Lords Sitting of 17 November 1976

Preamble
The House met at half-past two of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Sheffield.):
The LORD CHANCELLOR on the Wool-sack.

CONCORDE: OPERATING FINANCES
2.31 p.m.
Viscount MERSEY: My Lords, I beg leave to ask first the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the estimated profit or loss, allowing for depreciation and insurance, of operating the Concorde aircraft for the months of September and October 1976.
Lord ORAM: My Lords, I regret that the information which the noble Lord has requested is not at present available, and it is not British Airways policy to publish the results of individual parts of their operations in advance of their annual report and accounts.
Viscount MERSEY: My Lords, I suppose I must thank the noble Lord, Lord Oram, for his Answer. Possibly the noble Lord does not wish or is not able to answer the Question which I put, but I should be glad if he could give the House some figures of profit and loss on this machine in the last few months. Can the noble Lord also tell the House when he is likely to be able to answer the Question in more detail?
Lord ORAM: My Lords, I think the position is that it is too early to draw conclusions about the profitability of the operations of Concorde. Figures for the first year or two will reflect the substantial non-recurring start-up costs. The present exclusion from New York imposes a substantial penalty, so I suggest it is a little early to start asking the type of Question which the noble Viscount puts to me.
Lord HARMAR-NICHOLLS: My Lords, while it may be too early, my noble friend Lord Mersey asked for a figure for the estimated profit. Are we to understand there are no estimates?
Lord ORAM: My Lords, these are two very recent months, and the result have not been computed. In any case, as I said in my first Answer, I think it is reasonable for British Airways not to publish figures about a part of their operations in advance of the annual report. That is perfectly reasonable.

CONCORDE: PRODUCTION AND COST
2.33 p.m.
Viscount MERSEY: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many Concorde aircraft are at present under construction in the United Kingdom, and what is the estimated cost of each aircraft.
The MINISTER of STATE, NORTHERN IRELAND OFFICE (Lord Melchett): My Lords, there are three Concorde aircraft at present under construction in the United Kingdom. The estimated average cost of the eight British-assembled aircraft in the authorised programme is£51 million per aircraft. It would be inappropriate to allocate this figure between individual aircraft in view of the substantial number of assumptions and estimates that would be required.
Viscount MERSEY: My Lords, I thank the noble Lord, Lord Melchett, who at least has produced a figure. Can he tell the House whether any of these three aircraft has been sold? Have we any firm orders for them?
Lord MELCHETT: My Lords, my understanding of the situation with reference to these three aircraft is that there are no firm orders for them at present, although some very useful discussions are going on.
The Earl of KIMBERLEY: My Lords, in view of the fact that the President-Elect

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of the United States of America, Mr. Carter, was rather unpopular with regard to Concorde before his election, can the noble Lord, Lord Melchett, say whether either Her Majesty's Government and/or the French have made any progress, since Mr. Carter became President-Elect, on what the result will be of Concorde going into New York so that these last five aircraft can be sold?
Lord MELCHETT: No, my Lords. I do not have that information. I would not be able to answer the question of the noble Earl, Lord Kimberley, without some notice.
Baroness BURTON of COVENTRY: My Lords, I hope that the questions asked by the Opposition do not imply criticism of British Airways. Might I ask my noble friend the Minister whether he is aware that many of us think that British Airways have made a superlative achievement in getting Concorde into the air? Is he further aware that we wish it every success? I think we should support it vocally in this House as well as elsewhere.
Lord TREFGARNE: My Lords, can the Government say what steps are being taken to provide leasing facilities for Concorde, bearing in mind that there are a number of smaller airlines who cannot afford to purchase Concorde outright but are interested in leasing arrangements?
Lord MELCHETT: My Lords, some of the discussions going on with interested parties include the possibility of leasing arrangements, as the noble Lord, Lord Trefgarne, has suggested.
Lord DAVIES of LEEK: My Lords, is my noble friend the Minister able to inform the House whether there is any reality in the suggested fact—or is it mere speculation?—that there is a possibility of the Chinese Government being interested in Concorde?
Lord MELCHETT: My Lords, I am afraid I do not have that information. I do not think it arises directly from the Question on the Order Paper.
Lord MACKIE of BENSHIE: My Lords, as I understood the noble Lord, Lord Melchett, he said that eight of the air-
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craft would cost approximately£51 million each. Does that mean that all the development costs have been written off against the eight aircraft? One hears that£500 million has been spent on development. Does the figure of£51 million include the development cost?
Lord MELCHETT: No, my Lords. The total development cost in Britain and France was£1,154 million. That is not included in the figures in the Answer which I gave, which covered the estimated costs of producing Concorde.

RESEARCH DEFENCE SOCIETY BURGLARY
2.37 p.m.
The Earl of HALSBURY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper, and at the same time to declare an interest in the Society named, one of whose officers I am.
The Question was as follows:
To ask Her Majesty's Government what action they are taking to protect licensees under the Cruelty to Animals Act 1876 from sabotage and vandalism, with particular reference to the burglary of the Research Defence Society's premises in Marylebone on the night of Saturday, 13th November, and the theft of all their files and documents.
The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich): My Lords, I understand from the Commissioner of Police of the Metropolis, whose responsibility this is, that the police are investigating the burglary and pursuing certain lines of inquiry. It would be wrong for me to say anything further while those inquiries are being made. If any licensee has reason to think that he or the premises where he works are under threat of criminal attack, he should contact his local police.
The Earl of HALSBURY: My Lords, while thanking the noble Lord the Minister for that reply, could I pursue the matter a little further? Would the noble Lord be prepared to summarise and circulate to licensees the acts of vandalism of the last three years, so that they can

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judge for themselves what approach they should make to the local police force for the greatest security of their premises?
Lord HARRIS of GREENWICH: My Lords, I am aware that there has been an upsurge of criminal acts directed against those involved in all aspects of research on living animals, but I do not think that it is appropriate for us to circulate that list. That is for the Research Defence Society to do provided that that Society regards it as an appropriate course of action.
Lord HOUGHTON of SOWERBY: My Lords, is my noble friend the Minister aware that those of us who are deeply concerned about the operation of the Cruelty to Animals Act 1876 in no way support or condone these attacks on licensees and their premises? Is my noble friend aware that none of us wishes to pursue our reasonable activities for reform in this matter by giving the slightest support to any activities of this kind?
Lord HARRIS of GREENWICH: My Lords, I am grateful for what my noble friend Lord Houghton of Sowerby has said. He is certainly right. Nothing can excuse unlawful acts of this character.
Lord HAILSHAM of SAINT MARYLEBONE: My Lords, so far as it is known, are these acts co-ordinated and organised, or are they sporadic attacks by rather eccentric individuals?
Lord HARRIS of GREENWICH: My Lords, I would prefer not to comment on that. Even now this matter is being investigated by the Metropolitan Police, who will look at all the aspects of this matter and will also, no doubt, consider some of the earlier attacks which took place on other premises.
Lord SEGAL: My Lords, can the noble Lord the Minister give an assurance that this matter will be pursued with the utmost recourse to the law?
Lord HARRIS of GREENWICH: Yes, my Lords.
A noble Lord: Boil them in oil!

HEALTH SERVICES BILL
2.40 p.m.
Lord STRABOLGI: My Lords, on behalf of my noble friend Lord Wells-Pestell, I beg to move that this Report be now received.
Moved, That the Report be now received.—(Lord Strabolgi.)
On Question, Motion agreed to.
Clause 1 [The Health Services Board and its Committees]:
Baroness YOUNG Baroness YOUNG moved Amendment No. 1:
Page 1, line 10, leave out ("five") and insert ("seven").
The noble Baroness said: My Lords, in moving Amendment No. 1, I should like to speak at the same time to Amendments Nos. 47, 48 and 49. I think it would be for the convenience of the House to know whether the Government would like the Amendments grouped in this way; the other three are consequential upon No. 1. They have not been grouped by the Government. It might save time to do it this way. I am, of course, in the hands of the Government as to how we should proceed, and would like to know whether it is agreeable that we should do it in this way.
Lord WELLS-PESTELL: My Lords, I must apologise for my voice but I woke this morning with a very sore throat and I still have the effects of it. I should be grateful if the noble Baroness would pursue that line. I said much the same thing at the Committee stage, and I think we pursued that course through the Committee stage. It would, I agree, be more helpful.
Baroness YOUNG: My Lords, I am very sorry the noble Lord, Lord Wells-Pestell, has such a sore throat. I am afraid the day's proceedings will hardly help.
My Lords, we are turning to a group of Amendments about the constitution of the Health Services Board. As the House will be aware, the Board established by this Bill is central to the working of the whole scheme and is certainly central

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to the working of this Bill. I have no doubt that the noble Lord, Lord Wells Pestell, will argue, as indeed he did in Committee, that five members, to include one as chairman, was what was agreed by the noble Lord, Lord Goodman, when he made his agreement with the doctors, and that this is a number which cannot be departed from. But the fact of the matter is that, although the Government are bound by the agreement that Lord Goodman has made, Parliament is not bound, and I think Parliament must consider what is the right number of members for this Board. It must consider not only what is the right number of members, but of course, how they should be allocated.
Like many other Members of the House who spoke at Committee stage, I am not myself particularly enamoured of the idea of having members of the Board as representatives of different groups of people. Nevertheless, the principle that the Bill lays down, that a proportion of the members should represent the medical profession and, another, those who work in the Health Service, is one that I think we must keep. What emerged from reading the Committee proceedings, and it was a point which I think was made by Members on all sides of the House, was that a Board of five was too small, that there were other interests to be considered besides the medical profession and those described in Schedule 1 as being,
"persons employed in one or other of the national health services or concerned with the interests of patients at NHS hospitals".
It seemed to us, on re-reading the debate in Committee, that in fact the five-member Board is a very narrowly constructed Board and that there existed a great deal of feeling that it should be enlarged. Therefore, we have put down this Amendment again to suggest that rather than five members there should be seven members. The other two members would include possibly a representative of the nursing profession, as one group of people who seem to have been completely ignored, or indeed of the other workers such as physiotherapists, occupational therapists, or others employed in the Health Service.
As I have indicated, I am speaking not only to Amendment No. 1 but to consequential Amendments to Schedule 1 at page 6 of the Marshalled List. Amend-
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ments Nos. 47 and 48, increase the number "two" to "three" in each case, so that the Bill would read that there would be three medical practitioners, that three other persons would be appointed, and there would be the chairman. In order to complete the series of Amendments, Amendment No. 49 makes it perfectly clear that of those people to be appointed,
"one shall of represent the interests of nurses and the professions supplementary to medicine, and one shall represent the interests of hospital patients generally".
We on this side of the House feel that this is a matter which in no way goes against the principle of the Bill. It would strengthen rather than weaken the Board. It would bring in more people who are working in the National Health Service as a whole, and it would bring in the interests of all the patients. Far from creating a worse health service for both National Health Service patients and private patients, which could very easily be a direct consequence of this Bill, we hope that we are moving a series of Amendments which would bring the two parts of the service together; by making a Board which is more fully representative of all the interests who work in the health service, whether the National Health Service or private practice, we should be helping to bring this about. I hope very much that my Amendment will have the support which a similar one had at Committee stage, because I think this is in the best interests of all the patients in hospital. I beg to move.
2.47 p.m.
Baroness ROBSON of KIDDINGTON: My Lords, this is an Amendment which I should very much like to support on behalf of these Benches. May I say how much I welcome the noble Baroness's statement that, much as we appreciate the mediation and the work done by Lord Goodman, we are not bound by that agreement. We as a House are here to revise legislation. I strongly support the idea that there should be seven members of the Board. I support every word that the noble Baroness, Lady Young, has said about this. This is one of the Amendments I find tremendously important to the Bill.
Baroness MACLEOD of BORVE: My Lords, I too would like to support this Amendment. Those of us who have had

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dealings with Committees appointed by Ministries—I am sure all Members of this House have—know only too well that if you have a very small number on a committee or a council, and for any reason one or two of that number are unable to attend a meeting, then of course the council's work is impaired. We will come on to the question of a quorum later. For the reasons that the noble Baroness has given, it seems to me that seven is a very much better number. I know very well that if, for instance one member of a committee of five resigns, the Minister is statutorily bound to go through usual procedures to make another member of that Board, and that, to my knowledge, always takes a very great deal of time. If it is assumed that the Minister will fill a vacancy forthwith, that can be made to mean either the next day or perhaps in six months' time. It might well be that two, or even three members of a five-member Board are missing at any one time, If we take the precaution of having seven members of the Board, that will in due time be seen to be the right number. I warmly support my noble friend.
2.50 p.m.
Baroness ELLIOT of HARWOOD: My Lords, I should also like to support this Amendment. I have had some experience in local government of cutting down committees. This is supposed to make them much more effective and easier to run, but in point of fact the exact opposite happens. If you cut the number down to, in this case, five, and we think seven is the minimum—and in my experience the same sort of thing has happened in local government committees—then you are in a difficult position if somebody is away or ill and you have only four instead of five, or six instead of seven. You cannot at the last moment get somebody in, unless you know a little beforehand and you can have a substitute. I do not know whether or not there are going to be substitutes for this committee. It is undoubtedly much too small a number for such an important job. So much responsibility is going to be put on each of the members of the Board who will represent quite evenly, I understand—and it is very important that it should be very even—the doctors and the others who are involved in this Board. I would even think that seven is not
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enough, but seven is much better than five. It would be a much more satisfactory committee, with its tremendously important responsibilities, if you shared these responsibilities with more people. I particularly like the suggestion that there ought to be representatives of the nurses and professions supplementary to medicine. This is extremely important, and it is vital that we should have those people on the Board as well as the doctors and the others whom we know are going to be members of the Board. I support this Amendment most wholeheartedly.
Baroness WARD of NORTH TYNESIDE: My Lords, I also should like to support this important Amendment. I agree with the various reasons which have been so adequately put forward by my colleagues. What I should like to know in addition is this: have the Government, in establishing this Board, had any discussions with all the various bodies that have been mentioned and which it would be wise to have represented on the Board, or is this purely a decision of the Government; that is, eliminating Lord Goodman at the moment?
This is important, because it is only quite recently on the Area Health Committees, for instance, that we have had put on to the Area Health Committees a nursing representative, which seemed to indicate that that really in effect is the policy of the Government today. It seems all the more peculiar, having taken that action, that space has not been found for a member of the nursing profession to be on the main Board. I should like to know who the Government spokesmen consulted on the matter, and also whether any representations have been received from the nursing profession, the physiotherapists, and from all the people who play a very great part in the National Health Service. I always like to hear both sides of a question. The Government have put this in their Bill as representing the number which they think ought to be on the Board. I always like to know whether they turned down representations, or whether it is what has been recommended by, say, the noble Lord, Lord Goodman, or anybody else. What representations have they received?
Lord LEATHERLAND: My Lords, in case it should be thought that a policy

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of sex discrimination is in operation in this House I have ventured to rise. The only thing I want to say is that it appears to me that there is a tendency to try to pack these boards with professional experts. There is much to be said for having professional experts on these boards—doctors, dentists, nurses, radiologists, and so on—but at the same time there should be on these boards what we will call the ordinary man and woman, because they are the people who stand to benefit or to suffer from the administration of the Health Service. Therefore, I suggest that we should not overdo the packing of the Board with professional people, but that the ordinary bloke, or ordinary women, should have a voice in the administration of the Service as well.
When we come to make these appointments, I believe that there is in existence in some of the Whitehall Departments a list of what they call the "great and the good", and it is from this select list of people that appointments are made for Royal Commissions, boards, councils, and other public organisations of that kind. I sincerely hope that we shall get a few ordinary people on these boards to balance the expert opinion of the professionals.
Baroness WARD of NORTH TYNESIDE: My Lords, could I ask the noble Lord, if he will forgive me—
Several noble Lords: Order! Order!
Lord PLATT: My Lords, I should like to say that I agree with most of what the noble Lord, Lord Leatherland, has said about not packing the Board entirely with professional people. The noble Baroness, Lady Robson, made a similar comment. I take it that the noble Lord, Lord Leatherland, is therefore in favour of seven rather than five.
Lord SANDYS: My Lords, I should like to support the Amendment which my noble friend Lady Young has put forward, and I should like to add some comments on the problem of deputies. The noble Lord, Lord Wells-Pestell, drew our attention to Schedule 1 when we discussed this in Committee. In our view, and I am open to correction on this one, our inter-pretation of Schedule 1 is that he suggested
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that there was a team of deputies behind the Board. I do not think that this is the case. We have carefully read page 27 of the Bill, and in paragraph 10 we read:
"The Secretary of State shall by regulations provide for the appointment by him, after the appropriate consultation, of—

(a) a deputy chairman …"

This paragraph refers to the deputy chairman. It is not a group of deputies, each deputising for those individual members. It is possible, because of the wording of paragraph 10(2), to make it read somewhat differently; but I think on careful re-examination it cannot be said that Schedule 1 suggests a team of deputies. Therefore, I believe that, as my noble friends have said, to extend the numbers from five to seven is essential.
I should also like to refer to what the noble Lord, Lord Hill of Luton, said about deputies, because this is especially important. He laid emphasis on the fact that deputies at very short notice are scarcely worth while appointing, or seeking the support of, when a meeting is to be held very shortly. We know all too well from important health meetings that preparation must be made by the person attending that meeting—sometimes several hours' preparation—and should the deputy be sought for a situation of this sort they really are only there filling a space but not fulfilling a role.
2.59 p.m.
Lord WELLS-PESTELL: My Lords, before I try to answer the noble Baroness and noble Lords who have spoken, may I comment in a general way. A number of Amendments are down today which we discussed in some considerable detail and at some length during the Committee stage. At the time I said to your Lordships that we, on the Government side, had considered those Amendments very carefully beforehand. Therefore, having discussed at some length at Committee stage many of the Amendments which are before your Lordships today, I find myself with little I can say that I have not already said. I wrote to a number of noble Lords on specific points which they raised, and I cannot go any further than that. If, therefore, I appear, as I am sure I shall, to a number of noble Lords to be rather unsympathetic to the points they may raise, it is because we have given very

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careful attention to the Amendments that were tabled in Committee and to those which are before your Lordships today and have not found ourselves able to do very much about them.
In Committee we spent about 23 hours debating Amendments—I am not for a moment suggesting that that was an excessive amount of time having regard to the fact that there were 143 Amendments, some of which the noble Baroness withdrew—and the subject of the Amendment with which we are now concerned occupied about 18 columns of Hansard. That does not alter the fact that noble Lords are entitled to raise the matter again today, as they have done, but I want your Lordships to see this issue against the background of the purpose of the Bill.
Your Lordships will know that some time ago there was difficulty between the Government and the consultants; that was pointed out on the last occasion. A serious, sustained and sincere attempt was made by the Government to try to work out something which would be acceptable to them in this matter of pay beds and phasing them out, and acceptable to the consultants; in other words, something acceptable to both. That resulted in what we have come to call the Goodman Proposals. I accept that the Goodman Proposals are not binding on your Lordships. Of course, they are not. If this House in its wisdom or—but perhaps I should not complete that sentence—if it decided not to accept those Proposals in some respects, then your Lordships would be entitled to that decision. What I am saying is that, in assessing the situation, will noble Lords please look at the reason behind the Goodman Proposals. That reason was to bring about a better relationship between the consultants and, if I may say so, the medical profession generally, and the Government. We believe—I think this would be accepted by those who know—that the Goodman Proposals succeeded in doing that, but they succeeded in doing it only because they were acceptable to both sides, and one of the things that was acceptable was that the Health Services Board should consist of five people; a chairman, two drawn from the medical profession and two from what has been described as the other side.
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Would having seven people really alter the situation? If we had seven we would still, with the greatest respect, be faced with the fact that one of them would have to be acceptable to the medical profession; because that was the formula, and one would have to be acceptable to what is referred to as the other side. I am not saying that there is anything magic about five but, with respect, nor is there anything magic about seven. I cannot see what seven could achieve in relation to five. Noble Lords have said that it would widen the interest because it would bring in more people. But let us face the fact that to bring in every facet within the National Health Service would require a committee of 27 or 37 rather than seven because, as I pointed out on a previous occasion, there are laboratory technicians, physiotherapists, occupational physiotherapists, domestics, patients, biochemists and a whole variety of people.
One must remember that if one is thinking in terms of nurses and others who, if you like, are ancillary to medicine, there is the General Whitley Council, which includes representatives of all major NHS unions and of the Royal College of Nursing and Midwives. These are the people with whom we are having discussions to select the two non-medical people. Your Lordships may not take it from me, but certainly the two representatives on the non-medical side will be very representative—I was about to say of every facet in the medical services outside the doctors—because we have organisations which cater not for one section but for a whole variety, and I have instanced the Whitley Council.
As I say, I do not think that seven could achieve what five could not achieve. Noble Lords may ask: If it does not matter that much, why resist it! I am resisting it because I think it is unnecessary, and there is no point in accepting something that is not necessary. I am resisting it because it was something on which we got agreement with the medical profession, and we do not want to go back on that for whatever reason. My noble friend Lord Leatherland referred to the list of the great and the good, something which this Government abolished when they came to office in March 1974. We are very suspicious of the great and the good and I know that what the

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noble Baroness and I are concerned with are the committed and the concerned. They are much more important. When we are looking round for people to fill a post we are not concerned with whether they are great and good but with whether they are committed and concerned people. We want this to work every bit as much as all other noble Lords do. I do not think I can usefully add to what I have said today or on the last occasion.
The noble Lord, Lord Sandys, referred to the appointment of deputies. My understanding of the situation is that a deputy will be appointed not only for the chairman but for each member of the Board. Obviously this must be done quickly, but I should point out that it is not envisaged that if a member of the Board cannot attend, say, next Wednesday's meeting, the deputy will be asked to take his place. The whole idea of the deputy is that if, for any one of the reasons set down, a member of the Board was disqualified from remaining a member, the deputy would take his place. If, for illness, sickness or some other reason, a member cannot attend a meeting, it is not intended that the deputy should immediately step in and take his place; that is, if the member will be away on only one or two occasions.
We should assume—I know that is a dangerous word to use in your Lordships' House—and I think it would be made quite clear, that the chairman of the Board would, if a decision of some importance had to be made, postpone that decision for a few days until that other member could attend so that there would be a full attendance of the chairman and the four members of the Board. We do not see any difficulty about this, save that deputies must be appointed in case a member is away for a long period or may be disqualified. I ask the noble Baroness more than anybody in this House because I know she has studied this matter and speaks with a great deal of experience and expertise—I have known her for many years and I appreciate that she does not raise matters lightly—and I ask noble Lords opposite, whether on this occasion it is necessary for them to press this Amendment to a Division. I hope that the noble Baroness will feel that it is not necessary.
3.9 p.m.
Lord LEATHERLAND: My Lords. may I ask my noble friend to clear up a point arising out of his remarks? Apart from the chairman there are to be four Board members. Two, it is specified, shall be doctors. My noble friend went on rather to suggest that one of the others would be representative of nurses and another of the ancillary medical professions. Where does that leave the general public?
Baroness MACLEOD of BORVE: My Lords, I wonder whether I might ask the noble Lord for clarification of Part IV, where, in paragraph 10, we speak of the deputies? It seems to me that we are going to have two medical practitioners and two members of the public; therefore, one deputy is not going to be sufficient to carry the burden of each of the two medical people and the two others. Paragraph 10(a) provides:
"a deputy chairman or deputy member of the Board, to act in place of the chairman or a member of the Board"
That seems to me—
Lord DENHAM: Order!
Baroness MACLEOD of BORVE: My Lords, I am not speaking, I am asking for clarification. Is the noble Lord telling the House that there will be only one member and that that one member will be able to stand in for the medical profession or either of the other two?
Lord WELLS-PESTELL: My Lords, I think some of your Lordships were rather puzzled by the call of "Order!''. The noble Lord, Lord Denham, is probably reminding us that at Report stage we can speak only once, although I think it is competent for Members of your Lordships' House to ask a question; but it must be a question. I cannot reply without your Lordships' leave, and I seek that leave. I hope this process can be avoided, otherwise the Report stage will go on inter minably. If noble Lords will look at Schedule 1 on page 25, paragraph 1(1)(c) reads:
"two other persons appointed after consultation with the bodies mentioned in paragraph (b) of that sub-paragraph."
Paragraph 2(b) reads:
"such bodies not falling within paragraph (a) above"—

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and that represents the medical or dental practitioners—
"as the Secretary of State may recognise as being representative of persons employed in one or other of the national health services or concerned with the interests of patients…"
The emphasis there is on "employed". I think I dealt with that. I did not on this occasion deal with the phrase "concerned with the interests of patients" and one could argue that perhaps the patients' association will deal with that. They are one of the bodies with whom we are having discussions.
In reply to the noble Baroness, Lady Macleod of Borve, paragraph 10 provides for deputies who can substitute for the chairman or any member respectively. I use the word "deputies". I think this is clearly set out, and a deputy is deemed to be a member while acting as a member of the Board. He is a deputy until such time as he sits on the Board, and he is then a member of the Board.
Baroness YOUNG: My Lords, by leave of the House, the noble Lord—
Lord WELLS-PESTELL: The noble Baroness does not need leave; because she moved the Amendment she is entitled to reply.
Baroness YOUNG: I thank the noble Lord. The noble Lord, Lord Wells-Pestell, said that we have taken a long time on Committee and that we have argued this point before, but, after all, this is a Bill of 24 clauses and five Schedules and we have been asked to deal with the whole of the Bill in a very tight time-scale since 22nd October when it reached us following on its passage through another place. To suggest that one can look at a Bill of this length and deal with it seriously on Committee and on Report in two or three hours is asking a great deal of the Committee and of the House.
Lord POPPLEWELL: My Lords, would the noble Baroness not agree that this Bill took 26 hours on the Floor of the House of Commons, 74 hours in Committee on the Floor of the House of Commons and 23 hours at the Committee stage on the Floor of this House? Is that not a reasonable time?
Baroness YOUNG: My Lords, I cannot be responsible for what happens in another
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place. That is for them to decide. We are concerned with what goes on in this House. I am sure that the noble Lord, Lord Popplewell, would agree with me that when you have a Bill concerned with the health of people it is well worth devoting a little time and thought to it to make sure one is getting it right. Of course, that is what we are doing over our Amendments. I have been most grateful for the support of the noble Baroness, Lady Robson, and the noble Lord, Lord Platt, and my noble friends Lady Macleod and Lady Ward.
It seems to me that the Government have put themselves into a box in this Bill. As I understand the history of this matter, members of some trade unions felt that they could not work in hospitals where there were private patients. As a consequence, after considerable thought the consultants decided to work to rule, and the Hospital Service was in real danger of breaking down. The noble Lord, Lord Goodman, intervened, the Goodman Agreement was reached and the Government said that they would legislate on the Goodman Agreement. They have produced this Bill in which, of course, they cannot alter anything at all. The Goodman Agreement is treated like the Bible and one may not alter anything because it is almost Holy Writ. From the point of view of other Members of this House it seems to me that there are matters that could be questioned because in the time allowed, great as is my admiration for the noble Lord, Lord Goodman, and indeed for all the others who took part in the agreement, it could be that a few months later somebody else might have thought of something which improves the situation.
The Board was so drawn up that it should have equal numbers of representatives of the doctors and of the other groups of people described in Schedule 1. As the noble Lord, Lord Leatherland, has quite rightly pointed out, there is nobody representing anybody who is not in the medical professional except that one of the representatives may be, though he does not have to be, a member representing National Health Service patients. Nobody at all is going to represent any other patients, perhaps because in some people's minds they do not matter. At any rate it is certainly not written into the Bill. All that we are

1295
proposing by this Amendment is that there should be three doctors and three others to include those people which the Government wish to have represented, but to widen the number to include nurses, physiotherapists and patients. That does not seem to me to be in any way an unreasonable request. With seven members it is going to be almost impossible to get a proper representation of the Hospital Service. To do it with five members, one of whom will be the chairman of the Board, seems to me to create a situation of very great difficulty indeed.
My Lords, as the noble Lord, Lord Wells-Pestell, has said—and he is on record as saying it in Committee—he does not feel this is an Amendment which will make a great deal of difference, and he answered his question by saying that if it does not make a great deal of difference to him he might as well accept it. My guess is that the reason why he does not accept it is not that he thinks the Amendment is wrong but that the Government cannot go outside the Goodman Agreement. That is the sticking point; that is why they have not put down any Amendments in this House, because they feel that nothing is to be altered from the Goodman Agreement. With all respect to the arrangements which were made last December, I do not think that we on this side of the House can accept that. It would strengthen the Board; we believe that if the Board comprised seven members it would work far better than if there were only five members.
On the question of deputies, this is a matter to which we shall be coming back later because we have Amendments down to Schedule 1. I should like the House to recognise that we are pressing this Amendment because we believe that it will improve the structure of the Board and make the scheme proposed under this Bill far more likely to work to the satisfaction of everybody concerned. It is certainly much more likely to show to everybody, both in the Hospital Service and outside, that justice is being done and is being seen to be done.
Baroness PHILLIPS: My Lords, before the noble Baroness sits down, may I say something? I hate to repeat myself and
1296
have a great respect for the noble Baroness, as I have said. I believe that it is perfectly valid to employ the kind of argument that she started with, but I feel that it is fallacious to keep repeating that the Government have things written on tablets of stone. I do not know whether the noble Baroness was a member of the Government under the last Conservative Administration, but I cannot recall any Bill in which the Conservatives accepted Amendments when we were sitting on the Opposition Front Bench. It is quite right and proper that the Opposition should oppose, but I do wish they would not continue to repeat this nonsense that this is the first Government that have never accepted an Amendment. It is not true.
Baroness YOUNG: My Lords, I am sorry that the noble Baroness thinks that I made the point that this was the first Government that would not accept Amendments to a Bill. What I said was that, so far as I know, this is the first occasion on which the Government have not put down any Amendments to a Bill. That is a very different matter. I recall accepting Opposition Amendments when I was a Minister on the Control of Pollution Bill. They may not have been very big ones, but I certainly recall it. What I say is that it makes it very difficult for us if the Government feel that they have brought forward a perfect Bill because nothing that the noble Lord, Lord Goodman, agreed can be altered.
Lord SLATER: My Lords, I cannot understand the reason for the Amendment. The reason why I cannot understand it is that I do not understand why the Opposition have kept rigidly to seven, in view of the low number of five as presented by the Government within the Bill. The view expressed by the noble Baroness on this is that, out of the extra two members needed to bring the number up to seven, she wants to include another member from the medical profession. Why has she cited the medical profession? If she has any knowledge about the medical services in this country, either in local government administration or ever since the Health Service was set up, she will know that it is a very big field of operation. As my noble friend said from this side of the House not so long ago, it covers many fields. Take, for example, the inmates of what were at one time called the asylums,

1297
those whom we now call mental patients in a mental hospital. In my area—
Lord CARRINGTON: My Lords, I wonder whether I may interrupt the noble Lord. I really think that he is out of order in making a speech at this moment. We are now on Report stage and it is usual on these occasions that when the noble Lord who has moved the Amendment exercises his right of reply the question is immediately put from the Woolsack. Unless we observe these rules, the Debate will become very untidy.
Lord SLATER: My Lords, all I was seeking to do was to challenge the noble Baroness—
Several noble Lords: Order! Order!
Lord JACQUES: My Lords, I would ask my noble friend to observe the Rules of the House and the rules of general debate. Once the mover of a Motion has replied, the vote is taken and there are no further speakers.
3.24 p.m.
On Question, Whether the said Amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 144; Not-Contents, 69.

CONTENTS

Alport, L.

Elliot of Harwood, B.

Monck, V.

Amherst, E.

Emmet of Amberley, B.

Mowbray and Stourton, L.

Amherst of Hackney, L.

Exeter, M.

Moyne, L.

Amulree, L.

Faithfull, B.

Munster, E.

Ashbourne, L.

Ferrers, E.

Newall, L.

Auckland, L.

Gage, V.

Norfolk, D.

Balerno, L.

Garner, L.

Northchurch, B.

Banks, L.

Gisborough, L.

Nugent of Guildford, L.

Barnby, L.

Gladwyn, L.

Nunburnholme, L.

Barrington, V.

Goschen, V.

O'Hagan, L.

Beaumont of Whitley, L.

Gray, L.

Orr-Ewing, L.

Belstead, L.

Greenway, L.

Platt, L.

Berkeley, B.

Grey, E.

Porritt, L.

Blakenham, V.

Gridley, L.

Rankeillour, L.

Bourne, L.

Hailsham of Saint Marylebone, L.

Rathcavan, L.

Brock, L.

Halsbury, E.

Robbins, L.

Burton, L.

Hampton, L.

Robson of Kiddington, B.

Byers, L.

Hankey, L.

Rochester, L.

Caccia, L.

Harmar-Nicholls, L.

Ruthven of Freeland, Ly.

Campbell of Croy, L.

Harvington, L.

Sackville, L.

Carr of Hadley, L.

Hastings, L.

St. Aldwyn, E.[Teller.]

Carrington, L.

Hawke, L.

St. Davids, V.

Cathcart, E.

Hill of Luton, L.

St. Just, L.

Chesham, L.

Hives, L.

Sandys, L.

Cholmondeley, M.

Hunt of Fawley, L.

Seebohm, L.

Clifford of Chudleigh, L.

Hylton-Foster, B.

Selkirk, E.

Clitheroe, L.

Inglewood, L.

Sharples, B.

Clwyd, L.

Ironside, L.

Skelmersdale, L.

Cobham, V.

Kemsley, V.

Spens, L.

Coleridge, L.

Killearn, L.

Stamp, L.

Cottesloe, L.

Kilmany, L.

Strang, L.

Craigavon, V.

Kilmarnock, E.

Strathcarron, L.

Cranbrook, E.

Kimberley, E.

Strathclyde, L.

Crawshaw, L.

Kinloww, Ly.

Strathcona and Mount Royal, L.

Cromartie, E.

Kinnaird, L.

Sudeley, L.

Cullen of Ashbourne, L.

Lauderdale, E.

Suffield, L.

Daventry, V.

Long, V.

Templemore, L.

Denham, L. [Teller.]

Loudoun, C.

Terrington, L.

Deramore, L.

Lucas of Chilworth, L.

Thomas, L.

Derwent, L.

Mackie of Benshie, L

Thurso, V.

Devonshire, D.

Macleod of Borve, B.

Trefgarne, L.

Drumalbyn, L.

McNair, L.

Vickers, B.

Dudley, B.

Malmesbury, E.

Vician, L.

Dundee, E.

Mancroft, L.

Wade, L.

Ebbisham, L.

Margadale, L.

Wakefield of Kendal, L.

Eccles, V.

Marley, L.

Ward of North Tyneside, B.

Effingham, E.

Mersey, V.

Winstanley, L.

Elles, B.

Molson, L.

Young, B.

NOT-CONTENTS

Aberdeen and Temair, M.

Hamnett, L.

Peart, L. (L. Privy Seal.)

Ampthill, L.

Harris of Greenwich, L.

Phillips, B.

Aylestone, L.

Hayter, L.

Popplewell. L.

Birk, B.

Henderson, L.

Ritchie-Calder, L.

Blyton, L.

Houghton of Sowerby, L.

Rusholme, L.

Brockway, L.

Hunt, L.

Russell, E.

Brown, L.

Jacques, L. [Teller.]

Sainsbury, L.

Buckinghamshire, E.

Janner, L.

Shinwell, L.

Burntwood, L.

Kagan, L.

Slater, L.

Burton of Coventry, B.

Kaldor, L.

Stedman, B.

Caradon, L.

Leatherland, L.

Stewart of Alvechurch, B.

Champion, L.

Lee of Newton, L.

Stone, L.

Chorley, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

Strabolgi, L.

Collison, L.

Taylor of Mansfield, L.

Crowther-Hunt, L.

Lovell-Davis, L.

Vaizey, L.

Davies of Leek, L.

McCarthy, L.

Wells-Pestell, L.

Davies of Penrhys, L.

McCluskey, L.

White, B.

Douglas of Barloch, L.

MacLeod of Fuinary, L.

Williamson, L.

Elwyn-Jones, L. (L. Chancellor.)

Maelor, L.

Willis, L.

Energlyn, L.

Maybray-King, L.

Wilson of Langside, L.

Gardiner, L.

Melchett, L.

Wilson of Radcliffe, L.

Gordon-Walker, L.

Morris of Borth-y-Gest, L.

Winterbottom, L.

Goronwy-Roberts, L.

Morris of Grasmere, L.

Gregson, L.

Oram, L.

Resolved in the affirmative, and Amendment agreed to accordingly.
Clause 2 [Purpose of ss. 3 to 5]:
3.33 p.m.
Lord SANDYS Lord SANDYS moved Amendment No. 2:
Page 2, line 24, leave out subsection (1) and insert—
("(1) The Board shall exercise its functions under Parts II and III of this Act with the object of securing, so far as practicable, the freedomߞ

(a) of resident and non-resident hospital patients to engage the services of medical and dental practitioners of their choice for the prevention, diagnosis and treatment of their illnesses, whether or not they are able to pay for accommodation or services at hospitals; and

(b) of medical and dental practitioners employed less than whole-time in one or other of the national health services to choose the places (whether at NHS hospitals or elsewhere) where they will engage in private practice outside such employment, without thereby causing any interference to the giving of full and proper attention to persons seeking or afforded access, otherwise than as private patients, to any accommodation or services provided under the National Health Service Acts.").

The noble Lord said: My Lords, this Amendment is a repetition of Amendment No. 6 which we tabled on Committee and later withdrew. Your Lordships will be aware that on Committee we put forward two alternative Amendments; that is, Amendments Nos. 5 and 6. On examination we discovered that there were
1300
objections to Amendment No. 5; however, we felt that, in view of the fact that this opportunity was again afforded on Report to move Amendment No. 6, it would be in the interests of further discussion of the Amendment if we repeated it on this occasion. Clause 2, as it stands in the Bill, therefore remains unamended. What we propose to do on this Amendment is to set out a different form of words. I believe there was a particularly important discussion on Committee when the noble Lord, Lord Winstanley, referred to the Long Title of the Bill, which he did at col. 1487 of the Official Report in connection with this clause. He said:
"Can he say"—
that is, can the noble Lord, Lord Wells-Pestell, say—
"why the same things are not contained in the Long Title of the Bill?…why was that not incorporated in the wording of the Long Title of the Bill, which makes no reference to either of them?"
The important point here is that if we read the Long Title of the Bill, which after all should give a general understanding of what the Bill is about, there is no reference to the very important matters set out in Clause 2, which makes specific reference to the separation. When we reach our discussions on the Long Title, we shall have a number of remarks to make on this subject.
When the noble Lord, Lord Wells-Pestell, replied to that inquiry by the noble Lord, Lord Winstanley, he said:
"Presumably it was because the Government

1301
considered that a better place for it was in the Bill itself and not on the cover".
I think the problem goes rather deeper than it may appear to do, because at a later stage in his remarks (at col. 1492) the noble Lord, Lord Wells-Pestell, again took up the issue of the essential position of the Bill when he said:
"In this Bill we are seeking to do a very simple thing, even if noble Lords do not like it. It is to separate private practice from the National Health Service, not to stop private practice".
Our problem is this. We have a Long Title which is non-descriptive of those particular issues. It begins with the words,
"An Act to make further provision…".
Of course, it does very far from that. I was worried about the word "provision". I looked it up in the dictionary, thinking that of course it referred to furnishing of supplies, goods or something of the kind. I discovered that the word has a very ancient parentage in Parliamentary procedures going back as far as the year 1258 when we had the provisions of Oxford. There, provisions meant ordinances for checking the King's misrule and the reformation of Government.
I believe—and I say this without further prejudice to my remarks on the Long Title—that the opening words of the Bill are non-descriptive of what is to follow. And further, it would be much better, when we come to the Long Title, to consider our own wording which, of course, was set out on Committee stage in Amendment No. 143. I believe a real point is at stake here. The Government have chosen to run it the other way; to, have a non-descriptive Long Title, to place the emphasis on Clause 2 as a declaratory clause. We believe a much better wording lies in our Amendment. My Lords, I beg to move.
Lord WELLS-PESTELL: My Lords, as the noble Lord, Lord Sandys, said, an identical Amendment was debated at Committee stage. It had a good deal of discussion. The discussion of the particular Amendment, which is before your Lordships today, is found at cols. 1491–92 of the Official Report. It is fair to say that the noble Lord, Lord Sandys, has not raised any new points, apart from those raised at the Committee stage. My reply dealt fully with the situation. The purpose of Clause 2(1) is to give a broad declaration
1302
that private beds and facilities should be separated from the National Health Service.
The proposed Amendment would give the Board quite different responsibilities and alter the basis of the declaratory clause. Clause 2(2) already sufficiently covers the maintenance of the right to provide private practice by entitling doctors and dentists to work both privately and in the National Health Service establishments. In practice there was no need to include subsection (2) in the Bill since it merely reiterates the clearly stated provisions of the Reorganisation Act of 1973. It was included solely because, as part of the Goodman compromise, the Government undertook to guarantee the continued rights of doctors and dentists in this country to practice privately outside the National Health Service by repeating the provisions of earlier Statutes. It was no part of that agreement that the Board would be charged with the functions proposed in these Amendments, and we see no reason at all why an additional responsibility of this nature should be put on the Board.
Since the Committee stage I have studied carefully not only what the noble Lord and other noble Lords said on that occasion but also what the noble Baroness said, and I remain unconvinced that the proposals in this Amendment are workable. As I said in Committee, the choice of consultant is primarily that of a patient's general practitioner. With the greatest possible respect for the views put forward today and on previous occasions, I fail to see how the Board could begin to discharge the duty it is attempted to impose upon it. The Government have given a clear undertaking that nothing in this Bill will interfere with the right of the consultant who wishes to do private practice outside the National Health Service. Consultants will be free to choose where they will operate and patients will be as free as they are now, on the advice of their family doctors, to choose who shall treat them. To charge the Board with the responsibility of ensuring that this happens—when in fact it does happen, when in fact it will continue to happen—will not strengthen the guarantee one iota.
I say with respect that the Amendments are unnecessary and serve only to confuse

1303
what is at present a straightforward issue. The professional freedom of doctors is assured; the law allows it, and the law awards it, What more the Board could do to make that assurance any more certain I cannot possibly imagine. Therefore I am afraid that I cannot accept the Amendment, and I hope that the House will not accept it.
Lord HILL of LUTON: My Lords, I have some sympathy with the noble Lord not only because of the strain on his vocal chords, but in terms of the argument he has used. I should prefer the objectives as stated in the Amendment, but they are not the purpose of the Bill. The phraseology in the Bill states that the purpose of the Bill, with which I am wholly out of sympathy, is to divorce private practice from National Health Service hospitals. I think that an Amendment restating the purposes in much more acceptable terms would in fact contain an untruth, because it is not the purpose of the Bill to secure the things that are set out in the Amendment. The purpose of the Bill is simple. It is starkly stated in the clause as it is, and in my view that is how it should remain.
Baroness YOUNG: My Lords, would the noble Lord agree that Clause 2, as it stands, is not necessary to the Bill at all? It is quite simply a declaratory clause; it does not oblige anybody to do anything at all. In fact, the noble Lord could take out Clause 2, and the Bill could go on to the Statute Book without it, and everything could happen as he would like it to happen. What I think the noble Lord does not like about our Amendment is that it obliges the Board to do something, to give expression to a freedom of choice for patients, whether they are National Health Service patients or private patients; and this is really the objection to this. We on this side of the House think that Clause 2 is unnecessary in a Statute. It is simply a declaratory statement setting out the new apartheid in medicine.
On Question, Amendment negatived.
3.45 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 3:
Page 2, line 43, at end insert—
1304
"(3) Nothing shall be done under or by virtue of this Act, and nothing in this Act shall be construed, so as to operate to the detriment of any person (whether or not a consultant), who was on 12th April 1976 employed whole-time or part-time in one or other of the national health services or concerned with the interests of patients at NHS hospitals, whether or not such detriment occurs under, by reason or in consequence of the terms of his employment."
The noble Baroness said: My Lords, we had a very long debate on the question of detriment at the Committee stage, and we put down this Amendment again because we had hoped that the Government would bring forward an Amendment of their own. The noble Lord, Lord Wells-Pestell, expressed sympathy with the Amendment and with the intention of it, and at the end of the Committee stage he agreed that he would look at the matter. I should like to begin by thanking him for the very long letter he has written to me about the whole position. Detriment is of course a very serious matter, whether one is a doctor or whether one is employed in any other capacity in the Health Service.
It might be helpful if I began by talking about not the doctors but all the others employed, because so far as I can see from the letter that the noble Lord has written to me, and indeed from what he said in Committee, the Government do not believe that anybody is going to suffer from the withdrawal of the 1,000 beds. I think that this is a very optimistic statement, but let us take it at its face value: that is, nobody is going to suffer at all, nobody will be not employed as a consequence of this, and there will be nothing to worry about.
Can the same be said as the Board proceeds to the other 3,400 beds when they are phased out; or can the Government confidently say that over 4,000 pay beds can be phased out of the hospitals, without a guarantee that the same beds will be used by National Health Service patients, and at the same time say that no member of staff will suffer any detriment at all? That is really the point at issue. I think that it is impossible for the Government to give that undertaking. I can quite appreciate that, if two beds are being phased out from one hospital, the staff will be absorbed into looking after the others and no doubt the others will benefit from that little extra time that those members of the staff are able to give. But I simply do not believe that it can

1305
possibly be true that over 4,000 beds could be phased out without anyone suffering any detriment at all.
It seems to us on this side of the House quite improper to introduce a piece of legislation which will have effects on the staff without making any provisions at all for any finacial loss that they may suffer. This Amendment is drafted in the way that it is because I believe that it is standard practice with trade unions when negotiating to see that no detriment is suffered by any of their members during a reorganisation. That, after all, is what this Amendment is asking for.
My colleagues and I believe that this is a very serious matter indeed to hundreds of people employed in the National Health Service and it is one to which I think the Government should address themselves. Indeed, the noble Lord, Lord Wells-Pestell, said at the Committee stage, as reported at column 1513 of the Official Report of 4th November, referring not to the doctors, but to the others:
"…a few beds will be affected in some hospitals, and some hospitals will not be affected at all—that they will be absorbed, or could be absorbed"—
the "they" being the staff—
"(not necessarily will; it depends on them, but they could) into the National Health Service."
So that in Committee even in his mind there was some doubt as to whether everybody can be re-employed during this reorganisation process.
Therefore, if for no other reason, I think that the Amendment ought to be considered for the sake of the staff. I think we should also consider it for the sake of the consultants. I say again that I was grateful for the letter which the noble Lord wrote to me, and I should like to quote to the House the relevant paragraph. The noble Lord says:
"David Ennals has already made it clear that any maximum part-time consultant is entitled to exercise his option to convert to a whole-time contract if he wishes to do so. As you know, maximum part-timers undertake to devote substantially the whole of their time to the care of their NHS patients. As it is therefore very much a matter of personal preference whether they choose a maximum part-time or whole-time contract with the National Health Service, so long as they retain the right to convert from one to the other they are protected and no question of detriment can arise".
I read that paragraph to mean that consultants have an absolute right to go from the maximum part-time contract to the
1306
whole-time contract, and therefore there can be no question of detriment.
I turn, therefore, to the debate in another place. Dr. David Owen, during a somewhat similar debate in another place, made the following statement at col. 1577:
"A consultant who wishes to increase his commitment to the National Health Service may, subject always to the needs of the Service, transfer from a maximum part-time to a whole-time contract".
With all respect, that is not the same thing. As far as I can see from what Dr. David Owen is saying, there is no absolute right because, of course, there can be no guarantee that a maximum part-time consultant will be offered a full-time job. What if the hospital cannot afford it? After all, the maximum part-time consultant is not paid a full-time salary; and if there is not a job for him it is no use saying that it is his right to do it, because in fact he has not got that right as there is not a job.
This is the very important point that was made by the noble Lord, Lord Winstanley, who no doubt made it much more clearly than I am making it this afternoon; but I find it deeply disturbing that we should be getting two versions of this situation, which could well affect a great many consultants who will inevitably suffer detriment, if their private practice is removed, if they would like to become whole-time consultants and if there is not a job for them. I think it should be recalled at the start of today's proceedings on this Bill that many part-time consultants became part-time consultants in the National Health Service under the procedures which were agreed when the National Health Service was set up and which have applied for nearly 30 years, and they can hardly have expected that in 1976 the rules would be changed and they might find themselves suffering, not only something which they may not like in principle but a fall in their income. I am sure that the whole House would feel that it is very unfair that it should have happened. This is a most important Amendment, and if justice is going to be seen to be done, not only to the health employees but also to the consultants, the Government ought to consider this matter most seriously. I beg to move.
Lord WINSTANLEY: My Lords, I should like briefly to underline the point

1307
which I made in Committee, to which the noble Baroness has referred, with regard to the possibility of detriment in relation to the consultants. It is true that in her speech the noble Baroness dealt largely with detriment in relation to other workers, and I acknowledge that perhaps that is more important; but it is nevertheless a fact, from my experience and within my knowledge, that there are now consultants who are not full-time, who would like to be full-time but who cannot obtain full-time contracts with their hospital boards. There are those people now in existence.
If it were possible for the Government to say that any consultant who is on a part-time contract will without doubt have an option to go full-time if he so wishes, I think many of my fears would disappear; but it is a fact that at the moment there are those who even now would like to be full-time but who cannot be because their hospital boards are not in a position to offer them full-time contracts. While that possibility remains—and I honestly believe that in our present situation, with the present shortage of resources and the present kind of difficulties with which the Health Service is faced, and which will persist for some time—then I think the Government really have a duty to provide for this. I think this Amendment would provide for it, and I should like to hear that the Government will, in that spirit at least, accept it.
Lord SANDYS: My Lords, I, too, should like to support the Amendment because I believe that my noble friend, Lady Young, has an important point here. This Amendment has a very close bearing upon the next Amendment, which we shall come to before very long, and it is a matter which very much concerns all of us on this side of the House. I was grateful to the noble Lord, Lord Wells-Pestell, for sending me a copy of the letter which he sent to my noble friend. In that letter he criticised the Amendment as being in very broad terms. That may well be a valid criticism, but the issue which my noble friend has raised is, after all, one which it is for the Government to put right. It is an issue to which the Government should address their mind; and if detriment does not particularly concern the Government, then I think it should.
Lord WELLS-PESTELL: My Lords, as to what I said on a previous occasion—that I had some sympathy—what I said then is what I would say now, and that is that I always have sympathy with a person who wants to try to guard against any sort of injustice arising in any way in anything. But when we talk about detriment, what do we mean? We all have a concept of what detriment means. But what do we mean by detriment in so far as this particular matter is concerned? When you take the National Health Service and what we are seeking to do under this Bill, I do not think it is possible to set out in clear and precise terms what would constitute detriment. A person could very easily feel that he had suffered detriment in some form or other as a result of any changes that may take place, and is therefore affected by it; but as far as I can see it would not be possible to provide, in terms that anybody could understand, that detriment in every sphere was covered. One has to face the fact that the acceptance of this Amendment would be tantamount to putting the Secretary of State at grave risk that, in attempting to implement the Act, he could be challenged in the courts by any individual National Health Service employee who claimed to perceive—not necessarily suffer, not necessarily experience, but perceive—some degree of detriment.
At the Committee stage I forgot to deal with a matter which the noble Lord, Lord Winstanley, raised about maximum part-timers. I should be interested to have the name of any maximum part-timer who had applied for a whole-time post and had been refused. I should be interested to have one name.
Lord WINSTANLEY: There are several.
Lord WELLS-PESTELL: Then I hope the noble Lord will send them to me. If the noble Lord is talking about part-timers as distinct from maximum part-timers who want a full-time consultancy in the National Health Service, then I agree that there is some difficulty there; but he mentioned maximum part-timers. My Lords, if I may say so with the greatest possible respect, we know what is happening in the National Health Service. We probably know its weaknesses better than most other people.

1309
I think we know it strengths. I think we can make a valid assessment as to what is going to happen when this Bill becomes an Act and has to be put into operation.
I said at Committee stage that two-thirds of the hospitals have five or less pay beds; so if you remove them, you are really not going to throw anybody out of work, you are not really going to inconvenience anybody financially. The emphasis seems to be on the needs of the medical profession. The noble Lord, Lord Winstanley, said he was much more concerned about the others, and so am I; but where two-thirds of the hospitals have five or less pay beds in them, if you remove them it is really going to make no impact at all upon the staff. If it is going to make any impact on the maximum part-timers, it is up to them if they think it worth their while financially, to become whole-timers in the NHS—and we shall be glad to have them. I fancy that many of them will find no difficulty in getting extra private work. For that reason and others we are not able to accept the Amendment.
Lord O'HAGAN: My Lords, I followed the noble Lord, Lord Wells-Pestell with as much attention on this occasion as on previous ones, and it seemed to me that he was using contradictory arguments. His first argument was that "detriment" is a word which it is impossible to define, is a word that has no legal meaning; yet I am sure that the noble Lord has an idea of what we mean by the word "detriment" and I am sure that when he is talking about threats to jobs he has an idea of the concept we are aiming at. If it is a problem of definition, then the argument against the actual word "detriment" is not a genuine argument but a smokescreen.
I think that his second argument, that if this Amendment is accepted the Secretary of State will be constantly in the courts, was a bit of a smokescreen, too. I do not think that we heard that on the previous occasion. The noble Lord nods his head and so it seems to me that this is something that has been thought up for this occasion to try to put this Amendment in an unattractive light. The third argument is this. He says that nobody is really going to be thrown out of work. I do not want to quote him out of context but it was the general tenor of his remarks that people are not going to suffer. That was the argument to which I attached most
1310
weight. He seemed to be saying that people were not going to suffer and therefore there was no need for this Amendment.
If the noble Lord is convinced of that if he believes that people will not suffer, surely there is very little harm in reassuring everybody that they will not suffer, in case the Government happen to be mistaken, by inserting this Amendment as a safety net. If the noble Lord is really convinced that nobody will suffer, that is an argument for accepting the Amendment and not for rejecting it. I think that the noble Lord was seeking to cloud the issue with his first two arguments and that his third argument was an argument for accepting the Amendment. This I hope the Government will do.
Lord PLATT: My Lords, the noble Lord made another statement that does not quite come into any of those three. I agree with what the noble Lord, Lord O'Hagan, has said. The noble Lord, Lord Wells-Pestell, said in effect that because a hospital had only five beds for private patients it was not a serious thing if they were dropped out. But if they had only five beds, obviously it is in a district where there is very little private practice. Nevertheless, there are physicians and surgeons in that district who would like to be able to take a private patient, probably at the patient's request, into a private bed. Does the noble Lord really think, if there were only five beds in that small district and they were phased out, that some new hospital containing five beds is going to take their place? If not, where are thoe beds to be found?
Baroness YOUNG: My Lords, I had some sympathy with the noble Lord, Lord Wells-Pestell, when he came to answer this question because I am sure that he himself recognises the force of this argument. He has based his argument about the employees on the phasing out of the first 1,000 beds. I am not going to argue with his statement that two-thirds of the hospitals will have five beds or less and that it may well be it will have no impact on the staff. But one does not have to think very long or to look at Schedule 2 to see a hospital where, say, 44 beds are going to be phased out or—and my eye alights on Bradford—where 91 beds are to be phased out. And one can imagine this could have an effect

1311
on the staff. Of course, it is not going to happen within the first six months; it may be a gradual running down of staff; but we are considering the Bill as it stands. I find it extraordinary that the Government cannot see that there could be some detriment to some employees when over 4,000 beds are phased out without an absolute guarantee that they are going to be occupied by somebody else. If that guarantee has not been given the logical conclusion is that there will be fewer beds and therefore someone could find themselves out of a job or with less money.
As my noble friend Lord O'Hagan rightly said, the noble Lord has produced a new argument and has said that this might involve a lot of people going to court. This may be because my Amendment is not correctly drafted. I would quite understand if this were the case—although I have had professional advice on this one—because it so frequently happens. Therefore, we on this side of the House would be quite happy to accept an Amendment drafted by the Government which took care of some of these technical points if that is the stumbling block. But I suspect that the real stumbling block is that there is no intention to do anything about this problem because the Government have decided that it is a problem which does not exist.
I listened with care to what the noble Lord, Lord Wells-Pestell, said about the consultants and to what the noble Lord, Lord Platt, said. I do not believe that he answered the point that his letter is not saying the same things as his right honourable friend said in another place where he admitted that there could be consultants who will not find private practice when the beds are phased out and who will not be able to become full-time consultants. Even if only one consultant suffers, I should have thought that this must be a matter of concern. It ought to concern Parliament when it is legislating for reorganisation that those who are going to be affected by it—and who in many cases will not have been consulted about the terms of the Bill—are not given the opportunity to have their own financial affairs looked after. I feel that I cannot let this Amendment go, that I must press it to a Division in simple justice to everyone who works in the National Health Service.
4.7 p.m.
On Question, Whether the said Amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 145; Not-Contents, 67.

CONTENTS

Aberdeen and Temair, M.

Cholmondeley, M.

Goschen, V.

Airedale, L.

Clitheroe, L.

Gray, L.

Alport, L.

Cobham, V.

Greenway, L.

Amherst, E.

Coleraine, L.

Grey, E.

Amherst, of Hackney, L.

Coleridge, L.

Gridley, L.

Amory, V.

Craigavon, V.

Hailsham of Saint Marylebone, L.

Arran, E.

Craigton, L.

Halsbury, E.

Ashbourne, L.

Crawshaw, L.

Hampton, L.

Balerno, L.

Cromartie, E.

Hankey, L.

Banks, L.

Cullen of Ashbourne, L.

Harvington, L.

Barnby, L.

Daventry, V.

Hastings, L.

Barrington, V.

Denham, L.[Teller.]

Hawke, L.

Beaumont of Whitley, L.

Deramore, L.

Henley, L.

Belstead, L.

Devonshire, D.

Hertford, M.

Berkeley, B.

Drumalbyn, L.

Hewlett, L.

Birdwood, L.

Dundee, E.

Hill of Luton, L.

Blake, L.

Eccles, V.

Hives, L.

Blakenham, V.

Effingham, E.

Hornsby-Smith, B.

Bourne, L.

Elles, B.

Hunt, L.

Brock, L.

Elliot of Harwood, B.

Hunt of Fawley, L.

Burton, L.

Emmet of Amberley, B.

Hylton-Foster, B.

Byers, L.

Exeter, M.

Inglewood, L.

Campbell of Croy, L.

Faithfull, B.

Kemsley, V.

Carr of Hadley, L.

Ferrers, E.

Kilmany, L.

Carrington, L.

Fraser of Kilmorack, L.

Kilmarnock, L.

Cathcart, E.

Gisborough, L.

Kimberley, E.

Chesham, L.

Gladwyn, L.

Kinloss, Ly.

Kinnaird, L.

Northchurch, B.

Stamp, L.

Lauderdale, E.

Nugent of Guildford, L.

Strathcarron, L.

Long, V.

Nunburnholme, L.

Strathclyde, L.

Loudoun, C.

O'Hagan, L.

Strathcona and Mount Royal, L.

Lucas of Chilworth, L.

Orr-Ewing, L.

Strathspey, L.

Macleod of Borve, B.

Platt, L.

Sudeley, L.

McNair, L.

Porritt, L.

Suffield, L.

Malmesbury, E.

Rankeillour, L.

Templemore, L.

Mancroft, L.

Redesdale, L.

Terrington, L.

Marley, L.

Robbins, L.

Thomas, L.

Merrivale, L.

Robson of Kiddington, B.

Thorneycroft, L.

Mersey, V.

Rochester, L.

Thurso, V.

Molson, L.

Ruthven of Freeland, Ly.

Tranmire, L.

Monck, V.

St. Aldwyn, E.

Trefgarne, L.

Morris of Borth-y-Gest, L.

St. Davids, V.

Tweedsmuir, L.

Mowbray and Stourton, L.[Teller.]

St. Just, L.

Vickers, B.

Sandford, L.

Vivian, L.

Moyne, L.

Sandys, L.

Wade, L.

Munster, E.

Seebohm, L.

Ward of North Tyneside, B.

Netherthorpe, L.

Selkirk, E.

Winstanley, L.

Newall, L.

Sharples, B.

Young, B.

Norfolk, D.

Skelmersdale, L.

NOT-CONTENTS

Ampthill, L.

Hamnett, L.

Popplewell, L.

Aylestone, L.

Hayter, L.

Ritchie-Calder, L.

Birk, B.

Henderson, L.

Rusholme, L.

Blyton, L.

Houghton of Sowerby, L.

Sainsbury, L.

Brockway, L.

Jacques, L. [Teller.]

Shinwell, L.

Brown, L.

Janner, L.

Slater, L.

Buckinghamshire, E.

Kagan, L.

Spens, L.

Burntwood, L.

Kaldor, L.

Stedman, B.

Champion, L.

Kennet, L.

Stewart of Alvechurch, B.

Chorley, L.

Leatherland, L.

Stone, L.

Collison, L.

Lee of Newton, L.

Strabolgi, L. [Teller.]

Crowther-Hunt, L.

Llewelyn-Davies of Hastoe, B.

Taylor of Mansfield, L.

Davies of Leek, L.

Lloyd of Hampstead, L.

Vaizey, L.

Davies of Penrhys, L.

Lovell-Davis, L.

Wall, L.

Donaldson of Kingsbridge, L.

McCarthy, L.

Wells-Pestell, L.

Douglass of Cleveland, L.

McCluskey, L.

White, B.

Elwyn-Jones, L. (L. Chancellor.)

Maelor, L.

Williamson, L.

Fletcher, L.

Maybray-King, L.

Willis, L.

Gardiner, L.

Melchett, L.

Wilson of Radcliffe, L.

Gordon-Walker, L.

Morris of Grasmere, L.

Winterbottom, L.

Goronwy-Roberts, L.

Oram, L.

Wise, L.

Greenwood of Rossendale, L.

Peart, L. (L. Privy Seal)

Gregson, L.

Phillips, B.

Resolved in the affirmative, and Amendment agreed to accordingly.
4.18 p.m.
Clause 3 [Immediate duty of Secretary of State as regards withdrawal of NHS beds from resident private patients]:
Baroness YOUNG Baroness YOUNG moved Amendment No. 4:
Page 3, line 11, leave out ("proposal") and insert ("proposals by revoking the authorisations for those beds, and to make those beds available for use by resident patients who are not private patients").
The noble Baroness said: My Lords, the purpose of this Amendment is straightforward and should be readily understood
1314
by anybody who is at all concerned to get the best for the National Health Service patients as a result of this Bill becoming law. My understanding of the background to the Bill, if we can move ourselves away from the details of the Goodman negotiations, is the concern that was expressed by some trade unionists that there was queue jumping, and that people could buy a bed in hospital whereas others were unable to do so, and that the way to deal with the matter was to phase out the private beds of the hospitals so that those who wanted private treatment could have it separately from those who were having treatment under the National Health Service. Hence the Bill we have before us which will divide the Health Service into two.
It would seemߞand certainly it was my impression, I admit, before I read the Bill, and when I started to think about it and read the background material—that all the beds phased out will be used by National Health Service patients. This is the logic of the situation and no other course is acceptable. In preparation for the speech I made at Second Reading, I was very surprised to discover that some beds had been phased out now and the rooms converted into offices. I felt that was a lapse that would not occur again and that one must not generalise from one particular case. That is always dangerous.
We put down an Amendment in similar terms in Committee. I was surprised at the reply given by the noble Lord, Lord Wells-Pestell, about this matter. He suggests in the first place that 1,000 beds are not needed anyway, as they are empty, so that that would be one way of disposing of them. How it will help the National Health Service queue if the beds are kept empty I am not clear. In the second place, the beds might be used for outpatients, though so far as I know the debate has never centred around whether outpatients are seen in proper order by consultants. So we are left to draw the conclusion that unless this Amendment is made, we are going through an enormous exercise at the end of which there will be fewer hospital beds, requiring, presumably, fewer members of staff—although this is not admitted—and one cannot see how any body in the National Health Service queue or any other queue is going to benefit.
I do not know whether I am alone in finding the whole situation extraordinary. This is an Amendment which would improve the Bill; which would not by any stretch of the imagination be said to be against the Goodman Proposals and which would be welcomed by anybody waiting to go into hospital, and which is perfectly in order. I beg to move.
Lord HILL of LUTON: My Lords, may I support most warmly the Amendment proposed by the noble Baroness. The case for this is unusually strong, and I hope that the noble Lord, Lord Wells-Pestell, will find it possible to escape from the straitjacket in which he has so obviously been placed, and turn a sym-
1316
pathetic ear to this proposal. There are two defects, I would suggest, to Clause 3. Within 12 months the Board are required to bring forward proposals. They are not really proposals, because the Minister is bound to accept them, but let us call them proposals. Within 12 months there must be proposals, and those proposals must involve the withdrawal of some private beds. That is perfectly clear from the phraseology of this section. The proposals are compulsory after 12 months and they must contain provision for removing pay beds.
That is the first defect, which this Amendment cannot solve. But the second defect is that even when, because of the proposal that the Minister has to accept, private beds have been abolished, there is no guarantee that they do not become offices for administrators, additional laboratories, and the rest. There is no requirement that those beds should continue to be used for patients. That seems to me to be appalling. In involves a potential reduction in the number of beds for patients since there is to be a proposal reducing the number of beds—and, incidentally, even though alternative private provision is not, and cannot be made, sufficient within 12 months, it still has to be done—and when it is done one does not require those beds to be turned over to general patients. That seems to me to expose the whole business behind the Bill. This Bill is not devised—and this is why I have expressed my views on an earlier Amendment—to improve the quality of medical service to the public. It is devised to serve a narrow and undesirable political purpose; and this is an illustration of how serving that purpose will probably lead to a reduction in the provision for sick people rather than even maintaining it at its present level, as would be secured by the acceptance of this Amendment.
Viscount AMORY: My Lords, listening to our discussion on this Bill the other day when my noble friend Lady Young pressed this point of the use that was going to be made of these beds, I was rather shaken by the impression that the noble Lord, Lord Wells-Pestell, left on my mind that he was blurring his answer a little. He referred to the beds for resident patients and then referred to beds for medical uses for other patients. That was fine but, from my recollection, he implied that

1317
possibly the vacated space could be used for what I think he called, "organisational purposes". That horrified me, because I would have thought the ordinary person feels that the besetting sin of the Health Service is the extension of administration as against medical attention. I hope the noble Lord will be rather more specific today than he was the other day; that is, from my memory of what he said, because I cannot quote his words precisely. I hope he will make it clear that the accommodation which will be thrown up by the exclusion of private beds will not be used for organisational or administrative purposes.
Lord GISBOROUGH: My Lords, I should also like to support the noble Baroness, Lady Young. It seems to me of enormous importance that the beds released from the private sector should be made available at all times to the National Health Service. Also, in many cases, there may not be enough beds for private demand, so those patients may well require treatment on the National Health, and that will therefore make the demand on National Health Service beds that much greater. One of the objects of the Bill is said to be to ensure that there shall be no queue-jumping, but the corollary must be that there should then be a shorter queue for National Health patients. Without this Amendment, I think the beds will be lost and we shall see the horror of creating more and more offices to be filled by more and more people for administrative purposes, who will be taking money from the sharp end, so to speak, of the Health Service to the administrative side, which can do nothing but harm. With 1,000 fewer beds, there will be no question of a shorter queue; there will be a longer queue for National Health patients. In addition, those patients, who remain private and will no longer be treated in National Health Hospitals where there is no room for them, will be going off to private hospitals. That will increase the likelihood of consultants spending more time travelling and less time in hospitals, and thus their value will be that much less. I am afraid that it is another case of everybody having to suffer so that a few may not gain.
Baroness ELLIOT of HARWOOD: My Lords, I should also like to support this Amendment. I agree with every word
1318
that has been spoken by the noble Lord, Lord Hill of Luton, and others. I should like to add one further point that has not been made quite clear. Clause 3 explains that these beds are to be done away with. It does not say, as has been stressed, that the accommodation should then be used for other patients. But who is going to do away with them? It says that the Secretary of State is going to be advised by the Board. In the Bill, if I remember rightly, there is in Schedule 2 a list of areas and places where the beds are to be withdrawn; that is the first 1,000. Are the local health boards, the local people and local hospitals going to be consulted, or is this a purely arbitrary decision that is to be made by the Secretary of State?—because the provision is that these beds have to be given up in the first year when the Bill has become law. I object to that because in all this legislation I see continually authority being imposed either from the Secretary of State or from above, as it were, rather than consulting people on the spot.
I suppose that I am an ingrained local government person, and I find it very annoying when all this legislation is for ever a form of authority from above, with, so far as one can make out, very little consultation with the authorities who are responsible in given areas for providing hospital accommodation, treatment and so on for people living in those localities. Perhaps the noble Lord can say whether I am unnecessarily worried about this, but I think it is something which should not be encouraged, because the responsibility for this kind of decision should lie in the localities where people know the demand for hospital accommodation.
Lord BROCK: My Lords, I should like to support this Amendment very warmly. There is no question that there is a very strong tendency to convert these beds, which will fall vacant, into uses which do not include the treatment of patients. This has been done, as we all know, and it will continue to be done. We ought to take definite steps to stop beds being used for purposes other than the care of patients. It is utterly repugnant to me that a number of beds should be taken from any hospital—and this includes large wings of private hospitals—and used for something which an administrator, or some other person, can think of to satisfy

1319
a simple, although quite ineffective, code and not, in fact, used for the treatment of patients, and that is the essential which ought to be protected.
Lord PORRITT: My Lords, I should also like to support this Amendment very strongly indeed. When I spoke on Second Reading, I said that this was a purposeless Bill—and I called it several other things, too—but for the first time this Amendment gives it some purpose. If we are going to discuss detail in a Bill which is probably unnecessary anyway, let us try to make something practical out of it. For the first time I see a ray of light in this Amendment, and I support it most strongly.
Baroness HORNSBY-SMITH: My Lords, over many years now a most emotive campaign has been waged, and it has been said that the existence of private beds in National Health Service hospitals deprived the ordinary National Health Service patients of amenities which they could have had earlier. The whole campaign, with hundreds of questions and debates in another place and possibly here, too, has been to the effect that these beds, being solely for private patients, were depriving National Health Service patients. The whole case that these people will gain by not having to wait so long and that they may get a serious operation done earlier than they could hitherto, when a less seriously ill patient could go into a private wing, falls to the ground as a complete sham on the public unless it is guaranteed that those beds will be used for the purpose for which the campaign was waged.
Baroness ROBSON of KIDDINGTON: My Lords, I should like to support this Amendment to a certain extent. I am one of those people who spoke on Second Reading in favour of turning the private beds that are to be phased out into amenity beds, which I believe is the right thing to do. But this Amendment refers specifically to "beds", and that is one thing that worries me. I know of a number of hospitals which cannot fill their National Health Service beds, because their operating theatre space is out of date or out of use, and what they need is better operating theatres. While I agree that we should not use these beds for admin-
1320
istrative purposes, I think that we are tying the hands of the administrators. If the Amendment means for use for the better treatment of patients in a hospital, that I would agree with. But what worries me is the word "beds", because in many cases we could create better investigating facilities, better operating theatres and all those things which are part of providing a better service. Although I believe that we need a great many more amenity beds in hospitals, we must be very careful that we do not tie the hands of the authorities and make them retain a bed as a bed even if that is not a sensible thing to do.
Lord SANDYS: My Lords, I should also like to support this Amendment. I certainly agree with the anxieties expressed by the noble Baroness, Lady Robson, but I must, with very great respect, remind her that this is the Government's Bill. Our Amendment is an attempt to remedy its worse excesses. We are, of course, speaking about "beds", meaning bedsteads and bed furniture, but what are by implication included are the administrative back-up services. Several noble Lords have referred to back-up services—I believe that the noble Lord, Lord Brock, referred to them by implication—and these are a very important factor. When we say "beds", we mean different things in different hospitals. In some hospitals, we mean individual wards which are permanently known as private wings or private wards; in other hospitals, it is a quite different situation. It is for the hospital registrars to nominate two or three beds as private beds, and these may vary from season to season. They do not vary a great deal from the remainder in appearance, nor are they necessarily in the same part of a hospital, and that alone is a very strong argument for saying "beds", as as we do in this Amendment.
I should like to refer to what the Secretary of State said only a very short time ago in this regard, because he raised the very important issue of the avoidance of waste. Of course, both in the first 1,000 beds, and in the remaining 3,444 which are to be phased out, we have a very important national resource. If we can take as they stand the Secretary of State's remarks, when he was addressing doctors in his constituency in Norwich, I think we may hope that the Government

1321
will take up this Amendment, because he said—and I quote from the publication Pulse for Saturday, 13th November—
"It is clear that for the next two or three years the Health Service will have to be run on a tight financial rein. I am determined that standards of patient care must continue to rise. This can only be achieved if at every level we check waste, improve efficiency and operate on a basis of carefully worked out priorities."
I wholeheartedly agree with those remarks of the Secretary of State, if they are meant to mean in relation to this Amendment what we think they mean, which is that this national resource, these very valuable beds—at present, private beds—can be used for the National Health Service as a whole. I feel sure that your Lordships will most wholeheartedly approve of this Amendment.
4.39 p.m.
Lord WELLS-PESTELL: My Lords, I should first like to ask the noble Baroness, Lady Young, whether she will read the Report of what I said on previous occasions. She started off by implying that what I said was that, as the 1,000 beds were not necessary in the private sector as pay beds, they would not be necessary in the National Health Service. That just is not so, as she will see if she reads Hansard. If I am to be quoted, then I should like to be quoted accurately. At no time have I said that, and at no time have I implied it.
One of the difficulties with this Amendment—and there are several—is that it says:
"and to make those beds available for use by resident patients who are not private patients"—
not most of them, not 99 per cent. of them, but all of them. So you cannot use the bed space of one or two beds for any other purpose. When one considers the changes to be made in a hospital from day to day, and week by week, of necessity there has to be a constant looking at how best to use space, and for what purpose. For one purpose only: to offer the patients in the hospital the most effective, the most efficient and the best possible service. Surely, this is the purpose of every hospital.
We discussed a similar Amendment at some length during the Committee stage; it was then Amendment No. 16. We are now asked in this Amendment to place obligation. But just let us think
1322
what it means to put an obligation on my right honourable friend the Secretary of State to make the beds so withdrawn available to National Health Service patients. No single speaker, with the exception of the noble Baroness, Lady Robson of Kiddington—who speaks with far more experience from the lay person's point of view than anyone else in your Lordships' House about running a regional hospital area—has made this point about an obligation. My right honourable friend has got to give an undertaking to make every bed available for in-patients. In my submission, this requirement is quite unreasonably restrictive. There is no real difference between the Government and the Opposition. I hesitated to say that because immediately noble Lords opposite leap to their feet and say, "Well, why not accept it?". But there is no real difference between the Government and the Opposition on the desirability of putting accommodation and facilities released by the phasing out of pay beds, to the best possible use for patients in the National Health Service.
However, if we are to be limited to the use of pay beds solely for in-patients, because the Amendment says "resident patients", we could be frustrating our own objective as far as the improvement of treatment of people is concerned. Some pay beds could be more effectively and more economically used for treatment—I went all through this when we debated it at some length on Committee—where we could get out-patient departments to do more surgery than they are doing at present. The skill and the competence is there. But very often a person has to be held in hospital for half a day or a day; it means putting him in a bed and then letting him go in the late afternoon or evening. Are we to say we cannot use a released pay bed for that purpose? There are all sorts of reasons for having day patients, not only for surgical purposes but for examination purposes, and for all sorts of purposes. Are we going to say that this is a wrong use of the beds which will be released? But noble Lords will go through the Lobby in favour of this just in order to defeat the Government.
What I am asking noble Lords to do, and I say this with the greatest possible respect, is to use some common sense on this. If this Amendment were carried,

1323
the Secretary of State will have no option. He could not use discretion, nor could the hospitals use their discretion, nor could the surgeons and other people serving the hospitals use their discretion. They might say, "I should like this person in for half a day", or, "I should like this person in for a day. I want to do this examination", and this is what we ought to be doing. We must deploy our resources in the best possible way. Two or three nurses might fall ill. Are we to say that those nurses could not use those beds?
As our skills improve, as our knowledge improves, as science improves—and today it is improving at a rate which which we cannot keep pace—we shall want more equipment and more machinery. If that extra machinery and better equipment is going to help patients, is it not perhaps wise to provide extra space for it? I have seen a good many pieces of new equipment such as scanners which take up the space of a sizeable room. There is not one doctor in your Lordships' House who would not sacrifice—and if he would, I hope he will get up and say so—the space taken up by two or three beds for a brain scanner, or something like that. One brain scanner will deal more effectively, more efficiently and more quickly with a whole number of patients than the methods used at one time. Of course we must make every possible bed available for patients in the National Health Service.
We recognise that something similar has to be provided in the private sector, hence these assurances, and the fact that the private sector can build hospitals of 100 beds (without authorisation, I was going to say) and 75 beds outside London. We see the need for this. We recognise the need for the National Health Service to make available every bed. But because it is unrealistic, because it is really unfair, and because it is illogical, do not tie the Secretary of State to saying that every bed so released has got to be used for a resident patient. A Member of your Lordships' House, one not so very far from me, had a minor accident and had to go to hospital and stay in for just a few hours. We must offer these facilities. I want to ask the noble Baroness to consider further—I am sure she has already thought about it, and I hope she will not press this—whether she thinks she
1324
can honestly go through the Lobby against the Government on this Amendment.
Lord BROCK: My Lords, before the noble Lord, Lord Wells-Pestell, sits down, will he try to explain to us in what way the use of a bed for an out-patient is something contrary to the care of a patient? We want to ensure that the beds are used for the care of patients. This is a very laudable method of treatment. But I cannot help feeling that the argument of the noble Lord, put forward so strongly, is based on a false premise.
Lord WELLS-PESTELL: My Lords, with the permission of the House, if I may speak a second time, I am grateful to the noble Lord, Lord Brock, for intervening. The whole point here is that the patient has to be resident. I think noble Lords who are members of the medical profession will know better than I, that "residence" means occupying a bed at 12 midnight; that is when the count is taken. We are saying that we cannot be tied to this, that some beds must be available for people, if only for a few hours, when they need a bed for some minor purpose.
Lord PLATT: My Lords, I would go along with what was said by the noble Baroness, Lady Robson of Kiddington, in feeling that the motive behind the Amendment is a good and right one, whereas the wording is too restrictive. The noble Lord, Lord Wells-Pestell, has given us a very long lecture on that very subject. The one point he has omitted to make is that the Government agree that these beds should be used for the kind of purpose the noble Lord has just been detailing to us and, therefore, the Government will put down their own Amendment in those terms.
Baroness YOUNG: My Lords, the noble Lord, Lord Wells-Pestell, will be pleased to hear that in some respects I find myself in agreement with him, because, of course, I and my colleagues would like to see the most flexible use of hospital facilities. That is clearly a sensible thing to do; nobody is going to quarrel with that. No one could have put the case more clearly than the noble Baroness, Lady Robson. She based her argument on the premise that the trouble with the waiting

1325
list is not always the fact that there are not beds available or that there are beds occupied by private patients; even if there were unlimited beds available the queue is for the use of consultants and surgeons and the operating theatre. That is why in a number of cases there is a queue; it is nothing to do with availability of beds.
I wish we could be debating a situation that was actuated by reason and common sense, because that would obviously be a world in which we should all find it much easier to debate and discuss. But this is not a world of our choosing; this is not a Bill of our choosing. I think the reason why the Government do not like this is the reason so admirably put by the noble Lord, Lord Hill, that if the Amendment were carried it would expose the Bill for what it is. It is in fact not designed to help people in the National Health Service queue. It is exclusively designed to separate private and National Health Services. This has got nothing to do with the good of the patients, whether they are National Health patients or private patients. The one thing we can do is at least to insist that the beds phased out are used for patients.
I am not a lawyer, but I have just looked up the Health Services and Public Health Act 1968, which is referred to continually in the Bill before us. As I understand it, it is Section 2(1) which defines the out-patient. Subsection (1) starts:
"If the Minister is satisfied, in the case of a hospital providing hospital and specialist services, that it is reasonable so to do he may authorise accommodation and services at the hospital to be made available…".
If he can authorise accommodation, then presumably he can authorise somebody to come in for a day. If we have to depend on the definition of an in-patient as somebody there at 12 o'clock, I think this defies common sense. I cannot see that my Amendment would exclude somebody coming in, perhaps having had a car accident, in the middle of the night and leaving at lunch time, and therefore not being regarded as somebody "in residence". I do not quite know what he is doing if he is not in residence; he is certainly not an out-patient and he is certainly not sitting in the out-patient queue.
It seems to me that we are now on a thoroughly bureaucratic point of definition. If we are interested in doing some-
1326
thing about the patient, it would be perfectly possible for the hospital administrators and the Government to find a way round this difficulty. All that we are anxious to secure in this Amendment is that the beds phased out will be used for National Health Service patients. I have described them as "in-patients", because I was under the impression that if you were in bed you were an in-patient and if you were not in bed you were an out-patient. That may be over-simple, but it seems to me a perfectly understandable definition.
I therefore cannot help thinking that the fear that somebody coming in after having had an accident, and requiring to stay in hospital for 24 hours could not have one of those beds, is groundless. It seems to me that anybody occupying a hospital bed for 24 hours would in fact be an in-patient. It seems to me that the definition given of an out-patient includes accommodation, which must include somebody staying some time in bed. Indeed, one of the examples the noble Lord gave, of nurses falling ill, I would think would be exactly a case in point of a person for whom a bed ought to be available. If they fall ill at work, why should they not have one of the beds; why should it not be available to them, even if they are ill for only one day? The argument which the noble Lord is using, the need for flexibility—which is a very good argument indeed and one which I accept—is actually precluded by his own Bill. All we are doing is trying to make his Bill work more effectively for the National Health Service patient.
I have been very grateful for the support I have had from all sides of the House. In view of the noble Lord's reply, I do feel I must press this Amendment. I shall be very interested to see whether his colleagues in another place decide to take it out. I would like responsibility for taking it out to rest firmly with them, because at the end of the day, if the queue does not get shorter, if the private bed accommodation is used for offices, we shall know whose is the real responsibility. It will certainly not rest on us.
4.55 p.m.
On Question, Whether the said Amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 122; Not-Contents, 74.

CONTENTS

Aberdeen and Temair, M.

Fraser of Kilmorack, L.

Newall, L.

Alport, L.

Gainsborough, E.

Norfolk, D.

Amherst of Hackney, L.

Goschen, V.

Northchurch, B.

Amory, V.

Gray, L.

O'Hagan, L.

Arran, E.

Greenway, L.

Orr-Ewing, L.

Balerno, L.

Gridley, L.

Porritt, L.

Barnby, L.

Hailsham of Saint Marylebone, L.

Rankeillour, L.

Berkeley, B.

Hankey, L.

Redesdale, L.

Birdwood, L.

Hastings, L.

Rochdale, V.

Blake, L.

Hertford, M.

Ruthven of Freeland, Ly.

Blakenham, V.

Hewlett, L.

St. Aldwyn, E.

Bourne, L.

Hill of Luton, L.

St. Davids, V.

Brock, L.

Hives, L.

St. Just, L.

Burton, L.

Hornsby-Smith, B.

Sandford, L.

Campbell of Croy, L.

Hunt, L.

Sandys, L.

Carr of Hadley, L.

Hunt of Fawley, L.

Selkirk, E.

Carrington, L.

Hylton-Foster, B.

Sempill, Ly.

Cathcart, E.

Inglewood, L.

Sharples, B.

Chesham, L.

Kemsley, V.

Skelmersdale, L.

Clitheroe, L.

Kilmany, L.

Somers, L.

Clwyd, L.

Kilmarnock, L.

Spens, L.

Coleraine, L.

Kimberley, E.

Strang, L.

Coleridge, L.

Kinloss, Ly.

Strathcarron, L.

Craigavon, V.

Kinnoull, E.

Strathclyde, L.

Crawshaw, L.

Lauderdale, E.

Strathcona and Mount Royal, L.

Cromartie, E.

Long, V.

Strathspey, L.

Cullen of Ashbourne, L.

Loudoun, C.

Sudeley, L.

Daventry, V.

Lucas of Chilworth, L.

Suffield, L.

Denham, L. [Teller.]

Macleod of Borve, B.

Templemore, L.

Deramore, L.

Malmesbury, E.

Terrington, L.

Devonshire, D.

Mancroft, L.

Teviot, L.

Drumalbyn, L.

Margadale, L.

Thorneycroft, L.

Dulverton, L.

Marley, L.

Tranmire, L.

Dundee, E.

Merrivale, L.

Trefgarne, L.

Elles, B.

Molson, L.

Tweedsmuir, L.

Elliot of Harwood, B.

Monck, V.

Vickers, B.

Emmet of Amberley, B.

Morris of Borth-y-Gest, L.

Vivian, L.

Erskine of Rerrick, L.

Mottistone, L.

Ward of North Tyneside, B.

Exeter, M.

Mowbray and Stourton, L.[Teller.]

Westbury, L.

Faithfull, B.

Wise, L.

Ferrers, E.

Netherthorpe, L.

Young, B.

NOT-CONTENTS

Amherst, E.

Grey, E.

Pear, L. (L. Privy Seal.]

Ampthill, L.

Hale, L.

Phillips, B.

Amulree, L.

Hamnett, L.

Popplewell, L.

Beaumont of Whitley, L.

Henderson, L.

Ritchie-Calder, L.

Birk, B.

Houghton of Sowerby, L.

Robson of Kiddington, B.

Brockway, L.

Jacques, L.

Sainsbury, L.

Brown, L.

Janner, L.

Sheffield, Bp.

Buckinghamshire, E.

Kagan, L.

Shinwell, L.

Burntwood, L.

Kennet, L.

Slater, L.

Champion, L.

Leatherland, L.

Southwark, Bp.

Chorley, L.

Lee of Newton, L.

Stamp, L.

Clifford of Chudleigh, L.

Llewelyn-Davies of Hastoe, B.

Stedman, B.

Collison, L.

Lloyd of Hampstead, L.

Stewart of Alvechurch, B.

Davies of Leek, L.

Lloyd of Kilgerran, L.

Stone, L.

Davies of Penrhys, L.

Longford, E.

Strabolgi, L. [Teller.]

Donaldson of Kingsbridge, L.

Lovell-Davis, L.

Taylor of Mansfield, L.

Douglass of Cleveland, L.

McCarthy, L.

Vaizey, L.

Elwyn-Jones, L. (L. Chancellor.)

McCluskey, L.

Wade, L.

Fulton, L.

MacLeod of Fuinary, L.

Wells-Pestell, L.

Gardiner, L.

McNair, L.

White, B.

Gladwyn, L.

Maelor, L.

Williamson, L.

Gordon-Walker, L.

Melchett, L.

Willis, L.

Goronwy-Roberts, L.

Meston, L.

Wilson of Radcliffe, L.

Greenwood of Rossendale, L.

Morris of Grasmere, L.

Winterbottom, L.

Gregson, L.

Oram, L. [Teller.]

Resolved in the affirmative, and Amendment agreed to accordingly.

5.4 p.m.
Lord O'HAGAN Lord O'HAGAN moved Amendment No. 5:
Page 3, line 23, leave out ("available") and insert ("accessible to patients and the practitioners of their choice").
The noble Lord said: My Lords, I beg to move Amendment No. 5 and, if it would be for the convenience of the House, to speak to Amendment No. 6 with it. We are still dealing with Clause 3, and in subsection (3) there is a list of various matters to which the Board must have due regard when making its original initial proposal, for want of a better word, about the initial withdrawal of 1,000 beds. There are, under subsection (3), paragraphs, (a), (b) and (c), and my two Amendments deal with paragraph (b). I seek to alter the wording. It might be for the convenience of the House if I simply read out what I am trying to achieve. I am trying to make the words in paragraph (b) run as follows:
"the extent to which, in the case of each NHS hospital in Great Britain, alternative accommodation and facilities at a satisfactory standard for the private practice of medicine and dentistry are reasonably accessible to patients and the practitioners of their choice (whether privately or at NHS hospitals) and available at reasonable cost in the area served by that hospital".
That is what I am trying to make the Bill do.
At Second Reading the noble Lord, Lord Goodman, made some observations. He very much hoped that when the word "reasonable" was used in this Bill as regards the accessibility of hospitals, provision of alternative accommodation, and the like, it would be used in the meaning "reasonable in every sense". He wanted it to be a wide interpretation rather than a narrow interpretation. I think that my Amendment has, if not the actual support of the noble Lord either by his physical presence or by his words on the 21st October, the spirit of Lord Goodman in that it seeks to make the word "reasonable" wider rather than narrower.
At the Committee stage we passed Amendment No. 68 to Clause 4(8), and passed another Amendment to Clause 8(2)(b), both of which dealt with freedom of choice. I believe that the noble Baroness, Lady Robson, supported us on that occasion at least in the second part of what I am seeking to do. The words I am seeking to insert enforce the
1330
Board to take a wider view of their responsibilities when they are looking at proposals for removing the initial 1,000 beds. They call upon the Board to look at accessibility for patients and also to ensure that the choice of practitioners for patients is conserved. At the same time they ensure that the question of cost is something which the Board can consider when it is looking at the alternative accommodation.
I do not think that any noble Lord could say that my Amendments are seeking to impose a major alteration of either the objective or the substance of the Bill. They are merely tidying up and making it fairer to the interests of those who will be affected by it. I believe that they are fully in line with what the noble Lord, Lord Goodman, wanted both when he was acting as Government broker between the warring parties and when he was speaking on the Bill at Second Reading. I beg to move.
5.10 p.m.
Lord WELLS-PESTELL: My Lords, it may be for the convenience of the House if, in answering Amendment No. 5, I were to speak at the same time to No. 6. This matter was discussed in Committee. These Amendments seek to import into Clause 3 additional criteria of accessibility and cost of alternative facilities which were added to Clause 4 at the Committee stage. We believe they are wholly inappropriate to Clause 3, particularly as the pay beds to be phased out under these provisions were those which were least used by paying patients.
The criteria in Clause 4 relate to an on-going situation, but the intention behind Clause 3, and the proposals upon which it was based, was that there are a considerable number of pay beds which could be phased out quickly because there is little demand for them. Where pay bed usage by paying patients is very low, clearly this is either because there is insufficient demand from either consultants or patients for facilities for private practice or because that demand is already being adequately met by the private sector. We feel that the additional criteria which the Amendment seeks to include are consequently an unnecessary elaboration.
I must however return to the noble Lord's concern to ensure that the cost of

1331
private facilities should be reasonable. What he is afraid of, if I may presume to say so, is that the private sector will price itself out of the market unless it is subjected either to some kind of price control or to competition from the Health Service. Is it really that he is afraid that without the help of the National Health facilities private medicine will not be able to survive? There is no evidence of that. I cannot think that he lacks confidence in the ability of private enterprise to provide alternative facilities at reasonable cost. The Nuffield Nursing Home Trust certainly does not share his fears, if I am right in saying that they are his fears, and as one noble Lord said in Committee, the Trust is currently building five new nursing homes. But if the Board, since it is the Board whom your Lordships have decided will phase out the first 1,000 beds, is to decide what is a reasonable cost, what are the criteria by which it must be guided: pay bed charges, what the provident associations customarily pay, or what? Are we not in danger of asking the Board to shoulder what the Government think is another impossible task? Is it not enough that in phasing out the first 1,000 beds, the Board—as your Lordships have decided, or the Secretary of State as the Government proposed originally—should have regard to the two criteria laid down in the Goodman Proposals, clear unequivocal criteria: under-utilisation of existing facilities and availability of reasonable alternatives? The Government think it is and we feel that in the circumstances the Amendment is not necessary.
Baroness YOUNG: My Lords, I support my noble friend Lord O'Hagan in the Amendment, which follows naturally from the Amendments which we proposed and carried in Committee. One of the considerations in ensuring that the facilities for private patients are reasonably available is not only that they should be accessible and that they should be able to have a doctor of their choice, but that they should be available at reasonable cost. This of course must include the cost of the facilities which might on occasion be used in NHS hospitals, which is all part of the agreement. It would be extremely easy for a Secretary of State to put the charges for these facilities at such a price that they were not offering similar facilities.
1332
Thus, my noble friend in moving the Amendment is not asking for anything other than to spell out some of the facilities and requirements in order that the Goodman Proposals may be met adequately.
Lord O'HAGAN: My Lords, we will be returning to the question of charges in detail later and I do not want to open that debate now. The noble Lord, Lord Wells-Pestell, began with calm moderation and then stirred things up a little by implying that my intention in moving the Amendment was to ask for price support or Government support or a subsidiary for the private sector, when of course I was not asking for anything of the sort. Perhaps I might remind him that the subsidy works the other way round: that every pateint who not only pays his taxes and NHS contributions but who then in addition pays for private treatment is releasing services and accommodation for the NHS rather than depriving it of them. However, we shall be returning to the question of costs later. The noble Lord described the Amendment as an unnecessary elaboration. I will study the Official Report of his remarks and, if necessary, table an Amendment at the next stage. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.18 p.m.
Viscount LONG Viscount LONG moved Amendment No. 7:
Page 3, line 24, leave out ("area") and insert ("district")
The noble Viscount said: My Lords, it may be convenient to the House if at the same time I spoke to Amendments Nos. 10 and 11, both of which are also designed to leave out the words "area or areas". In Committee my noble friend Lady Young and I tried to establish what "area" or "district" meant. Following that discussion we felt that we should look into the matter further and I retreated to the Library to see if I could discover from the Oxford Dictionary what definitions were given for the words, but I did not come away too happy. When I looked up the word "district", I found

1333
that relatively straightforward. It was described as:
"A territory made for special administrative purposes, or a division or parish with its own church or chapel and clergyman…".
which I thought was quite homely. However, when I went on to look up the meaning of the word, "area", I did not get far because it was described as "vacant ground", which did not appear particularly helpful; I found out that it could be interpreted as "a region, tract or range". Obviously "area" is a difficult area of the language to define.
In Committee I said that some of us had experienced extreme difficulties in the country districts since the break-up of certain areas. I mentioned the Bath Orthopaedic Hospital and, I believe, the Taunton Orthopaedic Hospital. They were made into one, and parents had to travel some 65 miles on a Sunday or weekend to visit their children or their relatives. I noticed the hardship which resulted from this. I thought the best thing to do was to see whether the doctors and consultants could work any better. When preparing my Committee stage speech, I found the counties of Cumberland and Yorkshire were vast areas, and that if there was to be a National Health Hospital at one end and a private hospital at the other, I could not imagine how the doctors or consultants were going to work between the two. Journeys would amount to many hours, and if there were towns in the way and no by-passes they would find it difficult in an emergency to get from one hospital to another. I am not referring so much to cities like London or Birmingham but to the counties where we have extreme problems and where, if there was snow or ice, the doctor would find travel increasingly difficult.
If rather than "area"—I think "area" goes for a region or a range or a tract—we were to have the word "district", we should have a smaller, more compact unit, and certainly, in my view, a more economical unit. There would not be the same expense for a consultant to move, with the cost of petrol at nearly£1 a gallon; wear and tear of the car and tyres and the possibility of a breakdown. In my view, that would all have to be added to the National Health Service cost. That is an important point. If we could have a small district, I am sure it would not be a finan-
1334
cial burden on the State or on the patients who are going to suffer if the doctor does not get to them speedily. I am convinced that the smaller the area the more efficient it will be. I beg to move.
Lord BROWN: My Lords, if evidence were needed of the useless prolonging of a debate, the moving of this Amendment serves an excellent occasion. Any legal person asked to differentiate between the "area served by a hospital" and "district served by a hospital"—"served" being the operative word—would be quite unable to distinguish. Either the noble Viscount cannot read English accurately or he is attempting to hold up the debate.
Baroness YOUNG: My Lords, before the noble Lord, Lord Brown, intervenes in such terms, he might address himself to Clause 11. The point about this Amendment is that "area" is not defined in the Bill. We have defined "district" and put it into the interpretation clause so that it actually means something. The difficulty about the Bill is to find out what the Government mean by "area". They have not defined it. Perhaps the noble Lord, Lord Brown, knows what the area means. Perhaps it refers to an Area Health Authority, which is an area which is coterminous with county council and is certainly an area which I understand. The object of these Amendments is not to take up the time of the House but to find out what is the Government's intention.
Lord BROWN: My Lords, if anybody could possibly interpret the phrase "in the area served by the hospital" as an "area health board", then they are in great confusion. The point is that "the area served by a hospital" is as clear as you can get in a Bill. If you want to define the Bill down to the last iota you will not succeed.
Baroness STEDMAN: My Lords, I pay tribute to the noble Viscount, Lord Long, for trying to help out. I suggest that if the Opposition could find another word which would mean the same as "the catchment area served by the hospital", we would look at it, but the Amendments are in effect the same as the ones we had at the Committee stage. There was a full discussion at the Committee stage on identical Amendments.

1335
Clause 4(8)(a) reflects paragraph 3(d) of the Goodman Proposals of 15th December that:
"for the retention of beds or facilities for private practice in National Health Service hospitals there should be reasonable demand for private medicine in the area of the country served by those particular hospitals".
Subsection 8(b) also reflects that part of the Goodman Proposals which said:
"For the abolition of beds or facilities for private practice in National Health Service hospitals there should be available sufficient accommodation or facilities for the reasonable operation of private medicine to the area of the country served by those particular hospitals".
Acceptance of these Amendments would involve departure from these criteria as explained at Committee stage. A hospital is not limited to an assigned geographical sphere of operation; a regional or national unit may serve a region as a much wider catchment area. The area may change from time to time depending on changes in organisation and scope of services. The "area or areas served by the hospital" comprise those parts of the country from which patients are customarily received.
As I said in Committee, we do not accept that demand should be related to the district served by hospitals as the Amendment suggests. To do so would be too restrictive and might make it impossible for the Board to have regard to the fact that a particular regional unit serves an area wider than either the management district or management area by which it is administered. Therefore I must ask the House to reject the Amendment.
Viscount LONG: My Lords, I am most grateful to the noble Baroness for once again explaining it to me. As to the noble Lord, Lord Brown, we could well have enjoyed his advice at the Committee stage. As the Government had put down their Amendments we needed to understand the Bill, and no doubt as we go on with our Amendments we shall eventually come to understand it more. However, I will accept the arguments of the noble Baroness. I wanted the Bill to define "district" and "areas". We have had this in many Bills before. Certainly I have not set myself out to hold up the House but rather, on behalf of my noble friends, to find out how the word is interpreted. I am grateful to the noble Baroness, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.29 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 8:
Page 4, line 17, leave out ("and").
The noble Baroness said: My Lords, I beg to move Amendment No. 8 and at the same time to speak to Amendment No. 9. This is a matter which we debated at the Committee stage but I hope the noble Lord, Lord Wells-Pestell, will appreciate that I have read every word he said at the Committee proceedings, and on Second Reading. It is because my colleagues and I feel that it is so important that when the Board makes a decision it should give its reasons for its decision that we put this Amendment down again. I hope that I am not going either to misunderstand or to misquote the noble Lord, Lord Wells-Pestell, in what he said at column 335 and 336 of the Official Report during the Committee proceedings. He said that the reasons why he could not accept the Amendment that the Board should give its reasons, were two; one is that the Board had to have regard to a set of four principals—that I fully understand—and, secondly, as far as I can understand, and I quote from column 336:
"Its reasons for making recommendations are and will always be that it is satisfied that it has met the requirements of the Act in respect of the progressive withdrawal of pay beds and other facilities for private patients."—[Official Report, 10/11/76; col. 336.]
When the Board makes a decision it will do so believing in the reasons that it, at any rate, has for the decision that it has taken. But suppose that there was a disagreement with the reasons. That might not be because the chairman has or the Board have failed in their duty. On the contrary, they might have acted wisely and well. Nevertheless, someone might not agree with their findings. It would surely be only sensible that the Board, in giving its decisions, should give the reasons why it has reached those decisions. To turn to the noble Lord's rhetorical question in col. 336 where he asked why we were asking the Board to give its reasons, I ask why the Board should not give its reasons? So far as I can ascertain, every board of importance has to state the reasons for its decisions. A court must do so, so must a tribunal, so must

1337
the Ombudsman and the local Ombudsman. It cannot possibly be thought that the Board is not as important as any of those organisations.
At a time when, regrettably, nobody's statements are taken at their face value, and when the public endlessly question any decision and when the demand is for more open Government instead of statements without reasons, I cannot understand why the Government cannot accept the Amendment that the Board should be required to give the reasons for its decisions. I realise that the Board will be required to publish an annual report and that a great many annual reports are published by different parts of the Department of Health and Social Services, and I welcome them. However, if I may say so, that is not the same thing as giving the specific reasons for a specific decision. I believe that it is up to the Government to explain why they will not agree that the Board should be required to give its reasons rather than that we should have to say why it should not. It seems to me that not to require the Board to give its reasons will be a most retrograde step at a time when all the public pressure is on Government Departments, local authorities, the courts and any organisations of repute and importance in society to be more open in what they do. I believe that it would be a most retrograde step if this were the one exception. I beg to move.
Baroness ELLIOT of HARWOOD: My Lords, I should like to support the Amendment. We had this debate at the Committee stage and I asked the noble Lord one or two questions which were not answered. Suppose no reasons are given for a decision by the Board. As my noble friend Lady Young said, everyone who is in the position of adjudicating, whether in the courts or as an Ombudsman, has to give reasons for a decision, or should do so. The Board is not to give a reason. Suppose that a controversial decision has been made by the Board and that it cannot be questioned. It seems to me that that would be going against all the traditions of our judicial behaviour. People in this country can always challenge something that they do not agree with.
It may be that a lot of decisions taken by the Board will be passed over as
1338
perfectly simple and normal and that nobody will want to question them; but suppose they do want to do so, how can they do it? Do they have to go to the courts or can they write to the chairman of the Board and ask for the reason? If they can, is the reply to be confidential or can it be made public? It seems to me to be quite extraordinary to set up what will be an extremely important group of people dealing with a very important section of our public life—namely, health and the organisation of hospitals—and then to say that the Board is not required to give any reasons for a decision that it may make. The Board's decisions would probably not be challenged in 90 per cent. of cases, but suppose they were challenged on 10 per cent. I cannot see how the Government, who would normally be fighting for this provision if they were sitting where we are, can justify taking this action of pulling down a shutter against the public for, apparently, no reason. At least, the only reason given by the noble Lord, Lord Wells-Pestell, was that the members of the Board will be so distinguished, so important, so carefuly chosen and so well organised they they cannot go wrong.
I have never known any committee or body that was infallible, and, in any case, I believe that in a democratic society anybody should be able to be challenged to justify a major decision—and, clearly, that is the only kind of decision that would be challenged. I hope that the noble Lord will look on this as being something that definitely fits into the idea of democratic Government and of the rights of people against the bureaucracy.
Lord SANDYS: My Lords, I should like warmly to support the Amendment and to follow the noble Baroness, Lady Elliot, in what she suggested. She said that perhaps 10 per cent. of decisions might be challenged. It might be more—perhaps 90 per cent. of the decisions that the Board reaches will be challenged—but let us suppose, for the sake of argument, that 10 per cent. of decisions are challenged. Let us suppose that, in a particular case, a decision is reached about a hospital in Birmingham. I note with interest that at the present moment there are 129 pay beds there and that 28 are to be withdrawn in the first stage. Let us suppose that in an important hospital

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which is probably known to the noble Lord—the Queen Elizabeth Hospital—the number of beds is scheduled for further reduction and that the Board reaches this decision and publishes it. So far as the consultants, the members of the public and the patients are concerned, that is the end of it, but it may well be that the beds concerned affect one particular specialty and relate to some important research project. We shall come to research later in the Bill. I suggest that it is a matter of great importance for the Department and the Minister himself that the Board should be able to defend its own actions by stating in public in a very open way the reasons for reaching its decisions.
Let us consider what will happen if the Board does not publish its reasons. An issue is raised in perhaps 10 per cent. of cases, as suggested by my noble friend. There will be an enormous number of questions raised in another place or in your Lordships' House. These will be raised quite properly because the Board will not have fulfilled what my noble friends take to be its democratic duty—that is, to state its reasons. What a waste of Parliamentary time!What a waste of research and so on when, had the Board stated in the first instance what its intentions were, the difficulties could have been overcome automatically. What we are trying to overcome is misunderstanding, and misunderstanding grows where information is not supplied.
5.39 p.m.
Lord O'HAGAN: My Lords, I have tried to follow this question throughout the passage of the Bill and the noble Lord, Lord Wells-Pestell, will remember that when we discussed it at the Committee stage I raised the relationship between Clause 4 and Clause 10. Perhaps the noble Lord will correct me if I have this wrong, but, as I understand the purpose of the Bill, it is to impose certain limits on what the Secretary of State can do about authorisations for the revocation of pay beds. It imposes limits on what he is at present entitled to do under the 1968 Act. Under this Bill the freedom of the Secretary of State to control pay beds, which was perpetuated by the 1968 Act, is limited. What we are discussing, in considering the proposals made by the
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Board, is something that up until now has been the responsibility of the Secretary of State, who is accountable to Parliament. Without this Bill, if the Secretary of State had decided to make increased authorisations, or to revoke them, he would have been responsible to Parliament for his decision, could have been asked questions on the subject and Members of your Lordships' House and in another place could have held him to account for what he was doing and asked him why he had done it. As I understand the Bill, the proposals will now become the responsibility of the Board.
We are discussing proposals to be formulated after the initial period when the 1,000 beds are withdrawn and proposals coming at intervals thereafter, about which no consultations have taken place, so that we have no clear idea about which areas will be affected. Then, if I have understood the situation correctly, at that point under Clause 10 the Secretary of State, and I quote from Clause 10(1):
"shall cause every set of proposals submitted to him under section 4 or 5 above, and every report submitted to him under section 4(2)(b) above, to be published as soon as practicable after its submission, and shall lay a copy of every such set of proposals or report before each House of Parliament".
So at that point, if I have understood the Bill correctly—and I hope that the noble Lord will tell me if I have it wrong—the Secretary of State becomes accountable to Parliament for what the Board has done. But it is not his decision; it is the decision of the Board. And he can be called upon, through questions or in debate, to give an account to your Lordships' House or another place, of what the Board has done.
Presumably, at that stage it will want to give its reasons. So we have some element of Parliamentary accountability retained, which is excellent, but the Secretary of State will be justifying proposals that he himself has not made, but which have been put forward by the Board. When we ask questions about the Post Office in your Lordships' House, your Lordships will remember we always get told that this is an independent Corporation and that we are not to interfere in the day-to-day running of something which is not a Government Department. Schedule 1 of the Bill specifically says that,

1341
"The Board shall not be regarded as the servant or agent of the Crown, or as enjoying any status immunity or privilege of the Crown".
I imagine that when one asks a Minister or spokesman in this House questions about decisions or proposals by the Board, we might get the same kind of answers as one gets about the Post Office, which is that the Government are not responsible for the Board. Therefore, would it not be better if the Board, when it makes proposals, gave its reasons for doing so? The Minister is not responsible for the Board's decisions, although he is, to a certain extent, accountable to Parliament.
I wish to make two final points. We understand that the chairman of the Board is to be a judge, or a person of high legal standing. I hope it will be a judge. Judges are used to giving reasons for their decisions. It is something for which judges are eminently well qualified, and I do not think it would impose an enormous burden on the Board if their chairman were to help his colleagues to prepare reasons that could then be published. Finally, when we examine this clause we find, in the lines after those with which my noble friend's Amendments are concerned, these words:
"In deciding what advice to give to the Board in connection with the formulation of any such proposals, the Scottish Committee and the Welsh Committee…".
This is a question of devolution and it may be a matter for the next Session. But can the Government honestly imagine to themselves that the Scots and the Welsh will be satisfied with decisions taken by a Board sitting in London, if that Board does not give reasons for what it is doing? Can the Government really imagine that the Scottish National Party and the Plaid Cymru will forgo this opportunity of saying, "We have an English Board here that sits in London taking decisions. All right. They consult our Scottish and Welsh Committees, but never give their reasons"? Surely, my Lords, it would make the Board work better if it was called upon to give its reasons. If the noble Lord wishes his Government's Board to succeed, he will be well advised to accept my noble friend's Amendment. I hope that he will.
5.48 p.m.
Lord WELLS-PESTELL: My Lords, we studied this matter following our
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discussion on Committee stage. We had taken advice on it. I am sure that what I will say will not find favour with the noble Lord, Lord O'Hagan, or his friends on the other side of the Chamber. We believe that the Amendments are inappropriate, mainly because the duty and the responsibility of the Board is laid down very clearly in the Bill. I speak from memory, but under subsection (7) its function, and what it is required to take into account, are laid down very carefully. There are four criteria upon which the Board has to base its judgment. This is rather different from any other kind of body, tribunal or board where in a sense guidelines do not exist. If one has tribunals, and talk about judges and people of that kind, they give their reasons because they are dealing with something which may have no relationship or bearing on anything that has gone before.
In this case there is a set of principles, or four criteria. The Board has got to work to them; it cannot depart from them. When it reaches a decision, it is based on criteria which have been pre-arranged, to which it must keep. Because of that, we feel that there is no need for it to give its reasons. We want the Board to be completely independent. The noble Lord himself has pointed out that it must submit a report to the Secretary of State, who in turn is responsible to the House of Commons. I do not think one can have any greater safeguard than that. I should have thought that that is all one needs.
Its reasons for making recommendations will always be that it is satisfied that it has met the requirements of the Act in respect of its function. The Board is, in effect, answerable to Parliament by virtue of its annual report, which the Secretary of State must lay before Parliament. I should have thought that this in itself is highly desirable. While I cannot give any assurance about the form in which the Board would set out its proposals, I should be prepared to say that something such as the following would happen. The Board would say that it had considered the level of demand for pay beds at a given hospital over the past year, that it had taken account of the fact that in the past six months a new private home of 40 beds had been opened at some other point, and that consultants from the hospital are making extensive use of these facilities. It might then say

1343
that in the light of this it is satisfied that the fears expressed by the area medical committee are not supported by the facts, and then the Board would make a recommendation. That is the form which we expect its decision to take, and I should have thought that that would almost amount, if not exactly amount, to the Board giving its reasons.
If it had been acceptable for pay beds to be phased out by administrative decision, that would be one thing. I do not think we can have it both ways. If it is to be an independent Board, I do not think that it is reasonable to expect it to be responsible to a Minister, and I do not think that the Minister can answer for the Board. As I said earlier, the House will receive an annual report. The Board will not have to have a Minister answering for it, because in the long run the supremacy will rest with Parliament itself, and for that reason we do not see the necessity for these Amendments. I recognise that the first Amendment is a paving Amendment and that the second one is probably more important.
Baroness ELLIOT of HARWOOD: My Lords, I should like to ask the noble Lord who is to reply if the annual report comes up in the House of Commons or in your Lordships' House? The noble Lord said that a Minister will not be responsible, so who will be responsible for the reply?
Lord WELLS-PESTELL: No, my Lords; what I said was that the Board will be responsible for its decision—not the Secretary of State. The Secretary of State will be responsible to Parliament. The Board's action will be laid before Parliament, and there will be an annual report. So I should have thought that there would be sufficient supervision, if this is what we are worried about.
Lord PLATT: My Lords, allowing time for the annual report to be agreed to and published, it will be a year out of date before it is received by anybody.
Baroness YOUNG: My Lords, I fully appreciate that the noble Lord, Lord Wells-Pestell, has given much thought to this question and has tried very hard to consider the point that we are raising on
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these two Amendments. Once again we get the situation where he says that he thinks our Amendment will be met by the form in which the Board will report its findings, but he is not prepared to say that the Board ought to give its reasons for the decisions that it makes. I hope that I am correctly interpreting what the noble Lord has said. I appreciate that he has taken further advice and that he regards it as inappropriate for the Board to have to give its reasons, first because the duties and the responsibilities of the Board are laid down in the Bill, and that in other instances, such as courts, the guidelines do not exist in the same way.
Of course this argument sounds all very logical and clear, but the fact is that the law and legal questions, and indeed political questions, are based on cases where someone believes that the organisation or the person has not acted reasonably or has not acted fairly. I am in no way impugning the propriety of whoever may be chosen to be chairman of the Board; nor the propriety of any of its members. But the fact remains that some of the Board's decisions will be regarded at intervals by some people as controversial. They may in the end be the right decisions; I am not saying that they will not prove to be the right decisions. But it will be very difficult to discuss the decisions anywhere if we do not know the reasons why the Board has reached them.
The noble Lord explained to us the type of case which he thought might arise. He said that the Board would have considered the level of demand for private practice, would have considered the numbers of pay beds, would have considered the alternative facilities, and would have concluded that, say, 10 beds should be phased out. Of course, the Board will have gone through all the motions. It will have genuinely believed that it has reached the right decision and that in its opinion it has acted properly. The point of issue is that somebody may think that the Board, having reached a certain decision, has reached it on the wrong evidence. That is the kind of point that my noble friend Lord Sandys raised. What will that person do? He will never know the position because the Board has not given its reasons, and so the matter cannot be discussed properly. I thought that my noble friend Lord O'Hagan made a very real point when he said that when

NOT-CONTENTS

Allen of Abbeydale, L.

Greenwood of Rossendale, L.

Peart, L. (L. Privy Seat)

Ampthill, L.

Hale, L.

Phillips, B.

Arwyn, L.

Hamnett, L.

Popplewell, L.

Birk, B.

Henderson, L.

Rhodes. L.

Blyton, L.

Hunt, L.

Ritchie-Calder, L.

Bowden, L.

Jacques, L.

Sainsbury, L.

Brockway, L.

Janner, L.

Sheffield, Bp.

Brown, L.

Kagan, L.

Shinwell, L.

Burntwood, L.

Leatherland, L.

Slater, L.

Champion, L.

Lee of Newton, L.

Stedman, B.

Chorley, L.

Listowel, E.

Stewart of Alvechurch, B.

Collison, L.

Llewelyn-Davies of Hastoe, B.

Stone, L.

Davies of Leek, L.

Lloyd of Hampstead, L.

Stow Hill, L.

Davies of Penrhys, L.

Longford, E.

Strabolgi, L. [Teller]

Donaldson of Kingsbridge, L.

Lovell-Davis, L.

Taylor of Mansfield, L.

Douglass of Cleveland, L.

McCarthy, L.

Wall, L.

Elwyn-Jones, L. (L. Chancellor.)

McCluskey, L.

Wells-Pestell, L.

Energlyn, L.

MacLeod of Fuinary, L.

White, B.

Fulton, L.

Maelor, L.

Willis, L.

Gardiner, L.

Melchett. L.

Wilson of Radcliffe, L.

Gordon-Walker, L.

Morris of Grasmere, L.

Winterbottom, L.

Goronwy-Roberts, L.

Oram, L. [Teller]

Resolved in the affirmative, and Amendment agreed to accordingly.
6.6 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 9:
Page 4, line 26, at end insert ("; and (c) give its reasons;").
On Question, Amendment agreed to.
Lord SANDYS Lord SANDYS moved Amendment No. 12:
Page 6, line 10, at end insert—
("()that no authorisation of any such accommodation or services under those provisions should be revoked so long as their use in that connection contributes to the education or training of medical or dental practitioners or of persons employed in one or other of the national health services or concerned with the interests of patients at hospitals;")
The noble Lord said: My Lords, I think it will be for the convenience of the House if I speak to Amendments Nos. 12 and 13 together, which I also spoke to at Committee stage, when they were Amendments Nos. 45 and 46. These Amendments are set out in terms identical to the terms of the two Amendments I moved at Committee stage; and by way of preface I would say to the noble Baroness, Lady Stedman, if she is to reply, that the intention behind our putting these two Amendments down again is that they are by way of probing Amendments in both cases. We were pleased to have a detailed reply in both cases at Committee stage, but that reply was not entirely to the satisfaction of noble
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Lords on this side of the House because there were a certain number of points which arose out of it. The noble Baroness opened her statement, at col. 397 of the Official Report of the 10th November, by saying this—and I quote her words:
"I recognise that the withdrawal of the private practice facilities from NHS hospitals may result in some consultants being less readily available, but I also think it is important not to exaggerate the extent of this problem by suggesting that the education of medical students, junior doctors and other hospital staff will be adversely affected".
There is a recognition by the Government of the problem, and an assertion that from this side of the House we have sought to exaggerate what we, too, have recognised to be an important factor.
I adduced the arguments at Committee stage, and I will not repeat them; but there are two matters on this particular Amendment, Amendment No. 12, on which I think we would be glad to have further information. In the first place, I should like to draw the Government's attention to what my noble friend Lord O'Hagan said, because he suggested that there could possibly be matters that affect our treaty obligations with the EEC; and once again the noble Baroness made a very firm statement. She said at col. 400:
"The National Health Service is provided for the people of Great Britain, but nothing in this Bill affects our EEC obligations".
What could be fairer than that, my Lords? But there is a lingering doubt in our minds. I do not know whether the Government have addressed themselves to this problem, but we believe that

1349
because of the reciprocal arrangements within the EEC there may well be situations which could arise which disbenefit the training of doctors and could disbenefit the training of personnel within the National Health Service. We do not doubt what the noble Baroness said, because this is a very complicated issue. She took advice on it, and that was the best advice available; but there is a lingering uncertainty in our minds. The weight of the Government's argument on both these Amendments was concerned with cheque book queue-jumping; and it is our view, in examining the situation here, that by far the most important factor is the training of doctors. It is a matter of consideration and I do not know whether we shall get very much further on this Amendment. Perhaps I should at this stage move Amendment No. 12, and see what the Government have to say. I beg to move.
6.10 p.m.
Lord WELLS-PESTELL: My Lords, although I think the noble Lord is right and Amendments Nos. 12 and 13 could be considered together perhaps each needs its own reply. The effect of the Amendment would be that one of the principles to which the Board would have to have regard in formulating proposals for the revocation of authorisations would be that authorisations should not be revoked so long as the authorised facilities contribute to the training of doctors or dentists or other NHS staff or of persons concerned with the interests of patients at NHS hospitals.
Noble Lords opposite made reference in Committee to the Royal Commission on Medical Education which reported in 1968, and while recommending that the number of part-time university teachers should be allowed to fall, pointed to the valuable contribution which part-time consultants made to the education of medical students, particularly in London. The Opposition draw no distinction between highly specialised and routine treatments for which there are waiting lists. Noble Lords opposite saw no reason to prevent a whole-time consultant admitting private patients for routine operations if this would contribute, however marginally, to medical education.
As was said by the Government in Committee, we recognise that withdrawal
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of private practice facilities from NHS hospitals may result in some consultants being less readily available; but it is important not to exaggerate the extent of this problem by suggesting that the education of medical students, junior doctors and other hospital staff will be adversely affected. It is so easy to exaggerate that. This will not be a new development; many consultants already make use of private nursing homes and hospitals some distances away from their NHS hospitals. By no means all NHS hospitals have facilities for private patients and those members of their consultant staff who practise privately have to travel.
The volume of clinical experience that private patients contribute towards the education of staff is of marginal value save perhaps in the case of some of our more specialised units. But Clause 8 provides for the occasional admissions of private patients who need highly specialised treatments. The same provision will also ensure that the contribution of training resulting from the admission of overseas patients who come to this country specifically for treatment and who suffer from diseases or complications rarely seen in this country need not be lost by reason of phasing out.
My Lords, with regard to Amendment No. 13, which in some respects needs to have more said about it, noble Lords opposite want to perpetuate the present arrangements under which a consultant is free to admit to a pay bed any patient, whether a native of this country or from overseas, who is prepared to pay for any treatment, irrespective of the length of the waiting list, if in his judgment research funds would benefit. While the Government accept that it is not unreasonable that consultants with highly specialised skills should not be denied that opportunity of building an international reputation, provided that the treatment they offer to overseas patients is no different from that given to NHS patients, we think it wrong that in places where there are long waiting lists consultants should be free to use NHS facilities to take in patients, particularly from overseas, for non-serious operations in order to enhance revenue for research. That is not the way to finance research.
The Government are not prepared to allow consultants to sell routine NHS

1355
the matter up at a later stage, he had better take precautions. Do I understand that in order to finance research—a very desirable objective—what is proposed is that foreign patients requiring treatment, and therefore the services of a consultant, should receive preference as against the National Health patients? If he is not proposing that, what is he proposing?
Lord SANDYS: My Lords, we went into this matter in great detail in Committee. It would be wearying the House if I repeated the arguments. I am perfectly willing to do so if the noble Lord wishes it. The noble Lord is over-simplifying the situation. This Amendment will benefit research as a whole, not only for foreign visitors to this country. Also, the National Health Service as a whole will benefit by the research projects financed through these means.
Lord WELLS-PESTELL: My Lords, with your Lordships' permission, I had intended to speak before the noble Lord, Lord Sandys, but I was not quick enough. I have not answered the noble Lord, Lord O'Hagan, and although the noble Lord, Lord Stamp, did not ask a question, he referred to Hammersmith Hospital. I hope I am not doing the noble Lord, Lord Sandys, an injustice, but he quoted from the letter which was written to his honourable friend, Patrick Jenkin, and he stopped short. I am sure it was not deliberate, but he should have read out another paragraph, which says this in relation to the loss of revenue for research:
"The problem is not large and the way to deal with any consequences that emerge as phasing out of pay beds proceeds is through our current methods of funding research, which are flexible."
In other words, it is a matter which the Secretary of State says must be dealt with through our current methods of funding research, which are flexible. It looks as though the Secretary of State has taken that on board.
A good deal of play has been made about the loss of revenue. I would say to the noble Lord, Lord Stamp, that the Hammersmith Hospital claim that 98 per cent. of their overseas patients would qualify under Section 8 of the Act's provisions. If that is so, I cannot see that the hospital will be starved very much over a matter of£83,000. That is our understanding of the situation so far as Hammersmith is concerned.
Lord SANDYS: My Lords, I hope the House will acquit me of any suggestion of trying to mislead by failing to read out a final paragraph of a letter. In fact, that final paragraph adds remarkably little to the rest of the letter, according to my reading of it. I always think it is a little tedious to read at length, but I shall note what the noble Lord has said and read at greater length on a future occasion. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.42 p.m.
The Earl of KINNOULL The Earl of KINNOULL moved Amendment No. 14:
Page 6, line 16, leave out ("planning") and insert ("local").
The noble Earl said: My Lords, this is a small drafting Amendment which I hope the Government will accept. It represents an attempt to clarify a little further an Amendment which was moved in Committee to widen the scope here and to include the local authority. I beg to move.
Baroness STEDMAN: My Lords, while the Government do not accept the principle behind this Amendment and reserve the right to oppose it at a later stage, I do not propose to trouble your Lordships by dividing the House on this Amendment, which is consequential on Amendment No. 50 which was carried in Committee.
On Question, Amendment agreed to.
Clause 5 [Restrictions on Secretary of State's powers under sections1 and 2of 1968 Act]:
Baroness YOUNG Baroness YOUNG moved Amendment No. 15:
Page 6, line 43, leave out ("(b)").
The noble Baroness said: My Lords, I beg to move Amendment No. 15 and to speak at the same time to Amendment No. 16. Both are drafting Amendments. It will be apparent on reading Clause 5(3) that to refer to subsection (2)(b) is in fact to refer to something which does not exist: hence, the suggestion to leave out (b). Turning to Amendment No. 16, the purpose of taking out lines 44 and 45 is that they are precisely the same as lines 39 and 40 in the preceding subsection and therefore are repetitive. I beg to move.
Lord WELLS-PESTELL: My Lords, I believe the noble Baroness is attempting to put right an earlier drafting error to which I drew attention on Committee stage. If my assumption is right, I am afraid I must tell the noble Baroness that my understanding is that she has not achieved her object. I am sorry, but that is what I am informed. As I read these Amendments, they would modify Clause 5(3) so as to read:
"After the end of the initial period no authorisation under Section 1(1) of the 1968 Act shall be granted or to any extent revoked otherwise than as mentioned in subsection (2) above."
That would be all right if subsection (2) dealt with authorisations under section 1(1) of the 1968 Act—for example, facilities for private in-patients. In fact, it deals with authorisations under Section 2(1) of the 1968 Act, which refers to facilities for private out-patients.
Inasmuch as the noble Baroness's Amendments are consequential upon those raised by your Lordships in Committee. I should not have resisted them; but I am reluctant to advise your Lordships to carry Amendments which, consequential or not, do not make sense. I wonder whether the noble Baroness would feel disposed to look at the matter again and consider whether her intention would not be better carried out by amending Clause 5(3) so as to read:
"After the end of the initial period no authorisation under section 1(1) of the 1968 Act shall be granted otherwise than as mentioned in subsection (4) below or as a temporary basis by virtue of subsection (5) below, or to any extent revoked otherwise than in accordance with proposals submitted to the Secretary of State by the Board under section 4 above."
I am sorry that this is being sprung on the noble Baroness, but there was nothing I could do about it beforehand. I can well understand that she may want to look at Hansard tomorrow and study what I have said.
Baroness YOUNG: My Lords, these are not Amendments which I had intended to press in any event. They are drafting Amendments, and I am hardly surprised to hear that I have made a mistake in the drafting yet again. This is the kind of fate which befalls Oppositions. I shall certainly take advantage of the opportunity to look at Hansard—I hope I shall have time to do that under what is rather a tight timetable before Third Reading—
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to see whether it is possible to put this drafting Amendment right. In the meantime, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Viscount LONG Viscount LONG moved Amendment No. 18:
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: My Lords, in moving this Amendment, may I say that at Committee stage the noble Lord, Lord Wells-Pestell, was very kind towards an Amendment of mine. He thought that it would be better for me to withdraw the Amendment and to look at it afresh later. Having studied what the noble Lord said, I fully agreed with part of it. What we were asking for was the sale of any property that was no longer to be used: or for it to be offered to other Departments and, if that was not successful, to put the property on to the private market. I had, however, overlooked one point at that time, which concerned the difficulty that would arise over buildings which were already built on to the sides of hospitals. Such buildings cannot be separated, and therefore I would agree with the noble Lord that nothing can be done with such buildings or wings of buildings.
However, I would ask the Government not to leave such wings or buildings empty so that they deteriorate. Certainly I would hope that the numbers of pay beds which are to be withdrawn will not just be put into these wings and used as storage units. I think we should look at the other side of the coin, which is concerned with hospital buildings that will not be used and may probably be left either to deteriorate or perhaps be broken into and windows smashed and so on. I mentioned these points at Committee

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flexibility. He may charge different rates or different scales for lists of things contained in paragraphs (a) to (d). Paragraph (c) is the one that I am moving to leave out. Paragraph (c) reads thus:
"in relation to patients who are…not ordinarily resident in Great Britain".
At first sight this may seem to be a small matter. As I have said already, I do not want to retread the ground which we have already gallumphed over, when the noble Lord answering for the Government thought that I was trying to put forward a case that patients who are not resident in this country should not be charged. Let us be quite clear that that is not what I am suggesting. I am putting forward this Amendment to find what in fact the Government intend. I must begin by repeating one or two of the questions which I put at 2.20 in the morning the other day, because they were not answered.
The first question I want to put to the Government is simply this: How many patients do the Government think come within the category in paragraph (c) which I am moving to leave out? How many of them are there? Is there a large number? Now that we have had an interval of some days since the 10th November, could the noble Lord, Lord Wells-Pestell, provide the House with that information, which he was unable to provide at that time?
In order to look at what the Government are doing, we must have some figures to assess the size of the problem. At that point on Committee stage, the noble Lord, Lord Wells-Pestell, said:
"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."—[Official Report, 10/11/76; col. 560.]
Has the noble Lord been able to excavate some figures in the meanwhile? If so, it would be helpful to have them because it would bring this discussion down to earth in the sense that we would know how many people we were talking about.
My Lords, another question that I pursued the other day was how far it was the intention of the Government that this provision for those who are not "ordinarily resident" in the United Kingdom
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would catch British subjects. Because the wording that the Government have chosen is "not ordinarily resident", British subjects working abroad for the Government, or who are in the Armed Services, or otherwise, might well find themselves in a less favoured position in comparison with people who are foreigners and who are "ordinarily resident". May I repeat the question I put the other day: At what point does this provision catch those British subjects who probably will be out of the country for a short period in the course of their duties? Can the noble Lord give us some indication of the sort of time limit that the Government have in mind?
My two final questions are as follows. In answer to the debate the other day, the noble Lord said that the Government had in mind particularly wealthy foreigners or individual wealthy foreigners whom they felt should pay no doubt an individual particularly high price. How do the Government imagine this will work? The noble Lord, Lord Stone, and I had an interchange in which the noble Lord, Lord Stone, told me that those who were coming here would in every case know how much they were going to pay, because their visit was normally arranged by a British medical practitioner.
The point I was trying to draw from the Government was that if there is now to be a differential rate for particularly wealthy foreigners, how will that particularly wealthy foreigner be sure whether he comes into that category or not, if the Secretary of State has the opportunity of altering the charges when he feels like doing so?
Lord STONE: My Lords, all I can say is that if this happened to me I could arrange this without any Parliamentary discussion or authority whatsoever. It comes naturally. According to the place from whence these people come, and according to their means, I could easily suggest to the authorities that a certain fee should be claimed.
Lord O'HAGAN: My Lords, I am delighted that the noble Lord, Lord Stone, speaks with some certainty and authority. I am not fully acquainted with all the facts—
Lord STONE: My Lords, I am not saying I am the authority, but it would give me pleasure.
Lord O'HAGAN: My Lords, I am accepting the authority of the noble Lord, Lord Stone. I am not questioning that for a moment. I want to know whether the Government share the certainty of the noble Lord. How do they see it working? It may be that the noble Lord is speaking for the Government in this respect, in which case I must congratulate him; but I should like to know. I should like to know how the Government see this working. I should like to know what mechanism the Government plan to set in motion to make sure that everybody is as certain as is the noble Lord, Lord Stone.
Lord STONE: My Lords, if it comes to that sort of thing, I suggest, too, that by the time the matter had gone through all the channels that the noble Lord suggests, the fee would be almost doubled, and that would raise an entirely different consideration.
Lord O'HAGAN: My Lords, I must ask the leave of your Lordships and perhaps of myself before I bob up and down like this. Perhaps I could turn to my final point. It is an extremely serious one; we discussed it on two occasions during the Committee stage, and it has also been touched on by my noble friend Lord Sandys tonight. It concerns the question of our obligations under the Treaty of Rome. I will not repeat what I said the other night about Article 48 of the Treaty; it is on the record. What I should like to know is this. Has the Department that is responsible for this Bill been in touch with the legal officers in the Foreign and Commonwealth Office? Has the Department consulted those legal advisers, or has it not? Has the Department made up its own mind how to interpret the Treaty of Rome, or has it taken advantage of the specialist advisers the Government have working full-time on these matters? Unless we get a clear answer on this point, it may well be that the Government, quite unwittingly, are running the risk of making fools of themselves by introducing legislation which is contrary to our Community obligations and will find themselves answerable to the court in Luxembourg if any disgruntled
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French or Italian visitor to our shores should find himself charged fees which he thought would not be charged to a national and that therefore he was being discriminated against. I beg to move.
Lord STRABOLGI: My Lords, this may be a convenient moment to break for about 45 minutes in order to take other business. I beg to move that further consideration on Report be now adjourned.
Moved, That further consideration on Report be now adjourned.—(Lord Strabolgi.)
On Question, Motion agreed to.

DEVELOPMENT OF RURAL/ WALES BILL [H.L.]
7.3 p.m.
The LORD CHANCELLOR (Lord Elwyn-Jones): My Lords, I beg to move that the Commons Amendments be now considered.
Moved, That the Commons Amendments be now considered.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[References are to Bill (162) as first printed for the commons]
[Nos. 1 and 2.]
Clause 1, page 2, after "(5)" insert "Subject to subsection (5A) below,".
Clause 1, page 2, line 22, at end insert—
"(5A) Except so far as it is authorised under section 3(1)(h) of this Act, the Board shall not engage in farming any land held by it or in forestry or afforestation on such land."
The LORD CHANCELLOR: My Lords, with the leave of the House, I beg to move that this House doth agree with the Commons in their Amendments Nos. 1 and 2 en bloc. It may be convenient to consider with this Motion Amendments Nos. 8, 11, 26 and 28, which are co-related.
Amendment No. 1 is consequential to Amendments Nos. 2 and 8 which insert new subsections (5A) in Clause 1 and subsection (2) in Clause 3, requiring the Board not to use any land it holds for the purposes of farming or for forestry or afforestation except when such use is likely to facilitate the discharge of the Board's functions or is incidental or conducive to their discharge under
Baroness ELLES: My Lords, I thank the noble and learned Lord for having made these further comments. I should add that under the definition of farming in Amendment No. 28 there is in fact no mention of fishing or fisheries, though there is practically every other form of farming that one can think of. Possibly the drafters were not so keen on water as are other noble Lords and noble Baronesses. What concerned us, and I shall accept the noble and learned Lord's undertaking, was the definition in Clause 3(1)(h) concerning the Board's powers to facilitate the discharge of its functions, and of course it does depend on how one defines "functions" as to whether that would include the acquisition of land or not. Since the noble and learned Lord assures the House that it is only incidental to their functions that the management of land would occur, we shall accept this Amendment.
On Question, Motion agreed to.

COMMONS AMENDMENTS
[Nos. 3 and 4]
Clause 1, page 2, line 25, leave out subsection (7).
After Clause I, insert the following new clause:
Directions of Secretary of State to the Board and Consultative Council
. The Secretary of State may, after consultation with the Board, give to the Board directions as to the exercise and performance of their functions, and the Board shall give effect to any such directions.
7.16 p.m.
The LORD CHANCELLOR: My Lords, with the leave of the House, I beg to move that this House doth agree with the Commons in their Amendments No. 3 and 4 en bloc. The effect of these Amendments is to transpose the Secretary of State's power to give directions to the Board from Clause 1(7) to a new clause after Clause 1. The other Amendments are consequential; namely, Amendments Nos. 20, 31, 32, and 33, to which I might conveniently refer at the same time.
Baroness ELLES: My Lords, may I interrupt the noble and learned Lord at this stage in order to draw his attention to the fact that the words, "and Consultative Council" in the margin should surely be removed, and also in Amendment No. 20. Would he confirm that this is right, since the Consultative Council, so far as I understand it, is no longer contained in the Bill.
The LORD CHANCELLOR: My Lords, I am grateful to the noble Baroness. That is correct, and we will see that that is done. In the meantime, if it would be convenient may we consider Amendments Nos. 20, 31, 32, and 33, which arc consequential to the Amendments that are proposed. At the Report stage the Government restored to the Secretary of State in the new clause the power to give specific directions which had been removed by the Opposition Amendments in Committee deleting Clause 1(7) and inserting the new clause with a power of general direction only. This secures the full accountability of the Board to the Secretary of State, and of course from the Secretary of State to Parliament. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor).
Baroness ELLES: My Lords, could the noble and learned Lord tell me what the effect would be if there is a Welsh Assembly? Would the Secretary of State still be responsible for giving the Board directions, or would the Board in fact receive directions from a new Welsh Assembly? I appreciate that there is no provision in the Bill now for this, but would this clause in fact eventually have to be amended?
The LORD CHANCELLOR: My Lords, we have not yet seen the Devolution Bill—I was going to say the colour of the Devolution Bill—and we shall therefore have to wait until then before I can give a positive answer, but I apprehend that the direction could well come from the Assembly. I had better take guidance on that; that is likely to happen, but I say that without giving it as an absolute assurance.
On Questions, Motion agreed to.

COMMONS AMENDMENT
[No. 5.]
Clause 2, page 4, line 3, after "(8)" insert "Copies of".
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 5. This is a drafting Amendment which makes it clear that it is only copies of the Board's annual report that are to be laid before each House of Parliament by the Secretary of

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State and not the actual report made to him. It is surprising that it should be deemed necessary, but apparently it is.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 6.]
Clause 3, page 4, line 6, leave out from beginning to "have" in line 8 and insert—
"For the purpose of enabling it to discharge its general function under this Act, the Board shall, subject to the provisions of this Act,"
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 6. This is a drafting Amendment which clarifies the meaning of subsection (1) of Clause 3.
Moved, That this House doth agree with the Commons in the said Amendment—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 7.]
Clause 3, page 4, line 29, after "on" insert "or acquire and carry on"
7.23 p.m.
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 7. It might be for the convenience of the House to consider at the same time Amendment No. 10. The Amendment extends the power in Clause 3(1)(g) to carry on any undertaking or business by providing that the Board may also acquire an undertaking or business. Amendment No. 10 is consequential to No. 7.
These Amendments clarify the position regarding the Board's power to acquire a business. A doubt exists as to whether the power to acquire land or other property in Clause 3(1)(a) extends to the acquisition of the non-tangible assets of a business including its good will. Extending the Board's power under Clause 3(1)(g) to acquire as well as to carry on a business makes it quite clear that the Board does have this power.
In Committee and on Report in another place the Government resisted Opposition attempts to remove or reduce the power
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of the Board to carry on a business or alternatively to restrict it to new town areas only, on the grounds that it is necessary for the Board to have power to set up and carry on any business where, in the terms of its general functions, it is in the interest of the economic or social development of the area. It would make nonsense of that power if there was doubt on the power of the Board to acquire non-tangible assets. I should emphasise that the Board will exercise this power only where it is unable to interest private businessmen in an enterprise the Board considers is in the interests of the area. A further safeguard against the misuse of the power to acquire and carry on a business is contained in Clause 3(5)(c), which specifically provides that the approval of the Secretary of State is required in each case that the Board wishes to exercise the power.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
Baroness ELLES: My Lords, like Amendment Nos. 1 and 2, we do not find this Amendment particularly satisfactory for the reason I gave when speaking to the earlier ones. The Consultation Document which was circulated to the people of Wales and to all interested parties did not include the power of the Board to acquire businesses. It is a particularly relevant power, because in the area we are considering there are are a great many small businesses, many of which are not succeeding. The people struggling to run these small businesses with the very difficult fiscal and economic handicaps which are being put on them by the Government will suffer even more if a Board with considerable wealth and power can acquire a small business and run it.
It was significant that the noble and learned Lord should refer to a business which perhaps could not interest a private businessman. This will almost undoubtedly mean that they are prepared to take over a business which has no possibility of being run viably and will merely be a way of spending more of the Board's money instead of using the money available to the Board for the benefit of the people themselves. We do not think this Amendment is in the interests of the people of Mid-Wales, and in our view it is very much to the reverse. This

COMMONS AMENDMENT
[No. 9.)
Clause 3, page 4, line 42, at end insert—
"(4A) The conditions which may be attached to the provision of finance under this section include conditions for repayment of the whole or any part of a grant in any circumstances."
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 9, with which it is convenient to deal with Amendment No. 23. Amendment No. 9 gives a power to the Board when giving financial assistance under the general powers in Clause 3 to impose conditions, including conditions that may provide for the repayment in certain specified circumstances of all or part of any grants made. Amendment No. 23 gives a similar power to the Secretary of State to impose conditions when giving financial assistance to social bodies under Clause 25. Amendment No. 23 also amplifies the powers in Clause 25 by empowering the Secretary of State to give assistance to social bodies by way of guarantees as well as by grant or loan, and by providing that any grants repaid to the Secretary of State under the new provision shall be paid into the Consolidated Fund. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
Baroness ELLES: My Lords, I think this matter was fully debated at the Committee stage in another place and I have nothing further to add.
On Question, Motion agreed to.

COMMONS AMENDMENTS
[Nos. 10 and 11.]
Clause 3, page 5, line 1, after "on "insert" or acquire and carry on"
Clause 3, page 5, line 5, at end insert—
"(6A) In exercising any of the powers conferred by subsection (1) above, the Board shall have regard to the need to conserve agricultural land and to the requirements of agriculture and efficient land management."
The LORD CHANCELLOR: My Lords, formally I beg to move that this House doth agree with the Commons in their Amendments Nos. 10 and 11 en bloc. These were discussed with the first Amendment.
Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[Nos. 12 and 13.]
Clause 4, page 5, line 17, leave out "and"
Clause 4, page 5, line 18, at end insert" and
(f) the provision of sewerage services,"
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 12 and 13. It may be convenient for me at this stage to deal with Amendments Nos. 12 and 13 en bloc, and to speak at the same time to Amendments Nos. 25, 86 and 95.
This group of Amendments places the Board on the same footing as new town development corporations elsewhere with regard to the provision of sewerage and related services for new towns. The substantive Amendment of the group is Amendment No. 86. It adds to Schedule 3 a new Part VII entitled Sewerage Services which is an adaptation of Sections 34 and 40 of the New Towns Act 1965. Its effect is to empower the Secretary of State to authorise the Board to provide sewers and sewage disposal works for new town purposes and to provide for the transfer of completed sewers and sewage disposal works to the water authority, which seems to me to be an admirable and necessary purpose. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
Baroness ELLES: My Lords, for once we can congratulate the House of Commons for acting as a very efficient revising Chamber and having inserted some Amendments which probably should have been contained in the Bill from the beginning. It is obviously a very important service and one which undoubtedly finds its place in this Bill. There are one or two points which were touched on in another place but not fully debated, and therefore at this stage, I shall not press the noble and learned Lord for an answer. I should like some notice to be taken of the fact that there seems to be no provision for the disposal of sewage. It seems to me that one of the most important functions of the Board, particularly in a tourist area and a famous coastline which is perhaps one of the few areas of sea round the island of the United Kingdom where bathing is still possible, is the disposal of sewage, or at least that the Board should

1379
see that whoever is responsible takes this function on and ensures that it is dealt with.
As we have been told, and as we who know that part of the world know well, agriculture and tourism are the main industries of Mid-Wales. If the Board or any subsidiary authority acting under the authority of the Board were not to take this into account it might well have a very serious effect on the tourist development of that area. We are only too well aware—particularly those who have any dealing with the European Community—that pollution of the sea is a major element in the development of European policy, so I very much hope that this aspect of these provisions will be studied and taken into account.
Lord BROWN: My Lords, may I remind the noble Baroness that there is a vastly greater coastline around Scotland where bathing is still possible and she must not exaggerate the extent of Wales.
Baroness ELLES: My Lords, perhaps the noble Lord has not bathed in Scotland. I have, and Wales is considerably warmer than Scotland.
Lord BROWN: My Lords, if I may say so the noble Baroness was referring to sewage and she has completely introverted my remarks. I am a Scot and I have bathed around the Scottish coast very satisfactorily.
The LORD CHANCELLOR: My Lords, I do not know whether I should enter this controversy. I know that bathing in the Channel is cool and dangerous enough an exercise. It is a pity that the noble and learned Lord, Lord Hailsham of Saint Marylebone, is not here to give us his useful and, if he will not mind my saying so, his elderly memories of immersion in the Artie waters around the coast. Sewage disposal works are included in relation to new town areas and I believe that in Part VIIA, Sewerage Services, there is a reference expressly to sewage disposal. I quite agree that it would be an appalling omission to collect it without disposing of it and I am confident that that will be done. Certainly the point is noted.
On Question, Motion agreed to.

COMMONS AMENDMENTS
[No. 14.]
Clause 4, page 5, line 19, at end insert "(to the exclusion of any corresponding provision of that Act which is capable of applying within the area for which the Board is responsible)."
7.40 p.m.
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 14, which ensures that in cases where the provision of the New Towns Code which is set out in Schedule 3 is paralleled by a similar provision in the New Towns Act 1965 which is capable of application in relation to a new town within the Board's area the provision of the New Towns Code shall apply and that in the New Towns Act 1965 shall not have effect. I beg to move.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[No. 15.]
Clause 5, page 6, leave out line 26 and insert "in the code"
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 15, which is a minor drafting Amendment whose purpose is to make the wording of Clause 5(4)(b)(i) more precise. There is no change of substance.
Moved, That this House doth agree with the Commons in the said Amendment—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[Nos. 16 to 18.]
Clause 14, page 11, line 26, at end insert "or estimate its value"
Clause 14, page 11, line 37, at end insert "or is authorised to acquire it"
Clause 14, page 11, line 40, after "it" insert "or estimate its value"
The LORD CHANCELLOR: My Lords, with the leave of the House I beg to move that this House doth agree with the Commons in their Amendments Nos. 16, 17 and 18 en bloc. Amendments Nos. 16 and 18 provide that persons may be authorised by the Secretary of State, the Board or a local highway authority

1381
to enter upon land for the purpose of estimating its value as well as for the purpose of survey. Amendment No. 17 extends the provision in Clause 14(1)(c) providing that persons authorised by the Secretary of State or the Board may enter upon land to survey it (or estimate its value if Amendment No. 16 is made) where the Board is considering the purchase of the land in cases where the Board has been authorised to acquire land. These provisions would seem to be necessary and sensible.
Moved, That this House doth agree with the Commons in the said Amendments—(The Lord Chancellor.)
Baroness ELLES: My Lords, while it may be necessary to insert these provisions for the satisfactory working of the Board, they give a further power to the Board when entering somebody else's property so that the Board will be able not only to survey it but also to estimate its value. That sounds quite satisfactory in legal jargon but, thinking of a small tenant farmer or the owner of a small piece of land, I believe that, if somebody comes in and says, "I am just going to see how much this land is worth because we are thinking of buying it," that could have a very harmful effect. It would not promote the kind of trust that one would hope to see between individuals and the Board.
When this was raised in another place, the Minister's reply was not very convincing when he was asked whether the Secretary of State could at least, in giving his authority in writing, include the reason for which the person was allowed to enter the property. We accept that the Board may have to enter, but we should be very much more satisfied if the noble and learned Lord could give some kind of undertaking that the Secretary of State, in his written authority, would state the reason for which entry was required by the Board, whether for surveying or in order to estimate the value of the land. This should he in writing.
The LORD CHANCELLOR: My Lords, I should certainly be willing to look at that point. These Amendments bring the provisions of Clause 14 more into line with the New Towns Act 1965. There is therefore nothing novel or sinister
1382
in them, but I shall certainly look at that suggestion, which does not seem to me to be unreasonable.
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 19.]
Clause 14, page 12, line 19, leave out "Secretary of State" and insert" appropriate Minister" For galley 73
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 19. On this Amendment it may be convenient to speak also to Amendments Nos. 27, 35, 37, 39, 41 to 52, 54 to 85 and 89. The point is a short one and I hope that that news will give some relief to noble Lords.
The purpose of this large group of Amendments is to make clear which Ministers are responsible for provisions concerning the compulsory acquisition of land belonging to statutory undertakers. They are all of a technical nature and there is no change of substance to the Bill. What they do is to substitute the more specific terms "appropriate Minister", "Secretary of State and appropriate Minister" or "relevant Minister" for the term "Secretary of State" as appropriate throughout the Bill, provide a definition of the terms "appropriate Minister "and relevant Minister" and make some necessary consequential Amendments.
I am told that it is thought that this was necessary in order to associate the affected and concerned departmental Minister with the relevant duty and operation. I confess that I found it a little surprising, as I had previously been addicted to the doctrine that in law there is only one office though the office may jointly he held by a number of departmental Ministers. But this is a piece of wisdom and desire which it is thought will clarify the position. Certainly, there is nothing sinister in it, but it involves a great deal of elaboration at this stage. Nevertheless, it is deemed to be necessary.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
Baroness ELLES: My Lords, I wonder whether the noble and learned Lord can

1383
clarify this matter. He said it was a small point although there were many Amendments, but it involves five Ministries—the Departments of Trade, Energy, Industry, the Environment and that of the Secretary of State for Wales, apart from the many Boards and authorities that have been set up to look after this part of Wales. I wonder whether the noble and learned Lord can say whether this new drafting implies that there is an end of collective responsibility. I seem to remember in my earlier days that the fact that the term "Secretary of State" was used implied the authority of Government regardless of who actually wielded it and of which Ministry happened to wield that authority. Can the noble and learned Lord, who, with all his wisdom, is a particularly suitable person to ask in his capacity as Lord Chancellor of the United Kingdom, tell us whether it remains the policy and principle of the present Government that there is collective responsibility and that this is merely a drafting for convenience?
The LORD CHANCELLOR: My Lords, I can certainly give that assurance. I hope that I was not flippant, and perhaps I did not put sufficiently seriously the point that is made, that it is thought necessary to distinguish the responsibility of particular Ministers towards statutory undertakers. They are listed in the Bill. It was the need to identify the particular Ministerial responsibility to the particular statutory undertaker which, it was thought, made necessary the categorisation of the Ministers in the way that I have indicated. It is true that there will be concern at the Departments of Industry, Trade and Energy and the Department of the Environment in this, and I hope that their concern will be to make a success of the work of the Board. That is how the matter stands.
Baroness ELLES: My Lords, I am grateful to the noble and learned Lord for that explanation. If any flippancy were required, I feel that it would be as regards this terrible word "undertaker". It is an appalling word. If only a better word could have been thought of. One can only feel for the poor people of Wales who are going to be smothered with all these boards and with the total bureaucracy that is to fall upon them.
The LORD CHANCELLOR: My Lords, I share the dislike of the noble Baroness for the word "undertaker", but it has long been part of jargon and it is a little late to change it now. However, as I have said, the Amendments do not change the principle of collective responsibility. I have explained why the Amendments have been introduced.
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 20.]
Clause 20, page 15, line 15, leave out '1(7)' and insert (Directions of Secretary of State to the Board and Consultative Council)'
7.50 p.m.
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 20.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[Nos. 21 and 22.]
Clause 25, page 16, line 38, after "person" insert "(other than the Board)"
Clause 25, page 16, line 40, after first "of" insert "Wales or"
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 21 and 22. These are merely drafting Amendments to Clause 25 which clarify the meaning of the text.
Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 23.]
Clause 25, page 17, line 4, leave out from grant 'to end of line 5 and insert', loan or the giving of guarantees or by any combination of those means.
(4) The conditions which may be attached to the giving of financial assistance under this section include conditions for repayment of the whole or any part of a grant in any circumstances.
(5) Any sums repaid to the Secretary of State in pursuance of this section shall be paid by him into the Consolidated Fund.'
The LORD CHANCELLOR: My Lords, I spoke to Amendment No. 23 earlier, on Amendment No. 9. I beg to move that this House doth agree with the Commons in their Amendment No. 23.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 24.]
After Clause 29 insert the following new clause:
Exemption from development land tax.
. In section 11 of the Development Land Tax Act 1976 (which exempts certain bodies from that tax) there shall be added at the end of subsection (2) the following paragraph preceded by the word "and"—
"(i) the Development Board for Rural Wales";
and the word "and" at the end of paragraph (g) shall be omitted.
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in thir Amendment No. 24. With it goes Amendment No. 30. The effect of these Amendments is to exempt the Development Board for Rural Wales from development tax.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
Baroness ELLES: My Lords, this is quite common: a good many boards are exempt from development land tax. But I wish to register a protest on behalf of the small businesses of mid-Wales who will have to compete in business possibly, or with their farming activities, against a statutory body which is not paying all the taxes that they themselves have to pay. The Board will be setting itself up in competition advantageously and derive benefits from not paying the tax that small businesses and other people who are struggling to survive in mid-Wales will have to meet. It seems to me that this has a counter-productive effect, especially in view of the wide powers the Board has acquired and the possibility for it to enter into commerce rather than to be obliged to enable the people themselves to take on commercial undertakings. I
1386
appreciate, however, that this is a common form and that many boards do have this exemption.
On Question, Motion agreed to.

COMMONS AMENDMENTS
[Nos. 25 to 28.]
Clause 30, page 18, line 19, at end insert 'or an order under paragraph 50B of Schedule 3 to this Act '
Clause 32, page 18, leave out lines 40 and 41.
Clause 32, page 18, line 41, at end insert—
"appropriate Minister" has the meaning given by paragraph 54 of Schedule 3 to this Act;'
Clause 32, page 19, line 2, at end insert—
' "farming" includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur or the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and agricultural "and" agricultural operations "shall be construed accordingly;'
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 25 to 28 en bloc. I spoke to these Amendments earlier.
Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 29.]
Clause 32, page 19, leave out lines 22 to 25 and insert—
" 'operational land', in relation to statutory undertakers, means—

(a) land which is used for the purpose of carrying on their undertaking, and

(b) land in which an interest is held for that purpose,

not being land which, in respect of its nature and situation, is comparable rather with land in general than with land which is used, or in which interests are held, for the purpose of the carrying on of statutory undertakings;
'statutory undertakers' means—

(a) persons authorised by virtue of any enactment to carry on any railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking, or any undertaking for the supply of electricity, gas, hydraulic power or water, and

1387

(b) the British Airports Authority, the Civil Aviation Authority, the National Coal Board, the Post Office, the United Kingdom Atomic Energy Authority;

and 'statutory undertaking' shall be construed accordingly;"
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 29. The effect of this Amendment is to extend the definition of statutory undertakers—the unloved word again appears—by including within the definition the British Airports Authority, the Civil Aviation Authority, the National Coal Board, the Post Office and the United Kingdom Atomic Energy Authority. It also specifically defines the term "operational land" in relation to statutory undertakers. This is done in other legislation.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[Nos. 30 to 33.]
Schedule 1, page 20, line 11, after '30' insert 'and section (Exemption from development land tax)'
Schedule 1, page 22, line 42, leave out paragraph 17.
Schedule 1, page 23, line 3, leave out '1(7)' and insert '(Directions of Secretary of State to the Board and Consultative Council')
Schedule 1, page 23, line 12, leave out '1(7)' and insert '(Directions of Secretary of State to the Board and Consultative Council)'
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 30 to 33 en bloc. I spoke earlier to these Amendments and formally move them.
Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 34.]
Schedule 3, page 34, line 10, leave out "made".
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 34, with which go
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consequentially Amendments Nos. 36 to 40. These are merely drafting Amendments whose purpose is to improve the text of paragraph 16 of Schedule 3.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[Nos. 35 to 37.]
Schedule 3, page 34, line 15, after 'State' insert 'and the appropriate Minister'
Schedule 3, page 34, line 18, leave out 'made'
Schedule 3, page 34, line 22, after 'State' insert 'and the appropriate Minister'
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 35 to 37 en bloc, to which I have already spoken.
Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 38.]
Schedule 3, page 34, line 33, leave out from 'made' to first 'is' in line 34 and insert 'in accordance with paragraphs 17 to 21 or 22 to 24 below)'
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 38. This is a minor drafting Amendment to clarify the meaning of paragraph 16(3) of Schedule 3.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[Nos. 39 to 52.]
Schedule 3, page 34, line 37, leave out from 'undertakers' to 'in' in line 38 and insert 'make to the appropriate Minister'
Page 35, line 1, leave out 'made'
Page 35, line 15, after 'State' insert 'and the appropriate Minister'
Page 35, line 20, after 'State' insert 'and the appropriate Minister'
Page 35, line 27, leave out 'may, if he thinks fit' and insert 'and the appropriate Minister may if they think fit'
Page 35, line 34, after 'State' insert 'and the appropriate Minister'
Page 35, line 38, after 'State' insert 'and the appropriate Minister'
Page 35, line 39, leave out 'he thinks fit' and insert 'they think fit'
Page 35, line 47, after 'State' insert and the 'appropriate Minister'
Page 36, line 7, at end insert 'and the appropriate Minister'
Page 36, line 9, leave out 'he' and insert 'they'
Page 36, line 11, leave out 'proposes' and insert 'and the appropriate Minister propose'
Page 36, line 12, leave out 'he' and insert 'they'
Page 36,line 14, leave out 'he' and insert 'they'
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 39 to 52 en bloc. I dealt earlier with these Amendments.
Moved, That this House doth agree with the Commons in the said Amendments.(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 5.3.]
Schedule 3, page 45, line 31, leave out 'document' and insert 'direction'.
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 53. This again is a minor drafting Amendment, making no change of substance.
Moved, That this House doth agree with the Commons in the said Amendment. —(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[Nos. 54 to 86.]
Schedule 3, page 48, line 48, after 'State' insert 'and the appropriate Minister'
Page 49, line 2, after 'State' insert 'and the appropriate Minister'
Page 49, line 6, after 'he' insert 'and the appropriate Minister'
Page 49, line 19, leave out 'proposes' and insert 'and the appropriate Minister propose'
Page 49, line 20, leave out 'he' and insert 'they'
Page 49,line 22, leave out 'Secretary of State' and insert 'Ministers proposing to make the Order'.
Page 49, line 32, after 'State' insert 'and the appropriate Minister'
Page 49, line 34, leave out 'he thinks' and insert they think'
Page 50, line 4, after 'State' insert 'and the appropriate Minister'
Page 50, line 25, after 'State' insert 'and the appropriate Minister'
Page 50, line 30, leave out 'may, if he thinks fit' and insert 'and the appropriate Minister may, if they think fit'
Page 50, line 32, leave out 'him' and insert 'them'
Page 51, line 5, after 'State' insert 'and the appropriate Minister '
Page 51, line 14, after 'State' insert 'and the appropriate Minister'
Page 51, line 18, after 'State' insert 'and the appropriate Minister'
Page 51, line 25, leave out 'Secretary of State' and insert 'appropriate Minister'
Page 51, line 28, leave out 'Secretary of State' and insert 'appropriate Minister'
Page 51,line 40, leave out 'Secretary of State' and insert 'appropriate Minister'
Page 51, line 42, leave out 'Secretary of State' and insert appropriate Minister'
Page 52, line 10, leave out 'Secretary of State' and insert 'appropriate Minister'
Page 52, line 38, leave out 'Secretary of State' and insert 'relevant Minister'
Page 52, line 40, leave out 'Secretary of State' and insert 'relevant Minister'
Page 53, line 1, leave out 'Secretary of State' and insert 'relevant Minister '
Page 53, line 5, leave out 'Secretary of State' and insert 'relevant Minister'
Page 53, line 9, leave out 'Secretary of State' and insert 'relevant Minister'
Page 53, line 12, leave out 'Secretary of State' and insert 'relevant Minister'
Page 53, line 15, leave out 'Secretary of State' and insert 'relevant Minister'
Page 53, line 18, leave out 'Secretary of State' and insert 'relevant Minister'
Page 53, line 19, leave out 'Secretary of State' and insert 'relevant Minister'
Page 53, line 24, leave out 'Secretary of State' and insert 'relevant Minister'
Page 53, line 26, leave out 'Secretary of State' and insert 'relevant Minister'
Page 53, line 36, at end insert—
'(7) In this Part of the new towns code "the relevant Minister" means—

(a) in relation to an order under paragraph 38, the Secretary of State;

(b) in relation to an order under paragraph 46, the Secretary of State and the appropriate Minister;

(c) in relation to an order under paragraph 48, the appropriate Minister.'

Page 53, line 36, at end insert—

'PART VIIA
SEWERAGE SERVICES
50A.—(1) The Secretary of State, on an application made to him by the Board, may by order authorise the Board to exercise for the purpose of the sewerage of the area of any new town situated within the area for which the Board is responsible, any powers exercisable by a water authority under section 15 of the Public Health Act 1936 (provision of sewers and sewage disposal works); and, without prejudice to the provisions of this Act with respect to the acquisition of land by the Board, any such order may provide for transferring to the Board any sewers or sewage disposal works

1391
vested in any water authority whose area comprises the area of the new town or any part of that area.
(2) Before making an order under this paragraph, the Secretary of State shall consult the council of every county and of every district and the water authority for every water authority area in which the whole or any part of the area of that new town is situated.
(3) An order under this paragraph may include a direction that such of the provisions of the Public Health Acts 1936 and 1937 or of the Public Health Act 1961 relating to sewerage and sewage disposal or to sewers, drains, cesspools and sanitary conveniences (including the provisions of the said Acts of 1936 and 1961 relating to the payment of compensation, the breaking up of streets and the power to enter on land) as may be specified in the order shall apply in relation to the area of the new town, subject to such modifications as may be so specified, as if the Board were a water authority (or, where the provision confers or imposes a function on or provides for a thing to be done by or to a local authority, as if the Board were a local authority) and as if the sewers vested in the Board were public sewers.
(4) Where in pursuance of an order under this paragraph, sewers or sewage disposal works are constructed by or vested in the Board for the purposes of the sewerage of any part of the area of water authority, that authority shall make towards the expenses of the Board in the construction or maintenance of the sewers or sewage disposal works contributions of such amount, and subject to such conditions, as may be agreed upon between that authority and the Board or as may, in default of such agreement, be determined by the Secretary of State; and the payment of any such contributions shall be a purpose for which the water authority may borrow money.
(5) Any order under this paragraph which provides for transferring to the Board sewers or sewage disposal works vested in a water authority may provide for the payment by the Board to that authority, in consideration of the transfer, of such sum as may be agreed upon between the Board and that authority or as may, in default of such agreement, be determined by the Secretary of State.
50B.—(1) Where the Board has, in pursuance of an order under paragraph 50A above, been carrying on a sewerage or sewage disposal undertaking the Board may by agreement with a water authority and with the consent of the Secretary of State and the Treasury, transfer the whole or any part of the undertaking to that authority.
(2) The Secretary of State may by order provide for the transfer to a water authority of the whole or any part of a sewerage or sewage disposal undertaking which has, in pursuance of an order under paragraph 50A above, been carried on by the Board, and any such order may contain such incidental, consequential and supplementary provisions as the Secretary of State thinks necessary or expedient for the purposes of the order.
(3) The terms on which the whole or any part of an undertaking is transferred by an order under this paragraph shall be such as
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the Secretary of State, with the consent of the Treasury, may specify in the order, and those terms may provide for the payment by the water authority of such sums, to be satisfied in such manner, as may be so specified:
Provided that the total of the sums so paid shall not exceed the total capital cost of the undertaking less depreciation written off.
(4) Before making an order under this paragraph the Secretary of State shall consult the water authority and any other authority appearing to him to be concerned.
(5) The Secretary of State shall give notice of any order which he proposes to make under this paragraph to the water authority and the Board and, if within 28 days after he has given notice to them either the authority or the Board give notice to him that it objects to the proposal and the objection is not withdrawn, the order shall be subject to special parliamentary procedure.'
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendments Nos. 54 to 86. I have previously dealt with these Amendments.
Moved, That this House doth agree with the Commons in the said Amendments.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 87]
Schedule 3, page 53, line 45, leave out "public".
The LORD CHANCELLOR: My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 87. This is a minor drafting Amendment.
Moved, That this House doth agree with the Commons in the said Amendment. —(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 88.]
Schedule 3, page 54, line 51, leave out from "applies" to end of line 52 and insert "by virtue of section 5(4)(b) of this Act to an acquisition of land under the new towns code".
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 88. Again, this is a minor drafting Amendment relating to the service of notices.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 89.]
Schedule 3, page 56, line 15, at end insert 'and the appropriate Minister.
(3) For the purposes of this Schedule "the appropriate Minister" is, in relation to any statutory undertakers specified in column (1) of the following Table, the Minister specified in relation to those undertakers in column (2) of that Table.

(1)

(2)

Statutory undertakers

Appropriate Minister

1. Statutory undertakers authorised to carry on any railway, light railway, tramway, road transport, dock, harbour or pier undertaking.

The Secretary of State for Transport.

2. Statutory undertakers authorised to carry on any water transport, canal or inland navigation undertaking.

The Secretary of State for the Environment.

3. Statutory undertakers authorised to carry on any lighthouse undertaking.

The Secretary of State for Trade.

4. Statutory undertakers authorised to carry on an undertaking for the supply of electricity, gas or hydraulic power.

The Secretary of State for Energy.

5. Statutory undertakers authorised to carry on an undertaking for the supply of water.

The Secretary of State for Wales.

6. The Post Office

The Secretary of State for Industry.

7. The Civil Aviation Authority or the British Airports Authority

The Secretary of State for Trade.

8. The National Coal Board

The Secretary of State for Energy.

9. The United Kingdom Atomic Energy Authority

The Secretary of State for Energy.

(4) References in this Schedule to the Secretary of State and the appropriate Minister shall have effect—

(a) as references to the Secretary of State and the appropriate Minister, if the appropriate Minister is not the one concerned as the Secretary of State; and

(b) as references to the once concerned as the Secretary of State alone, if he is also the appropriate Minister.

(5) If, in relation to anything required or authorised to be done under the new towns code, any question arises as to which Minister is or was the appropriate Minister in relation to any statutory undertakers, that question shall be determined by the Treasury.'
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 89. This Amendment was dealt with earlier.
Moved, That this House doth agree with the Commons in the said Amendment. —(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[Nos. 90 to 94.]
Schedule 6, page 64, leave out lines 43 to 45.
Page 65, line 1, leave out from "person" to end of line 2 and insert "to whom this Schedule applies who transfers from the employment of the Council to the employment of the Agency, that—"
Page 65, line 27, leave out from has "to end of line 28 and insert" transferred to that employment from his employment with the Council; or"
Page 65, line 35, leave out from "has" to "and" in line 37 and insert "transferred to that employment from his employment with the Council"
Page 66, line 18, leave out from "person" to end of line 19 and insert "to whom this Schedule applies who transfers from the employment of the Council to the employment of the Agency."
8 p.m.
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 90, and it may be convenient to consider Amendments Nos. 91 to 94. The effect of Amendment No. 90 is to remove from the Welsh Development Agency the duty to employ those staff of the Council for Small Industries in Rural Areas employed by the Council on work wholly or mainly in Wales, who request the Agency who employ them when COSIRA withdraws from Wales concurrently with the Board's vesting day. The other Amendments, Nos. 91 to 94, are consequential and relate the provisions of the Schedule to any person who transfers from the employment of the Council to that of the Agency. I ought to give the assurance however that although these Amendments remove the statutory duty on the Agency to employ COSIRA staff whose work relates wholly or mainly to the Council's activities in Wales, the Agency have indicated that they:

1395
"welcome the fact that on Vesting Day the COSIRA staff employed wholly or mainly in Wales will transfer, together with their work, to the Agency."
This has been explained to the staff concerned and they are quite happy about it.
Moved, That this House doth agree with the Commons in the said Amend ments.—(The Lord Chancellor).
On Question, Motion agreed to

COMMONS AMENDMENT
[No. 95.]
Page 70, line 15, at end insert—
'Water Act 1973
10A.—(1) This paragraph has effect for the amendment of section 15 of the Water Act 1973 (arrangements for discharge of sewerage functions) where the circumstances specified in subparagraph (2) below exist.
(2) The said circumstances are that an order is in force under paragraph 50A of Schedule 3 to this Act authorising the Development Board for Rural Wales to exercise the powers of a water authority under section 15 of the Public Health Act 1936 for the purpose of the sewerage of the area of a new town situated within the area for which the Board is responsible under this Act and within a water authority area.
(3) Where this paragraph has effect section 15 shall have effect as if subsection (1) thereof also required the water authority for that area and (at the choice of that water authority) either the Board or any district council within whose area the new town is wholly or partly situated to endeavour to make arrangements for the Board or the district council to discharge as respects the new town the functions of the water authority under Part II of the Public Health Act 1936 (other than those excepted by subsection (3)) and as if the references in subsections (2), (4), (5) and (6) to a or the relevant authority included references to the Board.'
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 95. This Amendment has already been spoken to.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENT
[No. 96.]
Page 71, line 31, at end insert—
'New Towns (Amendment) Act 1976
16. After section 15 of the New Towns (Amendment) Act 1976 there shall be inserted the following section—
"Application to new towns of the Development Board for Rural Wales.
15A.—(1) The foregoing provisions of this Act shall apply in relation to the Development Board for Rural Wales ('the Board') and any new town within the area for which the Board is responsible under the Development of Rural Wales Act 1976 as they apply to a new town corporation for any new town and that town subject, however, to the modifications specified in this section.
(2) A dwelling is a 'dwelling of a new town' if it is a dwelling (whether or not in the area of the new town concerned) erected, adapted, or acquired by the Board for occupation as a dwelling and so erected, adapted or acquired for the purpose of developing any area of a new town or new town situated within the area for which the Board is responsible under that Act.
(3) A transfer scheme shall, in addition to specifying under section 3(6)(b) above the number or proportion of dwellings in respect of which the right to nominate tenants is conferred by the scheme, specify the period for which the right is to be exercisable but the Board's right shall only be exercisable during the period of five years beginning with the date on which the Board's interests in the transferred dwellings vest in the district council or such lesser period as may, with the consent of the Secretary of State, be agreed between the Board and the council.
(4) The powers, rights, liabilities and obligations of the Board which are excepted by subsection (8) of section 7 above from those which a district council are to have in relation to land managed under a transfer scheme include any powers, rights, liabilities and obligations which are certified by the Board as being appropriate for the Board to retain in order to enable them to complete their function of laying out and developing the new town, and subsection (9) of that section shall apply as if the certificate had been given under subsection (8)(c").".'
The LORD CHANCELLOR: My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 96. Your Lordships will be delighted to hear that Amendment No. 96 is the last of this series of Amendments, and I am grateful to the House for listening so patiently to such a stream of general technicality. The effect of this Amendment is to apply the provisions of the New Towns (Amendment) Bill to the Development Board for Rural Wales, by inserting a new Clause 15A in that Bill. The main purpose of the New Towns (Amendment) Bill is to provide for the transfer to the appropriate district councils of the ownership of rented dwellings and related assets held by new town development corporations and the Commission for the New Towns.
Moved, That this House doth agree with the Commons in the said Amendment.—(The Lord Chancellor.)
On Question, Motion agreed to.

HEALTH SERVICES BILL
8.3 p.m.
Further consideration on Report.
Debate on Amendment No. 20 continued.
Lord WELLS-PESTELL: My Lords, the effect of this 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, and patients who are not, ordinarily resident in Great Britain. We discussed this Amendment at some length in the Committee stage last week. There is very little I can add to what I said during the Committee debate on this Amendment, but I should like to explain why it was that I was not able to tell your Lordships how many overseas patients are admitted to National Health Service hospitals and how much income is derived by the NHS from these patients. The reason is quite simply that these statistics have never been kept. Statistics are collected only on admissions, deaths and discharges and out-patient attendances for all patients, whether ordinarily resident in Great Britain or otherwise.
During the Committee stage, the noble Lord, Lord O'Hagan, said that this sub section was an example of the Government's drift towards a "siege economy". I think that was the phrase he used. I am sure that the noble Lord, having had an opportunity to reflect on what he said, might now admit that that was extravagant wording. This provision, as I explained during Committee stage, is similar to a power which has been held by the Secretary of State since 1949 and was contained in Section 17 of the 1949 National Health Service Act. I also explained that the Secretary of State has never used the power in the 1949 Act to determine different rates of charges for patients from overseas to those applied to people resident in Great Britain. What I am saying is that, if the Secretary of State felt it desirable to fix different
1398
charges, he would do so. Perhaps some of us are rather surprised that he has not exercised that power to date. We feel, and I think most noble Lords will agree, whatever they may feel about the National Health Service as such, that the skill, the competence and the expertise found in this country in the medical profession is such that perhaps we ought to cash in so far as overseas patients are concerned, if they want to come to this country for medical treatment. The short answer is that this has not been done, but my right honourable friend the Secretary of State has powers to do so. However, I have to say to the noble Lord, Lord O'Hagan, that he has no plans at the present moment for using those powers.
The provision would enable the Secretary of State to exercise the power in future if, in his view, circumstances caused him to do so. I think that an example of the kind of circumstances in which he might use this power is the one that I mentioned during the Committee stage, where a wealthy foreign patient comes to this country for highly specialised treatment requiring expensive equipment or skills which would cost less here than in other countries of the world.
I said last week in reply to the noble Lord, Lord O'Hagan, that there is nothing in the Bill which can effect existing reciprocal agreements or EEC regulations. I have pursued this matter in the light of what the noble Lord said this evening, and my understanding is that advice has been taken outside the Department from those competent to give advice on this matter, and as a result of that I can repeat what I said last week; that there is nothing in the Bill affecting those agreements or regulations. But I want to assure the noble Lord that the advice was taken outside the Department.
I am sure that it is not necessary for me to say to the noble Lord that any person who belongs to this country is entitled to use the National Health Service. If he qualifies for admission under Clause 8 he would be charged the United Kingdom rate. This raises all kinds of problems, such as how long a person who lives outside the country remains a resident of this country. I believe that it is not just a question of domicile; I think that very often it is a question of what is

1399
happening at the tax level. I cannot be more precise than that.
I turn now to the question of how a foreigner would know that he would have to pay more. This would depend on which channel he uses to get the treatment in this country. He may go to one of our Embassies, in which case we would expect them to know, and I should imagine that we would do something about informing them if the Secretary of State at some time decided to use his powers to increase the charges for foreign visitors. But this does not apply at the moment. I think there is some responsibility on the patient to find these things out. My Lords, I think the noble Lord asked me four questions. However inadequately I may have answered them, I think that I have in fact dealt with the four.
Baroness YOUNG: My Lords, before the noble Lord sits down, may I press him further on this question of a differential charge? I entirely take the point that it is right to make a charge to someone from overseas who is not a British subject and who comes here for a specialised operation which may require very expensive equipment and which may otherwise cost the British taxpayer a great deal of money. What I do not understand is how the Secretary of State can identify who is the rich foreigner. Does he mean that anybody from Saudi Arabia, for example, or from the Middle East, will be charged a lot more, or if he is thought to be an oil sheikh, whereas if he comes from one of the African countries, perhaps, he will be assumed to be poor and will be charged less? Or are the Government actually suggesting a means test? I simply do not know how the Secretary of State will know how to make the charge; and if he does not know how to make the charge, what is the point of putting the power in?
Lord WELLS-PESTELL: My Lords, there cannot be an accurate yardstick for this, but let us be frank about it. It is not difficult to tell when someone wants to come to this country for a particular operation. We would know full well that he was coming into a National Health Service bed and wished to he dealt with privately. I should have thought that this information was easily obtainable from the consultant. I also think that
1400
there are certain parts of the world which would leave one in no doubt as to whether the person had a reasonable income—or, rather, more than a reasonable income. I do not think that in practice it would be as difficult to ascertain these facts as it would appear to be in theory, and, of course, one could discuss it theoretically for a long time.
Baroness MACLEOD of BORVE: My Lords, may I ask the noble Lord a question? He has said "he", but I am sure he means both sexes. When, for instance, it comes to people coming from other countries for abortions, which are very often not done under the NHS, although some are, how are these people to be treated? Because one would surmise that some could well afford quite a large fee, whereas others one knows could afford practically nothing. Has the Secretary of State any authority to guide both the people who are administering the medication and conducting the operation that these people need and the patients themselves; and in what category do they come?
Lord WELLS-PESTELL: My Lords, as in normal life the male embraces the female, so when I use "he" I also mean "she". With regard to the point raised by the noble Baroness, if they have come over here to be treated by a consultant within the National Health Service as a private patient, then we would assume, and I think we would have a right to assume, that that consultant would not introduce as a private patient somebody whom he knows will be able to pay only him and not the charges for the private bed in the National Health Service. We work on that assumption. We are not always right. A large number of private patients, I regret to say, bilk the National Health Service to the tune of many tens of thousands of pounds a year; but that is another story. However, I think we would have a right to assume that a consultant who was going to bring in a private patient to a National Health Service bed would take jolly good care that that patient could meet, not only his fees but also the expenses of the bed.
Lord STONE: My Lords, may I add to that in answer to the noble Baroness? There is a ready situation for people of that sort, in that there are set up what

1401
are called pregnancy advice bureaux, as the noble Baroness probably knows; and they are directed there if they want treatment outside the National Health Service at a very reasonable fee and, frankly, in a very easy and convenient manner.
Lord O'HAGAN: My Lords, I think we have had a useful discussion on this Amendment and that this time round, at a slightly earlier time of the evening, there has been a greater meeting of minds between the two sides of the House. I am most grateful to the noble Lord, Lord Wells-Pestell, for what he has said, although it has not gone very far, particularly on the matter of how, if the Secretary of State decided to use these powers, he will in fact be able to ascertain the means of any particular foreign patient. But I think we have now cleared up a large number of the questions, at least to some extent, and I therefore beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.16 p.m.
Lord O'HAGAN Lord O'HAGAN moved Amendment No. 21:
Page 11, line 11, leave out ("appear to the Secretary of State") and insert ("are").
The noble Lord said: My Lords, with Amendment No. 21 I think I can speak to Amendment No. 22. I can move this Amendment very briefly. These two Amendments are designed to make the clause that we are now discussing clearer, because at the moment there is some ambiguity in that what appears in the Bill as at present drafted is "appear to the Secretary of State" and then later on, in line 12, "appearing to him to be". My Lords, beauty may be in the eye of the beholder, but these charges are either fair or unfair, and it is not really for the Secretary of State to claim to be the sole arbiter of these matters. I think it would be fairer and easier to apply in practice if the words that I seek to omit are omitted and the sole word "are" is introduced instead. If the noble Lord feels that there is some special point in retaining the words that I seek to omit, I should be very glad to hear what it is, but unless he can produce a very good reason why they should be retained I should have thought that it would be more explicit to omit them. My Lords, I beg to move.
Lord WELLS-PESTELL: My Lords, I think it would be helpful if we took Amendments Nos. 21 and 22 together, in which case I will do so. The effect of these Amendments would be to require that the charges determined under Section 31 of the 1968 Act to be paid by persons afforded access to accommodation or services at NHS hospitals under that section of Clause 8 should include such amounts as are proper and reasonable in respect of costs appearing to be properly attributable to capital account, rather than such amounts as appear to the Secretary of State to be so.
The Bill as drafted leaves the judgment of what amounts are proper and reasonable, and what costs are attributable to capital account, to the Secretary of State. That is the Bill as drafted. This is a more practical basis for the fixing of charges than would he the basis produced by this Amendment. The Secretary of State would be unwise to commit himself to having to establish incontrovertibly that his judgments of these matters were correct in order to deal with challenges about the level at which he fixes the charges. A degree of estimation is not only inevitable but also appropriate, and there must also be averaging between hospitals. The Government's intention was expressed in the proposals of 15th December, I think it would be helpful to read it. In paragraph 3(e) it says:
"Charges will be made to these patients (or in the case of patients sponsored by overseas Government, to their Governments) and there would be no subsidy by the NHS."
There is a similar provision in the 1968 Act in Section 1(3) which reads:
"in determining such charges …the Minister shall have regard, so far as reasonably practicable, to the total costs (exclusive of costs appearing to him to be properly attributable to capital account) which, by reference to facts known to him at the time of the determination it is estimated will be incurred…in the provision for resident patients…at hospitals falling within that class".
That is for the average patient. In addition it goes on to say:
"and may include in any such charges, in such cases as appear to him fit, such amounts as appear to him proper and reasonable to be included by way of contribution to expenditure appearing to him to be properly attributable to capital account."
I do not think it would be possible really to calculate these on any other basis, and I think it must be left to the Secretary of State, on the advice given him, to

1403
determine these matters. I do not think in the circumstances that the Amendments would help in any way.
Baroness YOUNG: My Lords, is the noble Lord satisfied that it ought to be left simply to the Secretary of State to charge what he thinks reasonable? Some people are really concerned that, suddenly last year, charges for private rooms in hospitals were put up by three times. No doubt the then-Secretary of State thought that this was proper and reason able. The health authorities, I believe, did not think that that was altogether the case as they had recently reviewed the charges for private beds.
I think that there is concern among people that once again we are giving a power to the Secretary of State simply to impose charges that he or she thinks are proper and reasonable, without any safeguard from anybody else as to whether they are so. That is our concern. I should have thought that in all this there ought to be some effective accounting method so that the costs are covered. If it is thought right that a profit should be made, then a profit should be made; but what was being done should be explicable to anybody who looked at the accounts. I did not draw that conclusion from what the noble Lord said.
Lord WELLS-PESTELL: My Lords, if the noble Lord will allow me to say so, this is not an easy matter. Changes must reflect capital costs, which must be averaged out. There are many other costs which have to be taken into account. There is the nature of the services, the nature of the skill and very often the nature of the operation. Estimates can be made for costs of operations for complaints which are not in themselves serious, but when you move into the more acute area you must think in terms of cost of particular skills and apparatus and so on. This is not done by sticking a pin in a few numbers with your eyes closed. A sincere attempt is made to find out what the costs are. There are finance departments in every hospital and financial experts in the Department, and attempts are made to calculate costs and capital expenditure and then to assess what the charge for a private bed should be taking into account all those other
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costs. I do not see any other way to do it. If people do not like it, it is for them to suggest a much better method and not just to critise for the sake of criticism.
Baroness SEEARS: My Lords, I find this an extraordinary explanation of how this is done. We are asked to believe that it is so complicated that it can be done only with great difficulty. It does not sound any more complicated than the kind of costing operation which is done frequently in commercial concerns. If a contractor is putting in a price he must do a complicated costing exercise. This is a costing exercise like any other. What I understand noble Lords on the Opposition Benches are asking for is that the principle on which this costing is done should be made clear. That is the first point.
Secondly, it strikes me as odd that we are expected to accept the costing without any list of principles or outline of basis on which it is done—and done by the people who are going to benefit from the price. Without any challenge, these are the people who arc going to get the benefit of this price. In no other field of life would one think that they alone, unchallenged and without explanation, ought to be the people who determine how much was to be paid, without any attempt to say how the costing is done or to be open to challenge by the people who pay. My sympathy on the pay bed issue is often with noble Lords on the Benches opposite; but as an explanation of how the price is to be fixed I think this is quite extraordinary.
Lord O'HAGAN: My Lords, it may be that we should not pursue this matter for too long tonight but I think it will have to be pursued later on, for this reason. The noble Lord, Lord Wells-Pestell, quoted the 1968 Act. That is an excellent precedent; and what is the law, as laid down in that Act, is in most instances a very reliable guide to what should continue to be the law. But since the 1968 Act, this Government have chosen to introduce this Bill, and since the 1968 Act there has arisen what Lord Goodman referred to as a "corroded atmosphere" in the National Health Service. Since the 1968 Act, the general feeling of trust and goodwill has, to put it mildly, diminished. So what then might

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have appeared to everybody in an atmosphere of trust and cordiality as a reasonable system, is no longer necessarily a reasonable system simply because it has obtained up till now.
I do not intend to press this Amendment. It was designed to give the Government the opportunity of reassuring us that they would be fair. I wanted to give the noble Lord, Lord Wells-Pestell, the chance to explain, now that the atmosphere of distrust is being dispelled, how the Secretary of State would be looking at these matters so that what happened last year, when the charges were put up repeatedly, will not be thought to be likely to happen again without those who are affected having the chance to voice their views. We have not had an explanation from the noble Lord as to how this will be done in future. I think it probably is too late to pursue it now. In the meantime, I beg leave to withdraw the Amendment.
Lord WELLS-PESTELL: My Lords, if I may have the leave of the House to intervene again, I should like it to go on record that pay bed charges were not increased threefold last year. My understanding of the situation is that they were increased by 30 per cent. in April of this year, and by 50 per cent. in April of last year.
Lord O'HAGAN: My Lords, if I have made a mistake, I would beg to withdraw it.
Amendment, by leave, withdrawn.
Clause 9 [Use by general practitioners etc. of NHS accommodation and facilities for private practice]:
8.30 p.m.
Lord SANDYS Lord SANDYS moved Amendment No. 23:
Page 12, line 26, at end insert—
("Provided that any such charges shall he 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 Lord said: My Lords, we now move into Clause 9 which we dealt with early in the morning, at about 3.30 a.m., in Committee. Perhaps it will be for the benefit of the House if I go into further detail and contrast this clause with
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Clause 8. Clause 9 applies to nonresident private patients and the use by general practitioners of National Health Service accommodation and facilities for private practice. The noble Baroness, Lady Stedman, in her reply on precisely the same Amendment (which was Amendment No. 85) said this at column 581 in Hansard of 10th November:
"In relation to charges to family practitioners in health centres (Clause 9) the provision of Clause 8 would be equally unsuitable."
She went on to describe how the provision of Clause 9(4) had been written into the Bill, which is the portion of the Bill immediately before our Amendment. The reason why we have brought this Amendment forward again is once more a lingering anxiety. I must say that the anxiety has been to a great extent strengthened this evening by the remarks of the noble Lord, Lord Wells-Pestell, because he advanced shortly before our adjournment what I call the doctrine of disclaimed responsibility. He said—and I think I quote his remarks correctly—
"It is not for the Secretary of State to protect private patients from the financial consequences of their choice."
That would be a perfectly reasonable statement to make were it not for the fact that the Government in another part of their policy encouraged the innovation of a Secretary of State for Prices and Consumer Affairs.
I believe that it would be to the great benefit of your Lordship's discussion if we could have a little more information about this situation. We believe that there is a problem here, because Clause 9 sets out a very stringent set of rules. It tells general practitioners and their patients how they should set about an application to the Secretary of State for the use of private accommodation or services. It tells them what will happen to the application, whether it will be considered and whether it will prejudice National Health Service patients in any way. It tells them about the grant of permission; it gives the course of events. But there is nothing whatever to restrict the Secretary of State in any way in making a somewhat arbitrary choice of his selection of fees.
It would be very helpful if the Government could give us a little more information on this point. We have been very pleased to re-examine the comments of

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the noble Baroness, Lady Stedman, so far as the licence and the component parts of the charges were concerned. We should like to hear a little more.
Baroness STEDMAN: My Lords, the noble Lord, as did the noble Baroness when she moved the Amendment in Committee, made it clear that their intention is to prevent the making of the arbitrary charges. The charges now made are not determined on an arbitrary basis: they are covered by the terms of the model licence. This has recently been renegotiated and agreed with the General Medical Services Committee of the British Medical Association. The professions' representatives were clearly mindful of the Government's policy relating to the future of private practice during the course of these negotiations. Furthermore, the Government moved Amendments to Clause 9 in another place at the professions' request.
We are seeking with the profession to preserve the status quo, including leaving charges to be incorporated in the model licence. The Amendment would disturb the status quo and I cannot see that there is any desire on the part of the profession or any real need to do so.
Lord SANDYS: My Lords, we were pleased to listen to the noble Baroness when she made her first reply; her second scarcely varied the words. There is a lingering anxiety about this and that is bound to be so because the noble Baroness cannot say more at this stage. I do not think that it would be for the benefit of the House if I were to press this Amendment, but it is just possible that we may wish to return to it at a later stage. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 11 [Interpretation of Part II]:
Baroness YOUNG Baroness YOUNG moved Amendment No. 24:
Page 14, line 5, leave out ("six") and insert ("twelve").
The noble Baroness said: My Lords, this Amendment is consequential on others that were agreed at the Committee stage. It is to extend the initial period from six months to one year. When we debated the extensions at the Committee stage it
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was recognised just what the Board had to do; after all, the Board cannot be appointed until the Bill receives Royal Assent. It then has to phase out the first 1,000 beds, it has to establish the common waiting lists; and there are a great many other things which will have to be looked at. To expect to do this by May or June, if the Bill receives Royal Assent next Tuesday, seems to be asking it to do its very, responsible job extremely quickly. It is not in the best interests of the whole exercise. This is a consequential Amendment; I do not wish to speak any further on it. I hope that the Government will consider it favourably and I beg to move.
Baroness STEDMAN: My Lords, as the noble Baroness said, this Amendment is consequential on an Amendment made during Committee stage and therefore we will not oppose it.
On Question, Amendment agreed to.
Clause 12 [Control of construction and extension of controlled premises]:
8.38 p.m.
Lord O'HAGAN Lord O'HAGAN moved Amendment No. 25:
Page 14, line 43, leave out ("one hundred") and insert ("two hundred and fifty").
The noble Lord said: My Lords, I beg to move Amendment No. 25 and if I may I will speak to Amendment No. 26. We now embark on Part III of the Bill, and before I discuss these two Amendments in detail, l should like to introduce our discussions on this Part of the Bill by reminding your Lordships of one or two points which affect not only this Amendment but other Amendments in Part III. This Part of the Bill is an attempt to control the hospital building outside the National Service. It lays down various provisions that the Government want to introduce in order to make sure that this control is carried out properly. It is important that we should remember that this control is something which was not contained as a promise in either of the two Manifestos in 1974, nor was it part of the discussions presided over by the noble Lord, Lord Goodman, and therefore it did not form part of what has come to be known as the Goodman Proposals. It is an addition by the Government to those

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proposals; it is something that they felt necessary to add to the rest of the Bill because they feel that without it the Bill would not carry out all the purposes that they seek to achieve.
The two Amendments I am moving are an attempt to alter the size of the hospital to which these controls will apply. At the beginning of Part III we are told that hospitals above and below a certain size will be affected by the Bill. My two Amendments seek to raise the size of those hospitals so that the limits make it possible for hospitals of a larger size to be outside the provisions of Part III. We had quite a lengthy and, indeed, thorough answer from the noble Lord, Lord Wells-Pestell, at 4 o'clock in the morning of 10th/llth November. Certainly I, listening at that time, could not absorb the considerable detail the noble Lord gave us. I have tried to do so since, and it is interesting to note that he began by saying this at column 588 on 10th November:
"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"—
and so on. The noble Lord then went on to justify the particular figures we are now considering. The burden of his remarks was almost entirely connected with staffing ratios and the numbers of staff. He devoted several columns of Hansard to explaining what the Government thought, on the advice received, the likely staff requirements of the new hospitals built by the private sector might be.
Therefore, in moving these Amendments again, I should like to ask the noble Lord: if the main factor that weighs with the Government in setting these limits is the number of staff the new hospitals may employ, why have they not used the yardstick of staff? Why have they used the number of beds? If they feel that the number of staff is the crucial thing, are they quite confident that the particular sizes they have chosen are the right ones?—because, if it is staff they are worried about, surely it should be staff they should be specifying as being the limiting factor for the new hospitals. If the noble Lord could answer those questions and give some fairer reasons as to why the Government felt their judgment—the judgment
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the noble Lord said they have made on the basis of evidence given to them—came down in favour of these particular figures, I am sure it would be most useful. It seems to me it might well be a waste of time for the Board to concern itself with hospitals which could function perfectly well without in any way interfering with the National Health Service if the sizes of the hospitals that were permitted to be built without control were increased. I beg to move.
Lord SANDYS: My Lords, I should like to support my noble friend Lord O'Hagan, because I think he has a real point here. These Amendments were subject to a tied vote in Standing Committee in another place, and that is another reason why we believe they are matters with which your Lordships should be concerned. I have re-read the statement made at 4 o'clock in the morning which was referred to by my noble friend Lord O'Hagan, and there are two points which strike one very forcefully. At the top of col. 588, the noble Lord, Lord Wells-Pestell, said this:
"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 requirement of private hospitals."
That is a very interesting factor: staffing ratios. The noble Lord adduced a considerable volume of examples to your Lordships. It is very interesting, as I say, because the practicalities of staffing differ so widely from what appears in the book. I read with amazement the third example which was given by the noble Lord, again at col. 588, when he said this:
"A third acute hospital of 40 beds is to have 10 sisters, 40 staff nurses and ten medical ancillary staff."
I would very much doubt whether many hospitals of that size are up to establishment. Nevertheless, that is the staffing ratio that was given for the circumstances which we know from experience.
However, I believe that the situation we are trying to remedy by means of this Amendment is somewhat different. I think there is a requirement for higher thresholds for quantity licensing of new hospitals in the private sector, for the reason given by my noble friend Lord O'Hagan—that is, that the smaller hospitals we are concerned with here could

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not possibly interfere with the National Health Service and so why should the Board concern itself with an unnecessary task? I believe it is really a counsel of perfection which is being sought and that, knowing the staffing situation today and also the situation which is likely to obtain in the future, we should not expect the Board to carry out something for which there is really no need.
Lord GRAY: My Lords, while I support the Amendment of my noble friend, it is not to discuss its merits or to add to what has already been said that I rise. I rise in fact to seek information with regard to words which this Amendment directly affects. If the noble Lord, Lord Wells-Pestell, says I am bowling a fast one to him and that he must look at the matter later, I shall quite understand. My point is over the use of the word "premises" in this particular clause, inasmuch as the Amendment of my noble friend has a bearing on its use. It is not my recent acquaintance with another Bill that makes me shy at this word: it is a genuine concern that there is a possibility that this word, in this Bill, in this clause, in subsection (2), might be construed on occasion in a plural sense—as a multiplicity of premises, as opposed to single premises. It would be particularly unfortunate were it possible to place that interpretation upon the word in relation to the substance of the Amendment and the matter under discussion.
The word "premises" occurs about 10 times in the subsection, and it appears to me that there is possibly a case for doubt here. The noble Lord, Lord Wells-Pestell, may be able to tell me at once that there is a precedent in similar legislation or that an interpretation occurs somewhere that would take care of the matter. I have not managed to find it. I do not wish to labour the point; but I am sure that the noble Lord, if there is an element of doubt, would offer to come back before the Bill passes from us and put the matter to rights if there are any justifiable fears in this respect. I am sure that he would agree with me that it is contrary to the Government's intention if such an interpretation could be placed upon the word on any occasion it is used, and I am sure that he would wish to put this right.
Lord HILL of LUTON: My Lords, when the noble Lord comes to reply, I should be grateful if he would address his mind to the basic point raised by the noble Lord, Lord Sandys. I have not re-read the proceedings of the all-night Committee stage. I was here virtually all the time, and I could not endure the thought of reading the account of those prolonged proceedings. But this Amendment seeks to reduce the power of control by raising the figures.
Would the noble Lord address his mind to this point, in dealing with this effort to reduce the area or extension of control? Why a control at all? This is a genuine request for information. It would seem to me that if the private hospital provision has to be developed outside, it will develop only to the extent that there is a public demand for such services. If there is over-provision, then that provision will have to he revised in the light of experience. One does not want to make the National Health Service incomparable by reducing the prospect of anything competing with it. And if it should happen that this private hospital service, the development of which I deplore, attracts skill of the highest order and it comes to provide an exceptionally high service, that will be a situation which is a direct result of this legislation.
But is it an undesirable situation? I do not want to see it. I want private practice to continue to be conducted for the most part within National Health Service hospitals. But if it be accepted that it is to go outside, why control the outside activity? Will it not adjust itself to the public demand? Is it sensible to impose such artificial controls as 100 beds, 200 beds or 250 beds? It may be said, "There will be less competition for staff", but is that such a bad thing? I confess that I regard this Part of the Bill as having a sinister purpose. I can understand the original argument for separating the two. I do not like it; I think it is unwise; I think it will produce the rash of nursing homes that Aneurin Bevan feared. But if that is to be done, what justification is there for controlling the quantity of private provision which unwisely this Bill, when it becomes an Act, will encourage to develop?
If the purpose is the public interest, I do not understand why this additional

1413
pressure is to be brought to bear. The noble Lord has said with great eloquence, from time to time, "We have nothing against private practice. We want to see it flourish for those who need it. But we do not want it inside National Health Service hospitals". If that be true, why not leave it alone? What is the purpose of bureaucratic, administrative, Parliamentary or Ministerial control of this external service of which, necessarily, the Government have stimulated the creation, which will adapt itself to the public demand and the public need without the help of bureaucratic, administrative, Parliamentary or Ministerial control?
Lord WELLS-PESTELL: My Lords, if I may first try to answer the noble Lord, Lord Gray, the word "premises" is not defined in the Bill, as he will know after having read it. "Controlled premises" is defined, and the interpretation of that is "premises". The word "premises" is used in the Bill to define one or more buildings.
If I may attempt to reply to the noble Lord, Lord Hill, I want to be perfectly frank and say that I think there is a responsibility on the Secretary of State, and on any Government which may be in power, to see that there is no development which is likely to be detrimental to the National Health Service, and this could well be. As the noble Lord knows, there is a limited number of medical personnel—and I am thinking of all those professions which aid the medical profession—and I think that there is a responsibility on the Secretary of State to see that the development in the private sector is not in any one place, let alone in several, which is detrimental to the National Health Service.
The noble Lord was right when he said that the private sector will not develop unless there is a need, and, obviously, banks will not put their money—not even American money, I imagine—into the building of private hospitals unless there is such a need. But I do not think we can leave it to the haphazard method of seeing whether banks or other sources put their money into this building. I think that there is a responsibility on the Secretary of State to say, "I must do something to see that any development is not detrimental to the National Health Service". I believe that that is fair, in the circumstances.
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If I may turn to the noble Lord, Lord O'Hagan, who moved these Amendments, it is quite impossible to do anything to satisfy noble Lords opposite. The noble Lords, Lord Sandys, talked about amazement at something I said at, I think, 4 o'clock in the morning. I, at least, was fully awake, although I am not implying that he was not, and was conscious of what I was saying. But the amazing thing to me is that there is no satisfying noble Lords opposite. They ask: Why 100 and not 250? Why 75 and not 150? The short answer is that these are the figures which the independent hospital group, before the Bill was introduced in another place last April, pressed the Government to adopt, and noble Lords sitting on the Front Bench opposite are representing in this House the independent hospital group.
Lord SANDYS: My Lords, may I say straight away that we are not representing the independent hospital group. Every noble Lord speaks for himself in this House.
Lord WELLS-PESTELL: My Lords, the noble Lord is following on something that was said in your Lordships' House last week in another connection. The fact is that if noble Lords are not representing the independent hospital group, they are certainly putting forward—and, may I say, very adequately—the views of the independent hospital group. As the noble Lord, Lord Sandys, said, I went very fully into this matter last week. I am not going into it fully tonight, because I do not think noble Lords want me to do so. I pay them the compliment of saying that I know they have read Hansard very carefully. That is one thing that I can rely upon. What I am saying is that we are doing what we were asked to do by the independent hospital group, and I should have thought the very fact that we had done that would have been sufficient for noble Lords opposite.
Lord PLATT: My Lords, I am extremely interested in the noble Lord's reply to the noble Lord, Lord Hill, because for the first time it is admitted that the whole Bill is undesirable, and will lead to very undesirable consequences and the rash of new nursing homes, and so on, which the noble Lord, Lord Hill, quite rightly deplores. But

1415
if we are to have them forced upon us, whose fault is it?
Lord HARVINGTON: My Lords, may I ask the noble Lord a very short question? He says that all this is done with the approval of the independent hospitals. Did they, in fact, approve the figures of 100 and 75?
Lord WELLS-PESTELL: My Lords, with the leave of the House, I said that these are the figures which the independent hospital group asked the Government to accept, and we have done so. It surprises me that this Amendment should be put down a second time, and I hope that the noble Lord will not say that he is going to take it away and think about it and may put it down again. In a sense, if we have any responsibility to the independent hospital group—and I do not think we have—we have certainly discharged it by adopting the figures which they pressed us to accept.
Lord O'HAGAN: My Lords, I am not going to be provoked by the noble Lord, Lord Wells-Pestell, into saying I will not put this down again and again. I suspect that the independent hospitals group may have been consulted by the Government as to the figures if the principle of control were to be introduced. Whether they asked the Government to introduce control is, I should have thought, a distinctly different matter.
However, we have all had enough of this Amendment. I think the question from the noble Lord, Lord Gray, elicited an answer which worried him, because the Government seemed to think that the word "premises" could apply to one or more hospitals, and therefore you could have an application covering two or three buildings in different places which might be considered as one premises as defined under the Bill. I am not sure whether we should go into all that again, but if that is strictly so, then this control is much more wide-ranigng than some of thought when we first began to study the Bill. I think it is time we moved on to another subject and, for that reason, I beg leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
Clause 13 [Authorisations to construct or extend controlled premises]:
9.2 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 27:
Page 15, line 20, after first ("Board") insert ("in like form as if the application were one for planning permission for the controlled works").
The noble Baroness said: My Lords, this is the first of a series of Amendments about planning permissions and the planning aspects of Part III of this Bill. As the noble Baroness, Lady Stedman, is to reply, she will be aware that on this side of the House we dislike Part III particularly for the reasons so admirably expressed by the noble Lord, Lord Hill of Luton, and my noble friend Lord O'Hagan. Part III exercises a control over private hospitals, and I find it depressing in the extreme to be told that the reason for the control is that private hospitals must not damage the National Health Service. If the National Health Service is any good at all it will stand on its own feet and it will stand up to competition. If it is as good as it has been, then it has nothing at all to be afraid of. The sad thing is, it makes us all realise that what will happen is the general deterioration of both the National Health Service and, I suspect, private medicine as well.
One of the many things which concern us about these rather over-detailed proposals is that someone wishing to establish a private hospital has to put it to the Board. Not only do they have to put it to the Board, but they have to go through the normal planning procedures which any applicant has to go through when seeking planning permission for something.
It may well be for the convenience of the House if I speak to Amendment No. 30 at the same time, which although not on precisely the same point is also concerned with planning. The purpose of Amendment No. 27 is that when an applicant has to apply for planning permission, he should not automaticaly have to put in another application and another set of facts and figures to the Board. One application should serve both purposes, otherwise it simply leads to duplication of effort on the part of the applicant at a time when Government expenditure is supposed to be cut down. It clearly

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requires a whole lot more people to look at these things, and I cannot see that it is in the interests of local government and local authority or, indeed, of the Board, that in looking at these applications they will have to look at more forms. I should have thought that what served the purpose for an application for planning permission could serve for the purpose of the Board. After all, planning applications require a great deal of detailed information.
Amendment No. 30 seeks to add the words in line 35 on page 15, that when authorisation is granted, it will be granted within three months of receiving the application. The noble Baroness, Lady Stedman, will be very familiar with the various time limits in planning applications in which an applicant has to have a reply from the planning authority. I think it not unreasonable that the Board should be asked to give a reply within three months of receiving an application. Therefore, I beg to move both Amendments, which I think will be in the interests of efficient government, and certainly in the interests of helping the applicants through what will be a series of quite complicated hoops. I beg to move.
9.6 p.m.
Baroness STEDMAN: My Lords, I am grateful to the noble Baroness, Lady Young, for suggesting we take the two Amendments together. Amendment No. 27 was one of a large group of Amendments that we debated in Committee. Something like 20 Amendments on the planning aspects were withdrawn, and quite a lot have been put down again in similar, if not the same form. Quite frankly, with reference to Amendment No. 27, I really cannot see how I can help noble Lords any more than I tried to do last time, when I tried to explain that the planning documents and the form which one fills in with applications for planning consent contain nothing like the same details that have to be filled in in order to get the authorisation to do the controlled works.
As the noble Baroness, Lady Young, knows from her association with the Department of the Environment. planners need to know about elevation, drainage, access, the need for carparking, the effect on transport, and so on; whereas so
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far as applications for building of the controlled works are concerned, one needs to establish the number of beds one will have, the surgeries to be provided, the operating theatres, and so on. The two are not synonymous one with the other. Quite frankly, if the description which I tried to give—and I know it was early in the morning—as to why an application for planning permission does not contain the relevant details useful for the Health Services Board in considering applications, was not clear, I cannot think what else I can say that will satisfy noble Lords.
My Lords, so far as Amendment No. 30 is concerned, I think that it indicates that noble Lords opposite have not much faith in the people who will serve as members of the Board and committees. They cannot accept—or it seems to me they cannot accept—that those who will be appointed after the necessary consultations are going to deal with the authorisation applications as quickly as possible. They seem to expect them to be so dilatory that we have to put in a fixed period for consideration of any application for authorisation.
This Amendment really is unnecessary, not only because the Board will, I am quite confident, discharge its duties with all proper speed, but because circumstances may arise in which it simply may not be possible for the Board to reach a decision within three months. Then we have to consider all the procedures that it will have to follow. The regulations made under Clause 16 require the Board to bring any application for authorisation to the attention of the interested parties, and to give those people likely to be affected by the proposed works a reasonable opportunity to make representations. The Board will then need to meet to consider the application and any representations, and it may then need to hold a hearing. Applications in Scotland and Wales will have to be considered by a committee that will hear the representations there and give advice to the Board. So it is conceivable that at some stage there may be an unavoidable delay in the procedure, and perhaps even the sickness of the applicant might cause the postponement of a hearing.
I think your Lordships will accept that this Amendment would put a duty on the

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Board which in exceptional circumstances they might not be able to discharge. I and my colleagues in the Department are satisfied that the Board will be responsible people, that they will take their duties seriously, that they will not stomach any undue delay in giving the authorisation and putting the necessary machinery into operation. I would hope that the House will reject both these Amendments.
The Earl of KINNOULL: My Lords, I should like briefly to support my noble friend. Of course, as the noble Baroness said, this argument really concerns Amendments Nos. 33 to 40 and indeed No. 43. The bone of contention is whether we should accept the provision of a separate application to the Board prior to a planning application. I have taken what advice I could in the short time available. I have spoken to an architect concerned with designing hospitals and also a council concerned with planning. In the case of the architect he showed me a full planning consent. I do not think it is right to say that the planning authority is limited only to car parking and to environmental impact, as the noble Baroness kindly described it to me in her letter. In order to be able to judge car parking and the facilities of the hospital within the total design, they will need to know the number the hospital will be designed for, the number of staff, the provision of accommodation and facilities; that is all part of the application.
The second point the architect made was this, and I wonder whether perhaps the noble Baroness could answer this point because I think it is very pertinent. The planning application form is not a standard form which has to be adopted by Parliament. It is a form that can be designed by any local authority which so wishes. Therefore, it is within the power of local authorities throughout the country to specifically design a planning application to meet the information that the Board wants. This is the argument which thoroughly convinces me that my noble friend is right, that a planning application could meet the information which is required by the Board at the time the application is made. It would bring about a great deal more speed. It would undoubtedly save a great deal of expense. When one looks at the costs of planning
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applications and planning appeals, I know the noble Baroness will agree that every Member of the House would wish to try to streamline them.
The point the planning council made to me was on the question of timing, which my noble friend's Amendment would seek to put into the Bill. It is not a question of thinking that the Board may be dilatory; it is not that at all. We do not under planning law say, "Local authorities may be dilatory and therefore we put in a time limit". It is a self-induced discipline. I think it is good guidance for the Board to know that within three months it should give a reply. It may, perhaps should, have the right to delay the reply for a further month, but at least there should be a time limit. It is most important when you are dealing with planning applications, with the present rate of inflation, to get on with the job. Indeed we are not only talking of the development, but of the provision of facilities for people.
9.14 p.m.
Baroness ROBSON of KIDDINGTON: My Lords, I should like to support Amendment No. 30 putting a time limit on the authorisation. It was at the Committee stage that I spoke on clause stand part, asking the noble Baroness, Lady Stedman, about the problems of local authority members who were both members of the health authority and of the local planning authority. She replied that if it was her she would certainly not serve on both. I believe that this is so, but this does not necessarily provide an answer. She has a greater belief in human nature than I have, because she has again said, "I do not believe that the Board will be dilatory". I do not believe it would be either, but I do not see any harm in having a time limit so that we are certain that it is not dilatory.
The Board may be in existence for some years, and we do not know who the members of that Board will be. It only needs one or two of them to be dilatory for the time limit to be extended. It is essential that, when people are setting out on a planning exercise, applying for permissions on a two-fold basis, first for authorisation and then for planning permission, it should not be dragged out for a period which could be a year or a

1421
year and a half, which would be much too long. I hope, therefore, that the Government will accept the Amendment.
Baroness MACLEOD of BORVE: My Lords, I should like to support this Amendment also. I can envisage the Board having far more work than anybody perhaps realises at this time, except the Government. I envisage that it is going to have a great deal of immediate work. I can also envisage that there are going to be great numbers of people who will want to set up smallish private hospitals or nursing homes. They will set aside a certain amount of money which they will want to spend on the buildings and equipment of that hospital. With inflation as it is now, it is likely that almost 100 per cent. more money will be needed if the planning permission is not granted within six months or a year.
Other Members of your Lordships' House know a great deal more about planning than I do, but I know a certain amount about costing. If one has to delay buying any piece of equipment, or delay building a hospital, or a house, or any other building, with inflation as it is now the costs are likely to go up by at least 100 per cent. It is important that the people who are going out on this very expensive project should have a time limit set for them within the Act.
Baroness STEDMAN: My Lords, with the leave of the House, may I say that it is important that noble Lords understand that the planning procedure is quite separate from the Part III duties of the Board. It would be for the people who wanted to make the application for an authorisation for the building to get the authorisation first. In order to grant the authorisation the Board would want to know what they propose to carry out so that it could inform itself as to the extent and character of the proposed development, and also of what private medical provision is available in the area, as an indication whether there would be sufficient alternative provision to enable it to propose further revocations of the pay beds if the authorisation is granted.
The requirements needed in order to to get the authorisation are so different from the ones needed later when you apply to the local authority for planning permission. The local planning authorities,
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on the first outline planning permission, do not want anything like the detail needed when you apply for the full permission. The architects may go into a lot of detail when doing the full planning permission, but they will do so when their clients are primarily certain that they are going to get their outline permission and that they have got their authorisation.
I do not think that we ought to ask the planning authorities to extend their forms —and I really do not see how it is possible for them to do so—in order to take account of the Board's requirements. We are going to run into serious difficulties. I would also ask the House to resist putting in the time limit of three months. I am sure that my right honourable friend, when the time comes, will be giving guidance to the Boards. I am sure that one of the things he will give them guidance on is that they should not be dragging their feet on any applications which they receive. It would be unwise to tie them down to three months, when in certain exceptional cases three months may not be long enough.
Lord WINSTANLEY: My Lords, I follow the noble Baroness's argument about the difference between seeking authorisation and obtaining planning consent, and we appreciate that there is nothing she can do to speed up the machinery of planning consents; that is not contained in the Bill, nor is it her business. What I am not clear about is her objection to Amendment No. 30 because of the figure of three months, or is it that she objects to any figure at all being set? Presumably the noble Baroness would agree with us that it would not be acceptable if people had to wait for an indefinite period for an authorisation. Sooner or later there must come a time which she would herself regard as too long. Clearly she regards three months as too restrictive and I am wondering, in view of what she said, whether she would care to suggest some other figure because I feel sure that she must feel that there must come a time when a decision must be given. If it is not three months, how long does she think it should be?
Baroness STEDMAN: I should not like to suggest a figure, my Lords. In normal circumstances three months would

1423
probably be long enough, but I think we would be foolish to tie Statute to the period of three months when there may be the odd exception with delays that are unforeseen and unaviodable. One would then have to go over to four months and the planning board would then be in trouble. I think I would be satisfied if my right honourable friend were to give the guidance that as a general rule he would expect these matters to be dealt with within the three months, and I am sure that is the sort of guidance the boards will be getting from my right honourable friend.
Viscount KEMSLEY: My Lords, might I suggest that we use the phrase which is frequently used in legislation, "within a reasonable time"?
Baroness STEDMAN: I hope it will be, my Lords.
Baroness YOUNG: My Lords, I hope that the noble Baroness, Lady Stedman, is right and that in the circular which goes out explaining how the Bill will work the Government will put in a time limit because, dealing with Amendment No. 30 first, I was aghast when I heard her describe the kind of reasons why three months would be too short. I was aghast because my experience on planning committees has taught me that when a planning committee decides that it should take part in some public consultation exercise, unless it puts a time limit on it, the amenity society will discover that the secretary is away on holiday, that the committee cannot meet for perhaps two months and that therefore they cannot be consulted until whoever it is returns from wherever it is they have gone, and the wretched applicant is left for an indefinite period without a decision. It is not the fault of the applicant and it is not, strictly speaking, the fault of the planning committee.
There is something to be said for having a time limit because it concentrates the mind and if one writes to an amenity society saying, "We must have a result within three months. We are consulting you. Would you kindly give us your views on this matter within this given time", one knows that one is getting somewhere. Without a time limit one
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will have exactly the circumstances I described, and I am sure the noble Baroness is as well aware as I am of the number of times when precisely this sort of thing can occur.
In this circumstance not only has the applicant to go to the Board to get the authorisation to build the hospital, but he must then go to the planning committee for planning permission, and without a set of time limits this exercise could take years, and that is no exaggeration. By the time everybody has been consulted, everybody has put in their objections, the Board considers the matter, it meets, and the matter goes through all the hoops of planning—outline planning permission, detailed planning permission, consultation with the neighbours and so on—it is not an exaggeration to say that that could take two years. I hope, therefore, that the Government will take this point seriously and put on a time limit by which the Board must give a decision.
On the question of the special form, I am not convinced by the argument. I think that planning committees could produce a special form, particularly as they, the county council, would be among the few people aware of a structure plan and of the amount of private hospital accommodation in the area. They are much more likely to be aware of it than the applicant building the private hospital. If it is a question of a detailed plan and it is referred to the district, again. the district will know precisely the kind of detailed information they want. They may not want as much as the Board wants and perhaps the Board should design a form which is suitable for use by a planning committee. Nevertheless, I still cannot see that two forms are necessary.
We have had a good run on these Amendments and I am sure the House will agree that they have been worth discussing. They are not matters which I intend to press to a Division, but I hope, as I said in opening, that Lady Stedman will press her right honourable friend, when he writes his circular, to take account of these points. They are very real considerations. A great deal of money is tied up in these developments and it is the applicant, and eventually the private patient, who will bear the cost. We have had a lot of debate about what is a reasonable cost. It would not be a

1425
reasonable cost if planning permission and authorisation had been unreasonably withheld and therefore the time limit is important. I do not intend to press this tonight but I hope the point will be fully considered. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.25 p.m.
Viscount LONG Viscount LONG moved Amendment No. 28:
Page 15, line 25, leave out ("to a significant extent") and insert ("substantially").
The noble Viscount said: My Lords, with the leave of the House I should like to speak also to Amendment No. 29 and to inform the House that at 12.41 the other morning I moved Amendment No. 62 and spoke to Amendments Nos. 63, 93 and 94. I noticed that we did not move two of the Amendments into the Bill and I am now seeking to do so. We agreed that the word "substantially" should go into the Bill at page 9. This has been done. On the other page the old wording, "to a significant extent" still appears. I beg to move that these two Amendments should join in holy matrimony with the other two.
Baroness STEDMAN: My Lords, as the noble Viscount has said, these two Amendments were down but were not moved in Committee. The Government need to be satisfied that developments in the private sector do not significantly endanger the service the National Health Service give 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 phrase "to a significant extent"—for which these Amendments would substitute "substantially"—thus gives effect to the safeguard which was foreshadowed in the 15th December proposals.
The Amendments cover similar ground to the Amendments to Clauses 7 and 8 of the Bill which were debated thoroughly during Committee stage. During the debate the statement made by the former Minister of State in another place was quoted, that the substitution of "substantially" for "to a significant extent" would allow a greater amount of interference with the Secretary of State's performance of his duties or disadvantage to
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National Health Service patients, but would not give an indication of how far the amount would be increased or what would be its limit. The words "to a significant extent" are intended to ensure that the Board is not bound to take account of minimal interference or disadvantage, but would be guided by whether or not there would be noticeable and effective interference or disadvantage. We think this is a fair and reasonable interpretation of what was foreshadowed in the Goodman Proposals, and I hope the House will accept that explanation.
On Question, Amendment negatived.
9.30 p.m.
The Earl of KINNOULL The Earl of KINNOULL moved Amendment No. 31:
Page 16, line 8, after ("authorisation") insert ("(provided that no authorisation shall lapse after the controlled works have been begun)").
The noble Earl said: My Lords, as we slip gently into the night against the interests of our own good health I hope that our joint wisdom will not fall on deaf ears. This small Amendment is still on a point of clarification, something which I know was raised in another place and during the Committee stage in your Lordships' House. The Amendment relates to the lapsing of an authorisation consent once that consent has been granted by the Board.
As I understand it, if a consent is granted, it is most likely that there will be a time limit within which the work must proceed, and if it is not completed within that time the consent will lapse. That is easily understood. At the other end of the scale, once the development has been completed the consent will be spent and will evaporate. What is not covered is what happens if a start is made and, according to the Board, the development does not continue at the speed the Board wants. Is there a possibility at that stage of the consent lapsing or being revoked? The noble Baroness was kind enough to write to me to indicate that there was a significant difference between these two things. Indeed, there is, because revoking would have to be revoking on a condition laid down in the consent, and lapsing would not. I hope that the noble Baroness will be able to clarify that point which of course deals only with work that has made a start. I beg to move.
Baroness STEDMAN: My Lords, it was early in the morning when we came to this Amendment in Committee. I gave your Lordships quite a full explanation then of the provisions in the Bill governing the duration of authorisations, and I undertook to write to the noble Earl, Lord Kinnoull, giving him the reply to questions. That, as he reminded the House, I have done. The important thing is to distinguish between. an authorisation lapsing, on the one hand, and an authorisation being revoked on the other. Whatever the circumstances in which the authorisation either lapsed or was revoked, the Board would only be able to refuse to reissue an authorisation for the same project if there had been some material change in circumstances which meant that the Board now thought that the project could cause detriment to the National Health Service.
The Board may, with the consent of the developer, alter the conditions of any authorisation and it would be able to extend the period for the development if the developer was not able to complete within the time laid down. I hope that these points may reassure the House.
The Earl of KINNOULL: My Lords, I am grateful for that explanation and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
The Earl of KINNOULL The Earl of KINNOULL moved Amendment No. 32:
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 Earl said: My Lords, this is perhaps a more important Amendment in principle. It concerns the right to transfer an authorisation consent. Again, this is something that has been discussed in another place and in this House. To date, the Government have given two replies. The first was that, in their view, no provision is necessary because the owner of the consent can withdraw and a new licence be applied for. Secondly, the Government saw a danger, if this provision were added to the Bill, of its leading to what they termed "unmonitored transfers" and the possibility of a black market operating. I have tried to take advice from outside to discover what
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was the likelihood of a black market in these cases. I have not found anyone who felt any confidence that there would be tremendous value in these authorisation consents.
However, I believe that there is a serious fault in not allowing a consent to be transferred. I am not sure whether the consent will be issued in the name of a person, a charity or a corporate body, or whether it will be related to the land. Planning consents of course go with the land and not with the person, and I feel that the Government, in drafting this provision. have seemed to regard the consent in the same light as a gaming licence; that is, they are concerned with the character of the person and his ability to provide a service. I would ask the noble Baroness to look at this provision again and to recognise that there is a worry that those who have consents should be allowed to transfer them, subject, as the Amendment suggests, to the right of the Board not to allow a transfer if it thought it had reasonable grounds not to do so. That is a slightly Irish way of describing the Amendment. My Lords, I beg to move.
Baroness STEDMAN: My Lords, we have looked carefully at the points which the noble Earl raised on the last Committee stage when he asked whether, under the Bill, it would be possible for a developer, having been granted authorisation, to sell his company and by this means transfer the authorisation with the assets of the company. I said then that I should have thought it would have been possible, and I take this opportunity of confirming what I said then.
I realise that it could be used purely as a device for transferring authorisations, but it would be a rather cumbrous procedure for a developer to try to adopt. The Board, as I said in Committee, would have no reason for refusing to transfer an authorisation in respect of the same development if none of the circumstances had changed. I would also remind noble Lords that if an authorisation, as part of the assets of a company, passed with the company to a new owner, it would remain subject to the terms on which it was originally issued, which could include the time limit after which the authorisation would expire if the controlled works in question had not been

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begun. I hope that that information clears the point which the noble Earl had in mind.
The Earl of KINNOULL: My Lords, that explanation certainly helps to clarify the situation and I would not want to pursue it further at this stage. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.38 p.m.
The Earl of KINNOULL The Earl of KINNOULL moved Amendment No: 32A:
Page 16, line 11, at end insert—
("(5) An authorisation granted under this section shall be for a period not less than three years.").
The noble Earl said: My Lords, this is a simple Amendment and, in a way, similar to my noble friend's Amendment No. 30. It is designed to put a minimum time limit on an authorisation consent. I do not think that the noble Baroness has ever been challenged as to the kind of timing the Board is likely to be asked to put in its conditions. In these magical instructions to go round, it would be helpful to know the position. I would add that the three-year limit has been designed to be parallel to an outline planning consent, which is three years, and, as the noble Baroness would know, detailed planning consent has a time limit of five years. I beg to move.
Baroness STEDMAN: My Lords, the Government have considerable sympathy with the intention of the Amendment, but they consider that it would not be appropriate to include it within the Bill. The noble Earl, who obviously has a more considerable knowledge of planning matters than I, may be aware that the provisions of Section 41 of the Town and Country Palnning Act 1971 requires that a development which is the subject of planning permission must be begun within five years of the date of award, or within such longer or shorter period as the planning authority may stipulate. Thus planning authorities have discretion in this matter. It is difficult to imagine circumstances in which the Board would issue an authorisation for a period of less than three years. But we should accept that the period of authorisation is something over which the Board, as a responsible and independent body, should have
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discretion. It would be inappropriate to write into the Bill conditions which would, in effect, place limits on the Board's freedom of action, however well-intentioned those conditions might be.
The Government have consistently said that they intend to provide the Board with an independent status such as was envisaged in the Goodman Proposals, and an integral part of this independence, in the Government's view, is that the Board should be free to decide what the duration of an authorisation should be. It may help to allay the noble Earl's fears if I explain that the Council on Tribunals, which will have the general supervisory role in relation to the Board, is placed under a duty by Section 1 of the Tribunals and Inquiries Act 1971, to keep under review the constitution and working of the bodies under its supervision. This would mean that if the Board were to determine the duration of an authorisation which was considered to be either capricious or unreasonable by the applicant, the council would, on referral, be able to investigate the applicant's complaint and, if appropriate, take it up with the Board. Therefore I hope that the noble Earl will not feel that he has to press this Amendment.
9.40 p.m.
Baroness YOUNG: My Lords, the noble Baroness said that the reason why she cannot accept my noble friend's Amendment is, I understand, that it would be unnecessary because the Board will be independent and does not need to be tied down. But her noble friend the noble Lord, Lord Wells-Pestell, said on an earlier Amendment that the Board did not need to give its reasons on anything because the guidelines were laid down very precisely on the matters on which it was likely to make a decision.
I should have thought that my noble friend has identified exactly the kind of case where perhaps an authorisation were made for less than three years and for one reason or another lapsed, and the Board did not give its reasons. It could be very disturbing if people did not know why. I cannot see why, in order to be consistent, the Board should be so tightly tied down in Clause 4, except of course that it is in the Goodman document; at any rate, we see that. Why can there not be added this kind of provision which,

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as the noble Baroness has quite rightly said, would be somewhat in line with the provisions under the planning Acts? It could well be that the applicant could get his permission under the planning Acts, which would hold good for five years, and then upon going to the Board, find that his permission lapsed after a short period. This would be grossly unfair, yet it is not impossible because the two are not working to a consistent standard. Perhaps this is a matter which the noble Baroness would like to look at again; it is the kind of matter which the Secretary of State also might like to look at. I am sure that the noble Baroness will see, as I can see, that there could be a miscarriage of justice.
Baroness STEDMAN: My Lords, I am grateful to the noble Baroness for what she has said. Yes, I think that I should like to look at this matter again and have further discussions with my right honourable friend.
The Earl of KINNOULL: My Lords, I am very grateful to my noble friend, and indeed to the noble Baroness for her very detailed reply. I am also heartened to learn that she feels that I have a little knowledge on planning, which of course I have not; but at least I am heartened in that I have given that impression. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause I5—[Planning permission for works requiring authorization]:
9.43 p.m.
The Earl of KINNOULL The Earl of KINNOULL moved Amendment No. 41:
Page 18, line 7, at end insert—
("(4A) For the purpose of any application for planning permission for any controlled works and any appeal as aforesaid, an authorisation for those controlled works shall be conclusive as to the matters referred to in subsections (2) and (3) of section 13 above.").
The noble Earl said: My Lords, I submit that this is an important Amendment. The House will recall that under Clause 15, which deals with planning permissions, no application for a planning permission can be entertained by a planning authority until an authorisation consent has been granted. Under Clause 13 the reasons and the tests which
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will be applied by the Board in consideration of that authorisation application are set out. As we have already discussed, these tests are technical in nature. The Board has to consider one aspect in principle: whether the works in question would interfere with the duty of the Secretary of State in regard to National Health Service Acts and whether they would operate to any disadvantage to National Health Service Hospitals. A little further on in Clause 13 we see that the Board has to look at the more technical points of the service which would be provided, the staffing available, and so on
The Government advice that the noble Baroness has already given us under Clause 14, is that under planning considerations the advice and the technical evidence that the Board consider is outside the scope of the planning authorities. If we accept this, then I hope the noble Baroness will be able to accept the Amendment. The Amendment is trying to ensure that in the event of a planning application and consideration by the planning committee, or in the event of a refusal and that planning application going to appeal, then the technical questions that have been considered by the Board will be conclusive and will not be the subject of debate in any appeal procedure or in the planning committee. I hope that with that brief description the noble Baroness understands my Amendment, and that the House does, too. I beg to move.
Baroness STEDMAN: My Lords, I think that I should like to give a little more thought to what the noble Earl has said. The planning authority and the Board are two separate bodies. I should like to look at the point again, and I shall, if I may, try to come back to the noble Earl before we start the Third Reading tomorrow.
The Earl of KINNOULL: My Lords, I am grateful for that undertaking, and on those grounds I should like to withdraw this Amendment.
Amendment, by leave, withdrawn.
Lord WELLS-PESTELL: My Lords, my noble and learned friend the Lord Chancellor will be dealing with the next Amendments, and he is on his way to

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the House. This gives me an opportunity, subject to the permission of your Lordships, to make what I think amounts to a personal statement. When we were considering Amendments Nos. 25 and 26, moved, I think, by the noble Lord, Lord O'Hagan, I understand that I said that the figures of 100 in London and 75 outside London were what we were asked to accept by the independent hospital group. Let me be perfectly frank about it: I got my figures confused. What I ought to have said was that the figures in the Amendment that the noble Lord was moving—that is, 250 and 150—were what the independent hospital group wanted. So I was in error; and I wanted to tell the noble Lord and the House that and, at the same time, to apologise to all noble Lords for what was a misleading statement.
Clause 17 [Appeals]:
The LORD CHANCELLOR The LORD CHANCELLOR moved Amendments Nos. 4IA, 41B, 41C, 42A and 42B:
Page 20, line 1, leave out ("this section") and insert ("the preceding subsection").
Page 20, line 11, leave out subsection (5) and insert—
("(5) Rules of court relating to appeals under this section may provide for excluding so much of section 63(1) of the Supreme Court of Judicature (Consolidation) Act 1925 as requires appeals to the High Court to be heard and determined by a Divisional Court; but no appeal to the Court of Appeal shall be brought by virtue of this section except with the leave of the High Court or the Court of Appeal.").
Page 20, line 15, after ("High Court") insert ("or the Court of Appeal").
Page 20, leave out from beginning of line 25 to first ("the") in line 27 and insert ("On any appeal brought under or by virtue of this section").
Page 20, line 30, at end insert—
("(8) An Appeal shall lie, with the leave of the Court of Session or the House of Lords, from any decision of the Court of Session under this section, and such leave may be given on such terms as to costs or otherwise as the Court of Session or the House of Lords may determine.").
The noble and learned Lord said: My Lords, I apologise that I was not present when these Amendments were due to be called. In moving Amendment No. 41A, which stands in my name, I think it may be conveient if I also move Amendments Nos. 41B, 41C, 42A and 42B, since they all relate to the same point; that is to say, the right of appeal. Those of your Lordships who had the good fortune to be present at 6.16 a.m. last Thursday morning will have heard the criticism which the
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still highly-alert noble Baroness, Lady Young, advanced about the appeal provisions which are now contained in Clause 17. Summarising it, the noble Baroness's argument was that to make the decision of a single judge of the High Court final was to open up the possibility of conflicting decisions on points of principle as between one judge and another which ought to be but could not be reviewed by a higher court, or a difference of view which could not be finally resolved between the Court of Session in Scotland and the courts in England.
As I indicated then, the Government were not taking a dogmatic line, and there arises the question of balancing the need for finality and the avoidance of endless litigation, on the one hand, and, on the other hand, the need to provide a reasonable and sufficient right of appeal against a decision of the Board. My view has been that points of law are not very likely to arise in the context of the Board's decisions and that one appeal to the High Court or Court of Session was sufficient to obtain an authoritative decision on any point of law which might arise. It was said by A. P. Herbert in respect of our system which not only provides for appeals from a High Court judge to the Court of Appeal but to the House of Lords, that one level of appeal he thought adequate and two, desperate. However, that is the set-up we have and it has been well trial and, I think, well justified.
Having given the matter further thought and after discussion with the noble Baroness and with the noble and learned Lord, Lord Hailsham of Saint Marylebone, I think that in order to reduce the risk of conflicting judicial decisions the prudent course will be to allow a further channel of appeal from the High Court judge to whom an appeal on a point of law would go in the first place. The combined effect of the Amendments I have moved is to make provision on the pattern which is normally adopted under the Tribunals and Inquiries Act 1971 in cases where an appeal lies on a point of law from the decision of an inferior tribunal. The effect will be in England and Wales that there will be an appeal as of right to a High Court. Whether this will be to a single High Court judge or to the Divisional Court will be a matter for the Rules Committee, but the practice in recent

1435
years has been for appeals from inferior tribunals to be heard by a single judge. I would expect that to be the position here. A further appeal would lie, with leave, to the Court of Appeal and thence, with leave, to your Lordships' House. In Scotland, the appeal will lie from the Court of Session, with leave, directly to your Lordships' House.
I do not depart from my personal opinion. Indeed, I hope that these provisions for further appeals will be little used; but, as I have said, on reflection I think it right that they should be there in case they are needed and the requirement of leave at each stage of an appeal above the High Court or the Court of Session will ensure that time is not unduly wasted on frivolous or hopeless appeals. I therefore commend the Amendments to your Lordships and I beg to move.
Baroness YOUNG: My Lords, I should like to express on my own behalf and on behalf of my colleagues our gratitude to the noble and learned Lord the Lord Chancellor for bringing forward these Amendments. I was particularly delighted to hear my own arguments so well expressed by the noble and learned Lord because, although we debated this matter at 6.15 in the morning, it is an important matter and one which I am sure everybody on all sides of the House will agree should have been put right. We are particularly pleased that the noble and learned Lord has been able to do so and I should like to express my thanks to the Government on this matter and for the trouble that the noble and learned Lord has taken personally over it.
On Question, Amendments agreed to.
The LORD CHANCELLOR: Amendment No. 42 falls with the acceptance of Amendment No. 41A. It is not moved, or, alternatively, it falls.
Clause 22 [General provisions as to regulations]:
Lord O'HAGAN Lord O'HAGAN moved Amendment No. 44:
Page 23, line 20, leave out ("he may recognise as being") and insert ("are").
The noble Lord said: My Lords, it may be for the convenience of the House to
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take Amendment No. 45 with Amendment No. 44. These two Amendments, and Amendments Nos. 50 and 51, are designed to reduce the divine right of the Secretary of State. The Secretary of State has an unlimited power to recognise what he feels like recognising. He can judge bodies to be representative if they appear to him to be representative. If something is representative it should not be left to the Secretary of State to decide whether or not it is. If these bodies are representative, it is not necessary for them to appear to the Secretary of State to be representative. I hope that the Government will take the opportunity to explain why they have these words in the Bill. I beg to move.
9.56 p.m.
Lord WELLS-PESTELL: My Lords, I will speak to Amendments Nos. 44 and 45 as the noble Lord has been good enough to move them together. These Amendments would require the Secretary of State to consult, before making regulations,
"Such other bodies as are representative of medical and dental practitioners, and such bodies as are representative of interests likely to be substantially affected by the regulations".
The Bill, as drafted, requires consultaton with such bodies
"as he may recognise as being representative of medical practitioners and dental practitioners"
and such bodies as appear to the Secretary of State
"to be representative of interests likely …"
The Amendments, if carried, could allow the Secretary of State to be challenged, if other people disagreed with the exercise of his discretion as to which bodies are representative of the medical or dental professions. or of persons employed in the NHS, or are representative of interests likely to be substantially affected by regulations. These categories are not absolutely clear and definite. There could quite well be dispute over whether a certain body is or is not likely to be substantially affected. There could equally well be dispute over which bodies really do represent the medical and dental professions, and persons employed in the NHS, and NHS patients. The present wording of the Bill, I hope the noble Lord, Lord O'Hagan, will agree, allows a very practical and necessary flexibility. This is important. It enables the Secretary of State to use his judgment in deciding who, in his view, properly represents bodies

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likely to be affected by regulations; and it enables him to consult those bodies whom he recognises as representatives: this is important. There are many different bodies and associations to which medical and dental practitioners, and other NHS staff, and NHS patients could belong. One could almost say they are legion. Some are perhaps much more (shall I say?) representative than others and are recognised as such.
We have to face the fact that—and the noble Lord, Lord O'Hagan, would know this as well as anybody in your Lordships' House—that sometimes one embarks upon something knowing full well that it is impossible to consult all the bodies involved. One has to choose those which are recognised, generally speaking, by everybody as being the spokesmen, the authoritative groups. The Secretary of State must be allowed by this Bill to consult the bodies whom he is accustomed to recognise as representatives of the relevant categories. The noble Lord,
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Lord O'Hagan, will take it from me that in this particular field the Secretary of State is unlikely not to know the people with whom he should be consulting. For that reason, I hope that he will not press the Amendment.
Lord O'HAGAN: My Lords, I thank the noble Lord for that explanation. I take it that he has assured the House that the Secretary of State will not use this discretionary power unreasonably to exclude those he might normally be said to be representing. He has really given an undertaking that the customary bodies would continue to be consulted, as I understand it.
Lord WELLS-PESTELL: My Lords, I have indeed.
Lord O'HAGAN: My Lords, in that case, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Schedule 1 [The Health Services Board and its committees]:
10.1 p.m.
Baroness YOUNG Baroness YOUNG moved Amendment No. 46:
Page 25, line 9, at end insert ("who holds or has held judicial office").
The noble Baroness said: My Lords, we debated this Amendment at Committee stage hut, on refreshing my memory, I see that it was by that time 6.37 in the morning and after 16½hours in Committee we were all finding it a little exhausting to go into full detail on all those Amendments. I put this down again, because we regard it as an important Amendment and in the intervening time we have had the opportunity to read in Hansard what was said. Again, I feel a certain diffidence in talking about the legal profession and the sort of person who is required to be chairman of this Board, but I think we are all agreed that the job is very important and I would guess it to be one that would be virtually full time. There will be a great many things to be decided and it will certainly be a full-time appointment in the beginning, considering the amount of work that will have to be done. It will require someone who will be acceptable to all the members of the Board and obviously it must be somebody of distinction in whom everyone will place considerable trust. I looked to see what the noble and learned Lord the Lord Chancellor had said, and I quote his words from col. 629 on 10th November:
"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 this person who becomes the chairman is not a judge, what is the sort of person who is likely to be appointed as chairman if he is a lawyer? If he is a barrister, I understand the difficulty there is that a barrister would find it very difficult to give up the time to become chairman. The profession of barrister is, above all, a profession of the self-employed, and the difficulty would be that if a barrister ceases to practise the solicitors will promptly go off to somebody else and he would find it difficult to get
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his practice back again. Therefore it would be very unlikely that any barrister of eminence and standing would wish to do this job, because he would be really giving up his professional career for a three-year appointment, or whatever it might be, without any certainty that the appointment would be renewed. The question then arises: who are we likely to have if we do not have, as a lawyer of standing, a successful barrister? I hesitate to talk about somebody being a less successful barrister, but perhaps he might be called the opposite of the successful barrister. Is that the kind of person in whom everyone would have confidence? The other alternative might be a barrister who, for some reason or another, has not the temperament to become a judge and therefore might not be regarded as the ideal person to become chairman of this Board.
Contemplating these alternatives, perhaps they might not appear to be serious suggestions but I believe this is a very serious matter indeed. It is vital to get the right chairman of the Board and I hope that, if the noble and learned Lord is to reply to this, he will be able to say what he means by "a lawyer" and what sort of lawyer he expects to get. Does he, for example, expect to get a successful barrister? Can he be certain, if he does get one who gives up his practice, that the person concerned really will feel he has freedom to disagree, if necessary, with the Secretary of State or the Government of the day? Will the barrister feel, having given up his practice, that he is tied to this job because there is no other job for him to go to? In the latter case he would not have the independence that everyone would like to see. Therefore, I think we need to have a judge for this job, as our Amendment suggests, and if a judge is appointed to be chairman of the Board not only will members of the Board find that he is a better chairman, but others involved in this matter will have greater faith in any decisions that he may make. My Lords, I beg to move.
Lord WINSTANLEY: My Lords, I entirely sympathise with the substance of the argument of the noble Baroness, Lady Young, but I would venture to doubt whether her wording is in any way apt. I cannot understand the term, "has held judicial office". I understand the

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term, "has held high judicial office", because I believe that that is contained in some Acts of Parliament as being a qualification for a Member of your Lordships' House sitting upon the Appellate Committee. But when I see the simple term, "has held judicial office", all kinds of queries spring to mind at once, about which I would welcome the noble Baroness's observations in due course.
A circuit judge is clearly a person who holds judicial office. Is a deputy circuit judge, who may have sat for half a day in his life in order to deal with an excess of work, to be regarded as qualified? A registrar of a county court, who is not a lawyer of vast experience or standing, is a person who holds judicial office. Is a justice of the peace to be regarded as a person who holds judicial office? A metropolitan magistrate is clearly a person who holds judicial office. Is a deputy metropolitan magistrate, who may be a comparatively junior member of the Bar who has sat for half a day or one day in order that observation may be made of his ability to do the job, to be regarded as such a person? Indeed, taking the matter to an extreme I should have thought that a person who has sat as the president of a court-martial is a person who has held judicial office. In the circumstances, I find it very difficult, although I sympathise with the point which the noble Baroness is seeking to make, to regard the wording of her Amendment as in any way apt to meet the point which she is raising.
The LORD CHANCELLOR: My Lords, it may be convenient for me to reply at this stage. May I say at once that the Government do not think that this will be a full-time job. We think that the noble Baroness is exaggerating the amount of litigation that will flow, and we also feel that she is exaggerating the number of meetings of the Board and the amount of work that will flow to it. Our assessment is that the chairmanship can be conducted on a part-time basis.
We certainly contemplate that it should be a lawyer. I was asked: What kind of lawyer? The answer, of course, is a very good lawyer. The extraordinary thing about good lawyers, who are busy in practice, is that they are always able to
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find time to perform public duties and part-time work of this kind. I cannot spare any judges. My problem is to man the courts with the judicial manpower that I have. We have reasonable confidence that one of the worthy members of the Bar—and I hope it will be a "silk"—will undertake this important duty of chairman. To limit it to a judge, either a former judge or a present judge—and, speaking as Lord Chancellor, to spare an existing judge is frankly not "on"—is not in my view as satisfactory as leaving it to us (arid I shall assist in this matter, with the Department) to find a good lawyer of standing, who will command the confidence of those who will be appearing or making representations to the Board.
We are making rather heavy weather of this. This is a problem that I meet frequently as Lord Chancellor, the problem of finding counsel of standing to fulfil these duties. They hardly ever fail us when we ask them. Without going into the interesting question raised by the noble Lord, Lord Wigoder, as to what judicial office is, when I contemplate the choice of 21,000 lay magistrates who proudly claim to be performing judicial office, of course, many of those might be suitable for the chairmanship duties. But I do not think the noble Baroness had that in mind. Speaking seriously, we contemplate finding a lawyer of standing who will command the confidence of the parties who come before the Board. In view of that assurance, I hope the noble Baroness will not press her Amendment.
Lord BALERNO: My Lords, could I ask the noble and learned Lord the Lord Chancellor whether a member of the Scottish Bar would be eligible for consideration for the post of chairman?
The LORD CHANCELLOR: My Lords, I would not exclude a member of the Scottish Bar. They have some of the most eminent lawyers in the country there, as I discovered recently on a happy visit to Parliament House. They would certainly not be excluded.
Lord WINSTANLEY: My Lords, the noble and learned Lord has said that he cannot spare any judges. In this office, I would not particularly like any judge

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which the noble and learned Lord may find he can spare. This is one of the troubles of this matter. The noble Baroness, Lady Young, said she was a little diffident about talking about the law and lawyers in this House. Indeed, we are all rather diffident in talking about the law, except for lawyers who, it seems to me, talk about nothing else.
I would say that I am as concerned as anyone about the identity of this person. I am sure we all want to see someone acceptable to all the various sides of the argument, someone who will devote a considerable amount of time to the job and someone who commands the respect of all the parties concerned. But whether we can guarantee that—despite definitions about people who have or have not held judicial office—merely by having a judge, I rather doubt. If we reduce this Amendment to its simple terms of who has held judicial office, who has been a judge, we would get someone who had been a judge; in other words, someone whom it was high time he stopped being a judge. Frankly, in this office I would prefer someone, as it were, in full figure rather than someone about whom people felt that it was time he moved on. Although I sympathise with the motives behind the Amendment and with what the noble Baroness, Lady Young, has said, I would rather see this left open in this way. I would rather we reserved the right to object strongly if some totally unsuitable person is finally put forward.
Baroness YOUNG: My Lords, we are being put into an extremely difficult position over this. I take the point raised by the noble Lord, Lord Wigoder, about this. Perhaps I have not drafted the Amendment as closely as I should. The difficulty in which we find ourselves is that we move on to Third Reading tomorrow and cannot put down manuscript Amendments, which I would have liked to do, to amend this and to correct the Amendment. I have agreed to this timetable entirely, I presume, to suit the Government, because it is quite wrong in principle to have Third Reading the day after Report stage when we shall barely have had time to read Hansard. But I suppose, as anyway we are supposed to be a rubber stamp on the Bill, it does not
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matter much whether or not we say anything. This is quite typical of the arrangements that have been made.
Baroness LLEWELYN-DAVIES of HASTOE: My Lords, as I think the noble Baroness, Lady Young, knows quite well, the arrangements were between the usual channels. It is always difficult to arrange things at the end of a Session. I think the aspersions the noble Baroness has cast on us are really rather unworthy of the Benches opposite.
Several noble Lords: No, no!
Baroness YOUNG: My Lords, I am not trying to cast aspersions on the usual channels. I am aware that the arrangements were made through the usual channels. I was consulted about them through the usual channels at the only time possible; that is, at the end of a 16-hour session we had in Committee. It has been rather difficult for some of us, and we are now put into a very difficult position over what I regard as an important point. I take the point made by the noble Lord, Lord Wigoder, that this is perhaps too widely drawn; that perhaps "judicial office" does mean what the noble Lord says. I had understood that it applied to circuit judges and to registrars of county courts; I did not realise that it applied to every magistrate or even presidents of courts-martial. I am afraid I do not agree with the noble Lord, Lord Winstanley. I think it is not good enough to say that a whole series of people might be put up before the Board and people can go on objecting until they get the right person. I suppose it would put off the work of the Board, and if that was what was wanted that would be a very good way of doing it.
I think this is a very important job, and I think it will take a lot of time. It is not good enough to say that there are a whole lot of lawyers who can do it in their spare time or who at the moment have nothing else to do and are waiting to be asked to do this kind of work. In view of what has been said, I find it very difficult to press the Amendment, but I must say that I find this a very unfortunate ending. I feel that I have been put in a difficult position. If I can put down a further

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Amendment tonight on this point I shall do so but, in the meantime, I beg leave to withdraw the Amendment.
The LORD CHANCELLOR: My Lords, I honestly do not understand how this difficulty has been built up in this way. I have said that, in collaboration with the Department, I have every confidence that we shall find a lawyer of distinction to undertake this important work. How that is dismissed as something wholly unsatisfactory, I confess I cannot understand.
Amendment, by leave, withdrawn.
Baroness YOUNG Baroness YOUNG moved Amendment No. 47:
Page 25, line 10, leave out ("two") and insert ("three").
On Question, Amendment agreed to.
Baroness YOUNG Baroness YOUNG moved Amendment No. 48:
Page 25, line 13, leave out ("two") and insert ("three").
On Question, Amendment agreed to.
Baroness YOUNG Baroness YOUNG moved Amendment No. 49:
Page 25, line 14, at end insert ("of whom one shall represent the interests of nurses and the professions supplementary to medicine, and one shall represent the interests of hospitals patients generally").
On Question, Amendment agreed to.
10.18 p.m.
Lord O'HAGAN Lord O'HAGAN moved Amendment No. 52:
Page 26, line 35, leave out ("regarded as").
The noble Lord said: My Lords, it is said in the Schedule that the Board,
"shall not be regarded as the servant or agent of the Crown, or as enjoying any status, immunity or privilege of the Crown".
If the Government intend the Board to be independent, would it not be simpler to say what they mean? My Amendment is to make the wording more explicit. I beg to move.
Lord WELLS-PESTELL: My Lords, may I suggest to the noble Lord that we deal also with Amendments No. 52 and 53 as they go together? The effect of these Amendments taken together would be to provide that the Board should not
1446
be the servant or agent of the Crown or enjoy any status, immunity or privilege of the Crown. The Amendments alter the wording, but our view is that they do not alter the meaning of the paragraph. We find this Amendment rather surprising, because in point of fact the wording is much the same. It is the same wording that goes in other Bills; I have to confess that the words have been taken out of other Bills and have gone into this Bill. The wording of the paragraph is a standard provision which is used in other legislation; for example, in paragraph 1 of Schedule 2 to the Fair Trading Act of 1973 in relation to the Consumer Protection Advisory Committee.
As your Lordships must be aware, the Bill has been drafted—and I am not in any way exaggerating—by a professional legal draftsman, and since there would be no alteration in the sense, there is no reason why it need be altered in the way proposed in these Amendments. I do not think anything is gained. I am not suggesting that anything is lost, but as it is already in the Bill, and they really both mean the same thing, I would suggest to the noble Lord that he leaves it as it is.
Lord O'HAGAN: My Lords, since the objective we share is the same, and in spite of feeling that on the whole it is better to say what you mean, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.21 p.m.
Lord SANDYS Lord SANDYS moved Amendment No. 54:
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 Lord said: My Lords, this Amendment deals with a matter about which we feel strongly, because it is concerned with the filling of vacancies. I think that on the previous Amendment the noble Lord mentioned that the legal draftsmanship of the Bill had been based on previous legislation concerned with committees of this nature. It is possible, therefore, that there is a simple explanation why the draftsmanship in Part IV of Schedule I is as it is. The way it is drafted rather suggests that it is concerned with the ineligibility of the retired or

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defunct member for remuneration. It is the sort of drafting which one would expect in matters concerning Revenue points or those concerning the Treasury.
There is a real need for a small Board, a Board consisting of only a few members. Of course this afternoon your Lordships' House has increased the membership from five to seven. Even so, there is a very small membership, and therefore it makes it even more a matter of urgency that the Secretary of State should fill a vacancy if and when it occurs. As drafted at the present moment, we learn from Schedule 1, Part IV that the Secretary of State may declare the office to be vacant and he is told to notify the declaration in such a manner, et cetera. But there is no instruction for the Secretary of State to act on that declaration.
This may be a form of words; it may be a current practice, and we believe that it should be incumbent upon the Secretary of State to act forthwith. I should here refer to the word "forthwith" because it is important. It implies an urgent obligation, and "forthwith" means something rather special in legal terms outside its definition in day-to-day terms. As we understand it, "forthwith" in this context means by following the normal procedures and without delay in all the circumstances. I think that our request for further information here may not be satisfactory so far as the Government are concerned. We hope it will be. But it seems from our inquiries, and indeed by examination of notes on clauses, that no particular urgency is to be expected in this regard. I beg to move.
Lord WELLS-PESTELL: My Lords, I think I can satisfy the noble Lord. As he says, this Amendment would require that whenever the Secretary of State declares an office of a member of the Board vacant in the circumstances set out in paragraph 9 of Schedule 1, he shall forthwith fill the vacancy. That is the purpose of the Amendment. We discussed this question on Amendment No. 134 at Committee stage. As I said then, if "forthwith" is to mean immediately, this puts us in some difficulty.
The Amendment is inconsistent with Schedule 1(1), which places a responsibility on the Secretary of State to consult
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interested bodies about the appointment of members of the Board. This is a duty that is placed on the Secretary of State; if there is a vacancy he must consult the interested bodies about the appointment. I do not see how he could appoint somebody "forthwith" if he has to carry out these consultations. That does not mean that there need be great delay; the consultations could be undertaken very quickly. However, it will not amount to forthwith if "forthwith" really means immediately. I also said that the Government entirely agreed that there should not be any undue delay in the filling of a vacancy and that vacant posts should be filled as quickly as possible. We therefore accept the principle of the Amendment, but at the same time we must have regard to the duties placed on the Secretary of State under Schedule 1(1).
A further important point is that the Board must consist of seven members and that the Secretary of State has an obligation to discharge his statutory duties under this provision. If a chairman or member were unexpectedly to resign his office or die or become incapable of discharging his responsibilities to the Board, it would not be practicable for my right honourable friend to complete the necessary consultations by appointing somebody to replace him in a matter of a few days, and I do not think any noble Lord would want him to do so. The bodies he is required to consult will need time to consult their constituents in order to form a view of some proposals that they may want to put to the Secretary of State.
The Government recognise the difficulty, because it is a real one; there is much to be said for what the noble Lord, Lord Sandys, said about the importance of getting on with it and not wasting time. On the other hand, one must see that the right person is appointed and this can be done only by consultation. I think there is nothing between us on this issue because the noble Lord will recognise the importance of allowing a certain amount of time. If his point is that the Secretary of State should not lose any time, should not let the grass grow under his feet, then the Government agree with him in that respect.
Lord SANDYS: My Lords, I agree that there is very little between us because I hope I explained to the House the legal

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meaning of "forthwith"; and in my view it meets the Government's point about consultation. If we take it that it means following normal procedures and not delaying in all the circumstances, then there is no time limit placed by the Amendment, which carries with it an implicit understanding that the Schedule 1(1) procedure has to be adopted. It really is quite straightforward.
The LORD CHANCELLOR: Is the noble Lord seeking to withdraw the Amendment?
Lord SANDYS: My Lords, in view of what I said, the Government may wish to accept it. If so, perhaps the noble Lord, Lord Wells-Pestell, would indicate that fact. If not, my noble friends and I may wish to press the matter at another stage.
Lord WELLS-PESTELL: My Lords, I cannot accept the Amendment, because although the Government agree with its intention, the noble Lord, Lord Sandys, lays down in it that it must be forthwith, and I was at some pains to explain that in the circumstances "forthwith" is not possible.
Lord SANDYS: My Lords, in view of what the noble Lord said, it seems that there could be more between us than he earlier suggested. I shall read the Official Report of his remarks with interest and in the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.30 p.m.
Lord SANDYS Lord SANDYS moved Amendments Nos. 55 to 60 en bloc:
Page 27, line 26, leave out ("or deputy member") and insert ("and deputy members").
Page 27, line 27, leave out ("a") and insert ("any").
Page 27, line 28, leave out ("or deputy member") and insert ("and deputy members")
Page 27, line 29, leave out ("a") and insert ("any")
Page 27, line 31, leave out ("or deputy member") and insert ("and deputy members").
Page 27, line 32, leave out ("a") and insert ("any").
The noble Lord said: My Lords, I should like to speak to a group of Amendments. It will be for the convenience of the House if I do so. I should like to speak to Amendments Nos. 55, 56, 57,
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58, 59 and 60. This concerns a central point, which is the drafting of the clause on the question of deputies. We looked at the document provided by the Government, Notes on Clauses, and sought out paragraph 10 of Schedule 1, and found it was notable that there was no note on this item. Perhaps there may be a reason for it. Both paragraph 9 and paragraph 11 are mentioned, but nothing is said on paragraph 10.
So far as we are concerned, the issue is straightforward, because we believe that it is the Government's intention as well as ours that a system of deputies should apply. Both at the Committee stage and earlier today we discussed this situation, and there has been misunderstanding in the interpretation of paragraph 10. At an earlier stage, we believed that paragraph 10(a) said something different, so we sought to clarify paragraph 10(a) by adding the words in Amendment No. 55. We believe that it should read:
"A deputy chairman and deputy members to act in place of the chairman or any member of the Board."
We believe that that would be very much better than what the Government have in mind. They refer to, "a deputy member" which rather suggests a singular situation and no more than one deputy. Perhaps in replying the noble Baroness will adduce further argument, but we felt that it would clarify the position considerably if we said straightforwardly that there would be deputy members for each member of the Board. I beg to move.
Baroness STEDMAN: My Lords, paragraph 10 of Schedule 1 as drafted provides that one deputy must be appointed for the chairman of the Board, one for the chairman of the Scottish Committee, one for the chairman of the Welsh Committee, and one deputy for each member of the Board and each member of the Welsh and Scottish Committees. These Amendments would change this position, so that more than one deputy must be appointed to act in the place of each individual member of the Board and Committees. I am not sure whether noble Lords did indeed intend this to be the effect of their Amendments. It is possible that during the Committee stage I may unintentionally have misled noble Lords on the question of the provision in the Bill for the appointment of deputies. Noble Lords may not

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have realised what the effect of paragraph 10 as drafted was.
I should make it quite clear that paragraph 10 provides that for each Board member and Committee member and for the chairman of the Board, and for the chairmen of the two Committees, a deputy will be appointed by the Secretary of State, after consultation. Regulations will be made laying down the circumstances in which a deputy may act for a member and the Government intend to provide in these regulations for a deputy to act where a member is likely to be ill or otherwise unable to perform his duties for a period of three or four weeks. This will enable the Board to continue to function as it should over a longish period, in spite of the continued absence of one or more members. We do not, however, intend to provide for deputies to attend individual meetings at very short notice, because a member is unexpectedly prevented from attending. It would not be beyond the wit of the chairman, in these circumstances, to rearrange the agenda to take account of the unbalanced numbers at that meeting. In these circumstances we do not think the appointment of more than one deputy for each member could be justified.
Baroness YOUNG: My Lords, we are of course glad to hear that explanation because what the noble Baroness has said is our understanding of the Schedule. The singular, "a member of the Board" in sub-paragraphs (a) and (b) of paragraph 10 makes it clear that there is not a deputy for each member of the Board. Our Amendments are designed to meet that point. This is far more than a drafting Amendment or, indeed, a small difference between us. As I have understood it, the whole principle of the Bill is based on the membership of the Board and on the fact that there should be two members representing the doctors and consultants and two others representing other interests in the Health Service. We have now amended this to three and three.
It is therefore absolutely crucial that all should be there, present and voting. Otherwise, the whole purpose and basis of the Goodman contract could not possibly be carried out and no one would
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have any faith in decisions that were reached. Our Amendments are designed to secure that, when someone is ill or away, there is a deputy who can act and, furthermore, that the quorum shall be the entire committee sitting and voting.
This is a very important matter of principle when the Board and its particular composition is so important to the working of this entire separation of the two health services. I may say that it is not our wish that any such Board should ever be set up, or, indeed, that there should be the separate services, but, given that this is the purpose of the Bill, in order to fulfil the Goodman contract, the Government must agree that there must be deputies and that the Board must always be complete when it meets and decides. Otherwise, the Goodman contract will not be fulfilled. As the noble Lord, Lord Wells-Pestell, and the noble Baroness, Lady Stedman, have indicated time without number, the Government are tied to the Goodman Proposals. They promised to legislate and to carry them out and this would only be keeping their promise.
On Question, Amendments agreed to.
Baroness YOUNG Baroness YOUNG moved Amendment No. 61:
Page 28, line 33, after ("Board") insert ("for the taking of any final decision shall be 7 (including deputies)").
The noble Baroness said: My Lords, this is an important Amendment dealing with the quorum. Following on what I and my noble friend Lord Sandys have just said on Amendments Nos. 55 to 60, we believe not only that there should be deputies for all the members, but that the quorum should be the whole committee of seven. I beg to move.
Baroness STEDMAN: My Lords, I think that this follows automatically from the bloc of Amendments that we have just passed. Therefore, we have no option but to accept it.
On Question, Amendment agreed to.
Baroness YOUNG Baroness YOUNG moved Amendment No. 62:
Leave out Schedule 2.
The noble Baroness said: My Lords, we put down an Amendment to leave out Schedule 2 because the only reference to Schedule 2 was in Clause 2 of the original

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print of the Bill and there is no reference to Schedule 2 anywhere in the new version of the Bill. I believe that it ought to be removed because my understanding is that a Schedule must refer to something in the Bill. I beg to move.
On Question, Amendment agreed to.