HL Deb 17 November 1976 vol 377 cc1397-453

8.3 p.m.

Further consideration on Report.

Debate on Amendment No. 20 continued.


My Lords, the effect of this Amendment would be to remove from Clause 8 the Secretary of State's power to determine different rates or scales of charges under Clause 8 (6) in relation to patients who are, and patients who are not, ordinarily resident in Great Britain. We discussed this Amendment at some length in the Committee stage last week. There is very little I can add to what I said during the Committee debate on this Amendment, but I should like to explain why it was that I was not able to tell your Lordships how many overseas patients are admitted to National Health Service hospitals and how much income is derived by the NHS from these patients. The reason is quite simply that these statistics have never been kept. Statistics are collected only on admissions, deaths and discharges and out-patient attendances for all patients, whether ordinarily resident in Great Britain or otherwise.

During the Committee stage, the noble Lord, Lord O'Hagan, said that this sub section was an example of the Government's drift towards a "siege economy". I think that was the phrase he used. I am sure that the noble Lord, having had an opportunity to reflect on what he said, might now admit that that was extravagant wording. This provision, as I explained during Committee stage, is similar to a power which has been held by the Secretary of State since 1949 and was contained in Section 17 of the 1949 National Health Service Act. I also explained that the Secretary of State has never used the power in the 1949 Act to determine different rates of charges for patients from overseas to those applied to people resident in Great Britain. What I am saying is that, if the Secretary of State felt it desirable to fix different charges, he would do so. Perhaps some of us are rather surprised that he has not exercised that power to date. We feel, and I think most noble Lords will agree, whatever they may feel about the National Health Service as such, that the skill, the competence and the expertise found in this country in the medical profession is such that perhaps we ought to cash in so far as overseas patients are concerned, if they want to come to this country for medical treatment. The short answer is that this has not been done, but my right honourable friend the Secretary of State has powers to do so. However, I have to say to the noble Lord, Lord O'Hagan, that he has no plans at the present moment for using those powers.

The provision would enable the Secretary of State to exercise the power in future if, in his view, circumstances caused him to do so. I think that an example of the kind of circumstances in which he might use this power is the one that I mentioned during the Committee stage, where a wealthy foreign patient comes to this country for highly specialised treatment requiring expensive equipment or skills which would cost less here than in other countries of the world.

I said last week in reply to the noble Lord, Lord O'Hagan, that there is nothing in the Bill which can effect existing reciprocal agreements or EEC regulations. I have pursued this matter in the light of what the noble Lord said this evening, and my understanding is that advice has been taken outside the Department from those competent to give advice on this matter, and as a result of that I can repeat what I said last week; that there is nothing in the Bill affecting those agreements or regulations. But I want to assure the noble Lord that the advice was taken outside the Department.

I am sure that it is not necessary for me to say to the noble Lord that any person who belongs to this country is entitled to use the National Health Service. If he qualifies for admission under Clause 8 he would be charged the United Kingdom rate. This raises all kinds of problems, such as how long a person who lives outside the country remains a resident of this country. I believe that it is not just a question of domicile; I think that very often it is a question of what is happening at the tax level. I cannot be more precise than that.

I turn now to the question of how a foreigner would know that he would have to pay more. This would depend on which channel he uses to get the treatment in this country. He may go to one of our Embassies, in which case we would expect them to know, and I should imagine that we would do something about informing them if the Secretary of State at some time decided to use his powers to increase the charges for foreign visitors. But this does not apply at the moment. I think there is some responsibility on the patient to find these things out. My Lords, I think the noble Lord asked me four questions. However inadequately I may have answered them, I think that I have in fact dealt with the four.

Baroness YOUNG

My Lords, before the noble Lord sits down, may I press him further on this question of a differential charge? I entirely take the point that it is right to make a charge to someone from overseas who is not a British subject and who comes here for a specialised operation which may require very expensive equipment and which may otherwise cost the British taxpayer a great deal of money. What I do not understand is how the Secretary of State can identify who is the rich foreigner. Does he mean that anybody from Saudi Arabia, for example, or from the Middle East, will be charged a lot more, or if he is thought to be an oil sheikh, whereas if he comes from one of the African countries, perhaps, he will be assumed to be poor and will be charged less? Or are the Government actually suggesting a means test? I simply do not know how the Secretary of State will know how to make the charge; and if he does not know how to make the charge, what is the point of putting the power in?


My Lords, there cannot be an accurate yardstick for this, but let us be frank about it. It is not difficult to tell when someone wants to come to this country for a particular operation. We would know full well that he was coming into a National Health Service bed and wished to he dealt with privately. I should have thought that this information was easily obtainable from the consultant. I also think that there are certain parts of the world which would leave one in no doubt as to whether the person had a reasonable income—or, rather, more than a reasonable income. I do not think that in practice it would be as difficult to ascertain these facts as it would appear to be in theory, and, of course, one could discuss it theoretically for a long time.


My Lords, may I ask the noble Lord a question? He has said "he", but I am sure he means both sexes. When, for instance, it comes to people coming from other countries for abortions, which are very often not done under the NHS, although some are, how are these people to be treated? Because one would surmise that some could well afford quite a large fee, whereas others one knows could afford practically nothing. Has the Secretary of State any authority to guide both the people who are administering the medication and conducting the operation that these people need and the patients themselves; and in what category do they come?


My Lords, as in normal life the male embraces the female, so when I use "he" I also mean "she". With regard to the point raised by the noble Baroness, if they have come over here to be treated by a consultant within the National Health Service as a private patient, then we would assume, and I think we would have a right to assume, that that consultant would not introduce as a private patient somebody whom he knows will be able to pay only him and not the charges for the private bed in the National Health Service. We work on that assumption. We are not always right. A large number of private patients, I regret to say, bilk the National Health Service to the tune of many tens of thousands of pounds a year; but that is another story. However, I think we would have a right to assume that a consultant who was going to bring in a private patient to a National Health Service bed would take jolly good care that that patient could meet, not only his fees but also the expenses of the bed.


My Lords, may I add to that in answer to the noble Baroness? There is a ready situation for people of that sort, in that there are set up what are called pregnancy advice bureaux, as the noble Baroness probably knows; and they are directed there if they want treatment outside the National Health Service at a very reasonable fee and, frankly, in a very easy and convenient manner.


My Lords, I think we have had a useful discussion on this Amendment and that this time round, at a slightly earlier time of the evening, there has been a greater meeting of minds between the two sides of the House. I am most grateful to the noble Lord, Lord Wells-Pestell, for what he has said, although it has not gone very far, particularly on the matter of how, if the Secretary of State decided to use these powers, he will in fact be able to ascertain the means of any particular foreign patient. But I think we have now cleared up a large number of the questions, at least to some extent, and I therefore beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.16 p.m.

Lord O'HAGAN moved Amendment No. 21: Page 11, line 11, leave out ("appear to the Secretary of State") and insert ("are").

The noble Lord said: My Lords, with Amendment No. 21 I think I can speak to Amendment No. 22. I can move this Amendment very briefly. These two Amendments are designed to make the clause that we are now discussing clearer, because at the moment there is some ambiguity in that what appears in the Bill as at present drafted is "appear to the Secretary of State" and then later on, in line 12, "appearing to him to be". My Lords, beauty may be in the eye of the beholder, but these charges are either fair or unfair, and it is not really for the Secretary of State to claim to be the sole arbiter of these matters. I think it would be fairer and easier to apply in practice if the words that I seek to omit are omitted and the sole word "are" is introduced instead. If the noble Lord feels that there is some special point in retaining the words that I seek to omit, I should be very glad to hear what it is, but unless he can produce a very good reason why they should be retained I should have thought that it would be more explicit to omit them. My Lords, I beg to move.


My Lords, I think it would be helpful if we took Amendments Nos. 21 and 22 together, in which case I will do so. The effect of these Amendments would be to require that the charges determined under Section 31 of the 1968 Act to be paid by persons afforded access to accommodation or services at NHS hospitals under that section of Clause 8 should include such amounts as are proper and reasonable in respect of costs appearing to be properly attributable to capital account, rather than such amounts as appear to the Secretary of State to be so.

The Bill as drafted leaves the judgment of what amounts are proper and reasonable, and what costs are attributable to capital account, to the Secretary of State. That is the Bill as drafted. This is a more practical basis for the fixing of charges than would he the basis produced by this Amendment. The Secretary of State would be unwise to commit himself to having to establish incontrovertibly that his judgments of these matters were correct in order to deal with challenges about the level at which he fixes the charges. A degree of estimation is not only inevitable but also appropriate, and there must also be averaging between hospitals. The Government's intention was expressed in the proposals of 15th December, I think it would be helpful to read it. In paragraph 3(e) it says: Charges will be made to these patients (or in the case of patients sponsored by overseas Government, to their Governments) and there would be no subsidy by the NHS. There is a similar provision in the 1968 Act in Section 1(3) which reads: in determining such charges …the Minister shall have regard, so far as reasonably practicable, to the total costs (exclusive of costs appearing to him to be properly attributable to capital account) which, by reference to facts known to him at the time of the determination it is estimated will be incurred…in the provision for resident patients…at hospitals falling within that class". That is for the average patient. In addition it goes on to say: and may include in any such charges, in such cases as appear to him fit, such amounts as appear to him proper and reasonable to be included by way of contribution to expenditure appearing to him to be properly attributable to capital account. I do not think it would be possible really to calculate these on any other basis, and I think it must be left to the Secretary of State, on the advice given him, to determine these matters. I do not think in the circumstances that the Amendments would help in any way.

Baroness YOUNG

My Lords, is the noble Lord satisfied that it ought to be left simply to the Secretary of State to charge what he thinks reasonable? Some people are really concerned that, suddenly last year, charges for private rooms in hospitals were put up by three times. No doubt the then-Secretary of State thought that this was proper and reason able. The health authorities, I believe, did not think that that was altogether the case as they had recently reviewed the charges for private beds.

I think that there is concern among people that once again we are giving a power to the Secretary of State simply to impose charges that he or she thinks are proper and reasonable, without any safeguard from anybody else as to whether they are so. That is our concern. I should have thought that in all this there ought to be some effective accounting method so that the costs are covered. If it is thought right that a profit should be made, then a profit should be made; but what was being done should be explicable to anybody who looked at the accounts. I did not draw that conclusion from what the noble Lord said.


My Lords, if the noble Lord will allow me to say so, this is not an easy matter. Changes must reflect capital costs, which must be averaged out. There are many other costs which have to be taken into account. There is the nature of the services, the nature of the skill and very often the nature of the operation. Estimates can be made for costs of operations for complaints which are not in themselves serious, but when you move into the more acute area you must think in terms of cost of particular skills and apparatus and so on. This is not done by sticking a pin in a few numbers with your eyes closed. A sincere attempt is made to find out what the costs are. There are finance departments in every hospital and financial experts in the Department, and attempts are made to calculate costs and capital expenditure and then to assess what the charge for a private bed should be taking into account all those other costs. I do not see any other way to do it. If people do not like it, it is for them to suggest a much better method and not just to critise for the sake of criticism.

Baroness SEEARS

My Lords, I find this an extraordinary explanation of how this is done. We are asked to believe that it is so complicated that it can be done only with great difficulty. It does not sound any more complicated than the kind of costing operation which is done frequently in commercial concerns. If a contractor is putting in a price he must do a complicated costing exercise. This is a costing exercise like any other. What I understand noble Lords on the Opposition Benches are asking for is that the principle on which this costing is done should be made clear. That is the first point.

Secondly, it strikes me as odd that we are expected to accept the costing without any list of principles or outline of basis on which it is done—and done by the people who are going to benefit from the price. Without any challenge, these are the people who arc going to get the benefit of this price. In no other field of life would one think that they alone, unchallenged and without explanation, ought to be the people who determine how much was to be paid, without any attempt to say how the costing is done or to be open to challenge by the people who pay. My sympathy on the pay bed issue is often with noble Lords on the Benches opposite; but as an explanation of how the price is to be fixed I think this is quite extraordinary.


My Lords, it may be that we should not pursue this matter for too long tonight but I think it will have to be pursued later on, for this reason. The noble Lord, Lord Wells-Pestell, quoted the 1968 Act. That is an excellent precedent; and what is the law, as laid down in that Act, is in most instances a very reliable guide to what should continue to be the law. But since the 1968 Act, this Government have chosen to introduce this Bill, and since the 1968 Act there has arisen what Lord Goodman referred to as a "corroded atmosphere" in the National Health Service. Since the 1968 Act, the general feeling of trust and goodwill has, to put it mildly, diminished. So what then might have appeared to everybody in an atmosphere of trust and cordiality as a reasonable system, is no longer necessarily a reasonable system simply because it has obtained up till now.

I do not intend to press this Amendment. It was designed to give the Government the opportunity of reassuring us that they would be fair. I wanted to give the noble Lord, Lord Wells-Pestell, the chance to explain, now that the atmosphere of distrust is being dispelled, how the Secretary of State would be looking at these matters so that what happened last year, when the charges were put up repeatedly, will not be thought to be likely to happen again without those who are affected having the chance to voice their views. We have not had an explanation from the noble Lord as to how this will be done in future. I think it probably is too late to pursue it now. In the meantime, I beg leave to withdraw the Amendment.


My Lords, if I may have the leave of the House to intervene again, I should like it to go on record that pay bed charges were not increased threefold last year. My understanding of the situation is that they were increased by 30 per cent. in April of this year, and by 50 per cent. in April of last year.


My Lords, if I have made a mistake, I would beg to withdraw it.

Amendment, by leave, withdrawn.

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

8.30 p.m.

Lord SANDYS moved Amendment No. 23:

Page 12, line 26, at end insert— ("Provided that any such charges shall he calculated in accordance with the provisions of section 8(7) above with the substitution therein of the words "the grant of permission "for the words" any exercise of the relevant power ".")

The noble Lord said: My Lords, we now move into Clause 9 which we dealt with early in the morning, at about 3.30 a.m., in Committee. Perhaps it will be for the benefit of the House if I go into further detail and contrast this clause with Clause 8. Clause 9 applies to nonresident private patients and the use by general practitioners of National Health Service accommodation and facilities for private practice. The noble Baroness, Lady Stedman, in her reply on precisely the same Amendment (which was Amendment No. 85) said this at column 581 in Hansard of 10th November: In relation to charges to family practitioners in health centres (Clause 9) the provision of Clause 8 would be equally unsuitable. She went on to describe how the provision of Clause 9(4) had been written into the Bill, which is the portion of the Bill immediately before our Amendment. The reason why we have brought this Amendment forward again is once more a lingering anxiety. I must say that the anxiety has been to a great extent strengthened this evening by the remarks of the noble Lord, Lord Wells-Pestell, because he advanced shortly before our adjournment what I call the doctrine of disclaimed responsibility. He said—and I think I quote his remarks correctly— It is not for the Secretary of State to protect private patients from the financial consequences of their choice. That would be a perfectly reasonable statement to make were it not for the fact that the Government in another part of their policy encouraged the innovation of a Secretary of State for Prices and Consumer Affairs.

I believe that it would be to the great benefit of your Lordship's discussion if we could have a little more information about this situation. We believe that there is a problem here, because Clause 9 sets out a very stringent set of rules. It tells general practitioners and their patients how they should set about an application to the Secretary of State for the use of private accommodation or services. It tells them what will happen to the application, whether it will be considered and whether it will prejudice National Health Service patients in any way. It tells them about the grant of permission; it gives the course of events. But there is nothing whatever to restrict the Secretary of State in any way in making a somewhat arbitrary choice of his selection of fees.

It would be very helpful if the Government could give us a little more information on this point. We have been very pleased to re-examine the comments of the noble Baroness, Lady Stedman, so far as the licence and the component parts of the charges were concerned. We should like to hear a little more.

Baroness STEDMAN

My Lords, the noble Lord, as did the noble Baroness when she moved the Amendment in Committee, made it clear that their intention is to prevent the making of the arbitrary charges. The charges now made are not determined on an arbitrary basis: they are covered by the terms of the model licence. This has recently been renegotiated and agreed with the General Medical Services Committee of the British Medical Association. The professions' representatives were clearly mindful of the Government's policy relating to the future of private practice during the course of these negotiations. Furthermore, the Government moved Amendments to Clause 9 in another place at the professions' request.

We are seeking with the profession to preserve the status quo, including leaving charges to be incorporated in the model licence. The Amendment would disturb the status quo and I cannot see that there is any desire on the part of the profession or any real need to do so.


My Lords, we were pleased to listen to the noble Baroness when she made her first reply; her second scarcely varied the words. There is a lingering anxiety about this and that is bound to be so because the noble Baroness cannot say more at this stage. I do not think that it would be for the benefit of the House if I were to press this Amendment, but it is just possible that we may wish to return to it at a later stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 11 [Interpretation of Part II]:

Baroness YOUNG moved Amendment No. 24: Page 14, line 5, leave out ("six") and insert ("twelve").

The noble Baroness said: My Lords, this Amendment is consequential on others that were agreed at the Committee stage. It is to extend the initial period from six months to one year. When we debated the extensions at the Committee stage it was recognised just what the Board had to do; after all, the Board cannot be appointed until the Bill receives Royal Assent. It then has to phase out the first 1,000 beds, it has to establish the common waiting lists; and there are a great many other things which will have to be looked at. To expect to do this by May or June, if the Bill receives Royal Assent next Tuesday, seems to be asking it to do its very, responsible job extremely quickly. It is not in the best interests of the whole exercise. This is a consequential Amendment; I do not wish to speak any further on it. I hope that the Government will consider it favourably and I beg to move.

Baroness STEDMAN

My Lords, as the noble Baroness said, this Amendment is consequential on an Amendment made during Committee stage and therefore we will not oppose it.

On Question, Amendment agreed to.

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

8.38 p.m.

Lord O'HAGAN moved Amendment No. 25: Page 14, line 43, leave out ("one hundred") and insert ("two hundred and fifty").

The noble Lord said: My Lords, I beg to move Amendment No. 25 and if I may I will speak to Amendment No. 26. We now embark on Part III of the Bill, and before I discuss these two Amendments in detail, l should like to introduce our discussions on this Part of the Bill by reminding your Lordships of one or two points which affect not only this Amendment but other Amendments in Part III. This Part of the Bill is an attempt to control the hospital building outside the National Service. It lays down various provisions that the Government want to introduce in order to make sure that this control is carried out properly. It is important that we should remember that this control is something which was not contained as a promise in either of the two Manifestos in 1974, nor was it part of the discussions presided over by the noble Lord, Lord Goodman, and therefore it did not form part of what has come to be known as the Goodman Proposals. It is an addition by the Government to those proposals; it is something that they felt necessary to add to the rest of the Bill because they feel that without it the Bill would not carry out all the purposes that they seek to achieve.

The two Amendments I am moving are an attempt to alter the size of the hospital to which these controls will apply. At the beginning of Part III we are told that hospitals above and below a certain size will be affected by the Bill. My two Amendments seek to raise the size of those hospitals so that the limits make it possible for hospitals of a larger size to be outside the provisions of Part III. We had quite a lengthy and, indeed, thorough answer from the noble Lord, Lord Wells-Pestell, at 4 o'clock in the morning of 10th/llth November. Certainly I, listening at that time, could not absorb the considerable detail the noble Lord gave us. I have tried to do so since, and it is interesting to note that he began by saying this at column 588 on 10th November: During the debate in Committee in another place on these size limits for new private hospitals in Greater London, the Secretary of State said that there was 'no magic figure. One can simply make a judgment.' It was necessary for the Government to take a decision on the size"— and so on. The noble Lord then went on to justify the particular figures we are now considering. The burden of his remarks was almost entirely connected with staffing ratios and the numbers of staff. He devoted several columns of Hansard to explaining what the Government thought, on the advice received, the likely staff requirements of the new hospitals built by the private sector might be.

Therefore, in moving these Amendments again, I should like to ask the noble Lord: if the main factor that weighs with the Government in setting these limits is the number of staff the new hospitals may employ, why have they not used the yardstick of staff? Why have they used the number of beds? If they feel that the number of staff is the crucial thing, are they quite confident that the particular sizes they have chosen are the right ones?—because, if it is staff they are worried about, surely it should be staff they should be specifying as being the limiting factor for the new hospitals. If the noble Lord could answer those questions and give some fairer reasons as to why the Government felt their judgment—the judgment the noble Lord said they have made on the basis of evidence given to them—came down in favour of these particular figures, I am sure it would be most useful. It seems to me it might well be a waste of time for the Board to concern itself with hospitals which could function perfectly well without in any way interfering with the National Health Service if the sizes of the hospitals that were permitted to be built without control were increased. I beg to move.


My Lords, I should like to support my noble friend Lord O'Hagan, because I think he has a real point here. These Amendments were subject to a tied vote in Standing Committee in another place, and that is another reason why we believe they are matters with which your Lordships should be concerned. I have re-read the statement made at 4 o'clock in the morning which was referred to by my noble friend Lord O'Hagan, and there are two points which strike one very forcefully. At the top of col. 588, the noble Lord, Lord Wells-Pestell, said this: We do not, of course, accept the inference in this statement that people who had expert knowledge of the staffing requirements of NHS hospitals would not be able to provide a fair estimate of the approximate likely staffing requirement of private hospitals. That is a very interesting factor: staffing ratios. The noble Lord adduced a considerable volume of examples to your Lordships. It is very interesting, as I say, because the practicalities of staffing differ so widely from what appears in the book. I read with amazement the third example which was given by the noble Lord, again at col. 588, when he said this: A third acute hospital of 40 beds is to have 10 sisters, 40 staff nurses and ten medical ancillary staff. I would very much doubt whether many hospitals of that size are up to establishment. Nevertheless, that is the staffing ratio that was given for the circumstances which we know from experience.

However, I believe that the situation we are trying to remedy by means of this Amendment is somewhat different. I think there is a requirement for higher thresholds for quantity licensing of new hospitals in the private sector, for the reason given by my noble friend Lord O'Hagan—that is, that the smaller hospitals we are concerned with here could not possibly interfere with the National Health Service and so why should the Board concern itself with an unnecessary task? I believe it is really a counsel of perfection which is being sought and that, knowing the staffing situation today and also the situation which is likely to obtain in the future, we should not expect the Board to carry out something for which there is really no need.


My Lords, while I support the Amendment of my noble friend, it is not to discuss its merits or to add to what has already been said that I rise. I rise in fact to seek information with regard to words which this Amendment directly affects. If the noble Lord, Lord Wells-Pestell, says I am bowling a fast one to him and that he must look at the matter later, I shall quite understand. My point is over the use of the word "premises" in this particular clause, inasmuch as the Amendment of my noble friend has a bearing on its use. It is not my recent acquaintance with another Bill that makes me shy at this word: it is a genuine concern that there is a possibility that this word, in this Bill, in this clause, in subsection (2), might be construed on occasion in a plural sense—as a multiplicity of premises, as opposed to single premises. It would be particularly unfortunate were it possible to place that interpretation upon the word in relation to the substance of the Amendment and the matter under discussion.

The word "premises" occurs about 10 times in the subsection, and it appears to me that there is possibly a case for doubt here. The noble Lord, Lord Wells-Pestell, may be able to tell me at once that there is a precedent in similar legislation or that an interpretation occurs somewhere that would take care of the matter. I have not managed to find it. I do not wish to labour the point; but I am sure that the noble Lord, if there is an element of doubt, would offer to come back before the Bill passes from us and put the matter to rights if there are any justifiable fears in this respect. I am sure that he would agree with me that it is contrary to the Government's intention if such an interpretation could be placed upon the word on any occasion it is used, and I am sure that he would wish to put this right.


My Lords, when the noble Lord comes to reply, I should be grateful if he would address his mind to the basic point raised by the noble Lord, Lord Sandys. I have not re-read the proceedings of the all-night Committee stage. I was here virtually all the time, and I could not endure the thought of reading the account of those prolonged proceedings. But this Amendment seeks to reduce the power of control by raising the figures.

Would the noble Lord address his mind to this point, in dealing with this effort to reduce the area or extension of control? Why a control at all? This is a genuine request for information. It would seem to me that if the private hospital provision has to be developed outside, it will develop only to the extent that there is a public demand for such services. If there is over-provision, then that provision will have to he revised in the light of experience. One does not want to make the National Health Service incomparable by reducing the prospect of anything competing with it. And if it should happen that this private hospital service, the development of which I deplore, attracts skill of the highest order and it comes to provide an exceptionally high service, that will be a situation which is a direct result of this legislation.

But is it an undesirable situation? I do not want to see it. I want private practice to continue to be conducted for the most part within National Health Service hospitals. But if it be accepted that it is to go outside, why control the outside activity? Will it not adjust itself to the public demand? Is it sensible to impose such artificial controls as 100 beds, 200 beds or 250 beds? It may be said, "There will be less competition for staff", but is that such a bad thing? I confess that I regard this Part of the Bill as having a sinister purpose. I can understand the original argument for separating the two. I do not like it; I think it is unwise; I think it will produce the rash of nursing homes that Aneurin Bevan feared. But if that is to be done, what justification is there for controlling the quantity of private provision which unwisely this Bill, when it becomes an Act, will encourage to develop?

If the purpose is the public interest, I do not understand why this additional pressure is to be brought to bear. The noble Lord has said with great eloquence, from time to time, "We have nothing against private practice. We want to see it flourish for those who need it. But we do not want it inside National Health Service hospitals". If that be true, why not leave it alone? What is the purpose of bureaucratic, administrative, Parliamentary or Ministerial control of this external service of which, necessarily, the Government have stimulated the creation, which will adapt itself to the public demand and the public need without the help of bureaucratic, administrative, Parliamentary or Ministerial control?


My Lords, if I may first try to answer the noble Lord, Lord Gray, the word "premises" is not defined in the Bill, as he will know after having read it. "Controlled premises" is defined, and the interpretation of that is "premises". The word "premises" is used in the Bill to define one or more buildings.

If I may attempt to reply to the noble Lord, Lord Hill, I want to be perfectly frank and say that I think there is a responsibility on the Secretary of State, and on any Government which may be in power, to see that there is no development which is likely to be detrimental to the National Health Service, and this could well be. As the noble Lord knows, there is a limited number of medical personnel—and I am thinking of all those professions which aid the medical profession—and I think that there is a responsibility on the Secretary of State to see that the development in the private sector is not in any one place, let alone in several, which is detrimental to the National Health Service.

The noble Lord was right when he said that the private sector will not develop unless there is a need, and, obviously, banks will not put their money—not even American money, I imagine—into the building of private hospitals unless there is such a need. But I do not think we can leave it to the haphazard method of seeing whether banks or other sources put their money into this building. I think that there is a responsibility on the Secretary of State to say, "I must do something to see that any development is not detrimental to the National Health Service". I believe that that is fair, in the circumstances.

If I may turn to the noble Lord, Lord O'Hagan, who moved these Amendments, it is quite impossible to do anything to satisfy noble Lords opposite. The noble Lords, Lord Sandys, talked about amazement at something I said at, I think, 4 o'clock in the morning. I, at least, was fully awake, although I am not implying that he was not, and was conscious of what I was saying. But the amazing thing to me is that there is no satisfying noble Lords opposite. They ask: Why 100 and not 250? Why 75 and not 150? The short answer is that these are the figures which the independent hospital group, before the Bill was introduced in another place last April, pressed the Government to adopt, and noble Lords sitting on the Front Bench opposite are representing in this House the independent hospital group.


My Lords, may I say straight away that we are not representing the independent hospital group. Every noble Lord speaks for himself in this House.


My Lords, the noble Lord is following on something that was said in your Lordships' House last week in another connection. The fact is that if noble Lords are not representing the independent hospital group, they are certainly putting forward—and, may I say, very adequately—the views of the independent hospital group. As the noble Lord, Lord Sandys, said, I went very fully into this matter last week. I am not going into it fully tonight, because I do not think noble Lords want me to do so. I pay them the compliment of saying that I know they have read Hansard very carefully. That is one thing that I can rely upon. What I am saying is that we are doing what we were asked to do by the independent hospital group, and I should have thought the very fact that we had done that would have been sufficient for noble Lords opposite.


My Lords, I am extremely interested in the noble Lord's reply to the noble Lord, Lord Hill, because for the first time it is admitted that the whole Bill is undesirable, and will lead to very undesirable consequences and the rash of new nursing homes, and so on, which the noble Lord, Lord Hill, quite rightly deplores. But if we are to have them forced upon us, whose fault is it?


My Lords, may I ask the noble Lord a very short question? He says that all this is done with the approval of the independent hospitals. Did they, in fact, approve the figures of 100 and 75?


My Lords, with the leave of the House, I said that these are the figures which the independent hospital group asked the Government to accept, and we have done so. It surprises me that this Amendment should be put down a second time, and I hope that the noble Lord will not say that he is going to take it away and think about it and may put it down again. In a sense, if we have any responsibility to the independent hospital group—and I do not think we have—we have certainly discharged it by adopting the figures which they pressed us to accept.


My Lords, I am not going to be provoked by the noble Lord, Lord Wells-Pestell, into saying I will not put this down again and again. I suspect that the independent hospitals group may have been consulted by the Government as to the figures if the principle of control were to be introduced. Whether they asked the Government to introduce control is, I should have thought, a distinctly different matter.

However, we have all had enough of this Amendment. I think the question from the noble Lord, Lord Gray, elicited an answer which worried him, because the Government seemed to think that the word "premises" could apply to one or more hospitals, and therefore you could have an application covering two or three buildings in different places which might be considered as one premises as defined under the Bill. I am not sure whether we should go into all that again, but if that is strictly so, then this control is much more wide-ranigng than some of thought when we first began to study the Bill. I think it is time we moved on to another subject and, for that reason, I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

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

9.2 p.m.

Baroness YOUNG moved Amendment No. 27: Page 15, line 20, after first ("Board") insert ("in like form as if the application were one for planning permission for the controlled works").

The noble Baroness said: My Lords, this is the first of a series of Amendments about planning permissions and the planning aspects of Part III of this Bill. As the noble Baroness, Lady Stedman, is to reply, she will be aware that on this side of the House we dislike Part III particularly for the reasons so admirably expressed by the noble Lord, Lord Hill of Luton, and my noble friend Lord O'Hagan. Part III exercises a control over private hospitals, and I find it depressing in the extreme to be told that the reason for the control is that private hospitals must not damage the National Health Service. If the National Health Service is any good at all it will stand on its own feet and it will stand up to competition. If it is as good as it has been, then it has nothing at all to be afraid of. The sad thing is, it makes us all realise that what will happen is the general deterioration of both the National Health Service and, I suspect, private medicine as well.

One of the many things which concern us about these rather over-detailed proposals is that someone wishing to establish a private hospital has to put it to the Board. Not only do they have to put it to the Board, but they have to go through the normal planning procedures which any applicant has to go through when seeking planning permission for something.

It may well be for the convenience of the House if I speak to Amendment No. 30 at the same time, which although not on precisely the same point is also concerned with planning. The purpose of Amendment No. 27 is that when an applicant has to apply for planning permission, he should not automaticaly have to put in another application and another set of facts and figures to the Board. One application should serve both purposes, otherwise it simply leads to duplication of effort on the part of the applicant at a time when Government expenditure is supposed to be cut down. It clearly requires a whole lot more people to look at these things, and I cannot see that it is in the interests of local government and local authority or, indeed, of the Board, that in looking at these applications they will have to look at more forms. I should have thought that what served the purpose for an application for planning permission could serve for the purpose of the Board. After all, planning applications require a great deal of detailed information.

Amendment No. 30 seeks to add the words in line 35 on page 15, that when authorisation is granted, it will be granted within three months of receiving the application. The noble Baroness, Lady Stedman, will be very familiar with the various time limits in planning applications in which an applicant has to have a reply from the planning authority. I think it not unreasonable that the Board should be asked to give a reply within three months of receiving an application. Therefore, I beg to move both Amendments, which I think will be in the interests of efficient government, and certainly in the interests of helping the applicants through what will be a series of quite complicated hoops. I beg to move.

9.6 p.m.

Baroness STEDMAN

My Lords, I am grateful to the noble Baroness, Lady Young, for suggesting we take the two Amendments together. Amendment No. 27 was one of a large group of Amendments that we debated in Committee. Something like 20 Amendments on the planning aspects were withdrawn, and quite a lot have been put down again in similar, if not the same form. Quite frankly, with reference to Amendment No. 27, I really cannot see how I can help noble Lords any more than I tried to do last time, when I tried to explain that the planning documents and the form which one fills in with applications for planning consent contain nothing like the same details that have to be filled in in order to get the authorisation to do the controlled works.

As the noble Baroness, Lady Young, knows from her association with the Department of the Environment. planners need to know about elevation, drainage, access, the need for carparking, the effect on transport, and so on; whereas so far as applications for building of the controlled works are concerned, one needs to establish the number of beds one will have, the surgeries to be provided, the operating theatres, and so on. The two are not synonymous one with the other. Quite frankly, if the description which I tried to give—and I know it was early in the morning—as to why an application for planning permission does not contain the relevant details useful for the Health Services Board in considering applications, was not clear, I cannot think what else I can say that will satisfy noble Lords.

My Lords, so far as Amendment No. 30 is concerned, I think that it indicates that noble Lords opposite have not much faith in the people who will serve as members of the Board and committees. They cannot accept—or it seems to me they cannot accept—that those who will be appointed after the necessary consultations are going to deal with the authorisation applications as quickly as possible. They seem to expect them to be so dilatory that we have to put in a fixed period for consideration of any application for authorisation.

This Amendment really is unnecessary, not only because the Board will, I am quite confident, discharge its duties with all proper speed, but because circumstances may arise in which it simply may not be possible for the Board to reach a decision within three months. Then we have to consider all the procedures that it will have to follow. The regulations made under Clause 16 require the Board to bring any application for authorisation to the attention of the interested parties, and to give those people likely to be affected by the proposed works a reasonable opportunity to make representations. The Board will then need to meet to consider the application and any representations, and it may then need to hold a hearing. Applications in Scotland and Wales will have to be considered by a committee that will hear the representations there and give advice to the Board. So it is conceivable that at some stage there may be an unavoidable delay in the procedure, and perhaps even the sickness of the applicant might cause the postponement of a hearing.

I think your Lordships will accept that this Amendment would put a duty on the Board which in exceptional circumstances they might not be able to discharge. I and my colleagues in the Department are satisfied that the Board will be responsible people, that they will take their duties seriously, that they will not stomach any undue delay in giving the authorisation and putting the necessary machinery into operation. I would hope that the House will reject both these Amendments.

The Earl of KINNOULL

My Lords, I should like briefly to support my noble friend. Of course, as the noble Baroness said, this argument really concerns Amendments Nos. 33 to 40 and indeed No. 43. The bone of contention is whether we should accept the provision of a separate application to the Board prior to a planning application. I have taken what advice I could in the short time available. I have spoken to an architect concerned with designing hospitals and also a council concerned with planning. In the case of the architect he showed me a full planning consent. I do not think it is right to say that the planning authority is limited only to car parking and to environmental impact, as the noble Baroness kindly described it to me in her letter. In order to be able to judge car parking and the facilities of the hospital within the total design, they will need to know the number the hospital will be designed for, the number of staff, the provision of accommodation and facilities; that is all part of the application.

The second point the architect made was this, and I wonder whether perhaps the noble Baroness could answer this point because I think it is very pertinent. The planning application form is not a standard form which has to be adopted by Parliament. It is a form that can be designed by any local authority which so wishes. Therefore, it is within the power of local authorities throughout the country to specifically design a planning application to meet the information that the Board wants. This is the argument which thoroughly convinces me that my noble friend is right, that a planning application could meet the information which is required by the Board at the time the application is made. It would bring about a great deal more speed. It would undoubtedly save a great deal of expense. When one looks at the costs of planning applications and planning appeals, I know the noble Baroness will agree that every Member of the House would wish to try to streamline them.

The point the planning council made to me was on the question of timing, which my noble friend's Amendment would seek to put into the Bill. It is not a question of thinking that the Board may be dilatory; it is not that at all. We do not under planning law say, "Local authorities may be dilatory and therefore we put in a time limit". It is a self-induced discipline. I think it is good guidance for the Board to know that within three months it should give a reply. It may, perhaps should, have the right to delay the reply for a further month, but at least there should be a time limit. It is most important when you are dealing with planning applications, with the present rate of inflation, to get on with the job. Indeed we are not only talking of the development, but of the provision of facilities for people.

9.14 p.m.


My Lords, I should like to support Amendment No. 30 putting a time limit on the authorisation. It was at the Committee stage that I spoke on clause stand part, asking the noble Baroness, Lady Stedman, about the problems of local authority members who were both members of the health authority and of the local planning authority. She replied that if it was her she would certainly not serve on both. I believe that this is so, but this does not necessarily provide an answer. She has a greater belief in human nature than I have, because she has again said, "I do not believe that the Board will be dilatory". I do not believe it would be either, but I do not see any harm in having a time limit so that we are certain that it is not dilatory.

The Board may be in existence for some years, and we do not know who the members of that Board will be. It only needs one or two of them to be dilatory for the time limit to be extended. It is essential that, when people are setting out on a planning exercise, applying for permissions on a two-fold basis, first for authorisation and then for planning permission, it should not be dragged out for a period which could be a year or a year and a half, which would be much too long. I hope, therefore, that the Government will accept the Amendment.


My Lords, I should like to support this Amendment also. I can envisage the Board having far more work than anybody perhaps realises at this time, except the Government. I envisage that it is going to have a great deal of immediate work. I can also envisage that there are going to be great numbers of people who will want to set up smallish private hospitals or nursing homes. They will set aside a certain amount of money which they will want to spend on the buildings and equipment of that hospital. With inflation as it is now, it is likely that almost 100 per cent. more money will be needed if the planning permission is not granted within six months or a year.

Other Members of your Lordships' House know a great deal more about planning than I do, but I know a certain amount about costing. If one has to delay buying any piece of equipment, or delay building a hospital, or a house, or any other building, with inflation as it is now the costs are likely to go up by at least 100 per cent. It is important that the people who are going out on this very expensive project should have a time limit set for them within the Act.

Baroness STEDMAN

My Lords, with the leave of the House, may I say that it is important that noble Lords understand that the planning procedure is quite separate from the Part III duties of the Board. It would be for the people who wanted to make the application for an authorisation for the building to get the authorisation first. In order to grant the authorisation the Board would want to know what they propose to carry out so that it could inform itself as to the extent and character of the proposed development, and also of what private medical provision is available in the area, as an indication whether there would be sufficient alternative provision to enable it to propose further revocations of the pay beds if the authorisation is granted.

The requirements needed in order to to get the authorisation are so different from the ones needed later when you apply to the local authority for planning permission. The local planning authorities, on the first outline planning permission, do not want anything like the detail needed when you apply for the full permission. The architects may go into a lot of detail when doing the full planning permission, but they will do so when their clients are primarily certain that they are going to get their outline permission and that they have got their authorisation.

I do not think that we ought to ask the planning authorities to extend their forms —and I really do not see how it is possible for them to do so—in order to take account of the Board's requirements. We are going to run into serious difficulties. I would also ask the House to resist putting in the time limit of three months. I am sure that my right honourable friend, when the time comes, will be giving guidance to the Boards. I am sure that one of the things he will give them guidance on is that they should not be dragging their feet on any applications which they receive. It would be unwise to tie them down to three months, when in certain exceptional cases three months may not be long enough.


My Lords, I follow the noble Baroness's argument about the difference between seeking authorisation and obtaining planning consent, and we appreciate that there is nothing she can do to speed up the machinery of planning consents; that is not contained in the Bill, nor is it her business. What I am not clear about is her objection to Amendment No. 30 because of the figure of three months, or is it that she objects to any figure at all being set? Presumably the noble Baroness would agree with us that it would not be acceptable if people had to wait for an indefinite period for an authorisation. Sooner or later there must come a time which she would herself regard as too long. Clearly she regards three months as too restrictive and I am wondering, in view of what she said, whether she would care to suggest some other figure because I feel sure that she must feel that there must come a time when a decision must be given. If it is not three months, how long does she think it should be?

Baroness STEDMAN

I should not like to suggest a figure, my Lords. In normal circumstances three months would probably be long enough, but I think we would be foolish to tie Statute to the period of three months when there may be the odd exception with delays that are unforeseen and unaviodable. One would then have to go over to four months and the planning board would then be in trouble. I think I would be satisfied if my right honourable friend were to give the guidance that as a general rule he would expect these matters to be dealt with within the three months, and I am sure that is the sort of guidance the boards will be getting from my right honourable friend.

Viscount KEMSLEY

My Lords, might I suggest that we use the phrase which is frequently used in legislation, "within a reasonable time"?

Baroness STEDMAN

I hope it will be, my Lords.

Baroness YOUNG

My Lords, I hope that the noble Baroness, Lady Stedman, is right and that in the circular which goes out explaining how the Bill will work the Government will put in a time limit because, dealing with Amendment No. 30 first, I was aghast when I heard her describe the kind of reasons why three months would be too short. I was aghast because my experience on planning committees has taught me that when a planning committee decides that it should take part in some public consultation exercise, unless it puts a time limit on it, the amenity society will discover that the secretary is away on holiday, that the committee cannot meet for perhaps two months and that therefore they cannot be consulted until whoever it is returns from wherever it is they have gone, and the wretched applicant is left for an indefinite period without a decision. It is not the fault of the applicant and it is not, strictly speaking, the fault of the planning committee.

There is something to be said for having a time limit because it concentrates the mind and if one writes to an amenity society saying, "We must have a result within three months. We are consulting you. Would you kindly give us your views on this matter within this given time", one knows that one is getting somewhere. Without a time limit one will have exactly the circumstances I described, and I am sure the noble Baroness is as well aware as I am of the number of times when precisely this sort of thing can occur.

In this circumstance not only has the applicant to go to the Board to get the authorisation to build the hospital, but he must then go to the planning committee for planning permission, and without a set of time limits this exercise could take years, and that is no exaggeration. By the time everybody has been consulted, everybody has put in their objections, the Board considers the matter, it meets, and the matter goes through all the hoops of planning—outline planning permission, detailed planning permission, consultation with the neighbours and so on—it is not an exaggeration to say that that could take two years. I hope, therefore, that the Government will take this point seriously and put on a time limit by which the Board must give a decision.

On the question of the special form, I am not convinced by the argument. I think that planning committees could produce a special form, particularly as they, the county council, would be among the few people aware of a structure plan and of the amount of private hospital accommodation in the area. They are much more likely to be aware of it than the applicant building the private hospital. If it is a question of a detailed plan and it is referred to the district, again. the district will know precisely the kind of detailed information they want. They may not want as much as the Board wants and perhaps the Board should design a form which is suitable for use by a planning committee. Nevertheless, I still cannot see that two forms are necessary.

We have had a good run on these Amendments and I am sure the House will agree that they have been worth discussing. They are not matters which I intend to press to a Division, but I hope, as I said in opening, that Lady Stedman will press her right honourable friend, when he writes his circular, to take account of these points. They are very real considerations. A great deal of money is tied up in these developments and it is the applicant, and eventually the private patient, who will bear the cost. We have had a lot of debate about what is a reasonable cost. It would not be a reasonable cost if planning permission and authorisation had been unreasonably withheld and therefore the time limit is important. I do not intend to press this tonight but I hope the point will be fully considered. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.25 p.m.

Viscount LONG moved Amendment No. 28: Page 15, line 25, leave out ("to a significant extent") and insert ("substantially").

The noble Viscount said: My Lords, with the leave of the House I should like to speak also to Amendment No. 29 and to inform the House that at 12.41 the other morning I moved Amendment No. 62 and spoke to Amendments Nos. 63, 93 and 94. I noticed that we did not move two of the Amendments into the Bill and I am now seeking to do so. We agreed that the word "substantially" should go into the Bill at page 9. This has been done. On the other page the old wording, "to a significant extent" still appears. I beg to move that these two Amendments should join in holy matrimony with the other two.

Baroness STEDMAN

My Lords, as the noble Viscount has said, these two Amendments were down but were not moved in Committee. The Government need to be satisfied that developments in the private sector do not significantly endanger the service the National Health Service give to its patients and will enter into consultation with the medical and dental professions as to how this can be achieved by voluntary means. The phrase "to a significant extent"—for which these Amendments would substitute "substantially"—thus gives effect to the safeguard which was foreshadowed in the 15th December proposals.

The Amendments cover similar ground to the Amendments to Clauses 7 and 8 of the Bill which were debated thoroughly during Committee stage. During the debate the statement made by the former Minister of State in another place was quoted, that the substitution of "substantially" for "to a significant extent" would allow a greater amount of interference with the Secretary of State's performance of his duties or disadvantage to National Health Service patients, but would not give an indication of how far the amount would be increased or what would be its limit. The words "to a significant extent" are intended to ensure that the Board is not bound to take account of minimal interference or disadvantage, but would be guided by whether or not there would be noticeable and effective interference or disadvantage. We think this is a fair and reasonable interpretation of what was foreshadowed in the Goodman Proposals, and I hope the House will accept that explanation.

On Question, Amendment negatived.

9.30 p.m.

The Earl of KINNOULL moved Amendment No. 31: Page 16, line 8, after ("authorisation") insert ("(provided that no authorisation shall lapse after the controlled works have been begun)").

The noble Earl said: My Lords, as we slip gently into the night against the interests of our own good health I hope that our joint wisdom will not fall on deaf ears. This small Amendment is still on a point of clarification, something which I know was raised in another place and during the Committee stage in your Lordships' House. The Amendment relates to the lapsing of an authorisation consent once that consent has been granted by the Board.

As I understand it, if a consent is granted, it is most likely that there will be a time limit within which the work must proceed, and if it is not completed within that time the consent will lapse. That is easily understood. At the other end of the scale, once the development has been completed the consent will be spent and will evaporate. What is not covered is what happens if a start is made and, according to the Board, the development does not continue at the speed the Board wants. Is there a possibility at that stage of the consent lapsing or being revoked? The noble Baroness was kind enough to write to me to indicate that there was a significant difference between these two things. Indeed, there is, because revoking would have to be revoking on a condition laid down in the consent, and lapsing would not. I hope that the noble Baroness will be able to clarify that point which of course deals only with work that has made a start. I beg to move.

Baroness STEDMAN

My Lords, it was early in the morning when we came to this Amendment in Committee. I gave your Lordships quite a full explanation then of the provisions in the Bill governing the duration of authorisations, and I undertook to write to the noble Earl, Lord Kinnoull, giving him the reply to questions. That, as he reminded the House, I have done. The important thing is to distinguish between. an authorisation lapsing, on the one hand, and an authorisation being revoked on the other. Whatever the circumstances in which the authorisation either lapsed or was revoked, the Board would only be able to refuse to reissue an authorisation for the same project if there had been some material change in circumstances which meant that the Board now thought that the project could cause detriment to the National Health Service.

The Board may, with the consent of the developer, alter the conditions of any authorisation and it would be able to extend the period for the development if the developer was not able to complete within the time laid down. I hope that these points may reassure the House.

The Earl of KINNOULL

My Lords, I am grateful for that explanation and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

The Earl of KINNOULL moved Amendment No. 32:

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

The noble Earl said: My Lords, this is perhaps a more important Amendment in principle. It concerns the right to transfer an authorisation consent. Again, this is something that has been discussed in another place and in this House. To date, the Government have given two replies. The first was that, in their view, no provision is necessary because the owner of the consent can withdraw and a new licence be applied for. Secondly, the Government saw a danger, if this provision were added to the Bill, of its leading to what they termed "unmonitored transfers" and the possibility of a black market operating. I have tried to take advice from outside to discover what was the likelihood of a black market in these cases. I have not found anyone who felt any confidence that there would be tremendous value in these authorisation consents.

However, I believe that there is a serious fault in not allowing a consent to be transferred. I am not sure whether the consent will be issued in the name of a person, a charity or a corporate body, or whether it will be related to the land. Planning consents of course go with the land and not with the person, and I feel that the Government, in drafting this provision. have seemed to regard the consent in the same light as a gaming licence; that is, they are concerned with the character of the person and his ability to provide a service. I would ask the noble Baroness to look at this provision again and to recognise that there is a worry that those who have consents should be allowed to transfer them, subject, as the Amendment suggests, to the right of the Board not to allow a transfer if it thought it had reasonable grounds not to do so. That is a slightly Irish way of describing the Amendment. My Lords, I beg to move.

Baroness STEDMAN

My Lords, we have looked carefully at the points which the noble Earl raised on the last Committee stage when he asked whether, under the Bill, it would be possible for a developer, having been granted authorisation, to sell his company and by this means transfer the authorisation with the assets of the company. I said then that I should have thought it would have been possible, and I take this opportunity of confirming what I said then.

I realise that it could be used purely as a device for transferring authorisations, but it would be a rather cumbrous procedure for a developer to try to adopt. The Board, as I said in Committee, would have no reason for refusing to transfer an authorisation in respect of the same development if none of the circumstances had changed. I would also remind noble Lords that if an authorisation, as part of the assets of a company, passed with the company to a new owner, it would remain subject to the terms on which it was originally issued, which could include the time limit after which the authorisation would expire if the controlled works in question had not been begun. I hope that that information clears the point which the noble Earl had in mind.

The Earl of KINNOULL

My Lords, that explanation certainly helps to clarify the situation and I would not want to pursue it further at this stage. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.38 p.m.

The Earl of KINNOULL moved Amendment No: 32A:

Page 16, line 11, at end insert— ("(5) An authorisation granted under this section shall be for a period not less than three years.").

The noble Earl said: My Lords, this is a simple Amendment and, in a way, similar to my noble friend's Amendment No. 30. It is designed to put a minimum time limit on an authorisation consent. I do not think that the noble Baroness has ever been challenged as to the kind of timing the Board is likely to be asked to put in its conditions. In these magical instructions to go round, it would be helpful to know the position. I would add that the three-year limit has been designed to be parallel to an outline planning consent, which is three years, and, as the noble Baroness would know, detailed planning consent has a time limit of five years. I beg to move.

Baroness STEDMAN

My Lords, the Government have considerable sympathy with the intention of the Amendment, but they consider that it would not be appropriate to include it within the Bill. The noble Earl, who obviously has a more considerable knowledge of planning matters than I, may be aware that the provisions of Section 41 of the Town and Country Palnning Act 1971 requires that a development which is the subject of planning permission must be begun within five years of the date of award, or within such longer or shorter period as the planning authority may stipulate. Thus planning authorities have discretion in this matter. It is difficult to imagine circumstances in which the Board would issue an authorisation for a period of less than three years. But we should accept that the period of authorisation is something over which the Board, as a responsible and independent body, should have discretion. It would be inappropriate to write into the Bill conditions which would, in effect, place limits on the Board's freedom of action, however well-intentioned those conditions might be.

The Government have consistently said that they intend to provide the Board with an independent status such as was envisaged in the Goodman Proposals, and an integral part of this independence, in the Government's view, is that the Board should be free to decide what the duration of an authorisation should be. It may help to allay the noble Earl's fears if I explain that the Council on Tribunals, which will have the general supervisory role in relation to the Board, is placed under a duty by Section 1 of the Tribunals and Inquiries Act 1971, to keep under review the constitution and working of the bodies under its supervision. This would mean that if the Board were to determine the duration of an authorisation which was considered to be either capricious or unreasonable by the applicant, the council would, on referral, be able to investigate the applicant's complaint and, if appropriate, take it up with the Board. Therefore I hope that the noble Earl will not feel that he has to press this Amendment.

9.40 p.m.

Baroness YOUNG

My Lords, the noble Baroness said that the reason why she cannot accept my noble friend's Amendment is, I understand, that it would be unnecessary because the Board will be independent and does not need to be tied down. But her noble friend the noble Lord, Lord Wells-Pestell, said on an earlier Amendment that the Board did not need to give its reasons on anything because the guidelines were laid down very precisely on the matters on which it was likely to make a decision.

I should have thought that my noble friend has identified exactly the kind of case where perhaps an authorisation were made for less than three years and for one reason or another lapsed, and the Board did not give its reasons. It could be very disturbing if people did not know why. I cannot see why, in order to be consistent, the Board should be so tightly tied down in Clause 4, except of course that it is in the Goodman document; at any rate, we see that. Why can there not be added this kind of provision which, as the noble Baroness has quite rightly said, would be somewhat in line with the provisions under the planning Acts? It could well be that the applicant could get his permission under the planning Acts, which would hold good for five years, and then upon going to the Board, find that his permission lapsed after a short period. This would be grossly unfair, yet it is not impossible because the two are not working to a consistent standard. Perhaps this is a matter which the noble Baroness would like to look at again; it is the kind of matter which the Secretary of State also might like to look at. I am sure that the noble Baroness will see, as I can see, that there could be a miscarriage of justice.

Baroness STEDMAN

My Lords, I am grateful to the noble Baroness for what she has said. Yes, I think that I should like to look at this matter again and have further discussions with my right honourable friend.

The Earl of KINNOULL

My Lords, I am very grateful to my noble friend, and indeed to the noble Baroness for her very detailed reply. I am also heartened to learn that she feels that I have a little knowledge on planning, which of course I have not; but at least I am heartened in that I have given that impression. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause I5—[Planning permission for works requiring authorization]:

9.43 p.m.

The Earl of KINNOULL moved Amendment No. 41:

Page 18, line 7, at end insert— ("(4A) For the purpose of any application for planning permission for any controlled works and any appeal as aforesaid, an authorisation for those controlled works shall be conclusive as to the matters referred to in subsections (2) and (3) of section 13 above.").

The noble Earl said: My Lords, I submit that this is an important Amendment. The House will recall that under Clause 15, which deals with planning permissions, no application for a planning permission can be entertained by a planning authority until an authorisation consent has been granted. Under Clause 13 the reasons and the tests which will be applied by the Board in consideration of that authorisation application are set out. As we have already discussed, these tests are technical in nature. The Board has to consider one aspect in principle: whether the works in question would interfere with the duty of the Secretary of State in regard to National Health Service Acts and whether they would operate to any disadvantage to National Health Service Hospitals. A little further on in Clause 13 we see that the Board has to look at the more technical points of the service which would be provided, the staffing available, and so on

The Government advice that the noble Baroness has already given us under Clause 14, is that under planning considerations the advice and the technical evidence that the Board consider is outside the scope of the planning authorities. If we accept this, then I hope the noble Baroness will be able to accept the Amendment. The Amendment is trying to ensure that in the event of a planning application and consideration by the planning committee, or in the event of a refusal and that planning application going to appeal, then the technical questions that have been considered by the Board will be conclusive and will not be the subject of debate in any appeal procedure or in the planning committee. I hope that with that brief description the noble Baroness understands my Amendment, and that the House does, too. I beg to move.

Baroness STEDMAN

My Lords, I think that I should like to give a little more thought to what the noble Earl has said. The planning authority and the Board are two separate bodies. I should like to look at the point again, and I shall, if I may, try to come back to the noble Earl before we start the Third Reading tomorrow.

The Earl of KINNOULL

My Lords, I am grateful for that undertaking, and on those grounds I should like to withdraw this Amendment.

Amendment, by leave, withdrawn.


My Lords, my noble and learned friend the Lord Chancellor will be dealing with the next Amendments, and he is on his way to the House. This gives me an opportunity, subject to the permission of your Lordships, to make what I think amounts to a personal statement. When we were considering Amendments Nos. 25 and 26, moved, I think, by the noble Lord, Lord O'Hagan, I understand that I said that the figures of 100 in London and 75 outside London were what we were asked to accept by the independent hospital group. Let me be perfectly frank about it: I got my figures confused. What I ought to have said was that the figures in the Amendment that the noble Lord was moving—that is, 250 and 150—were what the independent hospital group wanted. So I was in error; and I wanted to tell the noble Lord and the House that and, at the same time, to apologise to all noble Lords for what was a misleading statement.

Clause 17 [Appeals]:

The LORD CHANCELLOR moved Amendments Nos. 4IA, 41B, 41C, 42A and 42B:

Page 20, line 1, leave out ("this section") and insert ("the preceding subsection").

Page 20, line 11, leave out subsection (5) and insert— ("(5) Rules of court relating to appeals under this section may provide for excluding so much of section 63(1) of the Supreme Court of Judicature (Consolidation) Act 1925 as requires appeals to the High Court to be heard and determined by a Divisional Court; but no appeal to the Court of Appeal shall be brought by virtue of this section except with the leave of the High Court or the Court of Appeal.").

Page 20, line 15, after ("High Court") insert ("or the Court of Appeal").

Page 20, leave out from beginning of line 25 to first ("the") in line 27 and insert ("On any appeal brought under or by virtue of this section").

Page 20, line 30, at end insert— ("(8) An Appeal shall lie, with the leave of the Court of Session or the House of Lords, from any decision of the Court of Session under this section, and such leave may be given on such terms as to costs or otherwise as the Court of Session or the House of Lords may determine.").

The noble and learned Lord said: My Lords, I apologise that I was not present when these Amendments were due to be called. In moving Amendment No. 41A, which stands in my name, I think it may be conveient if I also move Amendments Nos. 41B, 41C, 42A and 42B, since they all relate to the same point; that is to say, the right of appeal. Those of your Lordships who had the good fortune to be present at 6.16 a.m. last Thursday morning will have heard the criticism which the still highly-alert noble Baroness, Lady Young, advanced about the appeal provisions which are now contained in Clause 17. Summarising it, the noble Baroness's argument was that to make the decision of a single judge of the High Court final was to open up the possibility of conflicting decisions on points of principle as between one judge and another which ought to be but could not be reviewed by a higher court, or a difference of view which could not be finally resolved between the Court of Session in Scotland and the courts in England.

As I indicated then, the Government were not taking a dogmatic line, and there arises the question of balancing the need for finality and the avoidance of endless litigation, on the one hand, and, on the other hand, the need to provide a reasonable and sufficient right of appeal against a decision of the Board. My view has been that points of law are not very likely to arise in the context of the Board's decisions and that one appeal to the High Court or Court of Session was sufficient to obtain an authoritative decision on any point of law which might arise. It was said by A. P. Herbert in respect of our system which not only provides for appeals from a High Court judge to the Court of Appeal but to the House of Lords, that one level of appeal he thought adequate and two, desperate. However, that is the set-up we have and it has been well trial and, I think, well justified.

Having given the matter further thought and after discussion with the noble Baroness and with the noble and learned Lord, Lord Hailsham of Saint Marylebone, I think that in order to reduce the risk of conflicting judicial decisions the prudent course will be to allow a further channel of appeal from the High Court judge to whom an appeal on a point of law would go in the first place. The combined effect of the Amendments I have moved is to make provision on the pattern which is normally adopted under the Tribunals and Inquiries Act 1971 in cases where an appeal lies on a point of law from the decision of an inferior tribunal. The effect will be in England and Wales that there will be an appeal as of right to a High Court. Whether this will be to a single High Court judge or to the Divisional Court will be a matter for the Rules Committee, but the practice in recent years has been for appeals from inferior tribunals to be heard by a single judge. I would expect that to be the position here. A further appeal would lie, with leave, to the Court of Appeal and thence, with leave, to your Lordships' House. In Scotland, the appeal will lie from the Court of Session, with leave, directly to your Lordships' House.

I do not depart from my personal opinion. Indeed, I hope that these provisions for further appeals will be little used; but, as I have said, on reflection I think it right that they should be there in case they are needed and the requirement of leave at each stage of an appeal above the High Court or the Court of Session will ensure that time is not unduly wasted on frivolous or hopeless appeals. I therefore commend the Amendments to your Lordships and I beg to move.

Baroness YOUNG

My Lords, I should like to express on my own behalf and on behalf of my colleagues our gratitude to the noble and learned Lord the Lord Chancellor for bringing forward these Amendments. I was particularly delighted to hear my own arguments so well expressed by the noble and learned Lord because, although we debated this matter at 6.15 in the morning, it is an important matter and one which I am sure everybody on all sides of the House will agree should have been put right. We are particularly pleased that the noble and learned Lord has been able to do so and I should like to express my thanks to the Government on this matter and for the trouble that the noble and learned Lord has taken personally over it.

On Question, Amendments agreed to.


Amendment No. 42 falls with the acceptance of Amendment No. 41A. It is not moved, or, alternatively, it falls.

Clause 22 [General provisions as to regulations]:

Lord O'HAGAN moved Amendment No. 44: Page 23, line 20, leave out ("he may recognise as being") and insert ("are").

The noble Lord said: My Lords, it may be for the convenience of the House to take Amendment No. 45 with Amendment No. 44. These two Amendments, and Amendments Nos. 50 and 51, are designed to reduce the divine right of the Secretary of State. The Secretary of State has an unlimited power to recognise what he feels like recognising. He can judge bodies to be representative if they appear to him to be representative. If something is representative it should not be left to the Secretary of State to decide whether or not it is. If these bodies are representative, it is not necessary for them to appear to the Secretary of State to be representative. I hope that the Government will take the opportunity to explain why they have these words in the Bill. I beg to move.

9.56 p.m.


My Lords, I will speak to Amendments Nos. 44 and 45 as the noble Lord has been good enough to move them together. These Amendments would require the Secretary of State to consult, before making regulations, Such other bodies as are representative of medical and dental practitioners, and such bodies as are representative of interests likely to be substantially affected by the regulations". The Bill, as drafted, requires consultaton with such bodies as he may recognise as being representative of medical practitioners and dental practitioners and such bodies as appear to the Secretary of State to be representative of interests likely … The Amendments, if carried, could allow the Secretary of State to be challenged, if other people disagreed with the exercise of his discretion as to which bodies are representative of the medical or dental professions. or of persons employed in the NHS, or are representative of interests likely to be substantially affected by regulations. These categories are not absolutely clear and definite. There could quite well be dispute over whether a certain body is or is not likely to be substantially affected. There could equally well be dispute over which bodies really do represent the medical and dental professions, and persons employed in the NHS, and NHS patients. The present wording of the Bill, I hope the noble Lord, Lord O'Hagan, will agree, allows a very practical and necessary flexibility. This is important. It enables the Secretary of State to use his judgment in deciding who, in his view, properly represents bodies likely to be affected by regulations; and it enables him to consult those bodies whom he recognises as representatives: this is important. There are many different bodies and associations to which medical and dental practitioners, and other NHS staff, and NHS patients could belong. One could almost say they are legion. Some are perhaps much more (shall I say?) representative than others and are recognised as such.

We have to face the fact that—and the noble Lord, Lord O'Hagan, would know this as well as anybody in your Lordships' House—that sometimes one embarks upon something knowing full well that it is impossible to consult all the bodies involved. One has to choose those which are recognised, generally speaking, by everybody as being the spokesmen, the authoritative groups. The Secretary of State must be allowed by this Bill to consult the bodies whom he is accustomed to recognise as representatives of the relevant categories. The noble Lord, Lord O'Hagan, will take it from me that in this particular field the Secretary of State is unlikely not to know the people with whom he should be consulting. For that reason, I hope that he will not press the Amendment.


My Lords, I thank the noble Lord for that explanation. I take it that he has assured the House that the Secretary of State will not use this discretionary power unreasonably to exclude those he might normally be said to be representing. He has really given an undertaking that the customary bodies would continue to be consulted, as I understand it.


My Lords, I have indeed.


My Lords, in that case, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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

10.1 p.m.

Baroness YOUNG moved Amendment No. 46: Page 25, line 9, at end insert ("who holds or has held judicial office").

The noble Baroness said: My Lords, we debated this Amendment at Committee stage hut, on refreshing my memory, I see that it was by that time 6.37 in the morning and after 16½hours in Committee we were all finding it a little exhausting to go into full detail on all those Amendments. I put this down again, because we regard it as an important Amendment and in the intervening time we have had the opportunity to read in Hansard what was said. Again, I feel a certain diffidence in talking about the legal profession and the sort of person who is required to be chairman of this Board, but I think we are all agreed that the job is very important and I would guess it to be one that would be virtually full time. There will be a great many things to be decided and it will certainly be a full-time appointment in the beginning, considering the amount of work that will have to be done. It will require someone who will be acceptable to all the members of the Board and obviously it must be somebody of distinction in whom everyone will place considerable trust. I looked to see what the noble and learned Lord the Lord Chancellor had said, and I quote his words from col. 629 on 10th November: The Chairman of the Board, after all, will be a lawyer of standing. I do not know at this moment who he will be, but it is certain that he will be a lawyer of standing, and I would expect that he would be of the status of Queen's Counsel, so there would be a lawyer presiding over the proceedings of the Board.

If this person who becomes the chairman is not a judge, what is the sort of person who is likely to be appointed as chairman if he is a lawyer? If he is a barrister, I understand the difficulty there is that a barrister would find it very difficult to give up the time to become chairman. The profession of barrister is, above all, a profession of the self-employed, and the difficulty would be that if a barrister ceases to practise the solicitors will promptly go off to somebody else and he would find it difficult to get his practice back again. Therefore it would be very unlikely that any barrister of eminence and standing would wish to do this job, because he would be really giving up his professional career for a three-year appointment, or whatever it might be, without any certainty that the appointment would be renewed. The question then arises: who are we likely to have if we do not have, as a lawyer of standing, a successful barrister? I hesitate to talk about somebody being a less successful barrister, but perhaps he might be called the opposite of the successful barrister. Is that the kind of person in whom everyone would have confidence? The other alternative might be a barrister who, for some reason or another, has not the temperament to become a judge and therefore might not be regarded as the ideal person to become chairman of this Board.

Contemplating these alternatives, perhaps they might not appear to be serious suggestions but I believe this is a very serious matter indeed. It is vital to get the right chairman of the Board and I hope that, if the noble and learned Lord is to reply to this, he will be able to say what he means by "a lawyer" and what sort of lawyer he expects to get. Does he, for example, expect to get a successful barrister? Can he be certain, if he does get one who gives up his practice, that the person concerned really will feel he has freedom to disagree, if necessary, with the Secretary of State or the Government of the day? Will the barrister feel, having given up his practice, that he is tied to this job because there is no other job for him to go to? In the latter case he would not have the independence that everyone would like to see. Therefore, I think we need to have a judge for this job, as our Amendment suggests, and if a judge is appointed to be chairman of the Board not only will members of the Board find that he is a better chairman, but others involved in this matter will have greater faith in any decisions that he may make. My Lords, I beg to move.


My Lords, I entirely sympathise with the substance of the argument of the noble Baroness, Lady Young, but I would venture to doubt whether her wording is in any way apt. I cannot understand the term, "has held judicial office". I understand the term, "has held high judicial office", because I believe that that is contained in some Acts of Parliament as being a qualification for a Member of your Lordships' House sitting upon the Appellate Committee. But when I see the simple term, "has held judicial office", all kinds of queries spring to mind at once, about which I would welcome the noble Baroness's observations in due course.

A circuit judge is clearly a person who holds judicial office. Is a deputy circuit judge, who may have sat for half a day in his life in order to deal with an excess of work, to be regarded as qualified? A registrar of a county court, who is not a lawyer of vast experience or standing, is a person who holds judicial office. Is a justice of the peace to be regarded as a person who holds judicial office? A metropolitan magistrate is clearly a person who holds judicial office. Is a deputy metropolitan magistrate, who may be a comparatively junior member of the Bar who has sat for half a day or one day in order that observation may be made of his ability to do the job, to be regarded as such a person? Indeed, taking the matter to an extreme I should have thought that a person who has sat as the president of a court-martial is a person who has held judicial office. In the circumstances, I find it very difficult, although I sympathise with the point which the noble Baroness is seeking to make, to regard the wording of her Amendment as in any way apt to meet the point which she is raising.


My Lords, it may be convenient for me to reply at this stage. May I say at once that the Government do not think that this will be a full-time job. We think that the noble Baroness is exaggerating the amount of litigation that will flow, and we also feel that she is exaggerating the number of meetings of the Board and the amount of work that will flow to it. Our assessment is that the chairmanship can be conducted on a part-time basis.

We certainly contemplate that it should be a lawyer. I was asked: What kind of lawyer? The answer, of course, is a very good lawyer. The extraordinary thing about good lawyers, who are busy in practice, is that they are always able to find time to perform public duties and part-time work of this kind. I cannot spare any judges. My problem is to man the courts with the judicial manpower that I have. We have reasonable confidence that one of the worthy members of the Bar—and I hope it will be a "silk"—will undertake this important duty of chairman. To limit it to a judge, either a former judge or a present judge—and, speaking as Lord Chancellor, to spare an existing judge is frankly not "on"—is not in my view as satisfactory as leaving it to us (arid I shall assist in this matter, with the Department) to find a good lawyer of standing, who will command the confidence of those who will be appearing or making representations to the Board.

We are making rather heavy weather of this. This is a problem that I meet frequently as Lord Chancellor, the problem of finding counsel of standing to fulfil these duties. They hardly ever fail us when we ask them. Without going into the interesting question raised by the noble Lord, Lord Wigoder, as to what judicial office is, when I contemplate the choice of 21,000 lay magistrates who proudly claim to be performing judicial office, of course, many of those might be suitable for the chairmanship duties. But I do not think the noble Baroness had that in mind. Speaking seriously, we contemplate finding a lawyer of standing who will command the confidence of the parties who come before the Board. In view of that assurance, I hope the noble Baroness will not press her Amendment.


My Lords, could I ask the noble and learned Lord the Lord Chancellor whether a member of the Scottish Bar would be eligible for consideration for the post of chairman?


My Lords, I would not exclude a member of the Scottish Bar. They have some of the most eminent lawyers in the country there, as I discovered recently on a happy visit to Parliament House. They would certainly not be excluded.


My Lords, the noble and learned Lord has said that he cannot spare any judges. In this office, I would not particularly like any judge which the noble and learned Lord may find he can spare. This is one of the troubles of this matter. The noble Baroness, Lady Young, said she was a little diffident about talking about the law and lawyers in this House. Indeed, we are all rather diffident in talking about the law, except for lawyers who, it seems to me, talk about nothing else.

I would say that I am as concerned as anyone about the identity of this person. I am sure we all want to see someone acceptable to all the various sides of the argument, someone who will devote a considerable amount of time to the job and someone who commands the respect of all the parties concerned. But whether we can guarantee that—despite definitions about people who have or have not held judicial office—merely by having a judge, I rather doubt. If we reduce this Amendment to its simple terms of who has held judicial office, who has been a judge, we would get someone who had been a judge; in other words, someone whom it was high time he stopped being a judge. Frankly, in this office I would prefer someone, as it were, in full figure rather than someone about whom people felt that it was time he moved on. Although I sympathise with the motives behind the Amendment and with what the noble Baroness, Lady Young, has said, I would rather see this left open in this way. I would rather we reserved the right to object strongly if some totally unsuitable person is finally put forward.

Baroness YOUNG

My Lords, we are being put into an extremely difficult position over this. I take the point raised by the noble Lord, Lord Wigoder, about this. Perhaps I have not drafted the Amendment as closely as I should. The difficulty in which we find ourselves is that we move on to Third Reading tomorrow and cannot put down manuscript Amendments, which I would have liked to do, to amend this and to correct the Amendment. I have agreed to this timetable entirely, I presume, to suit the Government, because it is quite wrong in principle to have Third Reading the day after Report stage when we shall barely have had time to read Hansard. But I suppose, as anyway we are supposed to be a rubber stamp on the Bill, it does not matter much whether or not we say anything. This is quite typical of the arrangements that have been made.


My Lords, as I think the noble Baroness, Lady Young, knows quite well, the arrangements were between the usual channels. It is always difficult to arrange things at the end of a Session. I think the aspersions the noble Baroness has cast on us are really rather unworthy of the Benches opposite.

Several noble Lords

No, no!

Baroness YOUNG

My Lords, I am not trying to cast aspersions on the usual channels. I am aware that the arrangements were made through the usual channels. I was consulted about them through the usual channels at the only time possible; that is, at the end of a 16-hour session we had in Committee. It has been rather difficult for some of us, and we are now put into a very difficult position over what I regard as an important point. I take the point made by the noble Lord, Lord Wigoder, that this is perhaps too widely drawn; that perhaps "judicial office" does mean what the noble Lord says. I had understood that it applied to circuit judges and to registrars of county courts; I did not realise that it applied to every magistrate or even presidents of courts-martial. I am afraid I do not agree with the noble Lord, Lord Winstanley. I think it is not good enough to say that a whole series of people might be put up before the Board and people can go on objecting until they get the right person. I suppose it would put off the work of the Board, and if that was what was wanted that would be a very good way of doing it.

I think this is a very important job, and I think it will take a lot of time. It is not good enough to say that there are a whole lot of lawyers who can do it in their spare time or who at the moment have nothing else to do and are waiting to be asked to do this kind of work. In view of what has been said, I find it very difficult to press the Amendment, but I must say that I find this a very unfortunate ending. I feel that I have been put in a difficult position. If I can put down a further Amendment tonight on this point I shall do so but, in the meantime, I beg leave to withdraw the Amendment.


My Lords, I honestly do not understand how this difficulty has been built up in this way. I have said that, in collaboration with the Department, I have every confidence that we shall find a lawyer of distinction to undertake this important work. How that is dismissed as something wholly unsatisfactory, I confess I cannot understand.

Amendment, by leave, withdrawn.

Baroness YOUNG moved Amendment No. 47: Page 25, line 10, leave out ("two") and insert ("three").

On Question, Amendment agreed to.

Baroness YOUNG moved Amendment No. 48: Page 25, line 13, leave out ("two") and insert ("three").

On Question, Amendment agreed to.

Baroness YOUNG moved Amendment No. 49: Page 25, line 14, at end insert ("of whom one shall represent the interests of nurses and the professions supplementary to medicine, and one shall represent the interests of hospitals patients generally").

On Question, Amendment agreed to.

10.18 p.m.

Lord O'HAGAN moved Amendment No. 52: Page 26, line 35, leave out ("regarded as").

The noble Lord said: My Lords, it is said in the Schedule that the Board, shall not be regarded as the servant or agent of the Crown, or as enjoying any status, immunity or privilege of the Crown".

If the Government intend the Board to be independent, would it not be simpler to say what they mean? My Amendment is to make the wording more explicit. I beg to move.


My Lords, may I suggest to the noble Lord that we deal also with Amendments No. 52 and 53 as they go together? The effect of these Amendments taken together would be to provide that the Board should not be the servant or agent of the Crown or enjoy any status, immunity or privilege of the Crown. The Amendments alter the wording, but our view is that they do not alter the meaning of the paragraph. We find this Amendment rather surprising, because in point of fact the wording is much the same. It is the same wording that goes in other Bills; I have to confess that the words have been taken out of other Bills and have gone into this Bill. The wording of the paragraph is a standard provision which is used in other legislation; for example, in paragraph 1 of Schedule 2 to the Fair Trading Act of 1973 in relation to the Consumer Protection Advisory Committee.

As your Lordships must be aware, the Bill has been drafted—and I am not in any way exaggerating—by a professional legal draftsman, and since there would be no alteration in the sense, there is no reason why it need be altered in the way proposed in these Amendments. I do not think anything is gained. I am not suggesting that anything is lost, but as it is already in the Bill, and they really both mean the same thing, I would suggest to the noble Lord that he leaves it as it is.


My Lords, since the objective we share is the same, and in spite of feeling that on the whole it is better to say what you mean, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.21 p.m.

Lord SANDYS moved Amendment No. 54: Page 27, line 16, at end insert ("and the Secretary of State shall forthwith appoint a further member of the Board to fill the vacancy.").

The noble Lord said: My Lords, this Amendment deals with a matter about which we feel strongly, because it is concerned with the filling of vacancies. I think that on the previous Amendment the noble Lord mentioned that the legal draftsmanship of the Bill had been based on previous legislation concerned with committees of this nature. It is possible, therefore, that there is a simple explanation why the draftsmanship in Part IV of Schedule I is as it is. The way it is drafted rather suggests that it is concerned with the ineligibility of the retired or defunct member for remuneration. It is the sort of drafting which one would expect in matters concerning Revenue points or those concerning the Treasury.

There is a real need for a small Board, a Board consisting of only a few members. Of course this afternoon your Lordships' House has increased the membership from five to seven. Even so, there is a very small membership, and therefore it makes it even more a matter of urgency that the Secretary of State should fill a vacancy if and when it occurs. As drafted at the present moment, we learn from Schedule 1, Part IV that the Secretary of State may declare the office to be vacant and he is told to notify the declaration in such a manner, et cetera. But there is no instruction for the Secretary of State to act on that declaration.

This may be a form of words; it may be a current practice, and we believe that it should be incumbent upon the Secretary of State to act forthwith. I should here refer to the word "forthwith" because it is important. It implies an urgent obligation, and "forthwith" means something rather special in legal terms outside its definition in day-to-day terms. As we understand it, "forthwith" in this context means by following the normal procedures and without delay in all the circumstances. I think that our request for further information here may not be satisfactory so far as the Government are concerned. We hope it will be. But it seems from our inquiries, and indeed by examination of notes on clauses, that no particular urgency is to be expected in this regard. I beg to move.


My Lords, I think I can satisfy the noble Lord. As he says, this Amendment would require that whenever the Secretary of State declares an office of a member of the Board vacant in the circumstances set out in paragraph 9 of Schedule 1, he shall forthwith fill the vacancy. That is the purpose of the Amendment. We discussed this question on Amendment No. 134 at Committee stage. As I said then, if "forthwith" is to mean immediately, this puts us in some difficulty.

The Amendment is inconsistent with Schedule 1(1), which places a responsibility on the Secretary of State to consult interested bodies about the appointment of members of the Board. This is a duty that is placed on the Secretary of State; if there is a vacancy he must consult the interested bodies about the appointment. I do not see how he could appoint somebody "forthwith" if he has to carry out these consultations. That does not mean that there need be great delay; the consultations could be undertaken very quickly. However, it will not amount to forthwith if "forthwith" really means immediately. I also said that the Government entirely agreed that there should not be any undue delay in the filling of a vacancy and that vacant posts should be filled as quickly as possible. We therefore accept the principle of the Amendment, but at the same time we must have regard to the duties placed on the Secretary of State under Schedule 1(1).

A further important point is that the Board must consist of seven members and that the Secretary of State has an obligation to discharge his statutory duties under this provision. If a chairman or member were unexpectedly to resign his office or die or become incapable of discharging his responsibilities to the Board, it would not be practicable for my right honourable friend to complete the necessary consultations by appointing somebody to replace him in a matter of a few days, and I do not think any noble Lord would want him to do so. The bodies he is required to consult will need time to consult their constituents in order to form a view of some proposals that they may want to put to the Secretary of State.

The Government recognise the difficulty, because it is a real one; there is much to be said for what the noble Lord, Lord Sandys, said about the importance of getting on with it and not wasting time. On the other hand, one must see that the right person is appointed and this can be done only by consultation. I think there is nothing between us on this issue because the noble Lord will recognise the importance of allowing a certain amount of time. If his point is that the Secretary of State should not lose any time, should not let the grass grow under his feet, then the Government agree with him in that respect.


My Lords, I agree that there is very little between us because I hope I explained to the House the legal meaning of "forthwith"; and in my view it meets the Government's point about consultation. If we take it that it means following normal procedures and not delaying in all the circumstances, then there is no time limit placed by the Amendment, which carries with it an implicit understanding that the Schedule 1(1) procedure has to be adopted. It really is quite straightforward.


Is the noble Lord seeking to withdraw the Amendment?


My Lords, in view of what I said, the Government may wish to accept it. If so, perhaps the noble Lord, Lord Wells-Pestell, would indicate that fact. If not, my noble friends and I may wish to press the matter at another stage.


My Lords, I cannot accept the Amendment, because although the Government agree with its intention, the noble Lord, Lord Sandys, lays down in it that it must be forthwith, and I was at some pains to explain that in the circumstances "forthwith" is not possible.


My Lords, in view of what the noble Lord said, it seems that there could be more between us than he earlier suggested. I shall read the Official Report of his remarks with interest and in the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

Lord SANDYS moved Amendments Nos. 55 to 60 en bloc:

Page 27, line 26, leave out ("or deputy member") and insert ("and deputy members").

Page 27, line 27, leave out ("a") and insert ("any").

Page 27, line 28, leave out ("or deputy member") and insert ("and deputy members")

Page 27, line 29, leave out ("a") and insert ("any")

Page 27, line 31, leave out ("or deputy member") and insert ("and deputy members").

Page 27, line 32, leave out ("a") and insert ("any").

The noble Lord said: My Lords, I should like to speak to a group of Amendments. It will be for the convenience of the House if I do so. I should like to speak to Amendments Nos. 55, 56, 57, 58, 59 and 60. This concerns a central point, which is the drafting of the clause on the question of deputies. We looked at the document provided by the Government, Notes on Clauses, and sought out paragraph 10 of Schedule 1, and found it was notable that there was no note on this item. Perhaps there may be a reason for it. Both paragraph 9 and paragraph 11 are mentioned, but nothing is said on paragraph 10.

So far as we are concerned, the issue is straightforward, because we believe that it is the Government's intention as well as ours that a system of deputies should apply. Both at the Committee stage and earlier today we discussed this situation, and there has been misunderstanding in the interpretation of paragraph 10. At an earlier stage, we believed that paragraph 10(a) said something different, so we sought to clarify paragraph 10(a) by adding the words in Amendment No. 55. We believe that it should read: A deputy chairman and deputy members to act in place of the chairman or any member of the Board.

We believe that that would be very much better than what the Government have in mind. They refer to, "a deputy member" which rather suggests a singular situation and no more than one deputy. Perhaps in replying the noble Baroness will adduce further argument, but we felt that it would clarify the position considerably if we said straightforwardly that there would be deputy members for each member of the Board. I beg to move.

Baroness STEDMAN

My Lords, paragraph 10 of Schedule 1 as drafted provides that one deputy must be appointed for the chairman of the Board, one for the chairman of the Scottish Committee, one for the chairman of the Welsh Committee, and one deputy for each member of the Board and each member of the Welsh and Scottish Committees. These Amendments would change this position, so that more than one deputy must be appointed to act in the place of each individual member of the Board and Committees. I am not sure whether noble Lords did indeed intend this to be the effect of their Amendments. It is possible that during the Committee stage I may unintentionally have misled noble Lords on the question of the provision in the Bill for the appointment of deputies. Noble Lords may not have realised what the effect of paragraph 10 as drafted was.

I should make it quite clear that paragraph 10 provides that for each Board member and Committee member and for the chairman of the Board, and for the chairmen of the two Committees, a deputy will be appointed by the Secretary of State, after consultation. Regulations will be made laying down the circumstances in which a deputy may act for a member and the Government intend to provide in these regulations for a deputy to act where a member is likely to be ill or otherwise unable to perform his duties for a period of three or four weeks. This will enable the Board to continue to function as it should over a longish period, in spite of the continued absence of one or more members. We do not, however, intend to provide for deputies to attend individual meetings at very short notice, because a member is unexpectedly prevented from attending. It would not be beyond the wit of the chairman, in these circumstances, to rearrange the agenda to take account of the unbalanced numbers at that meeting. In these circumstances we do not think the appointment of more than one deputy for each member could be justified.

Baroness YOUNG

My Lords, we are of course glad to hear that explanation because what the noble Baroness has said is our understanding of the Schedule. The singular, "a member of the Board" in sub-paragraphs (a) and (b) of paragraph 10 makes it clear that there is not a deputy for each member of the Board. Our Amendments are designed to meet that point. This is far more than a drafting Amendment or, indeed, a small difference between us. As I have understood it, the whole principle of the Bill is based on the membership of the Board and on the fact that there should be two members representing the doctors and consultants and two others representing other interests in the Health Service. We have now amended this to three and three.

It is therefore absolutely crucial that all should be there, present and voting. Otherwise, the whole purpose and basis of the Goodman contract could not possibly be carried out and no one would have any faith in decisions that were reached. Our Amendments are designed to secure that, when someone is ill or away, there is a deputy who can act and, furthermore, that the quorum shall be the entire committee sitting and voting.

This is a very important matter of principle when the Board and its particular composition is so important to the working of this entire separation of the two health services. I may say that it is not our wish that any such Board should ever be set up, or, indeed, that there should be the separate services, but, given that this is the purpose of the Bill, in order to fulfil the Goodman contract, the Government must agree that there must be deputies and that the Board must always be complete when it meets and decides. Otherwise, the Goodman contract will not be fulfilled. As the noble Lord, Lord Wells-Pestell, and the noble Baroness, Lady Stedman, have indicated time without number, the Government are tied to the Goodman Proposals. They promised to legislate and to carry them out and this would only be keeping their promise.

On Question, Amendments agreed to.

Baroness YOUNG moved Amendment No. 61: Page 28, line 33, after ("Board") insert ("for the taking of any final decision shall be 7 (including deputies)").

The noble Baroness said: My Lords, this is an important Amendment dealing with the quorum. Following on what I and my noble friend Lord Sandys have just said on Amendments Nos. 55 to 60, we believe not only that there should be deputies for all the members, but that the quorum should be the whole committee of seven. I beg to move.

Baroness STEDMAN

My Lords, I think that this follows automatically from the bloc of Amendments that we have just passed. Therefore, we have no option but to accept it.

On Question, Amendment agreed to.

Baroness YOUNG moved Amendment No. 62: Leave out Schedule 2.

The noble Baroness said: My Lords, we put down an Amendment to leave out Schedule 2 because the only reference to Schedule 2 was in Clause 2 of the original print of the Bill and there is no reference to Schedule 2 anywhere in the new version of the Bill. I believe that it ought to be removed because my understanding is that a Schedule must refer to something in the Bill. I beg to move.

On Question, Amendment agreed to.