press this to a Division.

3.13 a.m.

On Question, Whether the said Amendment (No. 76) shall be agreed to?

Their Lordships divided: Contents, 56; Not-Contents, 40.

CONTENTS
Alport, L.	Greenway, L.	Northesk, E.
Auckland, L.	Hanworth, V.	O'Hagan, L.
Barrington, V.	Harvington, L.	Pender, L.
Belstead, L.	Hill of Luton, L.	Rankeillour, L.
Berkeley, B.	Hunt of Fawley, L.	Redesdale, L.
Boyd of Merton, V.	Kemsley, V.	Robson of Kiddington, B.
Carrington, L.	Kinnaird, L.	St. Just, L.
Cork and Orrery, E.	Kinnoull, E.	Sandford, L.
Denham, L. [Teller.]	Long, V.	Sandys, L.
Devonshire, D.	Lonsdale, E.	Sharples, B.
Effingham, E.	Lucas of Chilworth, L.	Stamp, L.
Elles, B.	Lyell, L.	Strathcona and Mount Royal, L.
Elliot of Harwood, B.	Macleod of Borve, B.	Tweedsmuir, L.
Faithfull, B.	Margadale, L.	Vickers, B.
Falmouth, V	Monson, L.	Westbury, L.
Ferrers, E.	Morris, L.	Winstanley, L.
Gainford, L.	Mottistone, L.	Young, B.
Gisborough, L.	Mowbray and Stourton, L. [Teller.]
Gowrie, E.
Gray, L.	Newall, L.

NOT-CONTENTS
Birk, B.	Kagan, L.	Oram, L. [Teller.]
Brimelow, L.	Kaldor, L.	Peart, L. (L. Privy Seal.)
Bruce of Donington, L.	Kennet, L.	Pitt of Hampstead, L.
Champion, L.	Kilbracken, L.	Ponsonby of Shulbrede, L.
Collison, L.	Kirkhill, L.	Raglan, L.
Davies of Leek, L.	Llewelyn-Davies of Hastoe, B.	Ritchie-Calder, L.
Davies of Penrhys, L.	Longford, E.	Stedman, B.
Delacourt-Smith of Alteryn, B.	Lovell-Davis, L.	Stone, L.
Donaldson of Kingsbridge, L.	Lyons of Brighton, L.	Strabolgi, L. [Teller.]
Fisher of Camden, L.	McCluskey, L.	Wells-Pestell, L.
Gregson, L.	Morris of Kenwood, L.	Wilson of Radcliffe, L.
Hale, L.	Murray of Gravesend, L.	Winterbottom, L.
Harris of Greenwich, L.	Noel-Buxton, L.
Jacques, L.	Northfield, L.

The noble Viscount said: In moving Amendment No. 77, I should like, with the leave of the Committee, to deal with Amendments Nos. 78 and 79. The object here is to ensure that the Secretary of State, when dealing with expenses, does not play one hospital against another. He must not be allowed to do that. We propose that the phrase, "or decrease" should be inserted so that the Secretary of State would not, and could not, make a profit at the expense of anyone else. I hope that the noble Lord can tell us how it is proposed that the Secretary of State is to deal with this matter.

Lord WELLS-PESTELL

The effect of this Amendment would be to require that the charges determined by the Secretary of State under Clause 8, subsections (5) to (7), would be such as will ensure that there will be no increase or decrease in the expenses incurred by the Secretary of State under the National Health Service Acts. This would effectively mean that the NHS should make no profit from the charges raised under Clause 8 for patients admitted as private patients to NHS facilities. It would therefore straight away exclude the use of Clause 8(6)(c) to charge more than the minimum required by subsection (7), paragraphs (a), (b) and (c), to patients not ordinarily resident in Great Britain. The 15th December proposals did not mention the question of profit, even to exclude it; whereas they did specify (paragraph 3(e)) that there would be no subsidy by the NHS for private patients receiving these specialised NHS services.

However, more importantly, the addition of these words would mean that the charges would have to balance exactly the cost to the NHS of providing the services. We have to face the fact that this cost cannot be accurately measured at the time the service is provided, or possibly even at the end of the accounting year; and every charge would be open to challenge under such a requirement, and the disputes created would be almost impossible to settle. There is no other enactment relating to the National Health Service which contains such a requirement; this is certainly because the requirement would be virtually impossible to fulfil. I hope that, on reflection, the noble Viscount will agree with me.

Viscount LONG

We are not far apart in our views on these charges; and that is welcome at this time in the morning. I shall not press the noble Lord for more information, for what he has given us is exactly what we wanted. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The DEPUTY CHAIRMAN of COMMITTEES (Lord Alport)

I must inform the Committee that if Amendment No. 80 is agreed to, I cannot call Amendment No. 81.

Baroness YOUNG moved Amendment No. 80: Page 11, line 7, leave out paragraph (c).

The noble Baroness said: This Amendment is consequential upon Amendment No. 76. I beg to move.

On Question, Amendment agreed to.

Viscount LONG moved Amendment No. 82: Page 11, line 21, leave out ("Nothing in this section shall prevent").

The noble Viscount said: I beg to move Amendment No. 82 and, with the leave of the Committee, to speak to Amendment No. 83 at the same time. By leaving out the words in the Amendment we are placing on the Secretary of State an objective to respect the costs and so on in this part of Clause 8.

Lord WELLS-PESTELL

The effect of Amendments Nos. 82 and 83 would be to change the wording of Clause 8(9) so that instead of reading: Nothing in this section shall prevent the Secretary of State from allowing any medical or dental practitioner …to make use of any accommodation or services provided by virtue of the NHS Acts … it would read: The Secretary of State shall not, by reason of anything in this Act, cease to allow medical or dental practitioners … to make use". It is difficult to understand what the reason for this Amendment could be. The purpose of Clause 8(9) is highly specific: it is intended to establish the fact that the restrictions in Clause 8 on the use of NHS accommodation or services for private patients do not affect the existing arrangements by which hospital medical and dental staff, by virtue of paragraphs 159 to 167 of their terms and conditions of service, are entitled to use NHS accommodation and services to provide patients with services falling within what is known as Category II, for which they may charge the patient a fee. Examples of this kind of work are: blood tests and X-rays for prospective emigrants, or for employees who wish to enter a superannuation scheme. The Amendment refers to the Act rather than the section: this is unnecessary, because nothing in the Bill other than Clause 8 could even be thought to affect the Category II arrangements.

The difference between nothing in the section shall prevent the Secretary of State from allowing and the Secretary of State shall not by virtue of anything in the Act cease to allow seems to be negligible: it may however be connected with a concern about how the subsection affects existing arrangements as opposed to how it might affect future arrangements of this kind.

Let me explain quite clearly that the subsection means first that hospital medical and dental staff already employed by health authorities shall suffer no interference with their existing arrangements for doing Category II work; and secondly, that doctors and dentists who will in the future he employed in hospitals by health authorities will still be able to make such arrangements—so long as the terms of service of hospital medical and dental staff are not altered for some other reason. I trust that this explanation will enable noble Lords to see how unnecessary is any Amendment to this subsection.

Viscount LONG I am most grateful to the noble Lord for explaining this matter further. We felt it was necessary to make sure that the staff were treated properly and that we, in our turn, knew exactly what the Secretary of State was doing. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn. Clause 8, as amended, agreed to.

Clause 9 [Use by general practitioners etc. of NHS accommodation and facilities for private practice]:

3.32 a.m.

Baroness YOUNG moved Amendment No. 84: Page 12, line 19, leave out ("Secretary of State") and insert ("Board").

The noble Baroness said: Clause 8 is concerned with the charges for accommodation and the fees that can be charged by consultants. Clause 9 applies the same principle to general practitioners. In a sense, Amendment No. 84 is equivalent in principle to Amendment No. 72. What we are hoping to secure in both these Amendments is that, regarding the charges for use by general practitioners who are in private practice using National Health facilities, the charges shall not be determined by the Secretary of State but shall be determined on the advice of the Board. This is an important matter of principle. I will not speak to it at any great length at this late hour; we have already been over it in Clause 8. The principle is precisely the same. I beg to move.

Baroness STEDMAN

The provisions of Clause 9 relate only to private practice in NHS premises (in practice health centres) by those general medical or dental practitioners, registered pharmacists, or ophthalmic or dispensing opticians who are providing family practitioner services under Part IV of the 1946 Act, or by chiropodists providing NHS services. Subject to the provisions of the clause, these practitioners are given a right to the grant, on application, of permission to use for private practice the NHS accommodation or facilities which they are authorised to use for the provision of those services. The purpose of the clause and of this subsection is to preserve the status quo so far as conduct of private practice from health centres is concerned. Over the years, in consultations with the different professions involved, guidelines have been worked out and, for Part IV practitioners, incorporated in model licence agreements or standard forms of permission. This is a proper function of the Secretary of State in relation to the detailed terms on which the premises he provides are rented out on licence. It would be inappropriate to give it to the Board whose prime function is to phase out facilities from hospitals; the licensing functions which they do have are related solely to private sector developments. The BMA and other professional bodies have been consulted about Clause 9. The Amendment under discussion is neither necessary nor desirable.

Baroness YOUNG

If I have understood the noble Baroness correctly, what she is saying is that Clause 9 is re-enacting current practice. Is this in the 1968 Act or the 1946 Act?

Baroness STEDMAN

The 1946 Act.

Baroness YOUNG

It is entirely taken from the 1946 Act? I must confess I have not that Act in front of me. Now that I have the assurance that this is in the 1946 Act, and that in fact nothing in principle is being changed, I shall go back and read what the noble Baroness has said. In the meantime, I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Baroness YOUNG moved Amendment No. 85:

Page 12, line 20, at end insert— ("Provided that any such charges shall be calculated in accordance with the provisions of section 8(7) above with the substitution therein of the words the grant of permission' for the words any exercise of the relevant power'.").

The noble Baroness said: Again, this Amendment is the equivalent to Amendments Nos. 77, 78 and 79, and it applies in this case to general practitioners and not to consultants. Once again we are anxious to make quite sure that the Secretary of State cannot simply make arbitrary charges to general practitioners using NHS facilities. Of course, nobody is objecting in any sense to charges being made, because that would be quite right and proper and one entirely accepts the guidelines that are laid down in making the charges. What one is anxious to prevent is the making of arbitrary charges, and the intention is that charges should be made objectively and not simply at the Secretary of State's discretion. I beg to move.

Baroness STEDMAN

The terms of Clause 9 have been fully discussed with the representatives of the professions concerned, to ensure that they preserve the status quo as exactly as possible. On the particular question of charges, an Amendment was made to Clause 9(4), at the request of the medical profession, to make it clear that the charges made related solely to the use of accommodation and facilities and not to the grant of permission. In addition, the model licence agreement or the standard form of permission, which had been agreed in consultation with the different professions involved specified the component part of any of the charges. I think therefore that the Amendment is unnecessary.

Baroness YOUNG

It is very nice to have a brisk answer like that. Once again, I shall, of course, read carefully what the noble Baroness has said. As I understand it, Clause 9 is in fact preserving the status quo and the Government have already amended Clause 9(4) to meet the wishes of the general practitioners. As I say, we shall study what the noble Baroness has said to see whether this is a matter to which we should return on Report. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

3.40 a.m.

Lord SANDYS moved Amendment No. 86: After Clause 9, insert the following new clause:

"Charges.

.—(1) Notwithstanding any power conferred on the Secretary of State by this or any other enactment to determine charges for the use of accommodation or services at NHS hospitals, the Board shall from time to time determine—

1. (a) the charges to be made to resident or nonresident private patients for the use of accommodation or services at NHS hospitals;
2. (b) the charges to be made to persons occupying (whether or not as private patients) accommodation at NHS hospitals which afford them privacy;
3. (c) the charges to be made for admission or access to accommodation or services at NHS hospitals pursuant to the exercise of the relevant power referred to in section 8 above;
4. (d) the charges referred to in section 9(4) above.

(2) All such charges shall be determined in accordance with the provisions of section 8(7) above with the deletion therefrom of the words `from any exercise of the relevant power'.

(3) It shall remain the duty of the Secretary of State to recover all such charges".

The noble Lord said: I draw your Lordships' attention to this Amendment, because I believe that the way in which it is both drafted and set out is admirable. That may suggest a degree of satisfaction, but it draws a very clear distinction between the Board, which we see is the responsible authority for determining the charges, and the Secretary of State, who is charged in subsection (3) with recovering the charges. The second point about the Amendment is that it follows very closely on Amendment No. 85. It is a considerable departure from the drafting of subsections (7)(c) and (8) of Clause 8, with which the Government had great difficulty; and I am not surprised, because, once again, there was a problem with the drafting. I suggest that when a clause concerns charges, which is a difficult matter, and when a lot of people will be concerned with examining this Bill, it should be very clearly set out as this one is. It is normally a matter of organisation and very clear thought, and I believe that this Amendment should commend itself to your Lordships. I beg to move.

Baroness STEDMAN

The effect of this clause would be to transfer to the Health Services Board the Secretary of State's existing powers to determine charges for pay beds, amenity beds and private out-patient services, as well as the powers proposed in the Bill for determining charges for the use of NHS accommodation and services provided to private patients under Clause 8, or to family practitioners under Clause 9. It would also require the charges to be determined in accordance with the provisions of Clause 8(7).

Pay bed charges are determined under Section 1 of the Health Services and Public Health Act 1968. In determining the charges, the Secretary of State is required by the Act to have regard to the estimated total cost of providing inpatient services at hospitals of different classes in the period concerned. Only the Secretary of State, and health authorities as his agents, have the detailed information necessary for estimating the cost of in-patient services in the year ahead. Consequently, it is unrealistic to expect the Board to undertake this task. Furthermore, the Secretary of State has to have regard to any additional monies which it is known to him at the time of the determination will be made available for these services in the coming year. If the Board were to take over the function of determining these charges, it would require access to accounts and estimates possibly before the Civil Estimates had been presented to Parliament.

The Opposition, in moving this Amendment, are no doubt anxious to ensure that it w ill never be possible for a Secretary of State deliberately to increase pay bed charges for political reasons. If such is their fear, it is totally without foundation. Successive Secretaries of State of both Parties have determined these charges strictly in accordance with the Statutes. The regrettable fact is that the cost of hospital treatment is extremely high, and the charges are a true reflection of what, on average, it costs the British taxpayer to provide hospital in-patient services. Arguments that the private patient pays twice, once through taxation and secondly through pay bed charges, overlook completely the fundamental principle which Governments of both Parties have observed for 30 years, that anyone who opts to be treated privately must pay the full cost of the services he pre-empts.

If NHS pay bed charges may appear to be higher than the charges of some hospitals in the private sector, that is because the NHS seeks to provide a fully comprehensive range of services and facilities—something which few, if any, hospitals in the private sector would claim to do. Most private hospitals and nursing homes, including some of the newest, do not set out to provide services of the same range and scale as NHS hospitals. If they did, there would be no need for Clause 8 of the Bill. If they did, they would find that they, too, would have to increase their charges quite considerably in order to cover the cost of a much wider range of facilities and services, and the highly skilled staff required to operate them. Part of the pay bed charge is a contribution towards capital costs. Although this element is discretionary, the Act allows only an amount which is "proper and reasonable". In any event, the Amendment seems to me to be misconceived. Pay bed charges are calculated on the basis of averaging, and so long as pay bed charges remain will continue to be so determined.

But a system of charging that is geared to a wide spectrum of services is not necessarily appropriate for Clause 8 admissions. These exceptional and occasional admissions will be of patients who require highly specialised facilities and services, which generally are more expensive than the average; it is intended as one condition of affording access to them that the cost to the NHS should not thereby he increased. The present system of charging on the basis of average inpatient costs would not satisfy this requirement. Conversely, however, it would, I am satisfied, be equally inappropriate so long as there are still pay beds catering for a wider cross-section of private patients varying from the straightforward to the highly specialised case to charge for use of these facilities on the basis proposed in Clause 8 for highly specialised occasional admissions.

When it comes to considering charges for personal privacy—I take it that means amenity bed charges—the provisions of Clause 8 are even more inappropriate. Here we are charging only for a private room, not for the other privileges which the private paying patients of consultants expect to demand. Here there is no question of a patient pre-empting resources intended for NHS patients—a patient in an amenity bed is an ordinary NHS patient with no special privileges of choice of consultant. He cannot book his bed in advance and he must vacate it if it is required by another patient on medical grounds. In short, the charge for an amenity bed is a charge for additional social amenity only—to which the system proposed for Clause 8 admissions would be wholly inappropriate.

In relation to charges to family practitioners in health centres (Clause 9) the provision of Clause 8 would be equally unsuitable. The provisions of Clause 9(4) were written into the Bill to make it quite clear that the granting of permission to family practitioners to accept and treat their private patients at health centres was clearly separate from the charges they have to pay for the facilities they use. A model licence has been drawn up in agreement with the BMA which provides for periodic review of the costs of such items as rents, rates, heating, lighting, staff wages and salaries. In the case of family doctors, a proportion of these expenses is reimbursed to them through family practitioner committees. The extent of such reimbursement depends on the proportion of the time which they devote to their NHS patients. There is, therefore, no need to impart the provisions of Clause 8 into what is a well-understood and carefully negotiated system of charges.

The Amendment does not seek to alter the principles on which pay bed or other charges should be determined. It assumes, however, that an independent Health Services Board, without access to all the information required, and not directly accountable through a Minister to Parliament, would in some way apply these principles more fairly and accurately than a Minister of the Crown, subject to all the normal checks and balances of Parliamentary scrutiny and control.

Lord SANDYS

The Committee will be grateful to the noble Baroness for what I would regard as one of the best answers we have had this morning. The noble Baroness has raised substantial points, some of them concerned with administration in regard to the financial estimates for the forthcoming year and matters of great public importance. The noble Baroness referred to model licence agreements both on this and the previous Amendments. We shall study her remarks with close attention. It will he for the convenience of the Committee if I withdrew the Amendment.

Amendment, by leave, withdrawn.

Clause 10 [Publication of proposals and preparation of annual reports by Secretary of State]:

3.50 a.m.

Baroness YOUNG moved Amendment No. 87:

Page 13, line 34, at end insert— ("(4) Within fourteen days of the receipt of any proposals, recommendations, advice or expression of opinion of the Board under this Part of this Act, the Secretary of State shall lay a copy or record thereof before each House of Parliament.").

The noble Baroness said: In a sense this Amendment follows on from the one I moved some 12 or 14 hours ago about the Board giving its reasons. This is somewhat different, but of course what it says is that the Board should produce and publish an annual report. It seems to me that there are a number of reasons why it would be desirable for the Secretary of State to publish the proposals or the recommendations that he will receive from the Board. It is another example of what might be called open government. At least we would then know what the Board was thinking. And if the proposals were published it would be possible to see whether the Secretary of State was performing his duties under the Act. It would also be possible for the outsider to see what policy the Board was adopting, what was its attitude towards various matters to do with the phasing out of pay beds and how it would respond to the representations which had been made to it. Furthermore, it would be possible to debate the Board's recommendations in Parliament. Indeed, as everybody nowadays seems to be agreed that there ought to be more rather than less open government, I should have thought that it was an Amendment which would commend itself to the Committee. I beg to move.

Lord O'HAGAN

I should like to support the Amendment. I hope that the noble Baroness will be able to explain to me what I failed to understand when we were debating Amendment No. 28, at which point the Committee was examining the reasons for the proposals. I should like to ask the noble Baroness whether the proposals for revocation in the clause as it stands at present are to be published. What will they contain? Will they be merely a list, or will they be more than a list? If there is no need to publish the reasons for the proposals, will the reasons be inherent within the proposals and, therefore, self-evident? If that is so, why does Clause 10, referring back to Clause 4(2)(b), require the Secretary of State to publish the Board's report, which gives the reasons for its decisions, under that head? I should like to know what the proposals will consist of and how much information will be given in the proposals.

When answering, perhaps the noble Baroness can also tell us what status these proposals will have when they are laid before the House—what type of document it will be, whether it will be something that fits into a pattern of documents which is laid before the House, or whether it will be sui generis or can be compared with other proposals which are published—so that we may know what type of document it is.

Baroness STEDMAN

That is rather a tall order at this time of the morning! The effect of this Amendment would be to require the Secretary of State, within 14 days of receiving any proposals, recommendations, advice or expression of opinion of the Board under Part II of the Bill, to lay a copy or record of them before each House of Parliament. Clause 10(1) of the Bill at present requires that proposals submitted to the Secretary of State relating to matters in Part II of the Bill should be laid before each House of Parliament as soon as is practicable. It is difficult to see why the movers of this Amendment should require more than that. Do they imagine that the Secretary of State will sit on the proposals, or that his officials will lose them in a pigeon hole or desk drawer? If that is so, Opposition Members during the Committee stage in another place did not believe that these things would happen because an Amendment in identical terms to this one was moved and then withdrawn without being pressed to a Division. I can assure your Lordships that the Secretary of State intends to carry out this duty according to the letter of the law. The proposals will be laid before each House as soon as is practicable.

Without taking advice, I cannot tell your Lordships whether such proposals laid before the House would be subject to the Affirmative Resolution procedure or the Negative Resolution procedure. Presumably that is an administrative point which has yet to be decided. However, the proposals will be laid before each House of Parliament and we shall have an opportunity to make comments upon them.

Baroness YOUNG

I should like to be able to say at this stage of the Committee proceedings that I had unlimited faith in the Department and the Government to produce all the information that was wanted, but having asked a number of questions at intervals to which we have had no answer at all, I am bound to say my faith is not quite what it was when we set off on this long Committee stage. This is an important matter and for a Government which is constantly talking about the need for more open government I should have thought it was an important matter to Members opposite. However at this late hour I do not intend to press this Amendment so I beg leave to withdraw it.

Lord NORTHFIELD

It is a waste of time.

Lord BRUCE of DONINGTON

Hear, hear!

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 [Interpretation of Part II]:

3.56 a.m.

Baroness YOUNG moved Amendment No. 88: Page 13, line 41, at end insert ("'district' shall have the meaning set out in section 9(7) of the National Health Service Reorganisation Act 1973".).

On Question, Amendment agreed to.

Clause 11, as amended, agreed to.

Clause 12 [Control of construction and extension of controlled premises]:

Baroness YOUNG moved Amendment No. 90: Page 14, line 39, leave out ("one hundred") and insert ("two hundred and fifty").

The noble Baroness said: In moving Amendment No. 90 I should like to speak at the same time to Amendment No. 91. Here we are back on two Amendments, both of which were tied in the Standing Committee in another place and which were then guillotined and which noble Lords will be pleased to hear we are debating for the first time in one of the Houses of Parliament. Noble Lords opposite, who are obviously in such a good mood, will be pleased to hear that they are fulfilling a very useful function (as indeed the House of Lords is) in having the opportunity to debate this Amendment—a complete justification for the House of Lords, and at three minutes to four in the morning it is well worth hearing this. I find it most encouraging to have all the "Hear, hears !" from Members opposite because they are obviously going to support me in my Amendments.

Lord BRUCE of DONINGTON

Hear, hear !

Baroness YOUNG

Good ! The Bill proposes quite arbitrary limits on the numbers of private beds which may be provided. The limit is 100 in London and 75 outside before it is necessary to apply to the Board for permission to build a hospital. I do not know why these particular limits were fixed. No reason is given in the Bill and I hope the noble Lord, Lord Wells-Pestell, will be able to tell us why they were fixed. The only other instance that came to my mind when I was considering what to say on these Amendments was the rateable values in the Leasehold Reform Act, which were rather arbitrary limits that were fixed, and I happen to know that in the case of Oxford, where the rateable values were about as high as those in London, it had a very unfair effect because people were not so free to enfranchise themselves as they thought they might have been, and the consequence was really very undesirable.

I do not know what all the circumstances will be, but it appears that in parts of the country outside London, where this blanket number applies regardless of the size of the place, whether it is Bristol or whether it is a village, the number is 75 beds. I should like to ask the noble Lord, Lord Wells-Pestell, on what basis the numbers were fixed and whether he would consider a higher basis which would give more flexibility. In fact, it would give the Board slightly less to do, as well. I beg to move.

4 a.m.

Lord WELLS-PESTELL

The effect of these Amendments would be to raise the size limits for new acute private hospitals which would need an authorisation from the Board from 100 beds to 250 beds in Greater London, and from 75 beds to 150 beds elsewhere in Great Britain. These are the figures which the Independent Hospitals Group, before the Bill was introduced last April in another place pressed the Government to adopt During the debate in Committee in another place on these size limits for new private hospitals in Greater London, the Secretary of State said that there was "no magic figure. One can simply make a judgment." It was necessary for the Government to take a decision on the size at which it became possible for a new private acute hospital to interfere, to a significant extent, with the performance by the Secretary of State with his duties under National Health Service Acts to provide accommodation and services; or operate, to a significant extent, to the disadvantage of National Health Service patients seeking or afforded access or admission to National Health Service accommodation and services.

There were two considerations in the minds of Ministers when they came to this problem: one was a desire not to pitch the size limits so low that the Board would be required to consider hospital building projects which were so small that they could never conceivably damage the National Health Service or the service it provides for its patients; the other was a desire not to remove the scope for the exercise of independent judgment by the Board, by providing that it should consider only those hospital building projects which would be likely to fail to qualify for authorisation.

During Committee, the Secretary of State mentioned that Ministers had sought the advice of the Department's professional staff on the likely staffing requirements of private hospitals. He said: The honourable Gentleman asked me where I got the figures I used on Second Reading. They were prepared in the Department on the basis of the experience of professional officers. They took account of the likely number of operating theatres and operating sessions. They took account of associated out-patient work, associated in-patient work, pathology and radiology and included an element for medical staff. They also took into consideration the desirability of having resident medical staff in a hospital of 100 beds or more. We took a situation like this for a 75-bed unit. It was assumed to be predominantly for surgical work, as this is the main provision of the private sector in the acute field. Let us say that there were 60 surgical beds and 15 medical beds. Typically, these would be supported by two operating theatres, one radio-diagnostic room and, as normally there is no complement of training medical staff, it was estimated that the operating theatre time for morning and afternoon on five days a week would occupy the equivalent of four consultants and two more for the associated out-patient and in-patient work. General medical work and radiology would add another two or three consultants. This makes a total of about nine consultants, without including any element for pathology and possible resident medical officers. For nursing, a professional calculation corresponding to that used for doctors, based on operating theatre and other work, gave as an absolute minimum a figure of 60. I was advised that in practice it was unlikely that the total overall number could be less than one nurse per bed. For a 75-bed unit I gave 70 nurses and for a 100-bed unit I gave 90 nurses. These assessments have been made carefully by the Department."—[Official Report, Commons, 27/4/76; cols. 1375–76.] It was after consideration of these figures that the decision was made not to change the limits of 100 beds and 75 beds for Greater London and the remainder of Great Britain respectively which we had arrived at initially after considering all the relevant factors.

The figures were challenged by the right honourable Member for Wanstead and Woodford (Mr. Patrick Jenkin) who said: I want to be certain that I understand the Minister. This is, I take it, a hypothetical construction by the medical officers in his own Department. Was no attempt made to crosscheck against the actual experience of private hospitals in the field? My hon. friend the Member for Reading, South (Dr. Vaughan) referred to four hospitals. His figures showed that the Minister's figures are a gross overstatement of the staffing requirements".—(col. 1376). We do not, of course, accept the inference in this statement that people who had expert knowledge of the staffing requirements of NHS hospitals would not be able to provide a fair estimate of the approximate likely staffing requirements of private hospitals. However, in order fully to satisfy the right honourable Member, the Secretary of State was able to quote to the House some arbitrarily selected figures estimated by several different developers of their projected hospital's staffing requirements. The figures were supplied to the Department by these developers when they wrote to inquire about the "licensing" scheme which had been proposed in the Consultative Document published in August last year.

The first example is of an acute hospital of 140 beds. The hospital was to have two consultation sessions per day with six consultants per session. In addition there would be one resident physician who would be on-call during periods outside the consulting sessions. For general nursing staff there was to be a ratio of one nurse to two patients, plus eight theatre nursing staff, four consulting suite nursing staff and a matron. There was also to be a total of 23 technical and ancillary staff posts. The second example is of a small acute nursing home of 16 beds; this is to have a total of 20 nursing staff and six nursing auxiliaries. A third acute hospital, of 40 beds, is to have 10 sisters, 40 staff nurses and 10 medical ancillary staff. A fourth hospital, of 150 beds, was to have 8 full-time consultant equivalents, 13 house doctors, 130 ward nurses, 25 theatre nurses and 22 technical staff. And a fifth hospital, of 50 beds and one operating theatre, was to have 27 nursing staff.

These figures underline the very obvious fact that there are likely to be wide variations in the staffing requirements of different new private hospitals; some are likely to employ more staff than the figures produced by my Department would suggest. But they do show that the figures quoted by the Secretary of State during Committee stage in another place were certainly not a "gross overstatement". In the circumstances, I put it to your Lordships that there are no valid reasons why the judgment that the Board should be required to consider private hospital building projects of the sizes at present laid down in the Bill should be altered. It would seem that they are reasonable figures both for Greater London and also for elsewhere in the country.

Baroness YOUNG

The noble Lord has taken a lot of trouble over his reply. I am not sure that all of it is strictly relevant to the Amendment, but it was at any rate interesting to hear all the information about staffing ratios, which we can look at in Hansard in the morning. The point of these Amendments is to see whether it is possible to get much more flexibility into private hospital building, and it is relevant when we come to Part III of the Bill. I shall not press these Amendments this morning. Having read Hansard we may consider returning to them on Report. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 12 shall stand part of the Bill?

4.11 a.m.

Baroness YOUNG

We put down the Amendment to leave out Clause 12 because we have now reached Part III of the Bill. At Second Reading and in various speeches made by Government Ministers, the point has always been made that it is the Government's intention that the pay beds should be phased out of the National Health system. Indeed, we have been told over and over again that this was in the Manifesto, and that this is therefore something which is quite unalterable. The Government had won two Elections on it, and they had therefore produced this perfect Bill. What they have not said, so far as I can see, is that Part III, which is not simply concerned with the phasing out of pay beds but with quantity licensing of private building outside the National Health Service, would also be included in the Bill.

Before moving this Amendment, I looked again at the Queen's Speech of 19th November 1975, and the relevant paragraph reads: Legislation will be introduced in the course of the session to phase out private practice from National Health Service hospitals. Consultations will continue on My Government's proposals to strengthen and extend existing powers to regulate nursing homes and hospitals outside the National Health Service. It is not in the same category as the first two Parts of the Bill, and I am not convinced that this is a matter on which the public has ever expressed a view at all on which the Government can, by any conceivable basis, be said to have some kind of a mandate to write Part III into the Bill. We view with considerable apprehension the operation of Part III.

Lord SANDYS

I rise to support my noble friend's Amendment, because I believe that it is very likely that a vast number of those intimately concerned with this particular problem are totally unaware of the implications of Part III. Superficially it may seem that it refers only to major building extensions, construction of wings of hospitals, or to substantial new treatment areas, but if one looks at the top of page 15 one reads: 'controlled extension', in relation to any controlled premises, means works designed—

1. (a) to extend, adapt or be used in conjunction with the controlled premises; or
2. (b) to extend or adapt works used in conjunction with the controlled premises."

That sounds as though it is a repeat, but in fact it is not.

The point is that in a consulting room a doctor may be somewhat "cabined, cribbed, confined". Supposing he wishes to extend it, he will now have to make suitable applications both to the planning authority and presumably to the Department of Health in order to extend premises no larger than dog kennels. This tooth of regulation which is imported into the Bill in Part III is a very substantial piece of building regulations. We are of course already under official compulsion under the Building Regulations 1965 and this is yet a further extension of those provisions in regard to controlled extensions and other works. It is obvious that we shall want to look very carefully at Clause 12, and while I do not know what my noble friend will wish to do at this stage, it is clear that the clause requires close examination.

Lord HUNT of FAWLEY

I have a few general suggestions to make about this clause. For a long time I have been interested in the optimum number of beds for private hospitals. For years I have been trying to persuade BUPA to build in London a large hospital of 200 or more beds, but this has always been resisted by the management, mostly on financial grounds. Of the 26 hospitals which BUPA now has in Britain (and the four which are being built) not one has more than 75 beds and many are considerably smaller. Now, I have been converted to believe that smaller private hospitals are probably better than large ones, anyway in London where, for example, I should like to see at some time, perhaps soon, a number of small private hospitals of 50 to 100 beds—one for heart conditions, another of about the same size for lung conditions, and others for general medicine, general surgery, orthopaedics, paediatrics, gynaecology, obstetrics, radiotherapy, psychiatry and so on, each with the most modern equipment and with staff well trained for its particular subject. This would be possible under Clause 12 as it stands, although I agree that one or two larger hospitals might perhaps be useful in big provincial cities.

One reason which is put forward why some private hospitals should be large, with 250 or more beds, is that all diagnostic and treatment facilities could be under one roof. Another is that they should be used for educational purposes, so that they could train medical students and nurses. I understand that the General Nursing Council, for example, will not recognise for nurses' training a hospital with less than 250 beds, or 150 if closely linked with another hospital. I would be willing to leave the training of medical students and nurses to the large NHS teaching hospitals, allowing the private sector to develop its own smaller hospitals, each well-equipped and fully staffed to further its own particular interest or specialty.

Lord WELLS-PESTELL

If I understood him correctly, the noble Lord, Lord Sandys, referred to subsection (2) and the subject of consulting rooms. I think I am right in saying that the controlled extensions in subsection (2) paragraphs (a) and (b) apply only to hospitals and nursing homes.

Lord SANDYS

I am obliged to the noble Lord for clarifying the point, but it seems that the provision could apply to a consulting room in a hospital.

Lord WELLS-PESTELL

I will comment first on the Motion to leave out Clause 12 and, in doing so, I imagine that the noble Baroness, Lady Young, would agree that my remarks apply to the Motions to leave out the other clauses. The effect of those Motions collectively would be to remove, clause by clause, the whole of Part III, and noble Lords opposite may repeat the arguments against the inclusion of Part III. They may say that the Government are exceeding their mandate and the terms of the Goodman proposals, but I hope that they are nevertheless prepared to listen to what I feel is a very good case on the part of the Government in respect of Part III. My right honourable friends have been over this ground often in another place, but I should like to go over it myself in your Lordships' House.

The Goodman proposals referred to the gracious Speech last year and recalled that there was to he further consultation with the profession over the regulation of the private sector following the separation of pay beds. To quote the proposals, they went on: In the meantime the Government need to be satisfied that developments in the private sector do not significantly endanger the service the NHS gives to its patients and will enter into consultation with the medical and dental professions as to how this can be achieved by voluntary means. The consultations would cover the point as to whether any reserve powers that it proved necessary to take in the legislation might be exercised by the independent Board. I believe that the crux of the whole matter is—and it seems to me to be perfectly reasonable if we are to have a National Health Service marching side by side with a private sector—the effect of one on the other. At the moment, I think it fair to say that a good deal of attention has been given to what will happen in the private sector, and perhaps we ought now to be looking at what may happen so far as the National Health Service is concerned. Briefly, the Government's reason for bringing forward Part III of the Bill is their need to be satisfied that the service provided by the NHS is not damaged by developments in the private sector. Let us face it, this could happen. I am prepared to believe that there is no one in the private sector who wants consciously to damage the Health Service. We, for our part, certainly do not want to take any action that will, in the real sense, damage the private sector. What we want to see—and let me be quite frank about this—is a healthy private sector, but we want the National Health Service not to be the poor relation. We want the National Health Service to go from strength to strength because—and this has been said here many times and I have never disagreed—there is still much to be done in that Service.

Consultations were held with the professions, and with representatives of the private sector. But they were not able to make any suggestions for a voluntary system of regulation that would meet the Government's requirement. They were invited to make suggestions for a voluntary system of regulation, but they were not able to do so. There was therefore no choice for the Government. If they thought that there was any possibility that future developments in the private sector might be detrimental to the National Health Service, they were bound to take some powers in the Bill. Part III contains the powers that the Government are seeking. There would obviously be no justification in these circumstances for "waiting and seeing before taking the powers. In the same way as people in the private sector want to know how they will be affected and therefore it ought to be in the Bill, the Government want to see quite clearly how they will be affected and to take whatever precautions are necessary to safeguard the National Health Service.

The nature and scope of the powers to be taken can be debated—I think that we should find a measure of common ground between us, but not complete identity—as indeed they have already been debated at great length in another place. It must be clear that if the power to regulate any private sector developments is taken, the extent of the power must be precisely described in the Statute, and it would not be fair to the private sector not to put it down in black and white.

A great deal of thought has been given to the suitable extent of the power. It seemed to the Government necessary to fix the limits of control at a level which would not result in all developments being scrutinised, including those of a size and nature which could not damage the NHS. Equally, the limits had to be capable of bringing in for scrutiny any developments which might damage the NHS. When considering this problem the Government had the advantage of receiving from developers details of schemes for new private hospitals which they were planning to build. At this point I should like to say that obviously I was delighted at the comments and observations made by the noble Lord, Lord Hunt of Fawley. Unless I misunderstood the noble Lord, his thinking, so far as size is concerned, if nothing else, is more in line with Government thinking.

It was clear that most of the projects, which would provide facilities for acute treatment, would have somewhere between 30 and 60 beds. Two or three would have over 100 beds; and it was such developments, relatively few in number, which seemed to constitute a possible threat to the NHS hospitals in their vicinity, particularly in terms of the number of staff of all kinds whom they might require. After considerable thought, the Government decided that acute hospitals with over 75 beds generally, or over 100 beds in Greater London, should require authorisations from the Board. The notification system has been devised to provide information. The Board requires information about private sector facilities which are to be provided in a given area for two reasons: both for its consideration of proposals for phasing-out pay beds; and for its consideration of applications for authorisation for large acute private hospitals.

It is unclear to me why noble Lords object to Part III—I will not say "object strongly", because it may well be that this Amendment and other Amendments have been put down in order to get some kind of picture of Government thinking. But it is perfectly clear that only a few developments will come within the definition of "controlled premises". Inquiries and experience have shown us that there are not likely to be many applications for more than a hundred beds in Greater London, and certainly not more than 75 outside London.

We are much more likely to see a development of smaller private hospitals both in the country and in London. For each of these few developments, the Board must grant an authorisation unless it is satisfied that the development in question would cause detriment to the National Health Service. Again, when one considers the notification system, it is hard to see why it is objectionable. The notification system confers on the Board absolutely no power of control over notifiable developments. The only sanction connected with it is the establishment of an offence of failing to notify or making a fraudulent notification. There is nothing sinister in this. Obviously the Secretary of State, who is responsible for maintaining a National Health Service, really ought to know what is going on around him. It is as simple as that. All that the Secretary of State wants to know is how many hospitals under the limit are going to be built.

There will be no interference with them, because they have to get planning permission. Once they have planning permission, it is fairly plain sailing. It is merely a notification so that he knows what the development is, in what field it is going to be, whether there are going to be any specialties or what type of hospital it is going to be. There is nothing sinister in this. It seems to me to be a perfectly simple requirement in order that one can know what is going on.

Baroness YOUNG

Perhaps I should be comforted by the thought that the noble Lord, Lord Wells-Pestell, thinks that we should have nothing at all to worry about in relation to Part III. The fact is that it is a very serious worry to everybody, and I will tell the noble Lord why. I take the point that it will be possible to build a hospital of less than 100 beds in Greater London and of less than 75 outside of London. I thought that the point that the noble Lord, Lord Hunt, made was a very good one, explaining about the size that he expects private hospitals to be. But one has to remember that the background to Part III of the Bill was in fact the Consultative Document which the Government published, the words of which the noble Lord has repeated tonight to the Committee. Paragraph 10 of the Consultative Document said: The second objective of licensing is to ensure that the development of the private sector does not operate to the detriment of patients in the National Health Service. It would not be allowed to make it more difficult to provide a comprehensive National Health Service by absorbing either nationally or more locally any undue proportion of scarce skills et cetera.

Perhaps I may explain our worry to the Government. The Government have made up their mind that they are going to separate pay beds from the National Health Service. They have taken a decision about this, and then they have created the separation of the services. Having created the separation of the services, they then say, "We cannot allow the private service to become too good because it would compete with the National Health Service". Of course, they have got themselves into a difficulty, because this is just what the doctors do not like, so they keep saying to us all, "Do not worry at all because we really believe in private medicine and you have nothing to worry about". This is the kind of ideological argument that only those who have got themselves into this absurd position, if this is the basis of the Bill, would ever contemplate legislating upon. But for the Government not to see that there is a worry about Part III I think would be unfortunate. I do not intend to press this Amendment tonight, to take out the whole of Part III of the Bill, although I must say that the temptation is very great. But there is a real worry, and the doctors, I believe, are quite right to be worried. We, at any rate, shall watch carefully what happens in this matter.

Lord HARVINGTON

We are talking about the effect of this Bill, as I understand it, upon the disclaimed hospitals, and I think it is perhaps only right that we should realise the scale of the operation of the disclaimed hospitals. There are about 174 of them, and they provide no less than 11,788 beds. The effect of Part III generally and of this clause in particular is to make the future of these hospitals very difficult indeed. By this I mean that if they want to make the slightest alteration—it is not a question of adding extra beds, even, but if they want to make an additional operating theatre or some addition to their physiotherapy department, or something of that kind—provided they are, in London, over 150 beds and, in the country, over 75, they have to go to the Board in order to get permission. I think that this is a gross encroachment upon the rights of independent hospitals and is quite contrary to the scheme of things which was laid down by Mr. Aneurin Bevan in 1949, when he said that there should be an independent set of hospitals which should provide an opportunity for consultants, for surgeons, for doctors and so forth to exploit their skills outside the National Health scheme.

In doing what they are doing, the Government are over-riding this and are doing something for which they have no mandate from the country. This was not mentioned, so I am reliably informed, in any declaration which was put before the voters at the last Election. I am also told that even Lord Goodman did not recommend in exactly the same way as the Government have brought forward these clauses. So I recommend to your Lordships that we do everything we can to prevent these clauses from coming into force. There is no mandate for them and they are, one might say, directed to the ultimate destruction of private medicine in this country. We should, I think, have nothing to do with them. They are typical of the whole Bill which is conceived in envy out of ignorance. I hope that the Committee will reject them.

Lord WELLS-PESTELL

May I remind the noble Lord that the Government have no interest at all in the private hospitals of under 75 beds outside London or of under 100 beds in London unless it is to increase their size and bring them up to the limit. This is the only concern that the Government have in them. If a 30-bed or 40-bed hospital wants to do something to increase itself to a 40-bed or 50-bed hospital it would be in the same position as most of us; it would have to get planning permission; but there is no interference on the part of the Government.

Lord HARVINGTON

I am sorry if I have misunderstood the situation. My interpretation of what I had been told about the Bill was that all this applied to any hospital of under 150 beds in London and under 75 beds in the country which wished to do any reconstruction of any kind, whether to make more beds or not. If the noble Lord tells me that that is not so, I am very pleased to hear it. I hope it is correct.

Lord AUCKLAND

My only worry about Clause 12 is subsection 1(a) which reads: he is authorised in writing by the Board to do so and the works are in accordance with the terms of the authorisation …". Bearing in mind building costs nowadays and how they rise, and bearing in mind how long authorisation takes, can the noble Lord give an assurance that these authorisations, if approved, will be submitted with all possible speed to save costs on all sides? I think that this is an important point.

Lord WELLS-PESTELL

There would be no intention on the part of the Government in any way to try to hold up matters. As I have tried to say before, we are quite happy to see an effective private medical service. However, there are such things as planning permission and so on. If that can be speeded up, well and good; but that takes time.

Clause 12 agreed to.

Clause 13 [Authorisations to construct or extend controlled premises.]:

4.40 a.m.

Baroness YOUNG moved Amendment No. 95:

Page 16, line 4, at end insert— ("(3A) In considering whether or not to grant the authorisation, the Board shall—

1. (a) give notice of the application to any person likely to he affected by the application;
2. (b) afford the applicant and every such other person a reasonable opportunity to make representations to the Board either in writing, or (if he so requests) at a public hearing, or both;
3. (c) have regard to any such representations;
4. (d) give reasons for its decision.").

The noble Baroness said: I can say briefly that the purpose of this Amendment is that when the Board are considering whether or not to grant authorisation, it shall apply to itself the rules of natural justice. This Amendment suggests that there should be notice of the application to any person likely to be affected by the application; that ally applicant can have every reasonable opportunity of making representations; that the Board will have regard to the representations; and of course it will give its reasons. This seems to us something which would be only right and proper. I beg to move.

Baroness STEDMAN

I submit that this Amendment is unnecessary. The Bill provides for all the matters mentioned in this Amendment to be covered, either by its own provisions, or by virtue of the regulation-making powers conferred on the Secretary of State by Clause 16. And furthermore, Clause 22(2) requires the Secretary of State to consult the Board and other interested bodies before making regulations under that clause or under Schedule 1. In addition, the fact that the Board will be subject to the Council on Tribunals in its Part III functions means that the Secretary of State must also consult that Council before making procedural regulations for the Board's exercise of its Part III functions.

The Secretary of State intends to produce, and consult the relevant bodies on, regulations which will require the Board, and its Scottish and Welsh Committees, to bring any application for authorisation to the attention of interested parties and to give those people likely to be affected by the regulations a reasonable opportunity to make representations. Clause 16(2) requires the Board not to refuse any application for authorisation without offering the applicant the opportunity of a hearing; and the regulations governing hearings will therefore be bound by that requirement. As your Lordships are of course well aware, it is customary in legislation to provide for such procedural matters as these in regulations rather than in the head legislation.

The final point in the Amendment, a requirement on the Board to give reasons for its decisions, is already covered by virtue of the supervision of the Board in its Part III capacity as a tribunal by the Council on Tribunals. Section 12 of the Tribunals and Inquiries Act 1971 requires bodies put under the supervision of the Council on Tribunals to give reasons for these decisions. The Board must therefore do this; and in this, as in other procedural matters under Part III, the Council will be supervising the Board's conduct. Therefore we believe that the Amendment is unnecessary.

Baroness YOUNG

This again is not something on which I intend to divide the Committee. I am glad that the noble Baroness feels that it is satisfactory that the Council on Tribunals should give its reasons for its decisions even if the Board are unable to do so. I am not convinced that having a number of these matters in regulations is as satisfactory as having them in the Bill, but bearing in mind the lateness of the hour I will not press this matter. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Baroness YOUNG moved Amendment No. 96: Page 16, line 8, after ("authorisation") insert ("Provided that no authorisation shall lapse after the controlled works have been begun)").

The noble Baroness said: This is an important matter. The Board, on giving authorisation for hospital development, can give terms as to the duration of the permission. Once the authorisation has been given and the building works commenced, the authorisation should not lapse. There does not seem to be any provision for this matter. This is why we put down this Amendment. I shall be glad to know what the noble Baroness has in reply to that. I beg to move.

Baroness STEDMAN

Clause 13(4) would enable the Board, if it saw fit, to specify that if the building of the controlled works for which the authorisation was being issued were not started within a stated period, the authorisation would expire. Furthermore, it would permit an authorisation to expire if for some reason—for example, bankruptcy—a company begins work constructing hospital premises and then the works cease permanently. In that case it might well be desirable for the authorisation to expire. Then, if after a time, the developer wanted to go ahead he would have to go back to the Board and ask for a fresh authorisation, to enable him to execute the rest of the work. If the Amendment were made there would be no possibility of an authorisation coming to an end even where a building remained at foundation level for so long that planning permission for the works expired.

An identical Amendment to this was tabled by Opposition Members during Committee stage in another place. They were anxious that an authorisation should not be revocable either when the works had been begun or when they had been completed. But the Amendment was withdrawn when the Ministers agreed to check that there was no ambiguity in the meaning of the provision as drafted. They explained that the Government were not thereby, in putting forward this permissive power, intending to enable an authorisation to be withdrawn at a specified or an unspecified date if the authorised controlled works were either in progress or had been completed. Ministers have, since Committee stage, confirmed with their legal advisers that this is the position. The authorisation permits the execution of works: it is necessarily spent once the works are built, and the question of revocation cannot arise. It could therefore lapse if no works were begun within a stated time, and it could die with works which were abandoned in mid-construction. But it could not be revoked, in respect of the works in question, once they had been started, unless some other condition attached to the authorisation were broken. I trust that your Lordships will be sufficiently reassured by this account of the position following consultations after Committee stage in another place.

The Earl of KINNOULL

One understands that the authorisation can lapse if the works have not started. What I have not quite grasped is on what occasions it can happen. The noble Baroness gave the instance of bankruptcy, but would there, for instance, be any danger, if a building company went into bankruptcy and was picked up by another company, that the authorisation would not be re-issued? Are there grounds other than bankruptcy where it would be revoked half-way through?

Baroness STEDMAN

No, I should have thought that if another company was willing to take on the job, the developers would have no difficulty about carrying on with the works at all.

The Earl of KINNOULL

I cannot quite see, therefore, why it has to be revoked.

Baroness STEDMAN

I cannot, at this time of the morning, think of other reasons why it should be revoked, I will be honest with your Lordships. However, I do not think there is any fear that things will be revoked and not started again. I will look into this and when I am a little more conscious than I am now, I will write to the noble Lord.

Baroness YOUNG

We are grateful to the noble Baroness for that answer. My noble friend has raised an important point and we all have a deep sympathy with the noble Baroness, having these balls bowled at her at this hour of the morning. This is a matter to which we could return on Report.

Amendment, by leave, withdrawn.

Baroness YOUNG moved Amendment No. 97:

Page 16, line 11, at end insert— ("(5) With the consent of the Board (which shall not be unreasonably withheld) an applicant may at any time transfer an authorisation to another person.").

The noble Baroness said: Once again, this is an important Amendment, tied in Standing Committee in another place, and guillotined on Report—one of those famous ones we are now discussing for the first time in one of the Houses of Parliament. This is an important matter which very much follows from what my noble friend Lord Kinnoull has said on Amendment No. 96—again, that the consent of the Board will not be unreasonably withheld and that an applicant may transfer the authorisation to another person. It covers precisely the kind of case to which my noble friend is referring. It may well be that the noble Baroness has not the answer at her fingertips now. If that is so, I shall quite understand if she prefers to write to me and to my noble friend on this matter. I beg to move.

Baroness STEDMAN

This Amendment seems to the Government unnecessary to make possible the effect which it seems to seek to achieve, and, furthermore, it has unattractive implications. The Board could withdraw an authorisation at the request of the person to whom it had been issued, and could decide whether to issue a new authorisation on the same terms to a second person or company, in respect of the same development, if all the criteria were met. The Government think that this method of dealing with the transfer of authorisations from one person who no longer wants the authorisation, to another who does, would be more in keeping with the spirit of the provisions of Part III of the Bill than would the unmonitored transfer of authorisations from one person to another.

During Committee stage in another place there was considerable discussion on whether the Amendment would permit a "black market" in authorisations to develop. The Secretary of State said that a developer who had obtained an authorisation to build a private hospital would be enabled by the Amendment to put the authorisation up to the highest bidder. Nevertheless, the Opposition would not accept this argument and forced a Division on the Amendment. The reason why the Amendment could enable a market in authorisations to develop is that the only grounds on which the Board would be empowered to refuse to grant or to prohibit the transfer of an authorisation are contained in Clause 13(2)(a) and (b) of the Bill; that is, if the works in question would to a significant extent interfere with the performance by the Secretary of State of his duties to provide accommodation and services made under the NHS Acts, or would to a significant extent operate to the disadvantage of NHS patients seeking admission or access to NHS accommodation or services.

The Board would thus not be empowered to prohibit the transfer of an authorisation, if it suspected that it had been sold. It can be envisaged that a developer would obtain an authorisation to develop a large private hospital in somewhere like Central London, knowing that other developers would be less likely to have their hospital building projects authorised because the Board would be bound to take into account his authorisation. In this situation, an unscrupulous developer could offer to sell his authorisation to someone who was genuinely concerned to see the establishment of private hospital facilities in the area. I suspect that it is for similar reasons to these that grants of planning permission cannot be transferred to other persons. The situation is of course hypothetical, but the Amendment would insert a weakness into the Bill, which could be exploited, and in the circumstances it would seem wise not to accept it.

The Earl of KINNOULL

If a developer forms a company and gets authorisation, he will then be at perfect liberty to sell the company because that would not change the name on the authorisation, and by doing so would get right around the very thing which the noble Baroness said the Government wish to avoid. Will the noble Baroness confirm whether that is so?

Baroness STEDMAN

I should have thought that if a company was sold and continued to carry on in the same name they would take over the assets, one of which would presumably be the authorisation to do this.

Baroness YOUNG

I am very grateful for that last reply to my noble friend, and perhaps if there is any doubt about the point the noble Baroness will write to us. I am bound to say that I found that her reply had some rather unpleasant overtones—not from her personally, but from the argument that she was putting forward—because I believe that all this talk about a "black market" in consents seems singularly unrealistic. I think that what the Government are afraid of is that there may be a great deal of private hospital building which will compete with the National Health Service, and that is what they do not like. But this is not a matter which I intend to pursue tonight, so I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 13 shall stand part of the Bill?

4.55 a.m.

Baroness ROBSON of KIDDINGTON

May I ask for some clarification on the implications of Clause 13 taken together with Clause 12 before it stands part of the Bill? It deals with, Authorisations to construct or extend controlled premises". I should like the Committee to think about the health district as such. In that health district is a small acute hospital of 60 beds, outside London, which does not therefore fall under this authorisation. Some distance away in the same district is an obstetric or maternity unit of 30 beds. The acute hospital decides to take over the maternity unit, thereby creating under the same ownership a unit, although not on the same premises, of 90 beds.

I want to know whether that action has to be preceded by an application for authorisation despite the fact that it does not add a single bed to the private sector within that district. Subject to the answer to that question, what is the position if, at a later date, having then created a unit under the same ownership of 90 beds—I am assuming they would not have to ask for authorisation because they are not increasing beds—it is found uneconomical to run two units separately and it is decided to redevelop on the site of the acute hospital and move the maternity unit over there? Would it necessitate having to ask for authorisation? The point is that again not a single extra bed would be added to the private sector. It is important to make this point clear before we decide on whether the clause stand part.

Baroness STEDMAN

I am open to receive some hurried advice from the Box if I am wrong. I should have thought that, if they were two separate hospitals, one with 60 and the other with 30 beds, one would be all right. If one is to develop on the site and increase either the 60 or the 30 bed hospital to over 75 in total, or over 100 in Greater London, it would then constitute an extension of that one even though the other was closed in order to do it. Yes. I am getting nods.

Baroness ROBSON of KIDDINGTON

That strikes me as being an odd answer in many ways, because that would mean one would be perfectly free to amalgamate under one group any number of small hospitals. But the moment you try to put them together, irrespective of the fact that no more extra beds were added, one comes under the authorisation. Am I to understand that you could amalgamate within a group without asking for authorisation?

Baroness STEDMAN

If you have separate hospitals as described in the original question, you are all right because they are classed as separate hospitals. But once you start to put them together under one roof, you start to run into trouble.

Clause 13 agreed to.

Clause 14 [Notice of notifiable works]:

Viscount LONG moved Amendment No. 98: Page 16, line 15, leave out ("or giving to it a notice in the prescribed form") and insert ("sending a copy thereof to the Board").

The noble Viscount said: With the permission of the Committee, at this late hour may I speak to Amendments Nos. 98, 99, 101, 102, 103, 104, 105, 106, 116 and 117? I shall try to be as quick as I can over this Amendment. It is a tidying-up operation on the first part which omits "giving to it a notice in the prescribed form" and inserts "sending a copy thereof to the Board". In my view, "sending a copy thereof to the Board" is much better English. Surely the sending of a copy of planning permission can be used as notification to the Board.

Furthermore, my noble friends and I cannot understand why so many details have to be given to the Board when the Board is notified and we should be grateful for further information. When you notify the Board you will not have made your planning application to the local authority to build, and in the early stages I should not have thought that one needed to give all of these details. If the noble Baroness could further describe the procedure to us, we should be only too delighted to listen to the information given. I beg to move.

5.1 a.m.

Baroness STEDMAN

I am sure that the Committee is very grateful to the noble Viscount for suggesting that we take such a batch of Amendments in one go. They certainly do hang together. The effect of these Amendments, taken together, would be to require that an applicant for planning permission for notifiable works must send to the Board a copy of the application for planning permission, thus constituting a notification procedure by means of the copying of documents used for planning permission purposes. They would remove from the Bill the present requirement that a separate notice containing prescribed information about notifiable works should be submitted to the Board. They would accordingly substitute the term "notification" for "notice" where it occurs in the Bill and would in addition remove the penalty in Clause 18(2) for failing to furnish, or furnishing false information in, a notice under Clause 14.

I think there may be some misunderstanding of the purpose of the notification system set out in Clause 14 of the Bill. The system is intended to provide the Health Services Board and the Secretary of State with a body of information about the extent and nature of facilities in Great Britain for the private practice of medicine. This information will be essential to the Board if it is to carry out properly its functions under Parts II and HI of the Bill effectively.

Under Part II of the Bill, when the Board is considering whether pay beds should be phased out from particular hospitals it will be required to consider whether sufficient accommodation and facilities are reasonably available in the private sector in the areas served by those hospitals. I think your Lordships will accept that the Board will not be able to perform this task effectively unless it has access to comprehensive and accurate information about the individual developments in the private sector which the authorisation and notification procedure will provide. Under Part III of the Bill, when the Board meets to consider applications for authorisations it will need to consider whether the proposed developments would significantly interfere with the Secretary of State's duties under the NHS or operate significantly to the disadvantage of NHS patients. Clearly if the Board is to make sound judgments on these matters it is essential for it to have available to it information about the private sector environment in which the proposed developments will operate.

These Amendments were also tabled by Opposition Members when the Bill was debated in Standing Committee in another place. The Minister of State said that Ministers had initially been receptive to the proposal that copies of planning applications should be submitted to the Board as notices under Clause 14, but he went on to say: The planning system, we are advised, cannot provide from the planning documents the details which we think the Health Services Board should have. In a planning application comprehensive details are required of external appearance, plan and elevation of the building, and information about approach roads and connections with external services. However, an application for planning permission for a private hospital, for example, would not necessarily, or even usually, contain details of numbers of rooms or beds or of facilities proposed to be offered. It is likely, therefore, that it would be of no help to the Board to receive copies of planning applications". This advice came direct from the Department of the Environment, whose Secretary of State is responsible for the planning system. A notification system based on planning documents, though a good idea in theory, would in practice be of little use to the Board. If we are to give the Board duties under the Bill then we must provide it with the means to carry out those duties. The notification system in Clause 14 is part of those means and the Bill would be seriously weakened if these Amendments were accepted.

The provisions to prescribe the information to be contained in notices and the penalties for non-compliance with the requirements of the clause are essential features of the notification system. The prescription of information will be of great help both to developers and the Board. The developers will need to fill in one form which will state quite clearly the information which will be required—and I can give your Lordships an assurance that the information will be strictly related to the purposes of the clause and will include nothing extraneous—and the Board will get its information in a standard form. This will obviate any unnecessary correspondence between the Board and the developers. On the penalty the Minister of State explained in Standing Committee in another place that: Since the Board will not be required in the case of notifications to exercise judgment or make any decision other than whether or not the notification is given in the prescribed form and conveys the prescribed information, it is necessary for there to be some sanction against the maker of a fraudulent notification". I apologise for the lengthy explanation, but I hope it explains why the Government themselves were weaned away from the idea that planning permission papers might be used to do a double duty and I hope the noble Viscount will not press the Amendments.

The Earl of KINNOULL

The noble Baroness has given a very full explanation for which I am sure the whole Committee will be grateful, but there are just two points which I should like to raise. Without having the temerity to question what the Department of the Environment has told her about the details of the full planning application, I am surprised that, in the case of the development of a hospital, all they are interested in is the elevational treatment and the like, and the drainage and the access. I should have thought that when an architect was instructed to design a hospital he would go into enormous detail. Frankly, I should fear that there would be a terrible amount of duplication and delays in such a development.

The second thing I wish to ask the noble Baroness—and here I should perhaps understand, but I am afraid I do not—is this. If the specification is agreed with the planning authority, which I assume it must he in a planning consent—and I am speaking, of course, of a full planning application—can the authority then alter that specification because it does not conform to some of their norms?

I am particularly anxious about that because one could have a situation where a developer in all honesty designs, through his architect, what one might term a viable unit on cost and design, and it would be undesirable if he were to get planning permission for that and then applied through the authorisation procedure, only to find that he has to put in a whole host more of expensive equipment, making the whole thing uneconomic. I hope the noble Baroness will be able to give an assurance on that, and if that should come about what would be the fall-back position of the developer? Would he have an appeal procedure to follow on that point?

Baroness STEDMAN

I am advised that the authorisation has to be obtained before the application for planning permission is made. That probably clears up the last point. With regard to the advice from the Secretary of State for the Environment, far be it from me to take my chief to task on this matter. I will certainly make more inquiries about this for the noble Earl, as to exactly what we expect in the way of planning details, what we would ask, and the sort of things we would have. I will write to the noble Earl if that would satisfy him at the moment.

Viscount LONG

I am grateful to the noble Baroness, Lady Stedman, for getting through her brief so quickly at this time of the morning. For my part, I would like to read in Hansard tomorrow—or perhaps it is today—the whole text of what the noble Baroness has said. I share the worry of my noble friend Lord Kinnoull with regard to planning details, costings and all the developer's problems, and so on. I should like to read what the noble Baroness said because there is a great deal still to say on it, but at this late hour I will be much kinder to the Committee if I withdraw the Amendment and sit down. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The DEPUTY CHAIRMAN of COMMITTEES

I call Amendment No. 107. I have to inform your Lordships that if Amendment No. 107 is agreed, I cannot call Amendment No. 108.

5.12 a.m.

Lord SANDYS moved Amendment No. 107: Page 17, line 9, leave out from ("means") to end of line 12 and insert ("premises which would be controlled premises but for the fact that the number of beds which they provide or will provide is smaller than that specified in section 12 (2) above;").

The noble Lord said: This Amendment concerns a particular definition relating to hospital premises. Unfortunately, we believe the Government have drawn the provision very much too widely. The proposal in the Amendment as set out on the Marshalled List is to confine it to another definition which will be found on page 14, under Clause 12(2)—"controlled premises". In examining the hospital premises definition, we are here concerned with the definition of a nursing home containing approximately 75 to 100 beds. With the other definition of controlled premises, we are talking about a hospital with probably over 100 beds. It is a technicality; let us leave it at that. In the nursing home definition, that is, hospital premises to which the Amendment refers, we are considering beds which relate to surgical, medical and dental premises. We believe that the definition is so wide it would even include a consulting room and, taken to its logical conclusion, it could conceivably consist of a specially constructed bedroom produced for an individual patient.

Therefore, we believe it would be very much better to import the terms used in the very much tighter definition of "controlled premises" at Clause 12(2). We believe this would be a better and a narrower definition. I recall the comment of the noble Lord, Lord Wells-Pestell, on "Clause 12 stand part", when he said: only a few premises will come within the definition of 'controlled premises'". If we are to have definitions at all, let them he clear and if possible narrow, so that they confine the problem within sharp limits. I beg to move.

Baroness STEDMAN

The purpose of the notification system (as was the purpose of the certification system which it superseded) is to ensure that the Board receives information about the rate and scale and nature of developments in the private sector. During Committee stage debate in another place on these Amendments the Opposition objected strongly to the breadth of the definition of "hospital premises", in the Bill as drafted. The Minister of State was pressed to say which classes of premises the Government intended to prescribe as "hospital premises" for the purposes of the notification system. There was a lengthy debate at the end of which the Minister said that the definition would cover inpatient facilities for surgery and the treatment of acute medical conditions, day care facilities for the treatment of acute medical conditions, diagnostic pathology, radiology and any other pre-operative services, and post-operative care facilities. The Minister also said that he hoped to be able to reach agreement with the profession on the wording of a definition of "hospital premises" for use in regulations. Accordingly, the profession and the Independent Hospital Group have been sent the following definition of "hospital premises" for use in the regulations to be made prescribing the classes of premises: but we have not yet had any indication of whether they find it acceptable: Hospital premises' means premises used, or to be used, for the reception of patients (whether resident or non-resident) in which there are, or are to be, facilities for the provision of all or any of the following services, namely:

1. (a) the carrying out of surgical procedures including day surgery, other than dental surgery and orthodontics carried out at premises referred to at (e)(6) below;
2. (b) post-operative care required as a result of the surgical procedures referred to in subparagraph (a) above;
3. (c) obstetrics;
4. (d) radiotherapy;
5. (e) any other services for the diagnosis or treatment of illness;

but does not include—

1. (1) any hospital provided by the Secretary of State under the National Health Service Acts;
2. (2) any accommodation provided by a local authority and used as a hospital by or on behalf of the Secretary of State under the National Health Service Acts;
3. (3) any other premises managed by a Government Department or provided by a local authority;
4. (4) any sanatorium provided by a school or other educational establishment;
5. (5) any first-aid room maintained at, or in conjunction with, a factory within the meaning of Section 175 of the Factories Act 1961 or at, or in conjunction with, premises to which the Offices, Shops and Railway Premises Act 1963 applies;
6. (6) any premises used, or intended to be used, for the purpose of consultation by a medical or dental practitioner;
7. (7) any disabled persons' or old persons' home registered under Section 37 of the National Assistance Act 1948;
8. (8) any residential home for mentally disordered patients registered under Section 19 of the Mental Health Act 1959;
9. (9) any residential establishment registered under Part IV of the Social Work (Scotland) Act 1968;
10. (10) any premises used for terminal care or long-term care of the elderly;
11. (11) controlled premises within the meaning of Section 12(2) of the Health Services Act 1976."

Subject to the views of the professions and the Independent Hospital Group, we intend to consult the Health Services Board about a draft regulation incorporating this definition.

Lord SANDYS

Despite the lengthy and full reply, for which the Committee will be grateful, I think in the circumstances the method the Government have adopted is mistaken. We believe that rather than a method of definition by exclusion, it would be better to do it our way, by including particular categories. We therefore favour both the Amendment and the definition of "controlled premises". We believe that the Bill would be improved by this Amendment, on which I would wish to test the opinion of the Committee.

5.20 a.m.

On Question, Whether the said Amendment (No. 107) shall be agreed to?

Their Lordships divided: Contents, 52; Non-Contents, 38.

CONTENTS
Alport, L.	Greenway, L.	Onslow, E.
Auckland, L.	Hanworth, V.	Pender, L.
Barrington, V.	Harvington, L.	Rankeillour, L.
Belstead, L.	Hill of Luton, L.	Redesdale, L.
Berkeley, B.	Hunt of Fawley, L.	Robson of Kiddington, B.
Carrington, L.	Kemsley, V.	St. Just, L.
Cork and Orrery, E.	Kinnaird, L.	Sandford, L.
Denham, L. [Teller].	Kinnoull, E.	Sandys, L. [Teller.]
Devonshire, D.	Long, V.	Sharples, B.
Effingham, E.	Lonsdale, E.	Stamp, L.
Elles, B.	Lyell, L.	Strathcona and Mount Royal, L.
Elliot of Harwood, B.	Macleod of Borve, B.	Tweedsmuir, L.
Faithfull, B.	Margadale, L.	Vickers, B.
Ferrers, E.	Morris, L.	Westbury, L.
Gainford, L.	Mowbray and Stourton, L.	Winstanley, L.
Gisborough, L.	Newall, L.	Young, B.
Gowrie, E.	Northesk, E.
Gray, L.	O'Hagan, L.

NOT-CONTENTS
Birk, B.	Kagan, L.	Oram, L.
Brimelow, L.	Kaldor, L	Peart, L. (L. Privy Seal.)
Bruce of Donington, L.	Kennet, L.	Pitt of Hampstead, L.
Champion, L.	Kilbracken, L.	Ponsonby of Shulbrede, L.
Collison, L.	Kirkhill, L.	Raglan, L.
Davies of Leek, L.	Llewelyn-Davies of Hastoe, B.	Ritchie-Calder, L.
Davies of Penrhys, L.	Longford, E.	Stedman, B.
Donaldson of Kingsbridge, L.	Lyons of Brighton, L.	Stone, L.
Fisher of Camden, L.	McCluskey, L.	Strabolgi, L. [Teller.]
Gregson, L.	Milner of Leeds, L.	Wells-Pestell, L.
Hale, L.	Morris of Kenwood, L.	Wilson of Radcliffe, L.
Harris of Greenwich, L.	Murray of Gravesend, L.	Winterbottom, L. [Teller.]
Jacques, L.	Noel-Buxton, L.

Resolved in the affirmative, and Amendment agreed to accordingly.

On Question, Whether Clause 14, as amended, shall stand part of the Bill?

5.25 a.m.

Baroness ROBSON of KIDDINGTON

I should like an assurance about the question of planning applications. Area Health Authorities now have a substantial representation of local authority members. I am aware that authorisation must be obtained from the Board before planning permission is applied for, but if those members of the local authority who are members of the Area Health Authority are also members of the planning authority, they may inadvertently, almost sub-consciously, be trying to do the Board's job all over again instead of looking at the planning permission as a pure planning permission. I am not saying that they would deliberately do that, but one cannot help but be involved if one is a member of the authority. I am, therefore, wondering whether the Government have any proposals for dividing those duties within the local authority so that this clash of interest would not exist on the planning authority for the purposes of granting a planning application.

The Earl of KINNOULL

Perhaps the noble Baroness, Lady Stedman, would reply to a question. Perhaps I might remark, first, that the Chamber appears to have become rather colder in the last few hours despite all the hot air that has been swirling around. When an application is made to the Board for authorisation prior to a planning application, is there a time-scale within which the applicant will receive an answer? It is, I think, a very important part of planning that time-scales are laid down, particularly in times of high inflation and rapidly rising building costs. I cannot find a time-scale anywhere in the Bill, but perhaps the noble Baroness can advise us.

Baroness STEDMAN

I shall reply to the noble Earl first. He was good enough to tell me that he intended to ask this question. I have taken advice about it and, up to this point of time, no time-scale has been laid down. However, one would hope that the Board would deal promptly with any application that they received.

So far as the noble Baroness, Lady Robson, is concerned, if I were a local authority member on an area health authority or on the planning committee, I should feel constrained to say that I could not sit on that sort of application. I should have some regard to the recent reports on conduct in public life, though there is nothing binding in them. But if the members sat in judgment on the application, I should have thought that, if they were not satisfied with the result they got on their planning, they would, like any other ordinary individual, have the right of appeal to the Secretary of State.

The Earl of KINNOULL

Can the noble Baroness advise me? She said that there was no time-scale: would she agree that, if it is considered after something like 30 years under planning legislation that there should be a time-scale, a time-scale should be written into the present Bill, and it should not be left to the best endeavours of the local board? I feel that this is a matter of some importance and I hope that the noble Baroness will consider it before the next stage of the Bill.

Lord AUCKLAND

May I reinforce what my noble friend has said because I think that I was the first to initiate this point? One does not want to be unreasonable in the small hours of the morning, but this is a very important point. The noble Baroness has said that the matter can go to appeal: I am no lawyer, but there is the question; if there is a delay, of who pays the costs of the appeal. If it is to go to appeal through unnecessary delay—and I am not suggesting that there will be more than a handful of cases—we are on a very new type of legislation now. We have had many bits of planning legislation, but this is something that is fundamental, and I wonder whether the noble Baroness can consult her right honourable friend and see whether some kind of minimum time-scale can be considered.

Baroness STEDMAN

Yes, I should certainly be willing to do that. I think that there might be problems; we would hope that the applications will he dealt with quickly. We shall have to ask my right honourable friend what administrative means he would have of giving advice to speed them up or whether it might be better to write in a time-scale at a future stage of the Bill.

So far as the question of costs of appeal is concerned, the person making the appeal has to meet his costs and those can be considerable. I hope, as I said, that there will not be cause for complaint that local authority members were wearing two hats and voting for something in one place and in another place voting to stop it. I would hope that they would be sensible members of local authorities and would not sit on those particular items when they came up. However, I think that it is something that we shall have to watch with care, and, if necessary, take some action about it in the future.

Clause 14, as amended, agreed to.

Clause 15 agreed to.

Clause 16 [Regulations in connection with provisions of Part III.]:

5.35 a.m.

Baroness YOUNG moved Amendment No. 111: Page 18, line 33, leave out paragraph (d).

The noble Baroness said: I beg to move Amendment No. 111 and I should like to speak to Amendment No. 139 at the same time, because Amendment No. 111 is a paving Amendment for Amendment No. 139. On these two Amendments we return to a point made on the very first Amendment to the Bill, concerning the quorum of the Board. This is an extremely important constitutional point, and the Committee will see that under Clause 16(1)(d) the quorum and the procedure of the Board are matters about which the Secretary of State is to make regulations. We on this side of the Committee feel that it is not good enough to leave it to the Secretary of State to make regulations. As Members of the Committee will be aware, under Schedule 1 the Board is so constructed that there should be a chairman and four other members, and we believe that the quorum of the Board ought to be five members, or their deputies. It would be completely unsatisfactory that two members of the Board could constitute a quorum, or that even three members could.

The point of the Amendments must be very clear. We discussed these matters at considerable length on the first Amendment which we put down. In order to ensure that the Board should operate fairly and independently it is essential that the matter of the quorum should be laid down in the Bill, and in our opinion it is essential also that the quorum should be the whole Board.

Lord WELLS-PESTELL

The effect of Amendment No. 111 would be to remove from the Bill the power permitting the Secretary of State to make provision in regulations for the quorum and procedure of the Board in relation to applications for authorisations. The effect of Amendment No. 139 would be to require that the quorum of the Board, when it takes any final decision relating to its functions under Part II and (subject to regulations made under Clause 16) Part III of the Bill, shall be five, including deputies.

Paragraph 10 of Schedule 1 to the Bill requires the Secretary of State to provide, by regulations, for the appointment of a deputy chairman and deputy members of the Board. The Secretary of State intends to consult the Board and the other interested bodies referred to in Clause 22(2) of the Bill on the basis of regulations providing that he should appoint a deputy chairman or member where the holder of an office is likely to be ill or otherwise unable to perform his duties for a period, perhaps for three or four weeks. This regulation would mean that the Board would have deputies available to it to cover lengthy absences amongst its members. But regulations made under Clause 16 would not lay down what the quorum of the Board should be when it meets to perform any of its functions under Parts II and III of the Bill. The Goodman proposals said that the Board would be independent and the Government have sought to provide in the Bill, so far as is possible, that its independence is not hedged about.

The Government consider that the quorum is something which should rightly, and can safely, be left to the Board to decide. We expect its chairmen and members to be people of standing and responsibility, who would act responsibly in drawing up their own procedural arrangements, and in particular would be well aware of the implications in the outcome of important discussions and

decisions of the absence of one or more members from meetings. I should certainly imagine that the kind of arrangements made would reflect such things as, for example, the need to take account of the nature of the agenda in deciding on the quorum, and the possibility of deferring some types of decisions until the full balanced membership was present.

In the Government's view it would be quite wrong—and I ask your Lordships really to consider this—to attempt to tie the Board's hands in advance by preempting their decisions on their own procedure in relation to their functions under Part II. The purpose of subsection (1)(d) of Clause 16 is not to put provisos on the Board's independence of action but to set down for the benefit of applicants for authorisations and persons or bodies who may consider they have an interest in an application what the Board's procedures will be. This information will provide an indication of how much time will be available to prepare evidence, and so on. The Board will of course be consulted about regulations made under this provision. I hope the noble Baroness will feel that the Board ought to have the right to determine its own procedures, and that it is not necessary to pursue this Amendment.

Baroness YOUNG

I am glad to hear that the noble Lord thinks that this is an important point but, of course, as we discovered when we were discussing Amendment No. 1, it is perfectly possible, if the Bill does not say so, for there to be a very long gap in the replacement of members of the Board if somebody becomes ill or for some reason or other has to resign. The Board could then be reduced to four members, and its very delicate balance could be upset. When we were arguing whether or not the Board ought to consist of five or seven members, the point was made time and again that it was the balance of the Board that was all-important. If the balance of the Board is all-important, then it is equally important that the quorum should be five, otherwise, of course, when the Board meets to take these important decisions it will not in fact have this delicate balance which it is the Government's intention that it should have.

I do not believe that we would be tying the Board's hand. It will be perfectly able, when it is set up, to make all these decisions. What could in fact happen is that there could be a considerable amount of wrangling on the Board as to what should be the quorum. I think it would be to the satisfaction of the consultants and the others who are going to take part in the deliberations of the Board that it should be laid down in the Bill what the quorum is to be; and, of course, this important point about deputies. I feel I cannot withdraw this Amendment, so I wish to press this matter.

5.42 a.m.

Lord SANDYS moved Amendment No. 112: Page 19, line 26, leave out ("including") and insert ("excluding").

The noble Lord said: This Amendment relates to regulation-making powers which the Secretary of State is granted by the Bill. Your Lordships always pause when granting the Secretary of State regulation-making powers, and in this particular instance very wide powers are conferred under Clause 16(4). The purpose of the Amendment is to exclude the powers of entry and inspection. We believe that the Secretary of State may, under this permissive power, have rights of appointment, but to include powers of entry and inspection such as the Secretary of State considers necessary might, indeed, if the Government take it to its logical conclusion, include powers of arrest and summary conviction. This subject has been investigated in another place, and was the subject of a tied vote in Standing Committee. It was also the subject of an article in the Sunday Telegraph, and has been thought about and considered as a matter of public importance. We on this side of the Committee believe that your Lordships would be performing a public duty by striking from the Bill the powers of entry and inspection. I beg to move.

Lord HARVINGTON

I think that we have now arrived in the realms of the "snoopers' charters". I wonder whether the noble Lord realises that already in London there are three different sets of inspectors entering these hospitals with the rights which are included here, namely, powers of entry, and that in the country there are two sets. There arc three here because the Greater London Council has these powers and exercises them, the borough councils have these powers and exercise them, and the regional board—or whatever one must call them now—has these powers and exercises them. The secretaries of these hospitals spend a good deal of their time entertaining these ladies and gentlemen who come round to inspect their hospitals. Now it is proposed to introduce a fourth group of inspectors. If they wished to have this clause I think that the Government ought to have done something to curtail the powers of the other inspectors; otherwise the hospital management has nothing else to do but to take people round to see whether their hospitals are being run properly, hygienically and correctly. I think that this ought to be noted by the Committee and I agree with my noble friend Lord Sandys that subsection (4) ought to be struck from the Bill.

The Earl of KINNOULL

I should like to support this Amendment. My noble friend has already mentioned that there are three other bodies which inspect hospitals. What on earth is the purpose of yet another inspector? Could the Minister define his duties and responsibilities—which will be duplicated by the other bodies?

Baroness FAITHFULL

May I ask what happens if the different inspectors give different advice?

Lord WELLS-PESTELL

I am not very good at answering hypothetical questions.

Baroness FAITHFULL

I think that perhaps it is not hypothetical.

Lord WELLS-PESTELL

The answer is that these inspectors would be responsible for examining the facilities that were being offered and the general provision of facilities. I think that their particular function would be rather different from that of the other inspectors to which the noble Lord made reference. I should have thought that this was something that the private sector would have welcomed. Wherever you have an institution of any kind that is dealing with some sort of medical situation it is very desirable that there should be inspection for the benefit of everybody concerned.

The effect of Amendment No. 112 would be to provide that the powers of inspectors appointed for the purposes of Part III of the Bill, except so far as it relates to notifiable works, should exclude powers of entry and inspection. The effect of Amendment No. 114 would be to require that if regulations are made under Clause 16(4) conferring powers of entry on inspectors appointed by the Secretary of State, those powers of entry shall only be exercisable on a written warrant issued, on the receipt of information given on oath by an officer of the Board, by a circuit Judge in England or Wales, or a Sheriff in Scotland.

In moving these two Amendments, the Opposition have returned to a matter which was discussed at length in Committee in another place, and on which the Government believe that they improved the Bill, by carrying several Amendments. There was no fundamental disagreement that the Board's activities and the purposes of this Part of the Bill required the support of a small inspectorate. These Amendments seek to restrict its scope, not to remove the provision. The Committee agreed with a Government Amendment to secure that the inspectors would act under the direction of the Board, although appointed by the Secretary of State under regulations for which he is accountable to Parliament. They accepted also, another Government Amendment which provides for regulations to be made after consultation with bodies likely to be substantially affected; that is now written into Clause 22. And it was also a Government Amendment that excluded from the purposes for which an inspector could be used, the provisions for notifying the smaller hospital developments.

The Opposition continue however to press these two Amendments. The first, which would deny inspectors any right of entry on to premises, would in the Government's view make the provisions unworkable. It is not, as my right honourable friend made clear in Committee, an inspection of private hospitals as such. That is already provided for by the inspection set up under the nursing homes legislation. But an inspector without a right to look at the premises in respect of which works involving the authorisation provisions are taking place or are thought to have taken place, would be unable effectively to support the Board. So he has a specific function. The second Opposition Amendment concerns how that power should be exercised, and proposes a judge's or sheriff's warrant.

This Amendment seeks to impose on the powers of entry conferred on inspectors by regulations under Clause 16 the same restrictions as the Government recently undertook to impose on the issue of search warrants to Inland Revenue inspectors under the Finance Act. However, it would be quite inappropriate for the same restrictions to be imposed on the powers of these inspectors, for the circumstances are entirely different.

There are at present various powers of entry, which are not subject to any check by the courts. Examples are the extensive powers conferred by the weights and measures legislation and—more relevantly—the powers conferred by the Nursing Homes Act 1975 in relation to mental nursing homes, and by regulations made under that Act in relation to nursing homes. In these examples, the powers are of entry to business premises (although of course either a shop or a nursing home could also, incidentally, be the home of the owner), and the inspection which is allowed to be carried out concerns the commercial or professional activities carried on there.

In all these cases, inspections are carried out often, and in the first example, may form the major part of the duties of the inspector concerned. In our view, the activities of inspectors empowered to act under Part III of the Health Services Bill, and on whom powers of entry may be conferred by regulations under Clause 16(3), will be of a similar kind. It could be an intolerable and impractical source of delay and an impediment to the proper carrying out of their responsibilities to require such inspectors to obtain a warrant for every use of their powers of entry. These powers can by no stretch of the imagination be considered as reserve powers: they would be used positively.

However, in general where powers of entry of which there are a very large number, are subject to the issue of a warrant, this is conventionally done by a magistrate. When it is considered necessary for a warrant to be issued it has always been deemed appropriate for this to be done by a magistrate. The case of the Inland Revenue inspectors' powers is the only exception of which we know. In the Government's view, there is absolutely no case for creating a burden for the Judiciary of the proportions which this Amendment would create. The entry powers under this Bill would not be reserve powers. They would be often used, and would concern premises for which an authorisation would be required. Inspectors would be inspecting business or professional premises, and in no circumstances would they have powers to enter people's homes or inspect their personal papers. Both the Home Office and the Lord Chancellor's Office are very strongly opposed to the intention of this Amendment. They were opposed, but in vain, to the giving of a similar concession on the Finance Bill, and the powers of entry in question there were very much more important—that is, the power to go into a private individual's house and search through his personal financial records. Bearing in mind that the function is to deal with authorisations and to see that the Health Service Board has been properly notified, I should have thought it was quite reasonable and quite acceptable.

The Earl of KINNOULL

Referring to the question of duplication of inspections, one is not against inspections but one is against having another inspector to call at the premises when a perfectly good inspector is already doing the work. The noble Lord gave a very full reply, for which we are grateful, but I should like to raise one point. I imagine that the Board's inspector will cover the works as they are proceeding and the works after completion: in other words, they will have perhaps a six-monthly or annual inspection. While the works are proceeding perhaps it will be the district surveyor who will be involved. He is technically proficient in seeing that the works of the specification and of planning permission are observed. Frankly, there is no necessity at all, in my view, for another inspector to come in and look at the works as they are proceeding. Once the works are completed and the hospital is in use, surely the inspector from the regional board would then inspect the hospital and ensure that all the facilities are in proper use. I should like to ask the noble Lord: what sort of inspector are we talking about—a building surveyor inspector or a technical hospital inspector?

Lord WELLS-PESTELL

We are talking about an inspector who will be concerned with inspecting the works of development or extension with which the Board are concerned in the process of authorisation and the extent of facilities to see that they correspond with those items for which authorisation was given. For the Board to know this, they must put somebody in over whom they can exercise some jurisdiction so that they can report back to the Board. I do not see how one can use an inspector of some other Department or some other concern for purposes which are similar but not the same. For the purposes of authorisation, the Board must have its own inspector so that there can be a clear understanding as to what the works, the development and the extension are going to be and whether the facilities are as set down. I think that must be done by the Board through its own inspector.

Baroness MACLEOD of BORVE

May I ask what qualifications those inspectors are likely to have?

Lord WELLS-PESTELL

Off hand, I could not tell the noble Baroness. I should have thought that to be able to inspect development and extension would require some professional knowledge, but the actual qualifications I just do not know.

Baroness FAITHFULL

May I ask again a question I asked before? If there are several inspectors with the same type of qualifications looking at the same work, and they disagree—I have been an inspector and I know such a thing is perfectly possible—what would be the result? They may hold differing views, which may be well held, but who is to take precedence? Is it to be the Area Board, the Area Health Authority or the surveyor? Who takes precedence if they give varying advice?

Lord WELLS-PESTELL

There will not be several inspectors doing the same thing. What I was at some pains to point out was that the Board would have an inspector who would go around to ensure that the works of development and extension corresponded with the authorisation which the applicant was seeking. That authorisation having been given, he would go around to see that the conditions laid down in it and the authority for doing certain things were being kept to. That will be the function of the Board's inspector. It will not be anybody else's function. Assuming that there is another inspector, or there are two other inspectors, who are going along to make certain decisions, the Board will make its decision on the report of its own inspector. It does not have to consider the views, if any, of any other person.

The Earl of KINNOULL

I do not want the noble Lord to reply on this point now, but perhaps he will consider it. What he has said is that the inspector will cover what the district surveyor covers. It is quite possible for the Board to ask the district surveyor to check the various points under the Board's authorisation. I do not see any practical difficulty. He is a qualified man and he could submit his report to the local authority, with a copy to the Board. I do not see why there has to be another man, simply because he comes under the direction of the Board. I do not ask for an answer now, but will the noble Lord consider that before the next stage?

Lord WELLS-PESTELL

Yes.

Lord SANDYS

I am very grateful to my three noble friends who have all put very strong arguments in favour of the Amendments. I am particularly grateful to my noble friend Lord Kinnoull, because his suggestion about the district surveyor acting on an agency basis for the Board seems both practical and elementary in the situation with which we are confronted. I do not believe that it would be the wish of the Committee to grant to the Secretary of State regulation-making powers to anything like the extent that the Government seek. If one considers the type of powers of entry which were granted under the Defence of the Realm Act or similar provisions, those were given in very exceptional circumstances. Also, the rights conferred on the civil authorities in Northern Ireland at the present moment are very restricted. I really believe that we should be departing from a very well recognised precedent if we permitted this to be written into the Bill, so I should like to press Amendment No. 112.

6.3 a.m.

On Question, Whether the said Amendment (No. 112) shall be agreed to?

Their Lorships divided: Contents, 49; Not-Contents, 38.

resolved in the affirmative, and Amendment agreed to accordingly

6.11 a.m.

Lord SANDYS moved Amendment No. 113: Page 19, line 27, leave out ("the Secretary of State considers") and insert ("are").

The noble Lord said: This Amendment, which is very closely associated with the previous Amendment although not strictly consequential upon it, scarcely needs to be promoted by a long speech. However, I should like to say that the Amendment was the subject of a further tied vote in another place. Also it confers upon the Secretary of State an unprecedented degree of delegated power. This we believe to be as undesirable as the situation which I have described over the delegation of power to make regulations. I beg to move.

Lord WELLS-PESTELL

I propose to take this Amendment briefly. The Amendment would not change the progress of arriving at a decision but it would paint a false picture by implying that a judgment is not necessary. There are adequate safeguards in the Bill against a Secretary of State arriving at a biased or simply incorrect decision when he considers what powers should be given to the inspectors. Clause 22(2) of the Bill requires the Secretary of State to consult the Board and other interested parties before making regulations confirming powers on inspectors. His decision will therefore not be based solely on his own consideration but also on that of other people who will be fully conversant with the scope and purposes of Part III of the Bill. May I suggest that this Amendment is not necessary.

Lord SANDYS

Despite the fact that the noble Lord suggests that the Secretary of State will be acting upon advice, the words written into the Bill are those which matter and I believe they should be struck out. I hope, therefore, that the Committee will express its opinion. I seek to press the Amendment.

On Question, Amendment agreed to.

Clause 16, as amended, agreed t o.

Clause 17 [Appeals]:

6.14 a.m.

Baroness YOUNG moved Amendment No. 115: Page 20, line 29, leave out from beginning to end of line 30.

The noble Baroness said: It is probably extremely unwise of me at any time to attempt to discuss a point of law with the noble and learned Lord the Lord Chancellor. Certainly it is foolhardy at 6.15 in the morning, having been up all night. I am doing so only because my noble and learned friend Lord Hailsham of Saint Marylebone (who, unlike some of us, has wisely gone home to bed) very much regrets that he is unable to speak to the Amendment.

If I have understood the point correctly, Clause 17 is concerned with appeals. It describes the circumstances in which an appeal can be made, and I quite appreciate, of course, that the appeal must be on a question of law. The appeal will be in connection with the grant or refusal of an authorisation for a private hospital. The clause makes it clear that an appeal is not heard by the divisional court but is heard only by a single judge, and in this way I believe it is different from other appeals. Indeed, there is no appeal to the Court of Appeal and therefore there can be no appeal through that, by leave, to the Appeal Court and the House of Lords.

As is only too apparent to the Committee, I am not a judge, but I believe this to be unprecedented, and it is a matter of great concern because a single judge could come to one decision in one place and another judge could come to another decision in another place and therefore there would not be similarity of treatment. As I understand that the Bill applies not only to England and Wales but to Scotland as well, one decision could be reached in Scotland and another decision in England and Wales. If my understanding is correct, some of these decisions could become precedents for other cases and there could be a situation which could be not only apparently unfair but, I should have thought, confusing to the appellants in this circumstance.

I hope that the noble and learned Lord the Lord Chancellor will be able to explain the situation to the Committee, and why the Government have felt that it was right to include it in the Bill, because I am bound to say that on this side of the Committee we are very concerned about this provision, which at any rate on the face of it appears to be completely unfair. I beg to move.

The LORD CHANCELLOR (Lord Elwyn-Jones)

The noble Baroness has correctly stated the question which falls for decision and it really turns on a matter of balance. The proposal in the Bill is that there should be a right of appeal from the Board to a judge of the High Court. The effect of the Amendment would be to allow appeals to go from the Board in the ordinary way to the High Court—and in the ordinary course I agree that would be a divisional court—and then make their way, depending upon the resources and energy of the person concerned, to the Court of Appeal and then ultimately to your Lordships sitting judicially.

In my view this Amendment is not necessary and in certain circumstances it could well be undesirable. As the noble Baroness has said, the Bill as it is now drafted incorporates in subsection (7) a provision for finality for appeals, and that the decision of the High Court judge should be final. The circumstances in which a hearing to the High Court judge would take place would be on a point of law. If one of the parties to the proceedings thought that there was an error of law, there would be a right to go to the High Court judge, and once that stage had been reached and the High Court judge had given his decision the matter should be treated as settled.

In my view, and in the view of the Government, the range of points of law that could arise is extremely limited. We do not see the possibility of there being many occasions when a point of law would be likely to arise. The Chairman of the Board, after all, will be a lawyer of standing. I do not know at this moment who he will be, but it is certain that he will be a lawyer of standing, and I would expect that he would be of the status of Queen's Counsel, so there would be a lawyer presiding over the proceedings of the Board. If he errs, there is the machinery provided by the Bill for the appeal to the High Court judge.

So far as we can foresee, if there were points of law, they are not likely to be points of great complexity or technicality as to whether there should be an authorisation for a private hospital development. We are not enmeshed in complex commercial or other difficult areas of the law. As I said at the beginning of my submissions, in our view this is a matter of balance, and we think the balance is right in the way that it is provided for in the Bill. To provide for further avenues of appeal could be expensive and could be time-wasting.

In cases where the original appeal was brought by a party to the hearing other than the private hospital developer, it might mean inordinate and unfair delay for the developer himself, and might frustrate an important private hospital development where there was a real need for it. So having given the matter the fullest consideration, we have come to the conclusion that what is proposed is right. The Council on Tribunals have considered this matter, and as we know, they have the power to intervene. They have considered this point and have not objected to this provision for finality.

The noble Baroness said that there is no precedent for this, but there is, in fact, a precedent for just this in one of the pieces of legislation of the previous Administration, which I am sure will give the noble Baroness great comfort and assurance. That is in a provision in the Social Security Act 1973 in a highly complex field of pensions where the possibility of difficult points of law coming up would be likely to be rather more than in what would largely be the factual field. The issues before the Board would be issues of fact, and would not raise complex issues of law. Having given the matter, I hope, not a dogmatic consideration, the view I have come to is that what is proposed is sensible in the circumstances with which this Board will have to deal.

The Earl of KINNOULL

Could I briefly ask the noble and learned Lord a question? He gave my noble friend a grain of comfort in saying that this was not a precedent. Can he give me a grain of guidance? Under this appeal procedure, which is only on a point of law, there is no appeal at all against the decision of the Board.

The LORD CHANCELLOR

Not on fact.

The Earl of KINNOULL

Would the noble and learned Lord agree that it is very unusual for a Government setting up a board—particularly when, in a way, it is issuing a licence to build a hospital—not to have some procedure whereby the appellant could appeal to the Secretary of State?

The LORD CHANCELLOR

I am sure there are precedents similar to those confining the right of appeal to questions of law. There are many precedents for that; there is nothing new in this. The point is, while the right of appeal is important, there must be a moment of finality otherwise things go on and on. This is a field where you have a Board presided over by a lawyer of standing, and I do not think that a multiplicity of proceedings is a very good thing. It is very important that you should have a competent Board inspiring confidence in the parties to determine the matter. But there are several precedents for not allowing an appeal on findings of fact in this sort of domain. As I say, there is an actual precedent imposing a finality of appeal on a single judge. This is also the case in regard to a judge of the Court of Session.

Of course, I do not exclude the possibility that there may be differing decisions on a point of law between one judge and another. There are, after all, differing decisions as between one court and another and even as between one judge and another in the Court of Appeal, although it is the case that a majority determines the law. On the whole, given the kind of problems that are likely to come up before the Board, what is proposed seems to me to be reasonable in the circumstances. If an alternative was proposed, it could be quite devastating to a hospital developer who might have been facing the resistance, say, of a union concerned; I do not know who it might be. For the matter to face an endless future of appeal right up to the House of Lords would be wasteful and unnecessary.

Baroness ELLIOT of HARWOOD

Could I ask the noble and learned Lord whether this applies to the Scottish Committee? Would the Scottish judge be a Court of Session judge?

The Lord CHANCELLOR

In a Scottish case it would be a Court of Session judge. I do not think Scotland would be very happy with an English or even a Welsh High Court judge, desirable as that might be.

Baroness YOUNG

I should like to thank the noble and learned Lord for his answer on this matter. I am bound to say that he is more optimistic than I am if he thinks there will not be very many complex situations over Part III of this Bill; I should have thought it bristled with difficulties when one thinks how it might well be interpreted. Perhaps he is of a much more optimistic nature than I am about it and he feels we will get away without this. When he said that the single judges NI, ho will give decisions on these matters of appeal might differ, it could be thought very unfair if one person appealing in one part of the country gets one decision, and somebody appealing in a different part of the country gets a different decision on a similar matter, and there is no further appeal. I appreciate there is a precedent for this. Perhaps I should not say so, but at half past six in the morning, I would be the last person to say that everything done by the last Government was absolutely right. I think this is a matter we should like to consider further. I will read with great care what the noble Lord has said. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Clause 18 [Offences]:

Baroness YOUNG moved Amendment No. 116: Page 20, line 41, leave out ("and (2)").

On Question, Amendment agreed to.

Clause 18, as amended, agreed to.

Clauses 19 to 21 agreed to.

Clause 22 [General provisions as to regulations]:

6.30 a.m.

Baroness YOUNG moved Amendment No. 117A: Page 23, line 16, leave out from ("instrument") to end of line 18 and insert ("and no such regulations shall be made unless a draft thereof has been laid before and approved by a resolution of each House of Parliament.").

The noble Baroness said: This Amendment is to ask that the regulations will be affirmative regulations and not negative regulations. We all know that if it is a Negative Instrument Parliament is limited in what it may say. It is difficult enough on an affirmative one when the whole matter has to be voted on at once, but at least there is an opportunity of voting either for or against it. This gives more flexibility to the Bill. I beg to move.

Lord WELLS-PESTELL

As the noble Baroness has said, this Amendment would require that regulations should not be made under the Bill unless the regulations have been laid in draft before each House of Parliament and approved by resolution of each House; namely, the Affirmative Resolution procedure. The Affirmative Resolution procedure is principally reserved for substantial and important delegated legislation on which a high degree of scrutiny is felt to be required. Although the regulations which are to be made under powers in this Bill are important, they will not be of the same nature as those regulations which are customarily made subject to the Affirmative Resolution procedure. An example of the latter are those regulations by which national insurance pensions and benefits and supplementary benefit are uprated. The regulations made under the Health Services Bill will also differ from those regulations in that the Bill stipulates, in Clause 22(2), that the Board and bodies which are likely to be substantially affected by regulations must he consulted before the regulations are made.

I should like to draw your Lordships' attention to the fact that the bodies which are likely to be substantially affected by regulations must be consulted before the regulations are made. There will be five sets of regulations to be made under the Bill. Debates on Resolutions in each House take up a considerable amount of Parliamentary time and it would be particularly so in this case. I want to ask your Lordships, and particularly the noble Baroness, to consider whether this is justified, taking into account the time which has already been devoted to debating this matter.

A final point I should like to make about this Amendment is that I have been advised that its drafting is defective in that it does not provide that the regulations should be made by Statutory Instrument. The Statutory Instruments Act 1946 gave the comprehensive name "Statutory Instruments to most, but not all, delegated legislation. It is the usual practice to provide that subordinate legislation should be made by Statutory Instrument.

I am not really worried so much about any defect in the Amendment because, as the noble Baroness herself said, this is a matter that can easily be put right. But, having regard to the fact that the Bill stipulates in Clause 22(2) that the Board and bodies which are likely to be substantially affected must have consultations before the regulations are made, I want to ask the noble Baroness whether she would accept this so that we can proceed by way of Negative rather than Affirmative Resolution.

Baroness YOUNG

I do not intend to press the Amendment. I listened with care to what the noble Lord said but I did not find it convincing when he said that because we had spent a long time on the Bill we should not have the regulations by way of Affirmative rather than Negative Resolution. Some of us feel that we have been put to extreme difficulty over the arrangements for the time-tabling of the Bill. Nevertheless, I will not press the Amendment and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 22 agreed to.

Clause 23 agreed to.

Clause 24 [Citation, commencement and extent]:

Lord SANDYS moved Amendment No. 121: Page 24, line 42, leave out ("two") and insert ("twelve").

The noble Lord said: This Amendment makes provision for an increase in the period of time after the Bill becomes an Act for the bringing into force of Part III. The Government seem impatient to bring Part III into force and they suggest two months. We have already altered the time-table of the Bill and it would be for the convenience of the Board, apart from the Government, if we increased the period from two to 12 months.

On Question, Amendment agreed to.

Clause 24, as amended, agreed to.

Schedule 1 [The Health Services Board and its committees]:

6.37 a.m.

Baroness YOUNG moved Amendment No. 122: Page 25, line 9, at end insert ("who holds or has held judicial office").

The noble Baroness said: We return on this Amendment to the composition of the Board, and although it has been indicated on a number of occasions—indeed, the noble and learned Lord the Lord Chancellor said so a little earlier—that the chairman of the Board would be judicially qualified, we believe that the chairman should be a judge. Much has been said during our Committee proceedings about the importance of the independence of the Board and the calibre of the people who will serve on it. We believe, therefore, that the type of person who will he the chairman should be written into the Bill. As I indicated when moving the first Amendment to the Bill, there is a strong possibility of the Board being divided two-two, so that a great many decisions will be taken by the chairman. It is all the more important, therefore, that he should be a person of distinction in the way we suggest.

Baroness ROBSON of KIDDINGTON

I strongly support the Amendment, not only because the chairman of the Board, above all, should be independent but because I find the whole appointment of the chairman rather unusual. It is my experience that in setting up a body of this kind the chairman is usually appointed first and the members afterwards in consultation with the chairman. The Bill seems to be doing it the other way round, which makes it all the more important that the chairman should be somebody of judicial standing and independence.

Lord WELLS-PESTELL

The Committee should bear in mind that the judges do not necessarily have a complete monopoly of ability, or brain for that matter, and to suggest that there is nobody in the community short of a judge who can manage this position does not bear thinking about. My right honourable friend the Secretary of State has said that it is, … my intention to appoint a person of high standing in the legal profession to become Chairmna of the Board … However, it becomes a rather different question if it is written into the Bill. I do not conceive of it as likely, but it is possible, as I want the Chairman to be acceptable to those organisations which we shall consult, that they may decide that among the list of notable lawyers which I put forward there is not one that they find acceptable. It would, therefore, be unwise to tie the hands of the Secretary of State by legislation but I am certain that the Committee will accept my absolute assurance as to my intention. I do not want to continue this because we shall not achieve much by doing so, but, if the Secretary of State is to select somebody who is highly placed in the legal profession to undertake this, where does one say that a person who is very highly placed but who is not a judge is not capable of undertaking this kind of work? We do not know how much responsibility in terms of time will be placed on the Board or whether it would be possible to get a judge who would be able to take himself away from his judicial duties in order to be chairman. My view is that the chairman will probably find it not necessarily a full time job but not far short of that. I do not think that we ought to contemplate trying to get a judge who would be able to give the time—and I do not think that we should succeed. I should have thought that the situation would be met by having somebody who is highly placed in the legal profession but who is not a judge.

Baroness ELLIOT of HARWOOD

I take it that the noble Lord would not object or raise any barrier to the Secretary of State appointing a judge if he wanted to?

Lord WELLS-PESTELL

I should not be able to. I feel quite strongly about this. I think that it is an awful pity that we should think that there is only a small group of people—namely, judges—who have the competence and the ability to discharge the responsibility of the chairmanship of the Board. There must be many highly placed members of the legal profession who would fit the bill very well.

Baroness YOUNG

I think that this is a matter to which we shall have to return on Report. I do not wish to press the Amendment at this stage of the Committee proceedings. We believe that only somebody like a judge will be acceptable to the other members of the Board and therefore we are convinced of the rightness of this Amendment. However, as I said, I do not intend to pursue the matter at this hour and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Baroness YOUNG moved Amendment No. 134: Page 27, line 16, at end insert ("and the Secretary of State shall forthwith appoint a further member of the Board to fill the vacancy.").

The noble Baroness said: This is an Amendment to which we attach great importance. We discussed at very great length on Amendment No. 1 the fact that the Secretary of State must fill casual vacancies on the Board immediately they become vacant. That is what the present Amendment is designed to ensure. We had a very long discussion about whether or not the filling of casual vacancies was allowed under Schedule 1 and I am bound to say that, after rereading the Schedule several times, I cannot read it as every member having a deputy.

My noble friend Lady Macleod made the very real point that weeks can often elapse between somebody being taken ill or resigning from a board and the relevant Secretary of State filling the vacancy by making an appointment. We therefore believe that this is an important matter and I hope that we can have the assurance from the Government that it is their intention that casual vacancies shall be filled without delay. I beg to move.

Lord WELLS-PESTELL

I think that we would entirely agree with the noble Baroness that there ought not to be any time lag at all and that any vacancy should be filled as quickly as possible. It is just a question of how soon "forthwith" can be. I should like to call the attention of the noble Baroness to the fact that the Amendment is inconsistent with paragraph 1 of Schedule 1, which requires that the Secretary of State shall consult interested bodies about the appointment of members of the Board, and this would be rather difficult if by "forthwith" we mean immediately. I should have thought that while one would accept in principle that there ought not to be too much delay, the Secretary of State ought to be given an opportunity of consulting the interested bodies as laid down in paragraph 1 of Schedule 1, and I am sure that the noble Baroness would agree with me on that.

Baroness YOUNG

I agree with the noble Lord on that point, but the fact is that the Secretary of State could appoint deputies so that when there was a casual vacancy it could be filled immediately. This is the point of the Amendment and this is what the Government ought to do on the matter. I shall read in Hansard—I suppose we will get it on Friday, now—what the noble Lord has said. I will not press the Amendment to a Division at this stage, but this is a very important matter to which we shall have to return at the Report stage. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.47 a.m.

Baroness YOUNG moved Amendment No. 135: Page 27, line 43, leave out paragraph 11.

The noble Baroness said: Amendment No. 135 has been put down because we need an opportunity to look at the financing of the Board. If one looks at the Explanatory and Financial Memorandum of the Bill and the amount of money allowed for the Board, by the time the Board and the civil servants required to work it are paid, it is difficult to see how the sums of money mentioned are to come out. It looks very much as if nothing like enough money has been provided. I hope that the noble Baroness can give some indication of how she sees the question of the cost of the Board. I beg to move.

Baroness STEDMAN

I could have understood the justification for, though I could not have accepted, an Amendment which sought to limit any payment to members of the Health Services Board and its Committees to the payment of travelling expenses and necessary subsistence, but I cannot see any justification for an Amendment which, as I read it, would deprive the Board and Committee members of the right to reimbursement even of travelling and subsistence allowances. I assume, therefore, that the noble Baroness regards this perhaps as a probing Amendment in order to seek information. Bearing in mind that by any standards the proposed duties of the Board and Committee members will be exacting and are likely, at least in the early stages, to be time consuming as well, and bearing in mind also the kind of person we all want to see filling these important posts—the chairman, we are agreed, should, if at all possible, be a lawyer of considerable eminence and standing in his profession—it would clearly be inequitable to offer only out of pocket expenses. If we expect a person of some eminence in the legal profession, and two medical practitioners, possibly of equal standing in their profession (and that is for the medical and dental professions to submit a list of nominees from whom the Secretary of State can select), to give up possibly several days when they could have been earning their living, to the work of the Board, it is right that we should recognise and to a reasonable, though not excessive, extent seek to compensate them for their services.

My right honourable friend, with the consent of the Minister for the Civil Service, therefore proposes a daily fee for the chairmen and members where, as a result of accepting appointment, they forego the possibility of earning their livelihood in their chosen career or profession. He has it in mind, however, should any member be a full-time employee of the NHS, to ask the employing authority to grant that member leave of absence with full pay on the days when he needs to attend meetings of the Board. These proposals are in the Government's view fair and reasonable, and I can assure the Committee that the daily rate will be by no means excessive, in relation to the nature of the Board's task and the qualifications we are looking for in both the chairman and members.

The remuneration of assessors has still to be settled, and my right honourable friend would like to consult the Board before coming to a final decision. Subject to that, he expects to propose a daily or sessional rate in accordance with the usual practice. I hope that noble Lords opposite will agree that these proposals are not unreasonable, and might feel able to withdraw their Amendment. No one who accepts appointment to the Board is going to make a fortune. All that my right honourable friend proposes is a reasonable and equitable reward commensurate with the services we expect to have rendered.

Baroness FAITHFULL

I am sorry, but I am not sure that I am very clear about this. Do I understand that the members of the Board are going to be paid on a sessional basis? It does seem to me that there is going to be a great deal of work for the Board to do. Will a sessional basis and rate be enough? There are going to be two doctors on the Board. If you are going to get a doctor who is able to earn a living and at the same time give time to the Board, is this going to be really possible? Is it going to be possible to get somebody in a high judicial position?—as was mentioned by the noble and learned Lord the Lord Chancellor, possibly counsel. Are we really going to be able to get somebody who is working and also doing this on a sessional basis? I am not quite sure how this is going to work.

Baroness STEDMAN

The Board will be paid on a daily rate and the assessors will be paid on a sessional basis.

Baroness MACLEOD of BORVE

I think I read that nobody would be appointed for a period under three years. This will obviously take quite a chunk out of somebody's life, and it might be very difficult for some people to get back into their profession. I should like to follow up my noble friend's question by asking what the deputies will be paid. Am I still to understand that each member of the Board will have a deputy and that there will therefore be a deputy chairman and four deputy members of the Board? And how will they be paid?

Baroness STEDMAN

Presumably they will be paid on the same basis, but I have not the decision yet about the number of deputies.

Baroness YOUNG

The noble Baroness is quite right in thinking that this was an Amendment designed to probe the intentions of the Government in this matter. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Remaining Schedules agreed to.

House resumed: Bill reported with the Amendments.