HL Deb 17 July 1984 vol 454 cc1347-61

3.43 p.m.

Consideration of amendments on Third Reading:

Clause 1 [Supply etc. of optical appliances]:

Lord Mottistone moved Amendment No. 1: Page 2, leave out lines 29 to 32 and insert— ("(3D) No order under subsection (3A) above shall be made unless a draft of the order has been laid before and approved by resolution of each House of Parliament.").

The noble Lord said: My Lords, I move this amendment on behalf of my noble friend Lord Cullen of Ashbourne, who had down a similar amendment on Report; but, in the event, when the amendment was called by my noble and learned friend on the Woolsack, my noble friend Lord Cullen was stranded at the Table, having very nearly won a Division on the previous amendment. My noble friend Lord Cullen had not told me that he was proposing to move this amendment and I presumed, wrongly, that he had made some arrangements with my noble and learned friend the Lord Chancellor. In the event that was not so and thus I thought it appropriate to move this amendment on behalf of my noble friend who, your Lordships I am sure will be sad to hear, is not able to be with us because he has been stricken with pleurisy. However, he told me on the telephone this morning that he was getting better.

The purpose of this amendment is to make sure that the very important regulations which will be introduced in this part of the Bill receive a very full airing. The kind of things that will go in the regulations to which it applies are not very clear to us at this stage, and it is thought that it would be helpful if my noble friend on the Front Bench could give us an indication as to what will be done before the order is laid. For example, will there be any opportunity for interested parties, in particular professional opticians, to discuss what is to be laid before in fact it is laid? If my noble friend could give us such an assurance, it would be extremely helpful, and the need to make sure that the resolution becomes an affirmative one would not then be quite so important. In the event that it will go blind before the House as a negative order without, in the usual nature of things, very much time to pray against it, then it would be preferable if it could be an affirmative order. I beg to move.

Lord Ennals

My Lords, having been associated with the noble Lord, Lord Cullen, on the original amendment to which the noble Lord, Lord Mottistone, has referred, I strongly support this amendment. I hope that the Government will be able to give a conciliatory and co-operative answer, because the issues covered by this—which I shall not go into in any detail, as they have been dealt with in detail by the House—are of great and grave importance and have caused considerable concern to many organisations and individuals. This is one of those cases where an affirmative resolution of both Houses of Parliament would be appropriate. I want to give my full support to this amendment.

The Earl of Caithness

My Lords, as I am sure my noble friend Lord Mottistone will remember, notwith- standing what happened on Report, this amendment is identical to one that was moved at the Committee stage. He spoke on that amendment, which was in the name of my noble friend Lord Cullen. The affirmative resolution procedure is by no means the usual method of parliamentary scrutiny. The vast majority of orders or regulations are subject to annulment in pursuance of a resolution of either House. It has been suggested that the affirmative resolution is inappropriate in this case because the necessary safeguards for the consumer would be contained in these orders. That is the case, but I fail to understand why a vote to annul orders should be inferior to a vote to approve them.

In both cases the essence of scrutiny is in the debate and in whether, during the course of the debate, opponents of the proposals can persuade other Members to their way of thinking. The quality of the argument is surely the important factor, not the terms of the Motion before the House. As my noble friend Lord Cullen said at Committee stage, they would have to be examined carefully, and we welcome that. We are still working on the proposed orders governing unregistered dispensing of optical appliances, but we hope to let interested bodies see them in the near future.

I can assure my noble friend that there is consultation going on and that we are consulting with optical consumer bodies and other groups on the contents of the order. I suspect that, like the Bill itself, they will go too far for some noble Lords and perhaps not far enough for others. It is nice to see the noble Lord, Lord Northfield, in his place. Doubtless, he will say that we are not going far enough. The orders will certainly specify what appliances can be sold; they will require that frames are not made from dangerous materials and that lenses accord to a prescription within the tolerances required by the British Standards, together with a variety of other matters aimed at ensuring safe and serviceable glasses.

These orders will have to come before your Lordships' House and be debated if noble Lords feel that they are not appropriate. This surely is safeguard enough. Acceptance of this amendment would also make future updating more difficult. For example, these orders will invoke the British Standard for spectacle lenses. British Standards are updated in the light of technological change and the orders should reflect such changes. Non-controversial technical amendments to the original orders of this sort should not be discouraged because of the need to find parliamentary time for an affirmative resolution debate. To require the affirmative resolution procedure in this instance will merely add delay to changes which the public clearly want to see and I cannot believe it is necessary or desirable. I hope that in the light of this my noble friend will agree with our noble friend Lord Cullen who withdrew his amendment at Committee stage.

Lord Mottistone

My Lords, I am grateful to my noble friend for giving me the assurances that I sought that there is consultation with the interested parties including the professional opticians in the run up to the production of the order. I would say one other thing. It is that I agree with my noble friend that, providing one is alert enough to spot it, a negative order, by being prayed against, can be handled in much the same way as an affirmative order; but there is one qualification. That is that if it is a prayer it tends to find its way into business at a time when the House is not necessarily as full as it is at other times. I got one on a Friday. Affirmative orders tend to be either in the main business or possibly in the dinner hour when there are a lot of people around; so that if you have something special to say you get more people to listen. That is an important point. However, I am most grateful to my noble friend for saying that they will give this matter full consultation. I trust that that will continue and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Use of titles]:

The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Glenarthur) moved Amendment No. 2: Page 5, line 16, after first ("the") insert ("taking or").

The noble Lord said: My Lords, it may be convenient to your Lordships if in moving this amendment I speak to Amendments Nos. 3, 4, 6, 7, 8, 9, 10, 11 and 12.

Amendment No. 3: Page 5, line 16, at end insert ("(either alone or in combination with any other words)").

Amendment No. 4: Page 5, line 20, after ("he") insert ("took or, as the case may be,").

Amendment No. 6: Page 5, line 20, leave out ("not have been reasonable") and insert ("have been unreasonable").

Amendment No. 7: Page 5, line 22, after ("his") insert ("taking or, as the case may be,").

Amendment No. 8: Page 5, line 37, after ("the") insert ("taking or").

Amendment No. 9: Page 5, line 37, at end insert ("(either alone or in combination with any other words)").

Amendment No. 10: Page 5, line 41, after first ("it") insert ("took or, as the case may be,").

Amendment No. 11: Page 5, line 41, leave out ("not have been reasonable") and insert ("have been unreasonable").

Amendment No. 12: Page 5, line 43, after ("its") insert ("taking or, as the case may be,").

In the course of the debate at Report, my noble friend Lord Mottistone suggested a number of very similar amendments. Several points were raised suggesting why the clause should take further the protection offered to the title, "optician". No doubt we shall return to these arguments when we discuss Amendment No. 5 in due course. Suffice it to say at present that we have not been persuaded to make any substantive change to the clause. However, in the light of my noble friend's remarks and those of others, we have given further consideration to the helpful suggestions on drafting that were made at Report stage.

On reflection, we now see merit in the new subsection added to Section 22 of the 1978 Act being drafted in a similar style to those of the existing section. Otherwise, we see a danger in future that those who have to interpret the statute may look for substantive reasons lying behind the different wording used in different places of the section when none exists. I hope your Lordships will find the Government's change of heart on this matter, albeit at a late stage, acceptable and helpful. I beg to move.

Lord Mottistone

My Lords, I am grateful to my noble friend the Minister for having taken up what we did at Report stage and for improving on the wording in a very small ways and otherwise doing very much the same thing. If it would be for the convenience of your Lordships, I should like now to speak also to Amendment No. 5. Amendment No. 5: Page 5, line 20, after ("title") insert ("with the addition of the word "unregistered" as a prefix and in combination with no other words, and"). I put down this amendment as a safeguard in the event that my noble friend did not do the right thing. I am going to be very happy not to move it, and to welcome very much what we have. I thank my noble friend for what he is doing.

Lord Ennals

My Lords, it always seems to me that if one thanks the noble Lord for what he has done, he is more likely to do something when one is about to make a request. Let us recognise that the Minister listened very carefully to what was said on both sides of the House and has made a considerable improvement. With that expression of thanks to him, I shall reserve my further words for what I want him still to do.

On Question, amendment agreed to.

Lord Glenarthur moved Amendments Nos. 3 and 4.

[Printed above.]

On Question, amendments agreed to.

[Amendment No. 5 not moved.]

Lord Glenarthur moved Amendments Nos. 6 to 12:

[Printed above.]

On Question, amendments agreed to.

Clause 7 [Professional remuneration in National Health Service]:

Lord Ennals moved Amendment No. 13: Page 13, leave out lines 1 to 8.

The noble Lord said: My Lords, this is the occasion for me to ask the noble Lord to respond to the generosity which I showed on his generosity. The noble Lord, Lord Kilmarnock, and I seek to amend Clause 7 by deleting the last subsection. This is the retrospective element of the clause. We believe that there are very important issues at stake here and I would beg your Lordships to hear me for a few minutes on the subject. First, I must welcome the letter which the noble Lord, Lord Glenarthur, wrote to the noble Lord, Lord Renton. He kindly sent a copy to me, which I received recently. The letter showed that putting in a few commas and a few "a"s and "b"s, at least, sought to make rather greater sense of a clause which at its worst was gobbledegook and now, at its best, is at least comprehensible. That does not mean that I am satisfied with it. The fact that its wording is now comprehensible does not mean that, having comprehended it, one therefore approves of it. Nevertheless, as before, we must be grateful for small mercies, and one of the small mercies is to have before us something which those who read it will be able to understand—something which none could in its original form.

The first issue was the question of the actual text. The second issue that I should like to raise concerns the propriety of maintaining the subsection in view of the case pending before the Court of Appeal. I argued at Report stage and in Committee (although only in its latter stages) because I think that we were in some doubt then—and the Minister was in even greater doubt—as to where we stood legally. The House will recall that the Pharmaceutical Services Negotiating Committee challenged the Government's interpretation of the existing regulations. They did so because retail pharmacists are unhappy about the Government's declared intention to claw back some £37 million of discounts received by pharmacists on medicines purchased from wholesalers.

This proposed clawback would stretch back nearly four years to October 1980. As I have said, the PSNC has questioned the Government's right to take back money in this fashion, and the Court of Appeal has still to rule on this question. No doubt in law, the Secretary of State may alter the drug tariff prospectively; and the courts have ruled to that effect. But it has never been conclusively decided in the courts that the Secretary of State is entitled to alter the drug tariffs retrospectively; that is to say, to take back money earned in the past. It is for this reason and the inevitable feeling of your Lordships that retrospective legislation has grave principles involved—

Lord Morris

My Lords, I just wanted to say to the noble Lord, Lord Ennals, that surely taxation is retrospective? It is not prospective, and that is a perfectly acceptable practice.

Lord Ennals

My Lords, if I may say so, taxation has been with us for a very long time. This is not a Bill to introduce a form of taxation, income tax or any other form of taxation. This is a Bill which is instituting measures which would retrospectively authorise the Government to do something which the courts have questioned, or rather which is still questioned by the courts, as to its legality. I would submit that there is no similarity at all.

I used the word "conclusively" because, although the Government won their case in the High Court, the case is pending before the Court of Appeal. It would be very nice if there were a case before the Court of Appeal about whether taxation is permissible or not—and perhaps the noble Lord would care to take the matter to court. Moreover, the judge in the High Court, Mr. Justice Mann, expressed his doubts as to the legality of the retrospective alteration of the drug tariff. He did not actually decide the case in that sense, so the Government won on a technicality and not on the main issue of the case which was never in fact decided, but no doubt will be decided when the matter is brought forward for appeal.

In considering the propriety or otherwise of the subsection, I would ask your Lordships to bear in mind all the facts. I regret to say that the Minister's account of this affair was perhaps not as clear as it might have been during the Report stage. It is true that the PSNC pursued legal proceedings after the Government had announced their intention to add Clause 7 to the Bill. The Government announcement came after another group of pharmacists, the so-called "post-1980 pharmacy contractors" had instituted legal proceedings against the Government on the issue of the retrospection proceedings which were subsequently taken over by the PSNC.

The noble Lord, Lord Glenarthur, referred obliquely to the post-1980 contractors, but he did not spell out the obvious fact that the Government were afraid that the law was not clear, that the pharmacists' challenge might succeed, and that this would deprive the Treasury of a large amount of money. He might even have feared that it would deprive the DHSS of a large amount of money if the Treasury were not able to get it back themselves. Why else did the Secretary of State stop clawing back the discounts? Why is he right now not clawing them back? It is because he has doubts as to whether it is legal.

Therefore, although the issue is before the courts, this clause is seeking to make legal something already carried out which was questionably legal and which is still questioned in the courts. Of course, all governments must be assiduous in their handling of public money—it does not take an ex-Minister to know that—but that does not detract from the necessity of governments to deal fairly with their contractual partners, in this case the pharmacists of the National Health Service and also another profession which I mentioned at the Report and the Committee stages but not so far today; namely, the opticians. The Government would have behaved with more propriety if they had waited until the current law was clarified by the courts before changing the law by means of this Bill.

The third and last issue I would like to consider is the familiar one of the general principle of retrospective legislation. We have debated this before, and I shall therefore be extremely brief, but I believe that the principles are very important indeed. Most, if not all, retrospective legislation is undesirable. That does not mean that retrospective practice is necessarily undesirable, because that is the method by which payment is made by the DHSS to some of the contracting organisations—the pharmacists and the opticians in this case. I would submit that it is an abuse of power all too familiar, if I may say so, in the current legislation still before your Lordships' House and it is, I believe, unworthy of an upholder of the rule of law.

Perhaps I can illustrate my point by referring to the opticians. The profession dislikes the last subsection of Clause 7. The opticians are worried that the £6 million withheld from their arrears of fees for the period 1978 to 1983 will be denied to them by the Government once the Bill becomes law, as payment for the discounts received by opticians from their suppliers.

It is, I would submit, simply not fair. It is only with this Bill, in particular with the rest of Clause 7, that the Government are introducing for the first time two completely new elements into the remuneration arrangements for opticians: these elements of discounts on material costs, and the provison for retrospective adjustment of their remuneration to take account of such discounts. My point is this, finally. The changing of the rules providing for the future retrospective adjustment is acceptable to the opticians, and I think it would be acceptable to your Lordships. What is not acceptable is to take back money legitimately earned before today, which is the last date on which this piece of legislation will come before either House of Parliament. This Bill, if passed in its present form, would allow the Government to deprive opticians of their £6 million, and perhaps more. I would submit that this subsection of Clause 7 is opaque, improper, and I believe it is inopportune. I beg to move that it be deleted from this Bill.

Lord Kilmarnock

My Lords, I simply want very briefly indeed to support the noble Lord, Lord Ennals, on this. He has set out the position with great clarity. He has mentioned the sum involved, and the amendment he has moved would remove the retrospective character of the clause and prevent the Government from making retrospective adjustments of remuneration to take account of discounts.

It seems to me that the strongest argument of all is that the present state of the law is still clearly confused. There was this case before the High Court which was brought by the PSNC, representing the retail pharmacists, concerning the Government's right to recover from pharmacists amounts said to have been overpaid to them as discounts on medicines in previous years. But as the noble Lord, Lord Ennals, has reminded us, the case has gone to appeal and that appeal has not yet been heard. Thus, the present state of the law concerning the clawing back of discounts is far from clear. If the Government win the appeal, then it would seem to me that Clause 7 is quite simply unnecessary. But what is improper is to introduce this clause into a Bill prior to the decision of the Court of Appeal.

The Government are in effect seeking to pre-empt the decision of the court, seeking to protect themselves in advance against an adverse decision of the court. That, I must say, by any standards seems to me to be the height of impropriety. I stongly support the noble Lord, Lord Ennals, in his amendment.

Lord Mottistone

My Lords, I should like extremely briefly to support the noble Lord, Lord Ennals, and the noble Lord, Lord Kilmarnock, on this point and to support the detail of the points that they and we made earlier during previous stages of the Bill. I think this amendment is important and it is one which I trust my noble friends will see their way to accepting or, at least, if they cannot do that, to modifying.

4.9 p.m.

Lord Glenarthur

My Lords, I appreciate the generous remarks of the noble Lord, Lord Ennals, when he started his speech in support of this amendment. I am afraid I shall, to some extent, have to disappoint him. To deal first of all with the drafting point, Clause 7 puts beyond argument the existing long-standing remuneration arrangements—and they are long-standing—for the four NHS contractor professions. The amendment seeks to delete this subsection of Clause 7 which provides a general validation of the established remuneration arrangements and is, I am afraid, rather technical.

During the debate at the Report stage a number of your Lordships commented on this point. At that time I gave an assurance that I would ask the draftsman to look again at the subsection, and I have done so, as the noble Lord, Lord Ennals, described. Unfortunately, we have come to the conclusion that there is little that can be done materially to simplify the position. The real stumbling block for most of the readers who find difficulty in understanding it is probably the double hypothesis in lines 6 to 8 on page 13. If we could stop short at the words "validly made" in line 6, that difficulty would be removed, but it would give the Government a blank cheque which would rightly be unacceptable to the professions. An essential safeguard for them is to restrict the validating effect of the relevant subsection of Clause 7 to determinations of remuneration which could have been authorised by regulations if the powers now to be conferred by the provisions inserted in the National Health Service Act by subsections (1) to (3) had been in force at the time.

Some difficulty, however, comes from the form of the particular subsection. Its appearance as a solid chunk of text makes it more difficult for the reader to see the relationship if it is passed. That could be remedied by using paragraphing to break it up in the way described by the noble Lord, Lord Ennals. I am advised that could be done without the need for a formal amendment, and so it will appear in this version (that is to say, with the paragraphs broken up) when the Act is finally printed. I hope that will be acceptable to the noble Lord. I believe that when the subsection is split up in that way, the change of format will help to make it more easily intelligible.

I now turn to the substantive points in the noble Lord's speech, and in the speeches of my noble friend Lord Mottistone and the noble Lord, Lord Kilmarnock. At Report stage I explained at length the Government's reason for introducing the clause into the present Bill, and I do not think it would be useful to repeat all those arguments, except to say that the usual, and understandable, objections to retrospective legislation do not apply in this case. All the present clause does is to remove recent legal doubts about long-standing arrangements between ourselves and the professions and, in particular, to ensure our ability to implement an agreement that we had with the pharmacists' negotiators last year.

The noble Lord, Lord Ennals, referred to the appeal which is pending, which we have also dealt with in the past. The appeal pending before the Court of Appeal does not raise the question of the legality of the clawback. The proceedings before Mr. Justice Mann did not raise any question of clawback, because the High Court, in view of the announced intention of the Government to add Clause 7 to the Bill, had allowed the case to go forward on the question of whether deduction of discount was legal, but not on the question of whether the rate of discount may be increased to claw back a previous over-payment. That question was not at issue before Mr. Justice Mann; it was not decided by him, and it will not be at issue in the Court of Appeal.

As custodians of the taxpayer's interests, the Government cannot abandon their right to recover the very substantial sums of public money which are involved here. As I have already explained to the House, we are currently seeking to negotiate with the pharmacists improved arrangements which will ensure that reviews take place more frequently and on a regular basis, so avoiding the accumulation of large under-payments and over-payments. For these reasons, I commend the clause to the House and I hope that the noble Lord will not feel it necessary to press the amendment.

Lord Ennals

My Lords, I am grateful to the noble Lord for his explanation. I shall not press the amendment to a vote, but I wonder whether he can say a little more about the negotiations and what he hopes to propose, because I made very clear to your Lordships that the principle of retrospection, to a limited extent and over a limited period, has been recognised over many years as part of the system of payment, as the noble Lord said, in terms of taxation. Much of my objection during the various stages of this Bill through your Lordships' House has been based on the point that four years is an intolerable period of time. If the noble Lord is to propose that it should be a shorter period of time, I wonder whether he will say something about that, which would be reassuring to the profession and to your Lordships, since I cannot be the only noble Lord (and I am less noble than most) who has been worried about a situation in which retrospection would be carried through for four years. This really is a very serious situation for those who are seeking to carry out an honourable business, in contract with the National Health Service, seeking to serve the needs of their patients. I hope that the noble Lord can perhaps say something that will be helpful to the contractors as well as reassuring to your Lordships.

Lord Glenarthur

My Lords, with the leave of the House, I do not think I can go very far; but one of the major reasons for the present position, as I have already described, is that the agreed discount inquiry was delayed by the pharmacists themselves, and when the results eventually became available the sums owed b), pharmacists were extremely large. In an effort to avoid a repetition of such a state, negotiations have commenced, as I have said, on a new form of contract with the pharmacists. One of the major features of the new contract is expected to be negotiations to set an annual timetable, linked to regular and frequent inquiries, thus avoiding for the future the build-up of large over- and under-payments. I do not really think I can go much farther than that, but I hope it is some comfort to the noble Lord.

Lord Ennals

My Lords, indeed it is. I have said before that a year is a reasonable period of time to reach a calculation, and if that can be worked out, I shall be very satisfied. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 28 [Transitional]:

Lord Mottistone moved Amendment No. 14: Page 28, line 28, leave out subsections (2) and (3).

The noble Lord said: My Lords, this amendment is similar to one moved earlier. When we last tackled it the time was 11.15 p.m. We had been up late the night before and I am afraid I made one or two harsh remarks, for which I should now like to apologise, in particular to my noble friend Lord Caithness. But I thought it ended on an unsatisfactory note because, it being late, I did not really say as much as I should have done in order to make the matter clear; and so I should like to take this opportunity just to add to it.

The problem is this. Under the 1958 Act, opticians have become highly qualified professionals, with all the pride in their profession that is acquired by similar specialists, such as doctors, lawyers, and others. They also have the problem that the Act requires them to be traders, with special restraints on how they trade. A similar, but certainly not identical, problem arises with pharmacists, but I shall not bother your Lordships with that now.

Dealing with the opticians, what sticks in their gullets about Clause 28(2) and (3) is that in circumstances in which, as my noble friend Lord Glenarthur has agreed, competition is not relevant, their professional standing is in a way being impugned. They have accepted that there must be more competition in the open market in the future; and indeed the very few amendments of both myself and my noble friend Lord Cullen at Report stage which were proposed by the optical bodies are proof of that acceptance.

The opticians are, however, proud of the professional skill which they happily use in serving the National Health Service and, as I indicated at the Report stage, they see themselves as on a par with other contractors providing family practitioner services, such as doctors and dentists.

Clearly it is thought—and certainly I have the impression that some noble Lords believe it—that all these people are simply overcharging traders. It might be thought that it was presumptuous of such people to view themselves as professionals, on a par with doctors and others. However, as I said earlier, the 1958 Act seems to have sought specifically to create that kind of pride. I suggest that the public has greatly benefited over the years from the dedicated service which professional pride has engendered in nearly all of its practitioners. As to being thought of as overcharging traders, the way in which these professional persons do their business is itself a creation of the 1958 Act and it is not fair to judge them by it.

So I hope that my noble friend might be able to say something with regard to subsections (2) and (3) of Clause 28—ideally, that he will accept my amendment. But if not, perhaps he can give me some reassurance to make the point that I have been seeking to make to your Lordships, that this is an important dedicated professional body whose status and spirit of dedication should not be eroded by the legislation that is before us. I beg to move.

Lord Glenarthur

My Lords, of course I fully understand and accept my noble friend's earlier remarks. He need not worry that offence was taken. It was late at night and it is also fairly late in the parliamentary year. Everybody tends to get rather exhausted at that time of night—

Noble Lords

No!

Lord Glenarthur

Noble Lords and noble Baronesses opposite look very happy with that and I am delighted to see it. But as I said on two earlier occasions, the intention of subsections (2) and (3) of this clause is to carry into the public sector the wider choice which Clause I introduces into the private sector. I do not intend to go over all those arguments again now; but, as your Lordships will appreciate, our ultimate aim is for a system of financial grants for those on low incomes which will enable them to make their own choice of appliance and of supplier.

However, for an interim period we intend to continue to provide adults on low incomes or in need of complex lenses with glasses through the General Ophthalmic Service. These plans apply to children also but the glasses cannot be supplied by the unregistered contractor. During this temporary phase we cannot give those on low income a wider choice of appliance. They will be limited to the National Health Service range. We can however give them a wider choice of supplier.

There is of course no question of competition between GOS contractors in terms of price. There will be fixed national charges to patients. However, there is no reason why we should not introduce competition in terms of service. If new GOS contractors are to take any share of this business, they will have to outperform the existing contractor in terms of such things as opening hours, speed of service and customer responsiveness. This stimulus to better service seems a wholly desirable objective. As I have pointed out on earlier occasions, the permitting of unregistered contractors may also help to ensure the availability of sufficient contractors should some registered opticians not wish to continue to provide this service.

My noble friend Lord Mottistone suggests that this step is an attack—that is not quite the word he used, but he knows what I mean—on the professional standing of the optical profession. Nothing is further from our minds. We have the highest regard for the profession and for the standards of excellence which it pursues. We are as a Government against restriction and for competition. If in applying this policy to optical services it has seemed at times that we are anti-optician, then I should like to take this opportunity to put the record straight and I hope my noble friend will appreciate that.

We hope that we can look forward to rebuilding a constructive relationship with the profession, both on the continuing sight testing service and on the residual dispensing service, because we share the ultimate aim: that is, the optical well-being of the public. Finally, I would emphasise, as I have on earlier occasions, that those we allow to become GOS contractors will be expected to perform to the same standards and to operate under the same terms of service as the registered opticians. There will be no double standards. The same disciplinary arrangements will apply.

At Report stage, my noble friend Lord Mottistone suggested that this could not be because patients would pay the full cost of lenses to the optician and there would be no remuneration due to withhold. I think I ought to point out to him that the vast majority of future GOS patients will be those who get glasses free or have part of their charge remitted, so there will indeed be remuneration to withhold. The same complaints procedure and the same penalties will apply.

The provisions of this clause will enable us to extend the principle of competition into the public sector provision of glasses for as long as this lasts. Provided that contractors are subject to the same terms and conditions, this will be fair competition. Competition should produce incentives to serve the public better. I believe that the profession can rise to this challenge and that we should therefore have nothing to fear from competition. Customers won in fair competition will reflect more credit to the profession than customers directed to them by the law. I hope that with that explanation and, to some extent, reassurance of the regard that we have for the profession of opticians, my noble friend will feel satisfied.

Lord Ennals

My Lords, I am glad that the noble Lord the Minister used the term "rebuilding the relationship". I hope he recognises that that is a task he will have to fulfil, because as a result of this measure which will pass through your Lordships' House today a great deal of damage has been done to the relationship between the noble Lord's department and the opticians, as well as other professions. A great deal of damage has been done not only to the opticians as contractors, but to individuals who gain benefit from the services provided by opticians.

I just want to read two brief extracts that have come into my hands only today. One is from a letter to the noble Lord, Lord Glenarthur, himself, so he has no doubt read it, from John Mayo, Director of Help the Aged. If the noble Lord has not seen it, then it is a jolly good job that I am reading it to him, because it says: Pensioners form the majority of users of these highly expensive lenses"— he was referring back to the concern and alarm created by the most recent statement of Mr. Kenneth Clarke, the Minister of Health, on the subject of financial assistance for users of complex lenses— often requiring a frequent replacement service to cope with deteriorating cataracts or glaucoma. Pensioners will be in the forefront of those facing a new financial burden when those not on supplementary benefit will be required to pay a charge that reflects the cost of the lenses under the GOS. Such plans can only lead to an increase from the present maximum fee of £31 to unprecedented new charges of between £60 and £100. In a previous letter Mr. Clarke assured me that 'If there is an identifiable group who need help, the answer is to find a specific solution'. The group has been identified and I now urge you"— says Mr. Mayo— to do all within your powers"— Lord Glenarthur— to impress upon the Minister"— the Secretary of State— his moral obligation to find that specific solution". It is sad that this Bill will have passed through the House without that specific solution having been found. We have had assurances that it is going to be found. I think that it ought to have been found before the Bill passed through its final stage in this House.

The second quotation before I sit down—and this came to my attention only today—is from an ophthalmic optician and orthoptist, Mr. Whycer. I am certain that he will not object to my quoting him. He comes from Enfield and he says: The dispensing of spectacles is not a simple commercial task but requires a technical background involving considerable training. This training is naturally part of the undergraduate teaching at the university departments where ophthalmic optics is studied and in dispensing optics there is a two year professional course at two colleges in the UK which has to be followed by a further year of pre-registration training before the dispensing optician can practise on his own account. How can the Government sacrifice this high level of training, which protects the public, purely and simply on the grounds that competition will bring charges down? In fact, those of us who know the situation see charges rising not falling, since eventually it is proposed that subsidies now paid by the Department of Health in respect of Health Service spectacles will disappear and he replaced by some other scheme, not covering cases where the prescription means costs will be high. That was just an optician. I have quoted these two letters because the Minister says that it is his hope that the opticians will rebuild their relationship with the service. That will have to be done. It is a task of some urgency because many of those who are practising in the field are very unhappy indeed, and many of those who receive their services are equally unhappy.

Baroness Phillips

My Lords, I support my noble friend Lord Ennals. I have listened intently to the deliberations on this amendment but I am still not clear about why dispensing opticians in the National Health Service will be treated in the same way as suppliers of optical appliances who are not dispensing opticians. To my simple mind, this suggests that people will be able to buy spectacles without first having been to a dispensing optician who will have given them a prescription for lenses. This is the point which people are concerned about. The Minister did not explain the difference between the two. If there is no difference, why is it necessary to include in the Bill a clause of this kind?

Lord Northfield

My Lords, I hope I may say to the noble Lord, Lord Mottistone, that in so far as any of us have been critical of aspects of the profession it is because of the difficulty under which opticians are placed by the 1958 Act. I have tried studiously not to make very many criticisms of opticians but, rather, to refer to the consumer. In so far as I have said anything, it is because the Act puts the optician in an impossible position, as I tried to say way back in 1958.

The optician was at that time, and the same has been true ever since, striving quite rightly for professional acceptance. The profession had not been adequately regarded before that date. The Act gave opticians the chance to reach for and to achieve acceptance and a real profession. I am not attacking their professional status and professional dedication. However, the Act put them in a ridiculous position, because at the same time they were also suppliers of a commercial service; namely, the sale in particular of spectacle frames.

I tried to point out in 1958 that the allegation would be made that opticians would not be subject to proper rules of competition on this purely commercial side of their activity. I suggested that it would lead to abuse and to prices which ought to be reduced. I suggested, too, that it was not in accordance with normal practice in the commercial activities of our community. Therefore, I tried to foresee all this and to warn. I moved amendments to this effect in 1958. For example, I moved an amendment that the General Optical Council should give guidance on prices of frames in order to stop profiteering and in order to prevent these allegations from being made. Every one of my amendments was turned down, on the lines, "You can leave it to the opticians; they will not in any sense abuse their monopoly power".

Although I agree that we have now got to learn by all this experience, I do not believe that we should apologise too much about what is contained in the Bill. The point I would make to the noble Lord, Lord Mottistone, is that even with the passage of time the opticians have not been their own best friend. They have resisted, resisted, resisted. They resisted even the display of prices on their premises. After a good deal of pressure, this was finally forced through by only one vote in the General Optical Council. Therefore, years after opticians had obtained their professional status and should have been content with it, proud of it and secure, they were still trying to hide behind their professional status this purely commercial activity, without any real sign of competition.

Therefore, we cannot apologise too much for being fairly rough now and saying that we have got to grasp this nettle, as the Bill does, in order to create some real competition in the way that the Government propose. Nevertheless, I return to what I have already said. I hope that none of my remarks will be taken as degrading or impugning the integrity of the optical profession.

Lord Mottistone

My Lords, I am grateful to my noble friend for what he had to say and for the fact that he clearly recognises the importance of the professional standing of opticians, notwithstanding how their professional standing is being altered—one cannot get away from it—by the Bill. I hope that every effort will be made not only by my noble friend but by his colleagues in the Department of Health and Social Security to ensure that the high standing which has been achieved is not eroded in the future.

I am grateful to the noble Lord, Lord Ennals, for his support on that general theme. I am also grateful to the noble Lord, Lord Northfield, for making it clear that he was not seeking in any way to impugn the high standard, skill and professionalism of the optical profession in the various battles he has been fighting ever since 1958 when, in a different environment, I was commanding a ship at sea in the Far East Fleet.

It is interesting, if the noble Lord, Lord Northfield, will forgive me, that, having said, as I said, that the reason that there is a difficulty is because the 1958 Act creates an artificial trading situation, he should then go on to say a few things, which he could not avoid saying, which epitomised exactly what I was seeking to counter in this amendment. The noble Lord said that the opticians have got their high professional standing but that they are not really trying to compete. The noble Lord put it in the kind of way that I was seeking to override. But we cannot go on about this all day and all night. The Bill will be passed, and I hope that it will work; I hope that it will not do too much damage; I hope that it will be successful, but I have grave doubts. With that, I beg leave to withdraw the amendment.

Baroness Phillips

My Lords, before the noble Lord withdraws his amendment, one of the fascinating features of this House is that, although members spend a great deal of time thanking one another for their courtesy and efficiency, one very rarely gets a straight answer when one puts a straight question. The noble Lord, Lord Mottistone, referred to the noble Lord Lord Ennals, and to the noble Lord, Lord Northfield, but I asked a straight question which I think deserves an answer. My question was: what is the difference between a dispensing optician under the National Health Service Act 1977—I am not referring to 1958—and a supplier who is not a dispensing optician?

Lord Glenarthur

My Lords, with the leave of the House, I was looking for a moment to stand up to give an answer to the noble Baroness. The situation is that dispensing opticians contracted to the General Optical Service under the National Health Service Act are those who are registered with the General Optical Council. This clause will allow those who sell glasses privately without being registered to supply them also as National Health Service contractors. Sight testing is the role of ophthalmic opticians. Nothing in the Bill affects who can test sight—I am sure the noble Baroness is aware of that—or who can test sight under the National Health Service. I hope that that explains the point which the noble Baroness made. We are talking about two slightly different matters. When she reads what I have said, I hope that it will make sense to the noble Baroness.

Lord Mottistone

My Lords, I beg leave to withdraw Amendment No. 14.

Amendment, by leave, withdrawn.