HL Deb 17 November 1976 vol 377 cc1282-366

2.40 p.m.


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 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.


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 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- 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.


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.


My Lords, I too would like to support this Amendment. Those of us who have had 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.


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 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.


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?


My Lords, in case it should be thought that a policy 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.


My Lords, could I ask the noble Lord, if he will forgive me—

Several noble Lords

Order! Order!


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.


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 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—

  1. (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.


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 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.

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 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.


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?


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—




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?


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"— 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—


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.


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 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 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.


My Lords, before the noble Baroness sits down, may I say something? I hate to repeat myself and 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.


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, those whom we now call mental patients in a mental hospital. In my area—


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.


My Lords, all I was seeking to do was to challenge the noble Baroness—

Several noble Lords

Order! Order!


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.

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.
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 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 freedom▀×

  1. (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
  2. (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 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 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.


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 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 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.


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 moved Amendment No. 3: Page 2, line 43, at end insert— (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 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 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.


My Lords, I should like briefly to underline the point 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.


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.


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.


There are several.


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. 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.


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 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.


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 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.

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.
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 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 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 seem▀×and 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.


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- 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 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.


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.


My Lords, I should also like to support this Amendment. I agree with every word 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.


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 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.


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.


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.


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- 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.


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 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.


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 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, 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 can honestly go through the Lobby against the Government on this Amendment.


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.


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.


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 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- 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.

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.
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 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 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.


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 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. 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.


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 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 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- 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.


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.


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. 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 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 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.


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 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.


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 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.


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 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, 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.


My Lords, we studied this matter following our 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 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.


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?


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.


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 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

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 moved Amendment No. 9: Page 4, line 26, at end insert ("; and (c) give its reasons;").

On Question, Amendment agreed to.

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 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 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.


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 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 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?


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.


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.


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 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 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.


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— 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 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 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 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?


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.


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—


My Lords, I am not saying I am the authority, but it would give me pleasure.


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.


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.


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 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.


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.