§ 3.18 p.m.
§ Report received.
§ The Lord Chancellor
My Lords, I should say that if Amendment No. 1 is agreed to, I cannot call Amendment No. 2.
§ Clause 7 [Extension of powers of Secretary of State for financing the Health Service]:
Lord Ennals moved Amendment No. 1:
Page 5, line 24, leave out paragraph (f).
The noble Lord said: My Lords, in the unfortunate absence of the noble Earl, Lord Russell, who hopes to be here before the debate ends, it is my pleasure to move the amendment as the other signatory to it. The amendment states:
Page 5. line 24, leave out paragraph (f)".
§ I am sad that the amendment is not being moved by the noble Earl, Lord Russell. In Committee he made a very powerful speech against the new power which the Government wish to take under the Bill. The issue of freedom to publish research work and conclusions drawn from that research raises issues of fundamental importance. In a broader context of course it is another sign of the wish of the Government, happily sometimes frustrated, to have increasing power to decide what should and what should not be published. I believe that we are grateful for a decision taken last week in that connection.
§ There is great anxiety in the scientific, academic and research communities about the provisions of this Bill. No doubt that matter will be powerfully argued on the second amendment standing in the names of the noble Lords, Lord Trafford, Lord Flowers, Lord Beloff and Lord Swann. There is very strong feeling among the vice-chancellors, the Association of University Teachers, the British Medical Association, the unions and what I may call "card-carrying members" of the civil liberties lobby.
The new contract states that publication of research results
is subject to the prior consent of the Secretary of State, which consent shall not be unreasonably withheld".
Straightaway one asks what is "unreasonable" in this context and what is wrong with the present situation. Until now DHSS-funded researchers have been expected to show the department the results of their research prior to publication in a learned journal or journals and to allow 28 days for the Secretary of State to comment. The contract states that,
any comments which the Secretary of State makes shall be considered by the researcher but the researcher shall nevertheless be free to allow publication to go forward in the original form as he thinks fit".
I believe that that is the right and proper situation and that to detract from it is a backward step.
If one is to make a comparison, Home Office research contracts state:
It is the intention of the Secretary of State that results of the work should be published freely in accordance with scientific practice, but the Research Body agrees to consult with the Secretary of State before publication, or submission of any thesis to an Examining Body. The Secretary of State will not delay publication or submission unless, after consultation with the Research Body, he considers such delay necessary in the national interest or to enable patent or like protection to be obtained".
I have to say that there is no mention of national interest or of patent protection in the new proposals from the Department of Health.
§ The main concern among scientists about the new contracts is that the department will be able to obscure or suppress research results for political reasons. There are other objections, but that is the one on which I wish to expand. This might include, for example, research showing a deterioration in the care of patients within the NHS. Even if the assurances given by the department are accepted and permission to publish is not withheld for political reasons by this Administration, the terms of contract are open to abuse in the future by some government unknown.
§ The publication of research results and personal conclusions drawn from those results is the basis for the development of scientific knowledge. Results which conflict with accepted wisdom are, in my view, particularly important as they fuel the development of new theories and new knowledge. Publication is also important as a safeguard for the quality of research and the validity of the conclusions since it is a prerequisite for open discussion by independent scientists.
§ In a broad sense that is the case, put briefly, against what the Government now propose. What this House must determine this afternoon is how we should respond. This amendment, in the name of the noble Earl, Lord Russell, and myself, would take us back precisely to the present status quo. It would kill the proposal stone dead. I ask: what is wrong with the present situation? No doubt when the Minister replies he will tell us why there is a need for this change.
§ The second amendment, in the name of the noble Lord, Lord Trafford, and his supporters, seeks a compromise by inserting the concept of agreement not to publish a research paper if the researcher, or a research team, agrees to accept the Secretary of State's request for suppression. It takes two to make an agreement. If the proposal is that it should be done by agreement, one can imagine a discussion between the Secretary of State and the researcher in which the Secretary of State does not wish, for whatever reason, to see a paper published. If he does not agree to it being published, then by agreement it would not be published, because presumably both sides to the agreement would have to be available.
§ However, I want to make clear that, although I think there are weaknesses in the wording proposed by the noble Lord, Lord Trafford, if my amendment does not succeed—I very much hope that it will—I 944 will support the noble Lord and his co-supporters; but in my view his amendment is very much a second best option. How do we define "agreement"? I hope that the noble Lord, Lord Trafford, will give his explanation in due course.
§ In the past the suppression of scientific results for political reasons has led to enormous damage. For example, for much of this century Lysenko's theories about genetics were imposed throughout the Soviet Union and contrary evidence was suppressed. Many scientists voluntarily—I suppose one might say by agreement—stifled their criticisms rather than risk the consequences of speaking out. The effect was not only to cripple the theoretical development of Soviet biology but also to undermine Soviet agriculture through the practical application of Lysenkoism. The enormous damage from which the Soviet Union is still recovering illustrates the need to defend and advance scientific openness, which is what the Soviet Union is beginning to do after decades of repression.
§ The new contract proposed by the Department of Health does not specify in what circumstances or on what grounds consent to publish might be withheld, save that it would not be unreasonable. As scientific standing is largely based on published research results, the uncertainty of not knowing whether publication will be permitted places an unjust restriction on researchers. This uncertainty could impose a psychological constraint on researchers to produce results that are acceptable to the funding body and, subconsciously or deliberately, to avoid projects liable to controversy—for example, the effects of unemployment on health or the health services—in order not to spend time arising from pressure to manipulate results or conclusions which highlight areas likely to meet the disapproval of the department. I believe that the outcome of such a situation would be a poorer quality service and poorer quality research.
§ If, as many researchers fear, the new contract led to permission to publish being withheld on political grounds, without adequate reasons, that would undoubtedly affect the status of scientists conducting research under the contract. The most distinguished scientists, who are most likely to be able to obtain funds from other sources, will be less willing to accept contracts for research from the Department of Health, leading to a further deterioration in the quality of research in areas relevant to the department's work.
§ I give an example from my experience where this concept of what I call "suppression by agreement" would be grossly unsatisfactory. In 1975, as Secretary of State, I commissioned research on inequalities in health by a team led by Sir Douglas Black. It was totally funded by the DHSS. When the research findings were made known and presented it was not I but the noble Lord, Lord Jenkin of Roding, who received these results in his then capacity of Secretary of State. Frankly, he thought little of the conclusions and said so. He did his best to hush up the report. He held up publication until 3rd August 1979 when Parliament was in Recess. He permitted only 260 cyclo-styled copies to be printed, with a derisory comment from himself.945
§ However, he had no powers to prevent publication. No doubt that was one situation which led the department to seek powers for the Secretary of State that he has not held previously. I am delighted to say that that publication became a bestseller and has been updated on several occasions. It has become a classic document. If the Government had had their way and had those powers then, that report might never have been published.
§ What would be the situation if the report had been kept quiet by agreement? If Sir Douglas had been a lesser man he might have allowed himself to be persuaded to go along with the then Secretary of State even if his associates in the research work took the publish and be damned approach. If Sir Douglas had said, "Right, if it does not suit your convenience we will not publish it", much valuable research would have been lost, to the great dissatisfaction not only of those involved in the research but of the people affected by it. It would have been grossly unsatisfactory for all except those who do not accept the conclusion that there is a link between poverty and ill health. Suppression would have been greatly against the interests of the poor.
§ That is one outstanding example. There are many other examples. I believe that as we look at the new power sought by the Secretary of State for Health we should ask whether it is necessary and whether it is wise. If we consider that it is not necessary we should decide not to give the Secretary of State this new power. We should not simply be satisfied with a "by agreement" formula unless the noble Lord, Lord Trafford, can convince me that "by agreement" between two agreeing persons means much more than I feel it does. I beg to move.
§ 3.30 p.m.
§ Lord Trafford
My Lords, in many respects I have sympathy with the argument put forward by the noble Lord, Lord Ennals, that this subsection should be omitted. I am in something of a quandary on' the matter. As the subsection stands it certainly gives new and sweeping powers to the Secretary of State which seem to me to be due in part to some confusion on the part of those who drafted the original legislation on the legal questions of patent law, Crown copyright and the rights to intellectual property. Be that as it may, the purpose of this subsection —indeed, of the clause—is to provide means by which additional resources and funds can be provided for the National Health Service. I do not disagree with this aim.
When we come to the particular amendment which is under discussion, it is extremely difficult to say that it should be totally removed. In some respects one can imagine many circumstances in which a totally laudable result or exercise might come out, provided was freely entered into and an exercise jointly carried out. On the other side, I feel that the amendment is almost as sweeping in getting rid of this power completely as the clause itself is in granting it to the Secretary of State.
I take issue with the noble Lord, Lord Ennals, on the subject of the Black Report. I believe he would have to concede that there was not undue delay in publishing it. Furthermore it received wide publicity. 946 Whether my noble friend Lord Jenkin of Roding agreed or disagreed, I am sorry that he is not here to give us the chapter and verse of it. I speak as a member of the profession affected. From my recollection it had a deep, enduring and continuing effect on people's thoughts on that particular subject and one which has been of significant value.
I do not believe that a Secretary of State of any party that is represented at the moment in either House of Parliament would ever suggest that a report such as that, or any report that happened to be inimical to the government of the day, should be suppressed. Fortunately, as yet we do not in any sense live in that kind of society. I am very sorry that the noble Lord, Lord Ennals, suggested about my noble friend Lord Jenkin that this matter should be hushed up in any way. This was a most important report and it had a profound effect. I find it very difficult to believe that any Secretary of State would take such action.
The question of publication or its suppression to which the noble Lord addressed himself in particular is not the only one. There is also the question of exploitation. I am not entirely certain or happy that I would give carte blanche to anybody to exploit willy nilly my work or my intellectual property, what ever that might mean in terms of what I do or have done. I do not like the particular phraseology which suggests that I might well be prepared to accept it. My quandary is to know what to do should this amendment be carried and the one in my name subsequently fall. It is therefore very difficult to see precisely what is the best course of action to follow on this amendment.
The noble Lord, Lord Ennals, referred to the question of the contracts. When one signs a contract one is making an agreement. Since one has a right to sign or not to sign an agreement, I am not so worried as I am about the actual basic and sweeping powers that are in this clause. If I sign a contract with a research organisation, a charity or a pharmaceutical company in terms of medical research or with any other organisation to carry out a piece of research, it will be by agreement with that particular concern. I do not have to sign if I do not agree with the terms. I can either shop around elsewhere or ultimately I can refrain from carrying out the work. What would worry me would be if there was no question of agreement. I should have no say in how the particular piece of work was carried out or what use was made of it. That is what I understand by the word "exploited". That is what would concern me greatly.
Noble Lords have heard the eloquence of the noble Lord, Lord Swann, on the subject of these contracts. On another occasion and in respect of another Bill I supported what he had to say when he was extremely amusing as well as quite rude about some of the drafting of the contracts, their complications, the way they tied up people and the difficulty of understanding them. If I remember correctly, he even suggested in terms of an agricultural contract that a course was being funded so that those who wished to sign the contract could attend the course in order to understand what it was they were signing. This is how matters become more complicated, more bureaucratic and worse.
947 I do not like these contracts but at least where there is a contract one knows what one is contracting to do and one does or does not sign it. To extend the idea that in this country some kind of conspiracy at Politburo level and of Lysenko proportions can take place is I hope a considerable exaggeration. It is much more the small man, the newer research worker and the less well-known person from the less well-known institution who would be unable to raise the support but whose work might be regarded as unattractive by some people. The work might be regarded in the light that a little more should be done and it would be better not to publish now. There may be all kinds of reasons short of actual suppression that would worry me greatly under this kind of power.
I look forward with considerable interest to hearing the comments of other noble Lords who have similar experience to mine in this field, and to hearing what they feel about the two methods of approach to this particular power. Naturally, I advocate what has been called the compromise suggestion. I do not wish to see the power removed altogether. I do not really believe that the present Secretary of State, or any other that I can envisage, would willingly abuse this power, but I am concerned that it is there in such an unqualified form.
§ Baroness Seear
My Lords, I fear that the noble Lord is too trusting as regards the behaviour of officials. Those of us who have experience at a lower level know that the doubts that he expresses can be justified. In my own experience I recall a case where the writer of a report was told by the officials that they did not much like it. The author then asked, "Have you read it?" to which the official, under pressure was ultimately forced to reply, "No".
§ Lord Boyd-Carpenter
My Lords, the noble Lord, Lord Ennals, seems to have read into this particular paragraph more than I was able to read into it. I await with some interest what my noble friend the Minister has to say. The paragraph gives power to the Secretary of State "to develop and exploit ideas" etc., but as I read the paragraph, and subject to correction, it does not inhibit anybody else from doing this. Yet the gravamen of the speech by the noble Lord, Lord Ennals, carried the implication all through that that is exactly what it did; namely, that it would inhibit research workers, scientists and others from developing and exploiting, etc., this work.
I see no express prohibition of their doing so in the paragraph. On the other hand, it surely must be a good thing and I should have thought that the noble Lord, Lord Ennals, would agree, that the Secretary of State should have power to do this. With the question of the financing of the National Health Service—which appears in the opening subsection—in mind, it would be quite wrong not to have that power. Apparently, the noble Lord wants to leave the Secretary of State powerless to do this, leaving it entirely to the research workers and scientists to do it if they think fit.
I am not sure that the noble Lord, Lord Ennals, for once in his distinguished career, is not barking up the wrong tree. I believe that this tree contains a good 948 animal as well as the sinister beast which he appears to see there. The noble Lord also made something of an attack on my noble friend Lord Jenkin of Roding. If the noble Lord looks at Hansard he will see that what he said about my noble friend is not the kind of thing he would like said about himself. Therefore I must ask him—I am sure he will be able to give me the answer—whether he gave advance warning to my noble friend that he would make these comments.
My Lords, I listened with great care to the noble Lord, Lord Trafford, as indeed I always do on matters of this kind. However, it seemed to me that the noble Lord disliked the words in paragraph (f) every bit as much as my noble friend Lord Russell who tabled this amendment, which was so ably moved by the noble Lord, Lord Ennals, On balance I come down on the side of the deletion of paragraph (f) rather than on the side of the compromise arrangement which is found in the later amendments.
I raised this matter at Second Reading and there is no reason to go over the arguments again. I believe that the noble Lord, Lord Ennals, moved the amendment admirably, although I hope that for a moment we can forget the individuals—be they the noble Lord, Lord Jenkin of Roding, or Sir Douglas Black—and concentrate on the matters before us.
The most compelling argument was one advanced briefly by the noble Lord, Lord Ennals. In relation to medical research it is impossible to evaluate work until it has been published. Anything that can delay publication is harmful to the whole basis of medical research work and is perhaps harmful to the interests which the Minister himself has in mind. On balance I support the deletion of paragraph (f). I have one slight anxiety when I look at this clause. If we delete paragraph (f), paragraph (g) gives the Minister powers,to do anything whatsoever which appears to him to be calculated to facilitate, or to be conducive or incidental to, the exercise of any power conferred by this subsection".It seems that the Minister can put it back again, but that is another matter.
§ Lord Adrian
My Lords, I should like to support the amendment. If it fails I shall support the subsequent amendments. Clause 7(1) (f) as it stands is a great deal too widely drawn. It gives sweeping powers to the Secretary of State. As the clause is drafted it is not at all clear whose ideas or whose intellectual property it is intended that the Secretary of State shall exploit. Is it anybody's or everybody's ideas and property, or is it just the ideas and property of employees of the National Health Service?
This is an unclear field. As the noble Lord, Lord Trafford, said, it is difficult to define intellectual property. If somebody working at a university and also in the National Health Service—perhaps at a medical school in a university—has an idea (an idea that perhaps has no direct connection with his employment but night have arisen from the kind of lateral thinking that was described by Dr. De Bono some years ago) does the Secretary of State have unlimited power to exploit that idea?
949 I do not disagree that the Secretary of State needs powers to exploit ideas and intellectual property but do the powers given in this clause allow him to exploit intellectual property which was by other arrangements being exploited by the university or by the individual concerned? The clause is incompletely thought out and should be taken back. The whole clause on intellectual property and the exploitation of ideas, which does not seem to me to be wholly appropriate to this Bill, should be thought about again and appropriate and proper regulations rather than blanket regulations should be brought forward.
I should like to add in parenthesis that it is a little curious that the DHSS should seek powers—indeed such powers are already contained in the standard DHSS research contract—to control publication while at the same time the DES is proposing to judge academics in terms of their performance indicators, one important part of which will be the number of their publications. On the one hand, a department wishes to control publication; on the other hand, another department in Whitehall wishes at any rate to promote it in the sense that it will judge academics by the number of papers published and by the number of times those papers are quoted.
§ 3.45 p.m.
§ Lord Beloff
My Lords, I feel that the benefit of our recess is rapidly receding. The House spent the summer protecting the universities against one government department. We are back here needing to protect them against another. In spite of the remarks of my noble friend Lord Boyd-Carpenter, I must make it clear that the universities as a group, as set institutions, are extremely worried about the import of this clause. It is by no means something confined either to the political opponents of the Government on the other side of the House or indeed to persons individually concerned with medical research. The reason has partly been that touched upon by the noble Lords, Lord Adrian and Lord Winstanley, that free publication is of the essence of academic work. One recognises that there are matters concerned with vital national security for which particular arrangements are made. However, it is difficult to think of anything in medicine which we would not wish to see circulated freely.
The second point—one about which the universities are very concerned and which has not been touched on so far this afternoon—is that there is some assumption in the paragraph that medical research would be wholly financed from the DHSS and that therefore it might regard this as a return on its capital. However, it is well known that a great deal of medical research—and indeed research in other branches of science—is often funded on a multiple basis.
A team may be receiving money via the Medical Research Council and may be receiving finance from a private benefactor or a group interested in the ultimate results of its research. It may be receiving money from foundations in this country, in the United States or elsewhere. Therefore the ultimate product is unlikely to be simply the result of the infusion of taxpayers' money from this country. It is reasonable that the DHSS might stipulate in a 950 contract where considerable financial returns would come through some new cure or drug that some of the money should be fed back into the National Health Service. We all admit that financing the National Health Service is a desirable end in itself, but so is the financing of universities.
To come back to the Department of Education and Science, it is now urging universities to do their best to exploit for their own financial support the talents, the energies and the capital which is put into scientific discovery. Why should this be restricted to the non-medical field when medical research is an important part of the research work of many universities?
I come back to the point that was made adequately by the noble Lord, Lord Adrian, and I would not presume to go beyond it. The clause is drafted in such apparent ignorance of the way in which universities actually function that the Government should withdraw it and not put this House in the invidious position at Report stage of having to turn down a clause which so far at any rate has no friends.
§ Lord Swann
My Lords, it is perhaps characteristic of Cross-Benchers that they do not know which way they are pointing. As different speakers have held forth I have found myself leaning to both left and right. However, after a good deal of thought I think I lean primarily in the direction of my noble friends Lord Adrian and Lord Beloff. My difficulty is that I agree very much indeed with the noble Lord, Lord Ennals. The way that the Government threaten to, and on occasion have, held up publications is deplorable. It is not something that any charitable foundation would ever dream of doing.
The Wellcome Trust, of which I am a trustee, is the biggest scientific medical trust in Britain. It has approximately £50 million a year to spend and would not dream of doing such a thing. However, it realises that it could get into legal trouble and arranges its finances in such a way that the money is given to the employer, which is in general a university. The Trust therefore successfully disclaims responsibility for any legal liability which may arise. It is therefore up to the people getting the money to make sure that they are not making silly mistakes.
I am worried that the Government do not arrange their affairs in such a manner. Although it is difficult to get anyone to admit it, I suspect that what lies behind this is an anxiety to get rid of things that are politically embarrassing. That has already been hinted at. It would be very unfair of me to name names, but a junior Minister in another place has admitted as much to me in the past.
At the same time I very much agree with the noble Lord, Lord Trafford, when he says that it is perfectly reasonable that discoveries should be exploited and that the people who put up the money should get a share. What worries the academic world most of all and the research world in general is that it is not at all clear that the Government play fair on this matter. It is notoriously difficult to get overheads out of a government department. They tend to think that they can dictate the terms under which any profits may be split up.
951 I should like to refer to what the Wellcome Trust says, I know that this is what the Vice-Chancellors Committee would like. I think that it is a reasonable statement and I hope that the Government will embody this somewhere, if not in the Bill. Notice how polite we are, unlike government departments:The trustees would like to know as soon as possible about any proposals for the commercial development of the results of research to which they have made a contribution. Should a profit be made, the Trust would expect to participate in it. Such participation would be in proportion to the amount which the trustees had contributed to the research from which the profit arose and would of course he used for the support of the work of the Trust".I think that it is perfectly legitimate for the Government to want to cash in on these things. However when that is coupled with the alarming phrase that the Secretary of State can,do anything whatsoever which appears to him",is it any wonder that research workers are uneasy about what it might lead to, not necessarily with the present Secretary of State but with future Secretaries of State? That phrase alone makes me wonder whether the Secretary of State wants to become a latterday monarch, with absolute powers, because that is the way it sounds.
At the end of all this I think that I am in agreement with the noble Lords, Lord Adrian and Lord Beloff. I believe that this provision is such a mess at the moment that the Government should take it back and clean it up. Whether they will do so is another matter. If they were to be defeated on the coming amendment, it would of course encourage them to take it back and clean it up.
If the first amendment cannot be carried, I think—and that is why I put my name to it—that the amendment of the noble Lord, Lord Trafford, is well worth including. The noble Lord, Lord Beloff, and I achieved something similar at the very last stages of the Education Reform Bill. The Government in another place had reversed various things that were done in this House. At the very last minute, when the Commons amendments were being considered and everyone was concerned that the Bill may not get through in time, with a little encouragement the Government took up an amendment of ours and rephrased it much more elaborately and elegantly. More or less everyone was happy at the end of the day.
First, I hope that the Government will clean this up; secondly, if they will not do so, I hope that this amendment is carried; thirdly, if neither of those things happens, I am very much in agreement with the noble Lord, Lord Trafford.
§ Lord Auckland
My Lords, these Benches have been put into an enormous difficulty over this amendment. Clause 7 is very much the curate's egg in this Bill. Any measure that can provide additional funds to the National Health Service is welcome. It occurs to me that if we are to have a Medical Research Council and if we are to encourage young people to go into medical research and ancillary matters, this type of subsection will have precisely the opposite effect.
952 I am neither a professor, nor a doctor, nor a former Minister. I speak purely as a layman who has seen some medical research in operation. Therefore, although I incline to the comments of my noble friend Lord Trafford, who has had considerable experience in the medical profession, I think that the subsection at least should be deleted from the Bill for this simple reason. It occurs to me that it will have precisely the opposite effect on those, particularly of future generations, who we are seeking to persuade to go into this vital field of medical research.
§ Lord Peston
My Lords, I should like to make a few remarks about paragraphs (f), (g) and (h). I am rather surprised to discover that the Secretary of State does not have any powers corresponding to what is said under paragraph (f). Be that as it may, it seems to me that the minimal change required in paragraph (f) is that the Secretary of State should be restricted to exploiting intellectual property that belongs to him. The paragraph presently reads as though he can exploit all of our intellectual property. That seems to me to be quite out of the question.
The problem is exacerbated by paragraph (g), that he or she can,do anything whatsoever which appears to him to be calculated to facilitate,etc. That seems to me to be quite unacceptable. To say the least, it gives such a range of powers as to infringe upon the intellectual property rights of all sorts of people, as other noble Lords have already pointed out. I agree with those who say that all this ought to be taken away and that the Minister should come back with something better.
I should like to say a word about paragraph (h). As a researcher on occasion this has concerned me. It is the point about the Secretary of State having the power to charge on an appropriate commercial basis. That reads to me as if I as a bona fide researcher wished to see some research, the Secretary of State would have powers to charge me for looking at the results. In particular he would have powers to charge me for having access to available data that the research had thrown up. That would be a most unsatisfactory state of affairs.
Having asked whether it is the case that the Secretary of State has no such powers under paragraph (f) at the present time, I should find it interesting to hear from the noble Lord when he replies some examples of what the DHSS has in mind under paragraph (f). What are the kinds of exploitation of intellectual property that the department thinks are relevant?
There are two other remarks that I should like to make. The first concerns publication. I entirely accept the point made by the noble Lord, Lord Beloff, that if one were doing research for the Ministry of Defence in the most sensitive areas, it might be inappropriate on occasion to publish it. I am bound to say that the very first publication in my academic career was paid for by the American Office of Naval Research. It financed an enormous amount of Keynesian economics, for reasons which I never fully understood. One was always delighted to add a 953 footnote saying that it had financed one's work. Even an American defence ministry was quite capable of adopting a very liberal view on research matters.
The key problem, setting aside the national defence question, is that the moment you start asking yourself, "shall I publish this research?", you raise the issue not merely of what to publish; you also totally undermine the value of what you did publish. That is because one does not view what one did publish with the same degree of objectivity that one would if everything was published; one would be just as suspicious about what the DHSS says can be published. Indeed, one would start to worry about why it suppressed the other piece of work. It seems to me that the DHSS is entirely mistaken in even remotely going down the line of asking, "Should we publish or not?". Surely, the general rule should be that we should certainly publish.
The noble Lord, Lord Trafford, seeks to save the situation a little by putting forward the point about agreement. I well understand his argument. The key point which worries me—I think, in fact, he was actually saying it—is that you could argue the point well without having to do any research for the DHSS. Moreover, if you do not have to have such agreements, you do not have to get involved. Therefore, in a way, for the bona fide researcher there is no problem.
However, that argument flies totally in the face of the present position in universities. Research money is enormously scarce and there is a sense that one has to apply for whatever money is available from whatever source. I am afraid, as I believe the noble Lord, Lord Trafford, will say—he will perhaps clarify the position in a moment—that even if one signs the agreement assuming all will be well, one signs it because one wants the money and one faces the issue of publication later. That is especially true as regards junior researchers. It is true also of researchers who, as the noble Lord, Lord Adrian, pointed out, will be under tremendous pressure from now on to raise research money in order to say, "This is how we are successful as academics raising money in order in due course to be able to publish."
It is with enormous regret that I view the path taken by the department, the Secretary of State and others. Despite the issue on the Black Report, the DHSS has been an excellent department over the years in terms of encouraging research—and I do not make that point as a political one. However, in this instance, I believe the right course is that suggested by so many noble Lords—to pull the whole thing back and think it through again. I should like to hear the noble Lord confirm that; otherwise I shall vote exactly as the noble Lords, Lord Adrian and Lord Swann suggested—for the first amendment and, failing that, for the second.
§ 4 p.m.
§ Lord Hunter of Newington
My Lords, there is a difficulty here about which I am sure the Minister does not need to be reminded: it is, that the Science and Technology Committee has recently reported to the House on the whole question of medical research including that within the National Health Service. 954 Most important proposals and suggestions have been made. We understand, from talking to friends, that some of the suggestions have been undertaken. For instance, the Second Permanent Secretary in the Department of Health is chairing a joint committee with the Education Department on the whole issue of relationships between the two. I should have thought this an appropriate time for the Government to remind them that they have the obligation to respond to these important proposals. They are the result of widespread consultation. I hope that the Minister will feel that he can withdraw the matter, so that we may look at other proposals at a later date.
§ Earl Russell
My Lords, I must apologise to the House for taking part in a debate so much of which I have missed. And what I have heard only increases my regret. This afternoon I was teaching, and I must say that when I speak to your Lordships on the subject of academic freedom I do not mean freedom to neglect the job for which I am paid. On that note I must also apologise for the fact that as I shall be teaching again this evening, I shall have to leave the House in another 40 minutes. Therefore, I may not be able to hear the debate on the amendments put forward by the noble Lords, Lord Trafford and Lord Beloff. If that is so, I shall very much regret it.
When we debated the issue in Committee, the noble Lord, Lord Trafford, whose speech I am especially disappointed not to have heard today, was a little disappointed that I did not sec this as a matter of dark forces. However, I agree with the noble Lord, Lord Peston, that the past record of the Department of Health does not seem to justify those fears.
The issue here is something a little more difficult: we have a culture clash and, therefore, a failure of communication. I was interested in the phrase used by the then Secretary of State in a letter to Sir Mark Richmond back in March. He claimed that the existing contract left him with little or no control over the use and publication of research work which had actually been commissioned and paid for on his behalf.
That phrase, and especially the use of the word "control", seems to me to suggest a lack of understanding of what you are actually doing when you employ an academic. It is not like employing someone to sweep the floor where you can give them a specific duty. If you employ an academic you let him, or her, loose to find out whatever they find out, however inconvenient it may be, If you do not do that, the person you are employing is, in the end, not quite an academic.
I am reminded of Aristotle's grisly story about Apelles the painter who was taken hostage. The man who took him hostage was finally compelled to sign an agreement to return him. However, before he did so he cut off his right hand. It was ruled that he had returned Apelles but not Apelles the painter.
In that sense, if you employ an academic without freedom to publish you risk finding that the person you are employing is something rather less than an academic. It is a dilemma of obligations which the right reverend Prelates, if they were here—and I am sorry that none of them is—might perhaps recognise 955 as having some parallel with the position of employed household chaplains. However, not all of them had quite such uncomfortable experiences as Archbishop Cranmer when asked to make the Tenth Commandment read:Thou shalt not covet another man's wife without due recompense".You cannot own an academic in that sense. If you do, you are not getting what you pay for. Freedom to publish, as has been said, is very much an ark of the covenant of academic life. It has much the same type of status as the secret ballot in political life.
If we were to listen to someone saying, as J. S. Mill once did, that the secret ballot should be abolished, I do not think that we would find it a sufficient defence that we were not convinced that that person actually wished to interfere with freedom of elections. We would argue that the situation simply would not do. That is the way that most noble Lords feel about the clause.
The best way to deal with culture clashes is to find a compromise form of words that avoids the clash. The noble Lord, Lord Skelmersdale, suggested a form of words when we discussed the matter in Committee. He proposed accepting restriction in cases of libel, breach of confidentiality or factual error. It seems to me that there is the potential here to build upon common ground. I very much hope that we will take the chance to build upon it before it is too late.
The Earl of Halsbury
My Lords, I find the provisions of the Bill insufferable. Indeed, not for the first time I join my voice with those of my noble friends Lord Adrian and Lord Swann and also with that of the noble Lord, Lord Beloff, to denounce the provisions in the most unmistakable terms.
When I first took my seat in your Lordships' House I was the only Member who was earning his living at the laboratory bench. Shortly thereafter, I ceased to earn my living in that way because I began directing other people at the laboratory bench. A short time after that I became managing director of the National Research Development Corporation, a position, to which I was appointed by the noble Lord, Lord Wilson, when he was President of the Board of Trade.
I am talking about subjects I know. I spent 20 years in the service of what is now the Science and Engineering Research Council, although it changed its name several times during the course of my service. I spent four years on the Medical Research Council. I know the terms upon which administrators and scientists at the bench can learn to trust one another. I always made the promise—I occupied no special position vis-á-vis the universities or research council workers in the 10 years that I was managing director—"If you would like to submit your manuscript to me on its way to the publishers, I will turn it into industrial property far sooner than you can get it reviewed and published to the world at large. If you would care to take that option, then I will give you 10 per cent. of the gross royalty receipts and 50 per cent. of the net royalty receipts". On that basis of mutual trust we were able to enter into an understanding with one another.
956 What the Government propose in the Bill is an arrangement which I have always refused to enter into with anyone alive; namely, that I am to trust him but he will not trust me. No, I shall not be doing that. If I wanted money on the terms that I am asked to earn it, I should turn to the bureaucracy responsible and say, "You can take your money and stuff it. I will get it from the Rockefeller; I will get it from the Ford; I will get it from the Wellcome; from the noble Lord, Lord Swann; I will get it from the Arthritis Research Council; I will get it from the Cancer Research Campaign. I will do business with anyone except you". On that basis, I shall support the noble Lord, Lord Ennals, if he cares to divide the House, and in so far as the other amendments are concerned, I shall follow them in numerical order.
§ The Parliamentary Under-Secretary of State, Department of Social Security (Lord Skelmersdale)
My Lords, that was an inspiring speech if ever I heard one. It was forcefully put. It illustrates the dilemma which has been alluded to all around the House with respect to leaving out this subsection. My noble friend Lord Trafford, the noble Lord, Lord Adrian, and my noble friend Lord Beloff all agreed that reasonable exploitation should not be curtailed. I rather think that the noble Earl thought so too, although the noble Lord, Lord Ennals, who made an excellent lieutenant to the noble Earl in his absence earlier today, would perhaps not feel like that. There is a distinct danger if we pass the amendment that we shall be throwing out the baby with the bathwater, and many noble Lords have said today that that is not desirable.
The current common law principle gives to an employer rights of ownership over any intellectual property developed by an employee during the course of his employment rather than to the employee himself. The noble Lord, Lord Peston, is right on that point. It is only reasonable that the clause should be amended to say exactly who owns what, because the real force of the arguments that we have heard this afternoon relate to where research is carried on by, as it were, indirect employees (contractors) through the universities or any other academic establishment.
I am therefore prepared to go a long way towards meeting that concern. It would be unfair to the House if I were to put down a manuscript amendment at the moment, so I shall not do that. However, I can undertake to make it clear in an amendment on Third Reading that nothing in the clause, or anywhere else in the Bill, shall take away owned-property rights, whether intellectual or any other.
However, the debate goes far wider than the clause, which after all is intended to make more income available to improve the health service. The noble Lord, Lord Ennals, mentioned the research carried out by Sir Douglas Black. It is excellent research, as we both agree. I cannot see any indirect method of exploiting and developing those ideas for raising money for the health service, so I do not believe that that point is germane to the argument.
The intention behind the clause is merely to empower health authorities to make money out of inventions and ideas over which they already have clear rights; for example, as I said, from their own 957 directly employed staff or where they have contractual arrangements conferring such rights. It is clear that that would be all right if it were properly spelt out on the face of the Bill. However, your Lordships' concerns go far wider than that point. They relate to the new DHSS contract which has existed since early 1987. We have received no reports that it is not working properly. It is not disadvantageous compared to the old contract. If it were, and if we found that research was not being conducted for that reason, we should be in a whole new ball game and I should be the first to admit that fact.
I can therefore give a commitment on behalf of the Government. If in 18 months' time we find that the dire results suggested by the noble Earl are coming about, which many of your Lordships feel might happen, we shall undertake by agreement after consultation with the research institutes concerned to have discussions on revising that contract.
I have offered two things. One is a clear statement on the face of the Bill that nothing in the Bill shall steal—I believe that the noble Earl, Lord Halsbury, was talking about a licence to steal—any rights given to people through the common law, through the law of contract or anything else. What they have, they hold. We shall make that point clear.
Secondly, I have given a government commitment to review the contract if in 18 months' time it is decided by agreement that that review is necessary. With those two, I trust useful, proposals I hope that the noble Lord, Lord Ennals, in consultation with his noble friend Lord Russell, will see fit to withdraw the amendment.
§ 4.15 p.m.
The Earl of Halsbury
My Lords, before the Minister sits down and before the noble Lord, Lord Ennals, intervenes, as is his right, perhaps I may ask the noble Lord for clarification of two points. The ownership of property is one thing, and it is a matter of contract entered into between willing buyer and willing seller. The publication of results is a common law right intrinsic in the subject, which is the big distinction that we in the science lobby are trying to make. Will he also assure me that for his words "18 months" he will substitute "18 months or thereafter", because 18 months might be a very short time for bad results to mature?
§ Lord Skelmersdale
My Lords, with the leave of the House, I said"18 months" in the full knowledge that the new contract has already been running for about 16 months and therefore we shall have had three years to see whether it is working. I should have thought that that was a reasonable amount of time.
I am mystified by the point about publication. I am sure we shall lead on to it in discussion on the next amendment. With everything that has been said, nowhere in Clause 7 can I find everything that has been said, nowhere in Clause 7 can I find the word "publication". By definition, the exploitation and development of ideas and intellectual property must be after something has been written. Therefore the argument as to whether publication has taken 958 place—although I agree that it is germane to the next series of amendments—has nothing to do with this amendment.
The Earl of Halsbury
My Lords, on a technical point, the filing of a provisional patent specification is publication.
§ Lord Ennals
My Lords, when there are no words before us I find it very difficult to legislate standing on my feet. When the Minister started his reply he said that there was not really a dilemma. I think that there is one or rather several dilemmas in which your Lordships' House is placed at the moment. The noble Lord said that the new contract had been in operation for 16 months or whatever it was. It may be that some people have not read the small print. It may be that before having secured legislative approval, the Government decided that they would not wish to implement the new powers that this Bill would give to the Secretary of State. If they had implemented those powers and if we were now debating ways in which the Secretary of State had used the new powers at a time when the Bill was still going through both Houses, I think there would have been very great anger indeed.
The fact that the department has not used its powers in a way that would disturb your Lordships does not, I am afraid, mean anything at all to me. Of course I accept the absolute integrity of the Minister in saying, "All right, I shall give these assurances". But I do not know precisely what the assurances are. I do not believe in buying a pig in a poke. Frankly, I think that the best thing is for the House to decide on the basis of the amendments that have been tabled. In the light of the way in which the House decides, the Minister can, before we come to Third Reading, return with a new form of words. If that is to the satisfaction of the House—I give way to the noble Lord.
§ Lord Skelmersdale
My Lords, I thank the noble Lord for giving way. Unfortunately our rules of order preclude that. Once a matter has been decided one way or the other, as I understand it, it cannot be re-opened on Third Reading.
§ Lord Ennals
My Lords, if I may say so, that is an argument in favour of withdrawing the amendment. Almost all noble Lords who spoke—including the noble Lords, Lord Trafford, Lord Winstanley, Lord Adrian, Lord Peston, Lord Beloff, Lord Auckland, Lord Russell, and Lord Halsbury—said to the Minister, "Please take it away". They did not say, "Give some little concessions". They may be major concessions; I do not know whether they are without having them in front of me and going through them with a toothcomb. The Minister would not take it away. Perhaps he will on the manuscript amendment which I have tabled on a later matter, which is not on an issue as important as this.
To request the Minister to take the matter away enormously strengthens the case that has been made by the noble Lords to whom I have referred. If he agrees to do so, I shall not press my amendment to the vote. However, if he is not in a position to 959 withdraw this totally, having conferred with my noble friend, in the light of the debate that has taken place we believe that it would be best to test the feeling of the House.
§ Lord Skelmersdale
My Lords, again I ask the leave of the House, and I am sorry that it should be necessary to speak. From what the noble Lord has said, he has given many people to suppose that this is my amendment. It is not for me to take something away. I have offered to come back with something on the Third and final Reading of the Bill in your Lordships' House. If that satisfies the noble Lord enough for him not to press the amendment, so be it. If it does not, then again so be it. Your Lordships will be able to draw your own conclusions.
§ Lord Ennals
My Lords, I am grateful to the Minister for intervening. The Minister has mentioned two points on which he is prepared to make adjustments; perhaps he could clarify this. Can he say that he will take this away and look at it in the light of the debate that has taken place here? One must recognise that, except for the noble Lord, Lord Boyd-Carpenter, the Minister did not find any friends in the situation as it now is. If the noble Lord takes it away and looks at the whole issue in the light of this debate and then comes back, I assure him—and I hope that my noble colleague agrees—that I shall not press my amendment to the vote.
§ Lord Trafford
My Lords, perhaps the noble Lord will give way before he sits down. As I understand it—and I wonder whether this is his understanding—my noble friend the Minister has just said, or I think I heard him say, that it is not his amendment so it is not for him to decide whether or not the House divides, but that he will take this paragraph back and bring back a different paragraph at Third Reading, when it will be for this House to decide whether or not that is acceptable. If that is what the noble Lord is saying—and I believe I am right in suggesting that this is the only thing he can say on someone else's amendment—perhaps that would help to meet the noble Lord's point.
§ Earl Russell
My Lords, is it in order to ask a question at this stage? I want to know whether it is in order.
§ A noble Lord: Try it.
§ Earl Russell
My Lords, I wish to know whether, if the Minister takes this away and thinks about it, he will accept that the purport of this debate is that the existence of the contract is one abuse. Its abuse would be two abuses.
§ Lord Skelmersdale
My Lords, with the leave of the House, that is a little devious for me at this time of day. While I am on my feet I should say that the understanding of my noble friend Lord Trafford is absolutely right. I am giving no guarantees as to how this formulation would work, whether it would mean amending paragraph (f) or putting in a new paragraph or whatever. I simply do not know. 960 However, the guarantees that I have given and the promise I have made are absolute. I shall come back with an amendment on Third Reading.
§ Lord Ennals
My Lords, I am most grateful, I think that the Minister has moved further. Can he take back paragraph (g) as well? It has been pointed out by more than one noble Lord that what is not contained in paragraph (f) could well be contained in (g). That authorises the Secretary of State to do anything whatsoever which appears to him to be calculated to facilitate, etc. It will be recalled that at the Committee stage I sought to delete this. I did not succeed, but since there is a link between the two will the noble Lord look at the two linked paragraphs and come back with what he thinks is best? This would give the opportunity for noble Lords themselves to decide what is best. Can the Minister give that assurance?
§ Lord Skelmersdale
My Lords, this is Report stage and it must be the last time I seek the leave of the House to answer a question, not only from the noble Lord, Lord Ennals, but from anywhere in the Chamber.
This amendment is connected with paragraph (f): it has nothing to do with (g) at all. I answered points on paragraph (g) in Committee on 14th July at column 966 of the Official Report. That reply is readily available. If noble Lords do not like what I put down in Committee, they are perfectly within the rules to come back with exactly the same amendment or almost exactly the same amendment, as we are debating now. So nothing will be lost by withdrawing the amendment at this time.
§ Lord Ennals
My Lords, under the circumstances and with the assurances that have been given by the Minister, I think it is best to leave it to him to return later, provided that in doing so he takes into consideration the views that have been expressed by your Lordships' House, which the Minister will understand have been extremely critical. If he comes back with something very similar to what is down now he will have a hard time. I think all of us genuinely want to get it right and to secure agreement. With the assurances of the Minister, I shall not press my amendment. However, it may be quite a different matter for those movers of amendments to follow.
§ Amendment, by leave, withdrawn.
Lord Trafford moved Amendment No. 2:
Page 5, line 24, at end insert ("by agreement").
§ The noble Lord said: My Lords, in moving Amendment No. 2, I wish to speak also to Amendments Nos. 3, 4 and 5 as grouped on the Marshalled List. I am sure that we are all very grateful to the Minister for his willingness to listen to our arguments and to take back paragraph (f). It seems to me that I need say no more about it as we have an assurance that this will be returned to on Third Reading. Therefore, perhaps the main part of the anxiety which has been expressed around the Chamber has been very considerably alleviated, if not satisfied.961
Amendment No. 3, which relates to paragraph (g), reads:
insert ('by agreement to do those things which will')",
('to do anything whatsoever which appears to him to be calculated to')".
I urge the Minister only to take this into account when he looks into the consequences of the previous amendment—that is to say that part referring to paragraph (f). A number of your Lordships have suggested today that if one cannot catch the mackerel by the use of paragraph (f), one might do so under paragraph (g). I do not know whether that is the case. However, one must remember that basically Clause 7 concerns the generation of income for the National Health Service. I hope that my noble friend will be prepared to give an assurance that he will find out whether these paragraphs are compatible with that aim so that we can look at the matter again in the light of the whole of this part, which is of course a further expression of the same concerns which have been expressed on all sides of the House by every speaker.
§ The same principle also applies to Amendment No. 5, which seeks to change line 28. I do not think I need waste the time of the House further. All these amendments were designed to achieve was a greater sense of fair play between a researcher, whether he be in a university, a hospital or elsewhere, and those who might seek to use him or work jointly with him. I believe that the issue has been aired sufficiently.
§ Therefore in moving these amendments I hope that the Minister can say that he will at least look at the next two paragraphs, as well as paragraph (f), which he has already promised to return to on Third Reading. I beg to move.
§ 4.30 p.m.
§ The Deputy Speaker (Lord Nugent of Guildford)
My Lords, I should correct Amendment No. 4 as the noble Lord, Lord Trafford, is also speaking to that amendment. It should read:Page 5, line 26, leave out second ("to").
§ Lord Ennals
My Lords, in supporting the noble Lord, Lord Trafford, and the course of action that I think he has in mind, I wish to make two points. The first relates to the linkage between paragraphs (f) and (g) which he quite rightly suggested. In one of my too frequent interventions at the close of the debate on the previous amendment, I sought to get an assurance from the Minister that he would look at paragraph (g). He was quite right to tell me that we were only debating an amendment which touched on paragraph (f). However, we are now debating an amendment which touches on paragraph (g).
I hope, in responding to the noble Lord, Lord Trafford, that the Minister will feel able to recognise that there is a link between the two paragraphs, and that it would be perfectly possible to alleviate this situation, if not in one way then in another. I believe the House wishes that point to be taken into consideration. I hope that when the Minister replies 962 to the noble Lord, Lord Trafford, he will give him that assurance, namely that he will look at paragraph (g) too.
My second point concerns the fact that time is not on our side. We are at a disadvantage in this debate as it occurs very early after your Lordships' return from the Recess. Therefore both the Minister and other noble Lords are considering amendments that have been tabled only recently.
There will not be a great deal of time before we come to Third Reading. It is important that the Minister should not only give us an assurance that amendments will be tabled well in advance, but also, if he thinks it appropriate, take the opportunity of inviting some of those who have led the debate to take part in the discussion so that when we reach the next stage we can put forward a form of words that is as broadly acceptable as possible.
§ Lord Kilmarnock
My Lords, I rise in the absence of my noble friend Lord Flowers, who very much regrets that he is unable to be here this afternoon. His name is attached to the amendment moved by the noble Lord, Lord Trafford. I wish simply to say that I am quite certain that my noble friend would be concerned, in the same way as the noble Lord, Lord Trafford, is, that the linkage between paragraphs (f) and (g) should not be overlooked by the Government when they are again considering this clause.
We have the assurance that the noble Lord has already given us on paragraph (f), and we shall have to see what he puts forward in that regard. But if the remarks that have been made on all sides of the House in relation to paragraph (g) are not taken into account when the Government make their review of the whole of this part of the Bill, the House will not at Third Reading be satisfied with the formulation that the noble Lord brings forward.
§ Lord Peston
My Lords, I wish to refer briefly to the question of publication. What the noble Lord, Lord Skelmersdale, said was encouraging. It is my view that in an area of this kind there should be no party political differences between us. Essentially this is a matter of fundamental principle.
The fundamental principle that we must not lose sight of is the presumption that research should be published. I do not know whether it will be possible to include under paragraphs (g) or (h) when they are reconsidered along the lines that the noble Lord, Lord Trafford, has suggested some presumption that research should be published. But if, in considering that the noble Lord were at least to take advice from his officials as to whether some such provision could be placed on the face of the Bill, that would reassure us beyond almost all bounds of the good will of the department.
I do not expect the Minister necessarily to say anything at this moment, but I ask him at least to consider that point. Following something that the noble Lord, Lord Beloff, said a few moments ago, I would say to the Minister that if he wishes on behalf of his department to say something of great reassurance to the universities, he need say nothing more than a remark along those lines.
§ Lord Skelmersdale
My Lords, this is a very short debate when one compares it with the previous one. Clearly it is a continuation of part at least of the same subject. It concerns contracts. I listened particularly carefully after my previous experiences—from which I am still suffering a certain amount of "harrowment", if that is an English word—to what was said by various noble Lords about the vexed subject of intellectual property rights.
This amendment asks the Government to amend the Bill by changing the paragraph conferring powers on the Secretary of State so that commercial exploitation is by agreement only. I shall of course take that point very much into the consideration which I promised in answer to Amendment No. 1. But I must mention some points of detail. They are twofold. My first question is: agreement with whom? It is quite clear from what my noble friend Lord Trafford said in introducing this amendment that the agreement should be between the Secretary of State or his nominee and the researcher him or herself. In that case such an amendment, were it to go into the Bill, should state that.
My second point, which I do not think my noble friend alluded to, concerns what happens in the case of a dispute. Who wins? That is why I do not like this amendment as it stands. It has been made abundantly clear by the academic research community throughout the passage of this Bill that it is deeply distrustful of our motives in amending the standard form of research contract. I wish to say once again that we made the revision in February 1987 at the behest of Her Majesty's Government's Stationery Office. There was no ulterior motive whatsoever.
It occurred because the working of the existing contract was not fully consistent with the responsibilities for Crown copyright delegated by HMSO to the Secretary of State. It conferred inadequate control over publication of material resulting from research commissioned by the department. The revised wording requires that consent to publish shall not be withheld unreasonably.
I can say that since the revised contract came into effect there have been no instances of refusal to give that consent. As no change of policy over publication was involved, there is no reason to suppose that the position will be any different in future. However, I repeat my commitment to have the review of the operation of the contract in 18 months' time.
As he had a good point, the noble Lord, Lord Peston, pursued it. He said "That is all very well, but what about paragraphs (g) and (h)? What about taking them into consideration?" I have to say with all honesty that I do not think I can do that. Paragraph (g) says:to do anything whatsoever which appears to him to be calculated to facilitate, or to be conducive or incidental to, the exercise of any power conferred by this subsection".In other words, ignore the lot if it is not in the provision; so I do not think that a reformulation of paragraph (g) helps.
Having said that, I shall of course consider this further, possibly in concert with the noble Lord. The noble Lord, Lord Ennals, in his short experience of 964 relationships with myself, which is about to come to an end, will know that I have never ducked a meeting in my life, and I certainly would not want to duck a meeting with the noble Lord, with the noble Lords, Lord Adrian and Lord Flowers, or with the noble Earl, Lord Russell. The noble Lord may like to bring with him my noble friend Lord Beloff when this matter is being considered.
I come back to the fundamental point, which is that I know what noble Lords are getting at in discussing these first five amendments, or four as we are reliably informed by the Deputy Speaker. However, this clause is not an appropriate one in which to alter contracts because it does not cover all contracts. I hope that before the meeting which I have agreed to have, noble Lords will be able to consider that point. In the meantime, if my noble friend could see fit to withdraw the amendment I emphasise that I will include it very much in my thinking.
§ Lord Trafford
My Lords, I am obliged to my noble friend for his helpful remarks about looking again at paragraph (f) and his agreement also to look at it in so far as it affected the other paragraphs in any way, though of course they do quite clearly apply to subsection (1). Under those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 3 to 5 not moved.]
§ 4.45 p.m.
Lord Wallace of Coslany moved Amendment No. 6:
Page 5, line 31, at end insert ("and in all that is involved in the foregoing paragraphs the existing work of voluntary bodies shall be taken into account;").
§ The noble Lord said: My Lords, this is a completely non-political amendment, as was my previous amendment at Committee stage. In fact any noble Lord in this House would be quite capable of moving it. My main aim is to ensure that the voluntary services are incorporated in the Bill in this form. The amendment which I now move differs from the original amendment moved in Committee because it is more positive and definite. It says "shall be taken into account".
§ I should like to take this opportunity of thanking the noble Lord, Lord Skelmersdale, for the very friendly letter which he sent to me during the Recess. I am sorry that I have not replied to it personally or had the opportunity of speaking to him about it, but I have had certain difficulties which I may be able to explain to him later.
§ I cannot accept his attitude that voluntary services should not be mentioned in the Bill but should be the subject of letters from the department to various managers. If they are the subject of letters, why not mention them in the Bill? The amendment means that the managers of various schemes shall take into account the work of voluntary societies in their preliminary negotiations or discussions.
§ I happen to be a president of a league of friends. My league of friends has been in difficulty over various arrangements carried out by the management, but the difficulties are being overcome 965 to some extent by the setting up of a small joint standing statutory committee which deals with such matters. That may be a matter of argument by the department. Therefore it is essential that the voluntary services be recognised in a tangible fashion in the way which I have suggested.
§ It was said by the Minister incidentally that hardly anyone in the health service read the Bill. That is beside the point. If Clause 7 alone were sent to the managers it would give them a definite indication of the Government's thinking and what I hope this House will think when the amendment is pressed, because press it I shall.
§ The voluntary services have been underestimated to a great extent. They are far more important to the health service than some people imagine. In the case of my organisation, the management have set up a flower shop. The profits of that flower shop do not go to the hospital; they go to the owners, who pay a certain sum of money for the privilege of running that shop; whereas the friends, in their shop opposite, which sells all sorts of odds and ends except those which are now prohibited, give every penny of profit to the health service and to the hospital itself. That is the vital difference.
§ I cannot understand why the Government insist that this slight amendment, which is not very contentious, should not be incorporated in the Bill. I cannot understand the Government's attitude. I put the amendment forward now in its revised form in the last hope that something will be done. If the Government refuse, I shall press the matter to a Division and hope to have sufficient Tellers to carry it to its conclusion. I beg to move.
§ Lord Auckland
My Lords, unfortunately, I was unable to be in my place when the noble Lord moved the amendment in Committee, and I apologise to the House for having just now missed the first few moments of his speech.
I have a lot of sympathy with the principle behind the amendment, although I would be reluctant for it to go to a vote. I declare an interest as president of the friends of my own district hospital in Epsom, although I have not consulted them with regard to the amendment. I think the present relationship between the Department of Health and the friends is a reasonably good one. Nevertheless, I hope that my noble friend the Minister will give some consideration to the amendment. Without the voluntary workers in the health service and without the friends, no matter how much money is put into it the patients in particular will not get the television sets and other bonnes bouches which they have at present. I know that the friends of my local hospital raised some £7,000 towards an important couch for the intensive care unit and more for the children's unit.
I hope that the Government will give sympathetic consideration to the amendment. The health service is funded to a larger extent than ever before. It is fair to say that the Government are putting a great deal of money into it. It is a matter for debate on other occasions whether it is all being put into it expeditiously and wisely. However, "friends" and 966 other voluntary organisations within the health service will always be needed. Therefore, although I believe that this amendment does not call for a vote, I hope that my noble friend the Minister will take the matter back to his right honourable friend and ask him at least to give the purport of it very serious consideration.
§ Lord Ennals
My Lords, I should like to support my noble friend who has tabled this amendment. He has behind him a lifetime of commitment to his local hospitals, as indeed has the noble Lord, Lord Auckland. That would also apply to many noble Lords in all parts of the House. I should like to go a little further than the noble Lord because this is not just a question of television sets, sofas and other small items, important though they are. Increasingly "friends" are involved in helping to raise money for much larger equipment, such as scanners. Although they themselves cannot shoulder the responsibility for such equipment, nevertheless they help with it in part. One cannot make a contribution towards anything unless the presence of voluntary organisations, whether they are "friends" or other types of organisation, are taken into consideration.
My noble friend Lord Wallace is absolutely right. Voluntary organisations must not be squeezed out by this new method of fund-raising. I have not attacked it as such but various types of it and said that there ought to be some standards applied. Unless the opportunity is given to fund-raising organisations, they will fall down on the job and the Minister must take that into consideration.
I do not speak on behalf of a political party. This is not a party issue, as the noble Lord said. My personal view is that were the Minister to say that there will be guidelines produced on this issue and consultation will take place, as we requested during earlier debates on this matter, so that fund-raising devices were methods that had been approved after consultation with voluntary organisations, I believe that there would not be a need to divide the House. However, I think that the Minister has to give some sort of assurance in the light of the points made by my noble friend Lord Wallace, which were supported by both sides of the House.
§ Lord Skelmersdale
My Lords, I hope that I shall be able to prove to your Lordships that I can do rather better than give what the noble Lord, Lord Ennals, calls "some sort of assurance". The House will remember that in Committee I said that it would be in nobody's interest if the health authorities, hospital managers or whatever, were to ignore the activities of voluntary bodies. That was a de minimis way of saying that they would be stark staring honkers—to quote a phrase used by one of my noble and learned friends who at the moment is not in his place. I understand exactly—of course I do, having for a very short time had something to do with the administration of hospitals and having been a regular or perhaps I should say irregular patient throughout my life—the vital part that voluntary bodies play in raising money for the health service. They have done so to the tune of many millions of pounds a year. Normally the money goes to a local hospital but 967 occasionally, as we see in the case of the Wishing Well Appeal at this moment, it comes from all round the country for a specialised hospital which tugs particularly at the heartstrings.
It is quite clear that the noble Lord, Lord Wallace, is absolutely right: there should be nothing in this Bill which detracts from such an enormously valuable voluntary effort that people want to make. They want to be involved and that is absolutely right. If I speak with a certain amount of feeling it is because I agree with the noble Lord, Lord Wallace, who has spoken with enormous feeling on this issue throughout the passage of the Bill through your Lordships' House. As he said, we have exchanged letters on this subject—I think I am right in saying not once but twice. So it rather grieves me that I cannot accept this specific amendment at this precise moment. It is not because I disagree in any way with it or with the thoughts behind it. I am informed that as it is not the Secretary of State who has to use the powers contained in Clause 7(1) but the health authorities and the hospital managers, the requirement to take into account the existing work of voluntary bodies should be contained in the part of the clause that is concerned with giving directions to health authorities; namely, in or around line 32.
Therefore, with your Lordships' permission—and I must confess that in the last few minutes I have known exactly what Fagin went though in "Oliver"—I should like to propose that I bring forward at Third Reading a government amendment which will do the trick. Thus I believe that honour will be satisfied on all sides.
Lord Wallace of Coslany
My Lords, I thank the noble Lord very much indeed for his kind remarks and for the offer that he has made, which I naturally accept. The principle has been accepted. Perhaps I may say that it is typical of the Minister that our exchanges over this matter have been extremely friendly and I thank him for it.
§ Amendment, by leave, withdrawn.
§ 5 p.m.
§ Clause 8 [Retirement of practitioners]:
Lord Pitt of Hampstead moved Amendment No. 7:
Page 8, line 20, after ("removal") insert ("as principal").
§ The noble Lord said: My Lords, your Lordships will remember that during Second Reading I pointed out my worry that by insisting on retirement at the age of 70 we should lose the expertise of a very experienced group of doctors. I also pointed out that very often patients became very attached to their doctor and that such enforced changes were probably not in the patients' best interests either.
§ The Minister was kind enough to write to me on this matter. He pointed out that doctors were being asked to give up the exacting responsibilities of a principal. I should like that word to be written into either the Bill or the regulations. It might well be that the Minister will tell me that it is better sited in the regulations. I shall accept that and it would meet the point.968
§ In his letter the Minister went on to say that it is up to individual practices, since they are contractors, to make any arrangements they like with any of the doctors who retire. That means that what I had in mind could be done; namely, that if the practice felt that it wanted to employ the retired doctor on a part-time basis, or merely to come in and see some of his old patients who still wanted to consult him, it would be free to do so. If some way could be found of conveying that to the profession at large, I should be satisfied. I beg to move.
§ Lord Rea
My Lords, I think that I am the only Member of your Lordships' House who is likely to be affected personally by this clause since I still have 10 years to go before reaching the age of 70. That figure is not mentioned in the Bill but apparently 70 is the age at which it is understood that general practitioners will be required to retire. Yet the provision will not affect me in fact because I intend to retire long before I attain that age.
Following the arguments of my noble friend, which were largely given during a speech that he made at Second Reading, I understand that there is a place for the older general practitioner. His arguments hold water. I think it is very important that an older general practitioner should not regard it as his right to continue practising after the age of 70. The work will have to be part-time and not as a principal but as an assistant. It will also have to be with the agreement of his partners. I cannot see how an older general practitioner could insist with equanimity against the wishes of his partners that he should continue to practise. With that proviso I believe that my noble friend's suggestion is a good one and I back the amendment.
§ Lord Boyd-Carpenter
My Lords, as the clause stands, it seems to be a little rigid. As has been said by noble Lords opposite, quite often a doctor who has passed the age limit and ceased to be in full-time employment can still be of very considerable use either to the health service or to his patients. As I read it, the clause states that,The Secretary of State shall by regulationremove from any list. Unless my noble friend can clarify the matter, it looks as though there is an intention to be very rigid indeed. I recall a case from my own part of the country of a doctor with a very high reputation and much liked by his patients, who, having retired from full-time practice, continued to work when the regular doctor was away or sick, or when there was an epidemic and great pressure of work. He was brought back to operate temporarily greatly to the benefit of the patients, and to his own benefit.
My noble friend may be able to explain that this amendment is unnecessary because there is sufficient flexibility in the clause. Reading the clause as I do, I cannot detect that flexibility. Perhaps my noble friend's more percipient eye may be able to identify some such a factor. If there is a degree of flexibility, one's worries will go, but if it is as rigid as it looks, I am bound to say that I have great sympathy with noble Lords opposite.
§ Lord Ennals
My Lords, I take the same view as the noble Lord, Lord Boyd-Carpenter. At present it is a very rigid rule. I entirely agree with the argument that has been made by my noble friend Lord Pitt. He is not trying to undermine the basis of this retirement concept but to ensure that it would not be against the law for someone over the age of 70 to have a role, but not as a principal. I think that that is perfectly right. I did not know how he would manage to put forward this proposal. He has found a very ingenious method without weakening the argument. I very much hope that the Minister will feel able to accept it.
§ Lord Skelmersdale
My Lords, I am grateful to the noble Lord, Lord Pitt, for enabling me to say something that I would dearly love to have said in Committee—as I suspect from his smile he knows very well.
My noble friend Lord Boyd-Carpenter is absolutely right. This is a rigid clause. However, it is not quite so rigid as even as serious and devoted a reader of parliamentary legislation—as I know my noble friend is on very regular occasions, sometimes too regular for some of us—is wont to understand.
I understand that the intention of the noble Lord, Lord Pitt, is to enable family doctors and dentists who have reached retirement age to be active as a consultant to a practice. However, in order to answer the point made by my noble friend Lord Boyd-Carpenter, I should say that the introduction of a compulsory retirement age for family doctors and dentists was supported by 87 per cent. of those who commented during consultation on the Green Paper, Primary Health Care: an Agenda for Discussion. We therefore have a strong measure of public support for this proposal. It is one that also makes very good sense in service delivery terms. It is not sensible to expect doctors or dentists to continue to work past the age at which they can reasonably be expected to carry out the exacting responsibilities of a principal in general practice. We already have a supply of keen young vocationally trained doctors ready to take the place of those who retire. There is a national oversupply of dentists.
The noble Lord, Lord Pitt, says, "That is all very well, but don't chuck them willy nilly onto the scrap heap". I quite agree. He first raised this subject at Second Reading. I subsequently wrote to him saying that I quite agreed with his points and those enunciated just now by the noble Lord, Lord Rea, that retired doctors and dentists could still have a useful function to perform in the primary health care field.
The words in the Bill have no effect whatever on this wholly laudable practice. True, the clause as it stands will prevent a practitioner, on reaching retirement age, from appearing on a family practitioner list. However—this is the point in answer to my noble friend Lord Boyd-Carpenter—what does that mean? The effect of this provision is to prevent him or her from being an employer or—to borrow the words of the amendment of the noble Lord, Lord Pitt—a principal; in other words, to be a direct contractor to the family practitioner committee.
§ Lord Boyd-Carpenter
My Lords, if my noble friend will allow me to intervene, how does he reconcile that reassuring statement with the words in paragraphs (a) and (b), "from any list"?
§ Lord Boyd-Carpenter
My Lords, I do so with pleasure. My noble friend was suggesting that there could be a role for doctors or dentists who have passed the age limit. However, I was pointing out to him that in the clause the Secretary of State has to remove from any list those who have passed that age limit. Surely if some are to be given the chance to be available they have to be on some list. This appears to inhibit any list.
§ Lord Skelmersdale
My Lords, yes. The list in question refers to the list held by any one of the 190-odd family practitioner committees. The Bill provides that they are removed from the list. I am now advised that the only statutory list in the paragraphs referred to are lists of principals. By definition therefore it provides that he or she can no longer be a principal. Does that help my noble friend?
§ Lord Boyd-Carpenter
My Lords, if that is right, it wholly meets my point. I find it a little difficult to reconcile with the words of the clause, but perhaps my noble friend can explain that.
§ Lord Skelmersdale
My Lords, I shall have another go. My noble friend picked up the words "any list" in the Bill. The only statutory lists referred to in this part of the Bill are lists of principals. No other lists exist. Therefore if someone is not on the list of principals he or she cannot practise as a principal. I hope that I may add "QED" to that particular equation.
To answer the noble Lord, Lord Pitt, the Bill in no way prevents a practitioner from being an employee, either as a consultant or for regular sub-contracted hours, either full or part-time. The way this would work is by a general dental or medical practitioner who is on the list employing the retired doctor or dentist. The formulation in the Bill already permits this without the addition of the words "as principal" as enunciated in the noble Lord's amendment.
As there is nothing between myself, the noble Lord, and my noble friend on this issue, I hope that the noble Lord, Lord Pitt, will see fit to withdraw this amendment.
§ Lord Somers
My Lords, speaking purely as a layman who has received a great deal of help from National Health Service doctors, would it not be better if, in line 19, "shall" were replaced by "may". In many Bills in the past we have felt that "shall" was better than "may". However, this is a case where I feel that it is the other way round: it should he at the discretion of the Secretary of State.
§ Lord Skelmersdale
My Lords, with the leave of the House, I should be very happy to take the noble Lord aside afterwards to discuss the appropriateness or 971 otherwise of putting down an amendment to that effect on Third Reading. However, I remind the House that in a recent amendment to the Standing Orders of your Lordships' House it is recommended that only the mover of an amendment should speak after the Minister at Report and Third Reading stages. I am not trying to duck the issue. I should be happy to take the noble Lord aside afterwards. But it would not be productive to good order if I were to pursue his point now.
§ Lord Pitt of Hampstead
My Lords, I was hoping that the Minister would say something about including this in regulations. I am quite happy now that he has put it on the record. People will understand if they read Hansard, but regulations can make it clear that it is as a principal that doctors are being made to retire at 70. I know that as the Bill stands family practitioner committees do not keep lists of assistants and therefore they are not precluded from being assistants because they are not on any list.
However, it would be for the benefit of the profession if in making the regulations the department pointed out that it is as a principal that the doctor must retire at 70. If I may I will illustrate my point. I am 75 years of age. I retired from practice more than three years ago, but there was a doctor who did locums for me regularly. Since I have retired I do locums for him. I discovered by trial and error that there is a limit to the amount of work I can do. He and I have discussed this and, for example, if he wants to take a month's holiday, I no longer agree to be the locum for the month because I cannot do it. But if he is taking shorter holidays for a week or so, I can do that for him quite easily and any time he wants a day or a half day off I can do that for him quite easily.
That was not really what I had in mind. I was talking in terms of a doctor being able to be a kind of consultant to the practice that he has been with for 30 or 40 years, where there are quite a few patients who, having gone through his hands for all these years, do not want another doctor. It is easy in the case I have mentioned. I have told my old patients to register with this chap and I see them there. It is that facility that I want to see allowed within the service after the rule (with which I am agreeing) that principals should retire at 70.
Although I shall withdraw the amendment, I should like the Minister to give thought to making it clear in the regulations that it is as a principal that people are being required to retire. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 10 [Dental Services]:
Lord Skelmersdale moved Amendment No. 8:
Page 9, line 20, leave out from ("following") to end of line 27 and insert ("subsections shall be inserted after that subsection—
(1A) It is also the Secretary of State's duty to provide, to such extent as he considers necessary to meet all reasonable requirements—
(1B) Schedule 1 to this Act shall have effect." ").
§ The noble Lord said: I am glad to say, my Lords, that a little unanimity—perhaps not complete, but certainly putative unanimity—has been breaking out all round this Chamber today. The government amendments before us to Clause 10 and Schedules 2 and 3 will I hope lead to a final burst of unanimity on the way forward for the community dental service. It has been unanimously recognised that there has been a dramatic improvement in children's dental health since the community dental service was set up. We are equally at one in recognising that the role of the CDS has been changing as the general dental service has expanded. I believe that we are unanimous in welcoming the thrust of the policy outlined in the White Paper, and legislated for in this Bill, for the CDS to target its resources on the areas of prevention, dental health and dental care for special needs groups.
§ Clause 10 as originally drafted replaced the duty to provide routine inspection and treatment of school children with a discretionary power to do so. We have said that we would issue strong guidance to health authorities, to be discussed with the profession, which would set out the new role of the CDS and the standards of service required. However, concern was expressed at our wording. There were those who believed, as we did, that Clause 10 was simply the vehicle for enabling the CDS to undertake its new role; and those who believed that the removal of the statutory duty to provide dental services for school children would lead to some health authorities cutting back on the traditional activities of the CDS without developing the new wider role for the service, with which we are all in agreement.
§ Obviously the important thing in all this is that we should enable the CDS to change in the way which we all believe is right. At Second Reading I recognised the strength of feeling on this issue and indicated that I should be willing to look at another formulation of this clause if this could meet the House's and the profession's concerns.
§ As a result an amendment was tabled at Committee in the names of my noble friend Lord Colwyn and the noble Lord, Lord Ennals, and it was generally welcomed. This amendment sought, first, to replace the current absolute duty to provide for routine inspection and treatment of school children with a duty to provide them in such a way as "to meet all reasonable requirements", and, secondly, to introduce a specific statutory duty to provide dental services to special needs groups.
§ I welcomed the approach in the first part of that amendment, which seemed to avoid the requirement for the CDS to duplicate services provided by family dentists while at the same time meeting the concerns of the House and the profession that services might be reduced to an unreasonable level. I undertook to come back with a government amendment at Report. However, as I explained at Committee, the second proposal in the amendment would conflict with the general duty under the National Health Service Act to provide dental services, and indeed, might even 973 cast doubt on the generality of the present duty, and that for this reason the second part of the amendment was unnecessary.
§ Noble Lords will notice a certain similarity between the first part of the amendment moved by the noble Lord, Lord Colwyn, and the one to Clause 10 before us now. The differences are purely drafting. Indeed, I am afraid that in some quarters—a view to which I do not subscribe—they would be called cosmetic. Be that as it may, I am assured that my formulation is properly drafted and I believe that this amendment and the consequential ones to Schedules 2 and 3 will fully meet the concerns expressed here and elsewhere. I commend them to the House. I beg to move.
§ 5.15 p.m.
§ Lord Colwyn
My Lords, I must agree with my noble friend the Minister. I do not think that we have ever heard so much agreement while we have been discussing health matters since I have been a Member of this House. Also I very much welcome the amendment. I believe that it will meet the requirement of allowing better targeting of resources in the National Health Service and at the same time will prevent regional health authorities from making inappropriate economies in their community dental services for the sake of financial expediency.
This part of the Bill has been the subject of considerable discussion between the Government on the one hand and the British Dental Association on the other. The Minister's amendment represents a triumph of common sense. We have never been very far apart on this issue and I know that he accepted the spirit of my amendment at an earlier stage. I am grateful to him.
§ Lord Ennals
My Lords, may I also say thank you. I remember that it was a year, or possibly two years, ago, or maybe both—one year and two years ago—that I criticised Ministers because they did not seem to take any notice of what went on in this place. We argue amendments with total conviction and consummate skill and Ministers do not seem to take any notice. This is a good example of being proved wrong. My sadness is that the Minister proves us wrong with his farewell and goodbye appearance here. I believe he is now justified in staying to do his job in health as well as in social security for at least two and a half or three more years. However, we are not to have it. We thank him for what we have.
I am disappointed that the Minister did not take notice of what his noble friend and I said about pregnant and nursing mothers, the elderly and the physically and mentally handicapped, but we must be thankful for small mercies. Whether it was a triumph or just a little victory I do not know, but we are grateful for what he has done. I hope that the House will accept it. It would have been nice to have had a whole loaf, but half a loaf is better than none.
My Lords, I am not sure that it is the duty of Members of your Lordships' House to go around stirring up unanimity. At the same time, I am delighted to hear that the noble Lord, Lord Colwyn, finds the group of amendments acceptable, because 974 he brought the matter to our attention. He arranged a meeting for a number of noble Lords with the Minister, dentists and dental practitioners from the school dental service. I am delighted to hear the noble Lord's assurance that the group of amendments meets the real anxiety which he expressed and brought to our attention.
§ On Question, amendment agreed to.
Lord Skelmersdale moved Amendment No. 9:
Page 9, line 34, leave out from ("(ii)") to end of line 6 on page 10 and insert—
("after the word "supervision" there shall be inserted the words "and treatment":
(b) for subsection (2) there shall be substituted the following subsection—
(2) It is also the Secretary of State's duty to provide, to such extent as he considers necessary to meet all reasonable requirements—
(c) in subsection (3), for the words "and dental treatment made available under" there shall be substituted the words "treatment made available under subsection (1) and dental treatment made available for the purposes of"; and
(d) in subsection (4)—
§ On Question, amendment agreed to.
§ Clause 13 [General ophthalmic services and optical appliances]:
Lord Skelmersdale moved Amendment No. 10:
Page 13, line 33, leave out from ("under") to end of line 36 and insert ("section 83A(3) above").
§ The noble Lord said: My Lords, some noble Lords may consider that we are now entering rather trickier waters. Be that as it may, the amendments, two of which relate to England and Wales and two to Scotland, are consequential upon the vote to remove the provisions of limitation of sight testing from the Bill. In a provision which remains, concerning the low income arrangements under the spectacle voucher scheme, there are now references to nonexistent paragraphs; the erstwhile Clause 13(1) and (2).
§ Our aim is to ensure that powers to make regulations prescribing groups for the purposes of the voucher scheme are in similar terms to those relating to the remission of NHS charges. The references to the NHS Acts will achieve this. I am sure that noble Lords will not attribute to me any ulterior motives in asking the House to accept these tidying-up amendments. I beg to move.
§ Lord Ennals
My Lords, I shall not disagree with the proposal made by the noble Lord. I understand from what he said that he is doing so because of the important victory achieved in the last debate in relation to charges and that it confirms the fact that the Government are happy to leave judgment on that issue to your Lordships. Thank you.
§ Lord Skelmersdale
My Lords, I should like to respond to that comment as is my right as the mover of the amendment. First, I should have said that I was speaking also to Amendments Nos. 11, 12 and 13, which I shall shortly seek to move en bloc. Secondly, I believe that, whatever its activities on the substance of the particular Bill, this House believes in delivering it back to another place in a tidy state. That is all that should be implied by these amendments.
§ On Question, amendment agreed to.
Lord Skelmersdale moved Amendment No. 11:
Page 13, line 44, at end insert—
("(3B) Descriptions of persons may be prescribed under this paragraph by reference to any criterion and, without prejudice to the generality of this sub paragraph, by reference to any of the criteria specified in section 83A(2) above.
(3C) Subsection (4) of section 83A above shall have effect in relation to regulations under this paragraph as it has effect in relation to regulations under that section.").
§ On Question, amendment agreed to.
Lord Skelmersdale moved Amendment No. 12:
Page 14, line 5, leave out from ("under") to end of line 8 and insert ("Section 75A(3)").
§ On Question, amendment agreed to.
Lord Skelmersdale moved Amendment No. 13:
Page 14, line 16, at end insert—
("(3B) Descriptions of persons may be prescribed under this paragraph by reference to any criterion and, without prejudice to the generality of this sub-paragraph, by reference to any of the criteria specified in section 75A(2).
(3C) Subsection (4) of section 75A shall have effect in relation to regulations under this paragraph as it has effect in relation to regulations under that section.").
§ On Question, amendment agreed to.
Lord Skelmersdale moved Amendment No. 14:
Page 14, line 17, leave out subsection (3) and insert—
("(3) The following subsections shall be inserted after subsection (1) of section 21 of the Opticians Act 1958 (restriction on sale and supply of optical appliances)—
(1A) Subsection (1) above does not apply to an excluded sale.
(1 B) In subsection (1A) above "excluded sale" means a sale for a person not under the age of 16 of spectacles which have two single vision lenses of the same positive spherical power not exceeding 4 dioptres, where the sale is wholly for the purpose of correcting, remedying or relieving the condition known as presbyopia; and for the purposes of this subsection lenses are to be taken to have the same positive spherical power if the difference between them is within the tolerances relating to the power of such lenses specified from time to time in the British Standard Specification.
(4) In subsection (2) of that section for the words ("the foregoing subsection") there shall be subsituted the words ("Subsection (1) of this section.").
§ The noble Lord said: My Lords, in moving Amendment No. 14 I should like to speak also to Amendments Nos. 23 and 25. The House will recall that in Committee I said that if the amendment on the sale of reading glasses without a prescription moved by the noble Lord, Lord Winstanley, was incorporated in the Bill the Government would wish to make some alterations. On that occasion I set out what they would be, and they are to be found in col. 1261 of the Official Report. I shall not weary the House by repeating them; they are contained in the amendment. I hope that on that occasion I explained 976 clearly the difficulties between the existing subsection and the Government's new formulation. In view of the differences, I recommended the Committee not to come to a decision on the matter until the House could see the Government's amendments side by side. The House now has them side by side.
The amendment which was inserted then aims to make available without prescription optical appliances:
designed to correct, remedy or relieve a gradual diminution in the focussing power of the eye, which is wholly attributable to presbyopia".
I emphasise that. However, this could be self-defeating in that a sight test might well be necessary to establish whether in a particular case such glasses would be used to remedy a condition wholly attributable to presbyopia.
§ The amendment now before us takes a slightly different approach by defining reading glasses as glasses with two single vision lenses of the same power up to a certain limit of 4 dioptres which are marketed wholly for the purpose of correcting for presbyopia. Under this amendment glasses fulfilling these criteria will be available without prescription, which was, I believe, the intention behind the original amendment.
§ Our amendment also prohibits the sale of reading glasses without a prescription to children under 16. It is generally accepted that wearing glasses acquired without prescription will not damage the eyes of adults, even if they select the wrong strength. There is, however, a risk to children in obtaining such spectacles and we think it right, therefore, to provide this safeguard.
§ At the same time we need to ensure that manufacturing tolerances can be taken into account in determining whether lenses are of the same power. I understand that in practice lenses cannot be manufactured to provide no measurable difference between the two and that what is meant by "the same power" is that any difference is within the manufacturing tolerances. However, without a specific provision we cannot be certain that the courts would apply the tolerances set out in the British Standard and this is why there needs to be a reference to it on the face of the Bill.
§ Finally, I should mention that the amendment will reinstate reading glasses as optical appliances for the purposes of the NHS Acts. That means that in certain circumstances they will attract vouchers. Perhaps unintentionally the earlier provision removed such glasses and the main effect of that would have been to make it impossible to provide help towards the purchase of reading glasses under the National Health Service voucher scheme. I think that this House will agree that that restriction is highly undesirable, and our amendment will set matters right.
§ The Government have accepted the wishes of the House on the principle of deregulating the sale of reading glasses. The amendment tidies up the provision in the Bill to ensure that the House's wish can be fulfilled in practice while safeguarding the interests of children and removing the unintentional changes to the NHS Act. I am confident that the 977 House will wish to accept the amendment and the consequential amendments to which I have been speaking. I beg to move.
§ Lord Ennals
My Lords, there are times when I am glad that the noble Lord accepts the conclusions of the House. However, there are times when I believe that he should fight a little harder for that which is good, proper, right, fair and true. I am a little disappointed that he is satisfied with the Bill as it now stands and as it is intended to pass it another place.
Strange circumstances arose when we debated the matter in Committee on 19th July. The noble Lord announced that there would be a free vote. I was disappointed about that matter because I thought that at the time we were discussing a matter of considerable principle. That was particularly so when I read the words used by the former Minister for Health in the debate in Committee in another place on 1lth February. He said:It is important that we are clear that the law does not, nor is it our intention that it should, allow people to walk off the street into any shop that cares to display spectacles and to buy spectacles that have no relation to some measurement of what their eyes need".That appears to me to be exactly what the Minister has accepted, unless I have misunderstood the purpose of the amendment which he now puts before the House.
Two interesting events occurred at the time of the debate on 19th July. First, when the vote was taken, two noble Lords first voted against the amendment which had been moved with great eloquence by the noble Lord, Lord Winstanley. I thought that it was moved with greater eloquence than wisdom on that occasion, although normally it would be the other way round. After voting they discovered what they had done and asked permission to be able to vote in the other Lobby. That they did.
Without that the amendment would not have been carried.
When the voting list was published, it was apparent that all Ministers had voted together with the noble Lord, Lord Skelmersdale, for this great free market principle which I believe does great damage. I notice that the noble Lord, Lord Winstanley, in moving his amendment in Committee said that he was wholly in favour of people having regular eye tests. He must know that people will be much less likely to have regular eye tests under the Bill as it now stands than they would have done before the amendment was passed. The Federation of Ophthalmic and Dispensing Opticians notified me today that it was disappointed not only when the Government allowed a free vote on the issue of legalising ready-made reading spectacles. It was even more disappointed that the Government appear to have accepted in principle that the sale of ready-made spectacles should be legalised. I do not believe that there can be any doubt that that will mean that fewer people will have eye tests and that fewer conditions of the kind which we debated at considerable length in Committee will now be discovered.
The timing of the Government's conversion to the legalisation of ready-made spectacles is also very unfortunate. If they go ahead with their original plans to privatise two-thirds of the general 978 ophthalmic service by making the majority of people pay private fees for sight tests—and I notice that the Minister gave me no great assurance that that would not be changed in a later stage in the passage of the Bill—some people will be tempted to avoid having a sight test at all and will buy a pair of ready-made spectacles instead. That means there will be another disincentive for people to have regular sight tests.
I find that that is very sad and deplorable. However, the Minister has given us no more hope. Twelve of his ministerial colleagues went into the Lobby with him to vote on that occasion, which they were admittedly entitled to do because it was a free vote on what I considered to be a very bad principle. However, I hoped that the Minister would come back with more than just a tidying-up operation, but my hopes on this occasion are disappointed although I was pleased about his response to the previous amendment and we cannot win everything.
§ 5.30 p.m.
My Lords, unlike the noble Lord, Lord Ennals, I have no wish to go over the ground which we covered so thoroughly and satisfactorily on an earlier occasion in Committee. I merely wish to thank the Minister for doing precisely what he said he would do on that occasion. He said that the amendment tabled in my name was defective with regard to children and vouchers and that he would amend that at a later stage. He has now come forward with an amendment which does precisely that. The amendment now brought forward very much resembles the amendment which I tabled originally and which his department advised me to withdraw as it did not do what I had intended. The main difference between this amendment and my original one is that this amendment mentions four dioptres where my amendment mentioned five dioptres. I have no idea whether that will prove to be a matter of crucial importance, but I do not intend to delay the House by exploring that matter now. I express my gratitude to the noble Lord for what he has done.
Finally, I should like to say to the noble Lord, Lord Ennals, that I do not depart for a moment from anything which I said on an earlier occasion. However, I believe that he should remember that the National Health Service eye test under the regulations is not a test for glaucoma or an examination for diabetes. It is merely a matter of optometry and measuring refraction; that is all. It is true that there are some opticians who have the instrumentation and the ability to carry out much more detailed examinations and who do so. That is to be welcomed. However, it is quite wrong for people to think that because they have had optometry carried out, therefore they have somehow been tested for glaucoma. It should not give them a false sense of security. I do not depart from anything I said before. I was glad that your Lordships carried this amendment. I do not believe that we shall regret it, and I am glad that the noble Lord has brought forward this amendment to tidy up the matter.
§ Lord Bruce-Gardyne
My Lords, perhaps I may also add my word of thanks to the noble Lord, Lord 979 Winstanley, and to my noble friend for introducing this amendment. As I understand it, it carries out exactly what we had in mind. I am sure that it is a very welcome reform and I am profoundly grateful to my noble friend for introducing it.
§ Lord Northfield
My Lords, I have a question to put to the Minister which I do not expect him to answer today but it is a matter which he may wish to look at before we come to Third Reading. The definition which he has put down talks of:two single vision lenses of the same positive spherical power".In the United States I find that the ready-made spectacle market, which I thoroughly applaud and for which I have campaigned for so long, is now developing beyond a simple one-lens correction to the sort of bifocal spectacles which I am now wearing; namely, with a half sphere in the bottom half of the lens which has an increased power for close reading. In America one can now buy these off the peg in reputable department stores. I very much hope that no definition is put in the Bill which will preclude that sort of spectacle becoming available on the market in due course. In America they have clear glass at the top so that there is minimal correction at the top and the reading part is kept to the half sphere at the bottom part of the lens. I hope that we have not chosen such a simple definition that we find these glasses kept off the market when they become available in Britain, as they are now available in the United States.
I have only two points to add to what has been said in addition to my question. First, I hope that the word will not be put around that a lot of people will now go without eye tests and will therefore be in danger. That is a grave disservice to people who have a good deal of sense about the matter. Although I could not be here on 19th July, I read the debate. I was sad that nobody referred to the very compendious report of December 1982 by the Office of Fair Trading which is the most recent document on this matter. It went into great detail about the extent to which people might use these reading glasses if they had the chance to buy them. It stated that something like 98 per cent. of people realised that buying over the counter as the only form of spectacle buying was dangerous and they would not wish to do that. This was a very careful survey.
Ninety-eight per cent. of the people asked said that they were used to the health service and realised that it was in their own interests to have regular eye tests and that they would go on doing so. Only about 2 per cent. would be silly enough only to buy reading glasses for the rest of their lives. That is not many people. The Office of Fair Trading made its own estimate that perhaps 3 to 5 per cent. might buy only reading glasses and do without an eye test. Therefore we must bear that in mind. People are sensible nowadays and look after their heatlh.
I also hope that it will not be thought, as tends to be put about on this very heated issue, that many people will now be in danger of having undetected glaucoma. That is just not true. As the Office of Fair Trading report makes clear, the incidence of glaucoma in our society is somewhere between 0.2 per cent. And 980 2 per cent. of the population. Therefore the only people likely to be at risk are between 0.2 and 2 per cent. of the 2 per cent. who are stupid enough only to buy reading spectacles. Less than one in 1,000 or one in 10,000 would be at some sort of risk. As the noble Lord, Lord Winstanley, said, we should not kid ourselves in any case that an eye test is a good test for glaucoma.
This issue has become extremely overheated. I hope that with the passing of this amendment, as tidied up by the Government, we can have this market. I believe it will have one effect. In Committee my noble friend said that he could not see it having any effect on prices. I very much hope that it will. The prices of spectacles in America are not the £15 to £17 my noble friend quoted in Committee; they are 12 dollars. That is the regular price that I pay in the United States for very good spectacles indeed. If those spectacles come onto the market in this country, it will have the wider beneficial effect as the Office of Fair Trading report forecasts.
Opticians must realise that people will become price conscious once spectacles at £7, £8 or £9 are available. It will have the wider effect of forcing opticians to realise that they overcharge, that their prices are not satisfactory at present and should be brought down by a considerable amount. It is a form of competition which will do no harm to anyone. It will help people to purchase second pairs or spare pairs and at the same time will have a wide effect on competition.
Therefore, I hope that we can now take the heat out of this argument and let the clause go back to the other place and subsequently speedily be put into law.
§ Baroness Gardner of Parkes
My Lords, as one who is strongly in favour of free screening for dentistry and eyes, nevertheless I voted for this amendment in Committee. The two aspects are not in conflict. The noble Lord, Lord Ennals, fails to realise that there is a large number of people who never go for any sort of test, no matter what the test is. Those are the people who will be greatly helped by being able to buy glasses off the shelf. Those are the people one now sees walking about with a large magnifying glass in their hands or hung around their necks. Instead, they will be able to buy magnifying glasses which they stick on their noses—which will be much more comfortable and they will be able to use their hands.
I also share the hope of the noble Lord, Lord Northfield, that the price of spectacles will be reduced. When I have quoted to people the figure of £15 or £17 given by the Minister in his speech the reaction has always been, "Where are they? Where can I find them?" I purchased a pair of spectacles last week. They are standard NHS spectacles and cost me £38. They were the cheapest I could find.
I realise that fashion spectacles can cost hundreds of pounds. That is fair enough. I am not concerned with the top end of the market. People can spend what they like, whether on a fur coat or a raincoat. It is up to the individual. However, if the minimum price for spectacles is not within the reach of many people something needs to be done. I am not 981 speaking about those people who receive assistance. Those people, the same as in dentistry, are not the most disadvantaged because they can obtain assistance to pay for glasses. I am referring to the people who have just a little more money, who do not qualify for assistance and who must look around for the cheapest purchase. As I said, everyone I meet is wondering where these spectacles referred to by the Minister are available.
I hope that the legislation will bring down the price of spectacles. I believe that there will be no sinister effects. It will not deter people from having eye examinations provided that they are free. The people buying these spectacles off the shelf would not otherwise be buying spectacles. I support the amendment.
§ 5.45 p.m.
§ Lord Rugby
My Lords, I thank the Minister for what he has done. Perhaps I may put one request to him. The condition known as presbyopia is perfectly normal. The clause appears to implant the idea that it is a defect. In fact, everyone is presbyopic. The whole animal kingdom has an ageing condition to the eye and it is therefore a perfectly normal condition. The General Optical Council refers to it as a normal condition. Perhaps the Bill could be drafted to the effect that it is a normal condition so that people who, like myself, are presbyopic do not get the idea that they are suffering from a defect.
§ Lord Hunter of Newington
My Lords, one cannot but wonder whether this means—perhaps the Minister will tell us—that the Government have also accepted the other recommendation concerning eye-testing. I should have thought that much of what has been said is true, but if one takes the 0.2 per cent. and breaks it into specific age groups one begins to obtain a different answer. I do not know whether it is fair to ask at this time, but can the Minister say what the Government's reaction is likely to be to the eye-testing recommendation which was strongly supported in this Chamber?
§ Lord Cullen of Ashbourne
My Lords, most of your Lordships know that I am not in favour of "ready-mades". The noble Lord, Lord Rugby, and I have been on opposite sides of the House on this matter for about eight years.
I became involved in optics when I was spokesman in your Lordships' House for the DHSS. At that time the Secretary of State and the Minister for Health and, as far as I can make out, the whole department were entirely against the concept of "ready-mades". The Secretary of State changed, the Minister for Health changed but the view remained the same. To my knowledge there has never been, until 1988, a Secretary of State or a Minister for Health who has actually been in favour of "ready-mades". For some reason ideas have changed. I do not know why. My views have not changed. I still believe it is a mistake to make ready-made spectacles available.
The noble Lord, Lord Northfield, suggests that perfectly adequate ready-made spectacles can be obtained for a few dollars. That may be so, but I have not seen them. As far as I know, "ready-mades" are 982 sold in this country by a company called Magnivision which has been illegally selling them for about three years. If we legalise "ready-mades" we let Magnivision off the hook and we are then pandering to those people who think it is a bore to have an eye test before buying spectacles. They take the view that, perhaps having broken their spectacles, all they need is a pair to keep them going until a proper replacement can be obtained.
I do not see why pandering to a small number of people who do that should justify putting at risk the people who are not having their eyes properly tested so that diseases can be detected. It is now popular to say that this worry about glaucoma is overdone. The figure of of 0.2 per cent. of 2 per cent. may sound a very small figure. However, in the context of 50 million people the percentage runs into many thousands of people who are put at risk.
I should like to put one or two questions concerning this amendment because there are some aspects I do not understand. The amendment excludes children under the age of 16. The amendment refers to,power not exceeding 4 dioptres … wholly for the purpose of correcting … presbyopia".As far as I know, nobody under the age of 40 gets presbyopia. I do not quite see the point of putting in the reference to children below the age of 16. It would have been much simpler to say 40 instead of 16. There seems to be a little confusion and I do not understand why it has been done in the way it has.
The other point I wish to raise concerns the British Standard specification, which is important in the matter of tolerances relating to the power of the lenses. There is no mention of British Standard specifications in any other area, such as the condition of the lenses, whether they are scratched or distorted or whether they have waves in them, or, for that matter, of the frames. Frames can be made of cellulose nitrate, which is flammable. There must be all kinds of other points to which British Standards should apply.
As all noble Lords are aware, I am dead against this amendment, particularly if the Government are going to try to reverse the defeat that they took at the Committee stage. If that happens this matter will be even more dangerous.
§ Viscount Montgomery of Alamein
My Lords, my noble friend Lord Cullen asked why the Government have changed their mind. I hope the Minister will say that the Government have changed their mind because they have listened to the very good sense and extremely cogent arguments which have been produced over a very long time by the noble Lords, Lord Rugby, Lord Winstanley, and many others supporting them in this cause of freedom to purchase spectacles over the counter. I hope the Government will say that they intend to stand firm on this matter and not be persuaded by what my noble friend Lord Cullen has said, because it is a very great move forward and much to be welcomed.
§ Lord Mottistone
My Lords, I strongly support what my noble friend said. I apologise to your 983 Lordships that I was not here at the Committee stage. I was enjoying a happy sailing cruise and heard the great news that we had won the vote just after I had listened to the shipping forecast at five minutes to six on the following morning. That gave me cause in France to drink champagne to the Committee.
Very quickly on this point; the key factor is that this amendment is improving the amendment tabled by the noble Lord, Lord Winstanley, which he won. As he won it, whatever were the circumstances, I believe that it is reasonable that it should stand and be improved. I do not believe it is very safe under whatever circumstances apply, but I believe it is absolutely essential, as my noble friend Lord Cullen has just said, that if the Government respect the amendment of the noble Lord, Lord Winstanley, and the view of the Committee in supporting it, they should do the same for the amendments with regard to dental charges and charges for eye tests.
If the eye test charges are reintroduced into the Bill in another place, with a slap in the eye for your Lordships which I believe is always unpleasant, that will mean that there will be this added discouragement to people to have their eyes tested and to buy the glasses that they really need. I have here the specs that I really need and I have also a pair which are four dioptres, as the bill specifies. If I take one pair off and put the other on, I can read just about as easily and there is no problem at all. However, if I did not know who they were, I should be unable to recognise the noble Lords opposite at all.
§ Lord Mottistone
My Lords, the danger is that if a chap aged about 40 when this presbyopia comes in buys a pair of specs like this and they are not quite right he may say to himself, "I have not been able to see on the road very well and I will wear these for driving, too". The shop he has been to will not have told him that the glasses are unsuitable because it is just a common retailer and the staff are not experts as optometrists are. He will therefore feel free to use those glasses for the kinds of purposes for which they are not intended. It is all very well to say that people will know at once that they cannot see so well and will take them off: that will not necessarily be the case.
One has to be really certain that one is not unnecessarily putting a great many people at risk for a relatively small amount of money. I shall not go over all the arguments that I advanced at Second Reading as to why it is highly likely that in the long run it will cost the Government more to have an eyesight test charge than not to have one because of the damage it will do to the people who get glaucoma and who have to be looked after night and day besides the people who are more likely to have motor accidents and that kind of thing.
Nor shall I, like the noble Lord, Lord Northfield, make the speech that I should have made if I had been here on the day. I thought that was rather out of place. However, it is terribly important if this 984 amendment goes through, as I think it should, that the other amendments that the Committee put into the Bill should be respected also, because the two go together. My noble friend, Lady Gardner said just that and I agree with her. The two go together: they are complementary. I hope my noble friend will tell his right honourable and honourable friends that it is terribly important that they are not tempted to reverse the decision taken at the Committee stage of the Bill.
§ Lord Monson
My Lords, before the noble Lord, Lord Mottistone, sits down, is the noble Lord aware that the road traffic fatality rates in the United States and in Canada, where glasses can be bought freely across the counter, are among the lowest in the world? That somewhat invalidates his contention.
§ Lord Mottistone
My Lords, to a certain extent the noble Lord is right. In those large countries, the answer is yes if the figures are taken in their totality but, if one takes specific areas like the built-up urban areas of the United States, one will find that the number of traffic accidents is higher than in this country. Therefore, that particular argument is not a very good one.
§ Lord Rea
My Lords, I wish to put forward another point to back up the argument of the noble Lord, Lord Mottistone, which is that it is not simply road traffic accidents which are more likely to occur, but that there is also a serious health problem that might be involved if free eye tests are not continued. For example, let us suppose that someone has an early glaucoma or an early diabetic retinopathy, but also some presbyopia. He will find at about the age of 40 or 50 when he buys his over-the-counter glasses that his vision is somewhat improved but perhaps not as much as it should be. If the test is to cost £10 he will delay getting the test and the glaucoma or diabetic retinopathy may well advance to a greater extent than it would if there was not the £10 deterrent. Therefore, I very strongly support the point that the two amendments from the Committee go together as a pair.
§ 6 p.m.
§ Lord Skelmersdale
My Lords, it seems some time ago that the noble Lord, Lord Northfield, who spoke very shortly after I did in moving this amendment, suggested that we as a House should take the line of taking the heat out of matters. During the subsequent debate and a little before he made those remarks it seemed that we were raking over the cold coals of old fires.
I have been asked specific questions on the amendment, and those I shall most certainly answer. The noble Lord, Lord Northfield, spoke about the report of the Office of Fair Trading on opticians and competition. This provides one of the answers which some of your Lordships, and in particular my noble friend Lord Cullen, were seeking. In that report the Office of Fair Trading remarked in relation to reading glasses:However, there would be an immediate problem of definition. One person's reading glasses could well be identical to another person's prescription for distance vision and a cut-off point in terms of regular lens power would necessarily be arbitrary and difficult to justify".985 That sums up the problem. However, in keeping with the wishes of the House that the sale of reading glasses should be deregulated—I have heard all the warning noises today and I shall ensure that my honourable friend the Minister for Health and my right honourable friend the Secretary of State for Health are made fully aware of your Lordships' anxieties—we have attempted to define them in a way which will allow them to be marketed.
I understand that in the United States (where there is no statutory limit) reading glasses are generally marketed in powers up to 4 dioptres. It seems too from the literature of one company operating in this country that 4 dioptres is the ceiling. I also understand that statistical surveys have shown that it is normal for adults to be slightly longsighted up to a power of about 1 dioptre. Many people with this amount of normal refractive error can manage perfectly well without distance spectacles. We took this into account in arriving at the limit of 4 dioptres for reading glasses.
My noble friend Lord Cullen asked about the age limitation of 16. I understand that the diminution of close focusing power is identifiable from the early teens. Therefore we took the view that anything before this age should be properly medically investigated. I hope that that answers my noble friend's point.
The purpose of the provision is to define a range of glasses. Quality and safety are very important points—I could not agree more with my noble friend—but they are covered not by health legislation but by consumer legislation—the Consumer Protection Act 1987 and the Sale of Goods Act 1979. Therefore we do not need to do anything about them in this Bill. I do not think it is appropriate to rake over the coals, but now that my noble friend the Leader of the House is sitting beside me I should like to point out gently that two senior members of my own Front Bench declined to vote on the amendment of the noble Lord, Lord Winstanley, in Committee. That is what a free vote is all about. The fact that someone did or did not vote cannot be used to draw conclusions. I hope that I have answered your Lordship's questions on the amendment. I beg to move.
§ Lord Northfield
My Lords, before the noble Lord sits down, may I ask whether he will answer my question about bifocals, or will he deal with that point later?
§ Lord Skelmersdale
My Lords, with the leave of the House, the original amendment moved by the noble Lord, Lord Winstanley, referred to equal focus lenses. We have kept that formulation in this amendment. How exactly that will affect bifocals I am afraid I do not know. I shall have to write to the noble Lord and place a copy of the letter in the Library.
§ On Question, amendment agreed to.986
Lord Hesketh moved Amendment No. 15:
After clause 16, insert the following new clause:
§ ("Arrangements or provision of general medical services, general dental services, general ophthalmic services and pharmaceutical services—regulations.
§ —(1) Without prejudice to the generality of section 29, 36, 39 or 42 of the National Health Service Act 1977 or of section 19, 25(2), 26(2) or 27(2) of the National Health Service (Scotland) Act 1978, the powers to make regulations conferred by each of those provisions include power—
- (a) to make provision as to the investigation (following a complaint or otherwise) of any matter relating to services under the section in question;
- (b) to specify—
- (i) who is to conduct an investigation;
- (ii) whether an inquiry may be held in connection with an investigation;
- (iii) rights of appeal following a decision or recommendation on an investigation;
- (iv) who is to conduct an appeal; and
- (v) the procedure to be followed on any investigation, inquiry or appeal;
- (c) to prescribe sanctions applicable in prescribed circumstances; and
- (d) to make provision for any purposes (whether or not falling within paragraph (a) (b) or (c) above) that appear to the Secretary of State to correspond to the purposes of any provision contained in Part II of the National Health Service (Service Committees and Tribunal) Regulations 1974 or, as the case may be, in Part II of the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1974.
§ (2) Regulations made—
- (a) before the passing of this Act; or
- (b) after it but before coming into force of this section, shall be deemed to be validly made if they could have been validly made had this section been in force.").
§ The noble Lord said: My Lords, I propose to speak also to Amendment No. 20. This new clause and a consequential amendment to Clause 23 relates to the complaints procedure under which family practitioner committees and health boards investigate complaints in the family practitioner services.
§ First of all, I should like to apologise for introducing at this relatively late stage what on the face of it looks like a major new clause on an issue which has hardly been touched on in our deliberations on the Bill so far. This is indeed an important issue; but the new clause is a technical measure intended to clarify the statutory basis on which the existing family practitioner services complaints procedure is based.
§ The complaints procedures are governed by the service committee and tribunal regulations. The primary powers on which these are based are scattered over numerous references in successive Acts. We believe it is important that the powers relating to such important matters should be clearly and specifically identified in primary legislation. We feel it would be wrong to let this Bill pass without taking the opportunity to clarify the law in this way. We have made the clause retrospective to preclude any doubt which might arise that the present primary legislative cover for the procedure was deficient in any way.
§ We have consulted the representatives of the four family practitioner professions, and I think it is fair to say that they agree that the clarification we propose is desirable. I note that the noble Lord, Lord 987 Ennals, has tabled an amendment which touches on the question of sanctions, and I shall listen with interest to what he has to say.
§ The procedures have been in operation in roughly similar form since before the beginning of the National Health Service. The new clause simply confirms arrangements which have existed for many years. It does not represent a change in policy or in the principles which underlie the service committee and tribunal regulations themselves. But the new clause clarifies the law. I beg to move.
Lord Ennals moved, as an amendment to Amendment No. 15, manuscript Amendment No. 15A:
In subsection (1)(c) leave out ("sanctions") and insert ("such sanctions as are contained in Part II of the National Health Service (Service Committees and Tribunal) Regulations 1974 and Part II of the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1974").
§ The noble Lord said: My Lords, I thank the Minister for his explanation. I think I understand what he seeks to do. As he said, this amendment reaches your Lordships without our having had very much time to consult. It is particularly important that such amendments should go through all the consultation processes of those to whom it applies. I naturally sought the views of, among others, the General Medical Services Committee of the BMA, which represents all the general practitioners working in the National Health Service. It agrees with the desirability of doing what the Minister suggests; but it wants' the status quo on existing practice, in line with the statutory regulations, to be maintained. I discovered that the amendment was tabled without the GMSC having had an opportunity to comment on the exact wording. It had asked to have advance sight of the wording of the amendment but was sent a copy only when it had already been tabled. This meant that there was no opportunity to seek clarification about the intention of the amendment.
§ I took the opportunity of further consultation because the Government have not fully spelt out their intentions. They do not specify what they mean by "sanctions" or what the "prescribed circumstances" would be. Their amendment fails to preserve the principle that a citizen can be punished or suffer damages only as a result of the due process of law in the ordinary courts. The amendment would give the Secretary of State the authority to introduce further regulations. At present the services committee deals only with breaches of contract. It already has the power to withhold pay from general practitioners. My consultations led me to believe that the department did not disagree with the principle that was put forward by the General Medical Services Committee. I took the liberty of tabling this manuscript amendment in the hope that we would, as Ministers said earlier, be able to send the Bill to another place in as clean and as correct a form as possible. I beg to move.
§ Lord Hesketh
My Lords, I have listened to the anxieties of the noble Lord that the clause as worded could lead to an extension of powers beyond the current range of sanctions. I should like more time to 988 consider the point, and consequently I shall not press the Government's amendment further today.
§ Lord Ennals
My Lords, under the circumstances, since the Minister wishes to have more time, I will not proceed to move manuscript Amendment No. 15A now.
§ [Manuscript Amendment No. 15A not moved.]
§ Amendment No. 15, by leave, withdrawn.
Lord Hesketh moved Amendment No. 16:
After Clause 20, insert the following new clause:
§ ("Construction of references to publications. Subordinate Legislation
.—(1) The following paragraphs shall be inserted after paragraph (c) of section 103(1) of the Medicines Act 1968—
(ca) the International Pharmacopoeia;
(cb) the Cumulative List of Recommended International Nonproprietary Names;".
§ (2) Regulations and orders made under the Medicines Act 1968 before the passing of this Act shall be construed as if section 103(1) of that Act, as orginally enacted, had included the paragraphs added by subsection (1) above, but their addition does not extend the meaning of "specified publication", where that term is used in regulations and orders so made.
§ (3) References to International Nonproprietary Names in regulations and orders made under that Act before the passing of this Act shall be construed as references to names contained from time to time in the Cumulative List.
§ (5) Regulations and orders made under that Act before the passing of this Act shall be construed as if—
- (a) section 103(3) of that Act, as orginally enacted, had included the words added to it by subsection (4) above; and
- (b) the power to make them had been exercised in the manner provided by section 103(3).
§ (6) In section 103(5) after the word "force", in the second place where it occurs, there shall be inserted the words", under whatever title,".
§ (7) Regulations and orders made under that Act before the passing of this Act shall be construed as if section 103(5), as orginally enacted, had included the words added by subsection (6) above.
§ (8) This section does not alter the meaning of any instrument in respect of a period before the passing of this Act.").
§ The noble Lord said: My Lords, in moving this amendment I should also like to speak to Amendments Nos. 21 and 24.
§ The general purpose of this new Clause is to remedy a defect in the Medicines Act 1968 and to set right regulations made under that Act. I hope that noble Lords will agree, after hearing me, that this is a technical provision in the interests of sensible housekeeping under the Act which raises no point of controversy.
§ I hope that your Lordships' House will also accept my apologies that this new and very technical change has been introduced so late in the proceedings of the Bill. The fact is that only this summer was a flaw noticed by the Joint Committee on Statutory Instruments in labelling regulations made under the Medicines Act.
§ The problem arose over the way in which the regulations and orders under the Medicines Act 1968 can refer to an approved name that is a nonproprietary or generic name for a medicine. For example, 2-ethanol oxybenzene carboxylic acid is 989 known more commonly under the approved name of aspirin. Noble Lords will readily understand how useful these approved names are for the licensing authority, for the pharmaceutical industry, and for others who prescribe, handle or use medicines. There are some 6,000 approved names and, in the United Kingdom alone, some 50 new names are added every year. As a result, the regulations use the common sense device of defining an approved name by reference the "current edition" of the relevant authoritative publication. Herein lies the problem pointed out by the Joint Committee. Although the Medicines Act (Section 103) enables subordinate legislation made under other Acts to refer to the current edition of publications, no such power was given in relation to regulations under the Medicines Act itself.
§ That means that the Joint Committee considered that in this respect the regulations were ultra vires. Although the Joint Committee's comments were, of course, directed to the specific instrument before them, the term to which they objected had been used in a family of instruments made by Health and Agriculture Ministers since 1971. Much business has been transacted under these instruments, and there has been no complaint from the pharmaceutical industry about this point. Indeed, it is sensible from their point of view to comply with the requirement now put in question. It is essential for the licensing authority. As I have said, it makes life easier for doctors, pharmacists and the man in the street. Without "approved names" a trip to the chemist might be a much more daunting experience‡
§ It is clearly an anomaly that only regulations under the Medicines Act itself cannot refer to the current edition. How the anomaly arose is lost in the mists of time. Current practice has caused no substantive problems for the 17 years it has been in force. I invite your Lordships' House to approve this amendment. I beg to move.
§ On Question, amendment agreed to.
Lord Hesketh moved Amendment No. 17:
After Clause 20, insert the following new clause:
§ ("HIV testing kits and services.
§ .—(l) The Secretary of State may provide by regulations that a person—
- (a) who sells or supplies to another an HIV testing kit or any component part of such a kit;
- (b) who provides another with HIV testing services; or
- (c) who advertises such kits or component parts or such services, shall be guilty of an offence.
§ (2) The power to make regulations conferred by this section shall be exercisable by statutory instrument, and a statutory instrument made by virtue of this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.
§ (3) The power may be exercised—
- (a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of case; and
- (b) so as to make, as respects the cases in relation to which it is exercised—
- (i) the full provision to which the power extends or any less provision (whether by way of exception or otherwise);
- (ii) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or different classes of case, or different provision as respects the same case or class of case for different purposes;
- (iii) any such provision either unconditionally, or subject to any specified condition,
§ (4) If any person contravenes regulations under this section, he shall be liable—
- (a) on summary conviction to a fine not exceeding the statutory maximum; and
- (b) on conviction on indictment to a fine or to imprisonment for a term of not more than two years, or to both.
§ (5) Where an offence under this section which is committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
§ (6) In this section—
- "HIV" means Human Immunodeficiency Virus of any type;
- "HIV testing kit" means a diagnostic kit the purpose of which is to detect the presence of HIV or HIV antibodies; and
- "HIV testing services" means diagnostic services the purpose of which is to detect the presence of HIV or HIV antibodies in identifiable individuals.").
§ The noble Lord said: I should now like to turn to the Clause on HIV testing kits and services. As noble Lords will know, HIV stands for human immunodeficiency virus, the virus that causes AIDS.
§ I must first explain why we have introduced this clause at this late stage. In brief, recent technological advances in the development of HIV testing kits means that they are becoming simpler and easier to use. This means that use of the kits is likely to spread from qualified medical personnel to unqualified private individuals. We wish to act promptly to counter this, for reasons which I will set out. We were advised that this would require primary legislation, and the Health and Medicines Bill provides the earliest and most convenient opportunity to create such legislation.
§ Noble Lords may be wondering what is wrong with HIV testing undertaken by people with no medical or scientific expertise. Broadly, there are three very good reasons why we wish to prohibit this.
§ First, expert pre-test counselling would not be available to individuals. Such counselling is needed to explain exactly what the test is to determine; what the meaning of a positive or negative result is; and to discuss changes in personal behaviour that may be necessary, regardless of the result of the test. Counselling will also set out the very serious medical and social consequences of a positive result. Medical evidence indicates that HIV infection will probably in the great majority of cases eventually lead to the development of AIDS, and death. This can have a severe psychological effect on infected people. Infection can also lead to stigmatisation and discrimination in obtaining services, such as housing or jobs. We believe, as do medical experts, that individuals need proper counselling on these issues so they can make an informed decision about whether to undergo testing, and so that they can receive proper support if the test is positive.991
§ Secondly, a significant number of apparently positive test results are false-positives; in other words they indicate that a person has HIV infection when in fact they do not. In order to check for false-positives, a separate confirmatory test must be undertaken by a different method before the result is imparted to the individual concerned. This second tier of testing would not be available if untrained persons were to test themselves or third parties, and many people would think themselves infected with HIV when they were not.
§ Thirdly, there is the liklihood of an individual obtaining a kit and using it to test a third party without his or her knowledge or consent, or possibly even under duress.
§ Over and above these arguments for restricting the supply of HIV testing kits to individuals, a further unwelcome development would be the establishment of substandard "cowboy" laboratories using kits to provide services for members of the public who did not wish to go to their GP or use an NHS clinic. I should point out to noble Lords that there are at present a number of private laboratories offering a perfectly acceptable expert testing service. No restrictions on such services are intended. However the wider availability of easy-to-use testing kits could lead to people without any expertise setting up a service which offered no counselling or confirmatory testing.
§ I have set out at some length the reasons why we believe prompt legislation is essential. I should now like to explain precisely how the clause will work.
§ The clause, in subsection (1), provides for regulations to be made which will restrict the sale or supply of HIV testing kits and services. The primary reason is to prevent persons being tested for HIV without proper counselling. However, I direct noble Lords to subsection (3)(a), which refers to "specific exemptions". These exemptions will ensure that restrictions do not affect any testing of an individual undertaken by, or on the authority of, a registered medical practitioner.
§ The registered medical practitioner's duty of care to patients in the specific context of HIV infection was set out in guidance issued in August 1988 by the General Medical Council. Emphasis was given to the need to obtain explicit consent to HIV testing, based on proper counselling. Furthermore, the registered medical practitioner's normal duty of care to all patients will ensure that investigations carried out on his authority—including tests for the presence of HIV—will be undertaken by a reputable laboratory.
§ By making the involvement of a registered medical practitioner mandatory prior to HIV testing, the effect of the clause will therefore be to prevent do-it-yourself testing and testing services being undertaken by "cowboy" laboratories.
§ I must stress that the aim of the clause is not to ban HIV testing which is undertaken properly and responsibly, either under the NHS or privately. Indeed a key element of the Government's AIDS strategy is the provision of wholly confidential voluntary testing arrangements. It is also important that bona fide laboratories are able to undertake HIV testing for epidemiological and research purposes. We have no wish to alter these arrangements.992
§ Noble Lords will see that the clause also imposes restrictions on the advertisement of kits or services. This will not prevent the proper and responsible supply or use of kits. Testing kits may continue to be advertised in the medical and laboratory press but not in any publication aimed at the general public. Testing services may be advertised to any member of the public. However, it will be a statutory requirement that all such advertisements state that tests can be performed only by or on the authority of a registered medical practitioner. That will ensure that no individuals are able to obtain a kit to test either themselves or a third party; and no business such as a private laboratory can undertake an HIV test on an individual unless the authority of a registered medical practitioner has been obtained.
§ I turn now to subsection (4). Noble Lords will see that the clause sets out penalties for contravening the regulations. These are in line with the Medicines Act penalty for evading licensing controls. Regulations will, however, allow for a defence to be made where a person honestly believed that the regulations were not being breached.
§ I am sorry to have spoken at such length on this clause and the consequential amendments to Clause 24 and the Long Title. But it is a new and important one. I hope I have been able to assure noble Lords that our intention is not in any way to restrict proper and responsible testing for the presence of HIV in individuals or for the purpose of epidemiological studies and research. What the clause will do is safeguard the best interests both of individuals thinking of being tested and in the long run the public health. I beg to move.
§ Lord Ennals
My Lords, I am most grateful to the noble Lord for what he has said, but all this has been dealt with at a cracking pace. I am not referring merely to the noble Lord's speech but to the whole matter which has suddenly come before us, leaving us two days in which to consider it—and here we are now discussing it. In principle I am not happy that we should have new clauses presented to us with so little notice. Therefore I am all the more grateful to the noble Lord for having set out in some detail the reasons behind the proposals.
Broadly I welcome the proposed new clause on the banning of the sale and advertising of HIV testing kits. However, there are two points upon which I should like to make certain that I understood what the noble Lord said, because it is the first time he has spoken on the matter. I also have two questions for him and perhaps I may put them first.
First, what exceptions does he envisage under subsection (3)(a) of the new clause? For instance, who would be allowed to continue selling HIV testing kits and to whom would they be able to sell them? Secondly, would pharmaceutical companies which at present supply kits to STD clinics, NHS hospital laboratory services and Public Health Laboratory Service laboratories be outside the law if the clause is passed?
Having put those questions, to which the noble Lord may later be able to give me answers, perhaps I may also make certain that the two assurances which I sought from him were in fact given. First, I 993 think he said that the Government propose that HIV testing will take place only under the authority of a registered medical practitioner so that necessary counselling can be given. I assume that that is right.
Secondly, the British Medical Association would certainly welcome a proviso—I think the noble Lord gave this guarantee—whereby any laboratory which is setting up as a private testing centre would be subject to quality control and a set of officially recognised standards for HIV testing; that is, the kind of quality provided by the Public Health Laboratory Service. I think he gave me those two assurances, but perhaps he would confirm the position and also answer the two questions I put to him.
§ Lord Kilmarnock
My Lords, I have some sympathy with the opening part of the speech made by the noble Lord, Lord Ennals, as regards the very short notice which we were given about the clause. As chairman of the all-party Parliamentary Group on AIDS I am usually pretty well apprised of such matters, but I am bound to say that I came across the clause for the first time this afternoon. It seems to me that the Government ought perhaps to have thought about the matter sooner and produced it at an earlier stage of the Bill's proceedings.
That is the first point I want to make, but I do not want to harp on the matter. In principle it seems to me to be completely right that there should be a ban on what one might call home testing kits. They are obviously and definitely a bad thing. If a positive result is obtained no counselling is available and this may well result in despair or even suicide due to lack of support. Therefore that point is clearly correct.
Like the noble Lord, Lord Ennals, what I wish to do is to ask the Minister to clarify more fully the precise effect that the clause will have. He said, most properly, that the permission of a registered medical practitioner will be required before a test can take place. Presumably the specified exceptions will include the STD clinics, National Health Service hospital laboratories and the Public Health Laboratory Service.
However, I am not clear what the position would be as regards private testing centres. Indeed, I think that that was one of the questions that the noble Lord, Lord Ennals, also asked. As far as I am aware, there are a number of perfectly reputable private clinics at present which are testing and also providing counselling, which is obviously essential. Can the noble Lord further clarify what the quality controls will be for permitting a private testing centre to operate or to continue to operate? Obviously the authority of a doctor and counselling would be required. However, will private testing centres be obliged to report unnamed results for epidemiological purposes?
Those are the kind of questions to which we seek answers. Read in the raw the new clause could imply that virtually speaking all private testing services were banned. I am sure that is not the intention. But it would be most helpful if the noble Lord would let us know what conditions the Government will place on such services.
§ Viscount Craigavon
My Lords, before the noble Lord replies, I must say that I listened with great 994 interest to his original speech. I wonder whether it is possible for him to give the House some idea of the cost of such testing kits so that we know what we are talking about. Further, perhaps I may ask whether the intention is to stop completely any kind of mail order supply of the kits, bearing in mind that these days there are an enormous number of foreign magazines available. I find it difficult to see how advertisements which are genuinely intended for other countries can be prohibited from appearing in this country. If that is the case, are the regulations intended to be used against the importers of such magazines?
§ The Countess of Mar
My Lords, perhaps I may follow on from the noble Viscount, Lord Craigavon, and ask whether the import of HIV testing kits will be made prohibitive; that is, the import by post or other such methods. Further, what sort of publicity will be given about the dangers of using such kits?
§ Lord Hesketh
My Lords, clearly there will always be a problem in this respect. I am addressing myself to the point raised by the noble Viscount, Lord Craigavon. What we try to create as legislation in this country will obviously not be applicable when one goes overseas. Therefore, if other countries decide that they will have the kits freely available, there will always be a certain amount of difficulty. The Government can only try to make the situation as good as it can be; but they obviously cannot legislate with regard to other countries. So there will always be a possibility, if such kits are freely available in other countries, that should it become law they will nonetheless still come into this country.
The noble Lords, Lord Ennals and Lord Kilmarnock, both raised fairly similar questions concerning private laboratories. Clearly at the moment private laboratories are already conducting HIV tests and they do so on the basis that people use them because of their reliability and would not do so if they were not so reliable. The difficulty is that if the new kits become available the perception of the need to go for a proper test will be far less. That is the situation which we are trying to prevent here.
The noble Lord, Lord Kilmarnock, also asked what controls there were over laboratories. The answer is that the controls will be the same as those for National Health Service laboratories. They will need to be satisfied, as I said, that the test is carried out on the authority of a registered medical practitioner. I believe that that is the key control in the whole process. The greatest danger is the tragedy that we would face if someone got hold of a kit, conducted a test without leave from anyone, found a positive result and then considered suicide. That would be an unfortunate conclusion. The proposals are designed to avoid such a tragedy.
The noble Lords, Lord Ennals and Lord Kilmarnock, wish to know whether pharmaceutical companies supplying kits to hospitals and STD clinics would be prevented from doing so. There will be no restrictions on the sale or supply of testing kits to hospitals, STD clinics or bona fide laboratories. It is intended that the exemptions and restrictions will be spelt out in regulations which will be put before your Lordships' House.
995 The noble Viscount, Lord Craigavon, asked me how much one of the kits would cost. I am afraid that I shall have to write to him on that point because I do not know the answer.
The noble Countess, Lady Mar, asked about publicity regarding the danger of using the kits. They will not be advertised to the public. The kits and the containers will spell out the need for the involvement of a medical practitioner, so even if one of the kits falls into the hands of a member of the public there will be a clear warning upon it. I hope that I have answered the questions asked by noble Lords opposite.
§ 6.30 p.m.
§ The Countess of Mar
My Lords, before the noble Lord sits down, I asked what message would be given to the public about using these kits. They might, as the noble Viscount, Lord Craigavon, suggested, get hold of kits from abroad, in which case they will have no government health warning, so to speak, on them. Are there any proposals to have campaigns in magazines or that type of thing?
§ Lord Hesketh
My Lords, as I said, there is a problem. If the kits come from overseas we shall not be able to impose a warning on them. Any kit which gets into the hands of a member of the public in this country will have a warning on it. If kits come in from, let us say, an Hispanic country without anything written on them, there is little we can do apart from prohibit their importation, which we will do.
§ Lord Kilmarnock
My Lords, before the noble Lord sits down—we are on Report and I should not abuse the rule—he mentioned the authority of a medical practitioner as being the key control in the case of private clinics. Does he also agree that the availability of pre-test counselling is a key control which the Government should seek to impose upon such private clinics? The second point, which I do not believe he answered, was what requirements will be made of private clinics to report unnamed results to aid in the epidemiological plotting of the disease.
§ Lord Ennals
My Lords, before the Minister answers that, I was not sure of his answer to my question about what exceptions he would envisage under subsection (3)(a) of the new clause; that is, who will be allowed to continue selling the HIV testing kits and to whom they will be able to sell them?
§ Lord Hesketh
My Lords, reputable pharmaceutical companies will be allowed to continue to sell the kits to approved outlets, which will essentially be STD clinics, hospitals and laboratories. I am afraid that I have forgotten the question asked by the noble Lord, Lord Kilmarnock. Will he please repeat it?
§ Lord Kilmarnock
My Lords, I asked two questions. The noble Lord referred to the key control as being the authority of a general medical practitioner. I asked whether he agreed that another key control would be the availability of pre-test counselling in a private clinic. My second point referred to the epidemiological reporting of the results on an unnamed basis.
§ Lord Hesketh
My Lords, the answer to the first question is fairly straightforward. The publicity campaign that we envisage will emphasise the importance of counselling, which is crucial. We shall have the general practitioner, the counsellor and the test. The test is the third stage. Considerable publicity will be directed towards private laboratories to ensure that the message gets across.
§ On Question, amendment agreed to.
Lord Ennals moved Amendment No. 18:
Before Clause 21, insert the following new clause:
§ ("Access to information.
§ .—(1) Subject to subsection (2) below, the provisions of the Local Government (Access to Information) Act 1986, shall apply to Regional Health Authorities, District Health Authorities, Health Boards, Special Health Authorities and Boards of Governors as they apply to local authorities.
§ (2) The Secretary of State shall by order made by statutory instrument establish regulations for the interpretation of the provisions of the Local Government (Access to Information) Act to the extent that is necessary for the act to apply to the bodies specified in subsection (1) above.
§ (3) A statutory instrument under subsection (2) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
§ The noble Lord said: My Lords, the subject of the new clause was raised in another place on 13th April. I noticed in the debate on access to information from health authorities that took place on that day that the then Minister, Mr. Newton, said that he would not rule out further consideration being given at a later stage. That seemed to be a wink or a nod that he might look favourably on what I believed to be a sensible proposal.
§ Since free and open government with access to information is now the order of the day and was encouraged by the Minister early in today's debate I thought that I would test his response six months after the former Minister for Health gave his assurance.
§ A powerful case was made out in the other place for the use of the Bill, through this new clause, for more information to be given to the public. As Ministers often remind us, health authorities spend a great deal of money. They are comprised of people, only a small minority of whom are directly accountable to the public.
§ The clause seeks to establish a less formal but more effective form of public accountability to be achieved by publicity. There is no justification for health service decisions to be taken behind closed doors, except in the circumstances which are recognised by the Local Government (Access to Information) Act 1985. The purpose of the new clause is to apply the same provisions for access to information under the Local Government (Access to Information) Act 1985 to regional health authorities, district health authorities, health boards, special health authorities and boards of governors.
§ At present one must recognise that different health authorities have different attitudes. It was because such different attitudes were taken by local authorities that the 1985 Act, to which I have 997 referred, was put onto the statue book. Different health authorities now have different traditions of openness or otherwise, but in too many cases administrative convenience or the wish to avoid embarrassment are the real reasons for choosing to debate issues in private. I am anxious to see the maximum number of issues debated publicly. Private debate relieves embarrassment but it denies information to the public, which cares greatly about its National Health Service.
In reply to the debate in another place, the then Minister, Mr. Newton, spelt out the consequences for health authorities if the measure were carried. He said:
First, reasons would have to be given for closing a meeting, or part of it, to members of the public".
I think that is a perfectly reasonable thing to do. The Minister continued:
I accept that that is not an unreasonable proposition".
That is the same thing.
Secondly, copies of agendas and reports would have to be open for inspection by members of the public in advance".
I think that also is a very good thing.
Thirdly, copies of minutes, agendas and reports would have to be available after the meeting for public inspection for six years".
I think that is a very good thing also.
Fourthly, copies of background papers would have to be available for public inspection for
up to four years. I think that that is good as well.
Finally, all the four items that I have just mentioned would also apply to sub-committees".—[Official Report, Commons, 13/4/88; col. 306.]
§ Often the main decisions are taken in subcommittees. I think that what applies to the health authorities should apply to the sub-committees. Therefore if this new clause were to be passed, the public would be able to know much more about what goes on behind the scenes with those health authorities which at present seem to try to keep their decision-making process quiet. It would not greatly affect those health authorities which in my view wisely seek to enable the public to know what is going on. It would hit at the laggards among the health authorities who want to keep things quiet.
§ I believe in open government. I believe that the powers of the health authorities are sufficiently important and of interest to the public to take this step forward in access to information of health authorities, as this Government have already taken steps in relation to local authorities. I beg to move.
My Lords, I have no wish to prolong these very amiable proceedings. I am quite sure that all my noble friends on these Benches are wholly in support of this new clause. We very much hope that the Government will accept it.
§ Lord Skelmersdale
My Lords, as the House has heard, an amendment with a similar effect to the one before us was put down at Report stage in another place. It is important for me to say at the outset that we believe it essential that health authorities make every effort to involve the public in the management and planning of their local health service. The noble Lord, Lord Ennals, and I would not disagree on that. I also believe that the vast majority of health authorities share this view and conduct their business 998 in as open a manner as possible. In general, health authorities—that is regional, district and special health authorities—are subject already to the Public Bodies (Admission to Meetings) Act 1960. This means that their meetings are open to the public except where confidential matters are being discussed and papers relating to the majority of the agenda items are accessible to the public already.
However, most health authorities go beyond simply fulfilling their legal requirements. They understand the importance of involving the public in the decisions about the running of the health service. The most major decisions are the subject of consultation documents; strategic plans and short-term programmes are publicly available, as the noble Lord will remember. Often, in association with community health councils, public meetings are held on plans for local services, especially where closures and changes of use are involved.
Community health councils also have a role in informing and involving the public. Health authorities have a statutory duty under the health service community health council regulations to provide community health councils with the information that they need to carry out their duties.
We have then considerable sympathy with the anxieties underlying this amendment. We certainly share the view that decisions about the health service locally should be discussed fully and openly. Our guidance to health authorities makes this clear and stresses that the presumption should always be in favour of open and public discussion whenever possible. We have heard today of unspecified backsliders. There are plenty of means available throughout the regulations, through regular ministerial reviews of regions, by regional reviews of districts and so on, to chastise the backsliders and make them do better. I doubt whether further rigid statutory requirements are needed in this area.
The noble Lord, Lord Ennals, particularly (and I am sure the noble Lord, Lord Winstanley) will agree with me that health produces its own peculiar problems regarding confidentiality. The moment one has access to meetings, quite unintentionally one could breach that confidentiality. For example, it might suddenly be necessary for somebody either on the health authority's staff or their membership to make reference in the course of some entirely separate discussion to "Mrs. X who died on the operating table in the theatre". That could do an enormous amount of damage. Therefore while I am in sympathy with the general proposal, I believe that it ought to be looked at very carefully indeed.
The noble Lord, Lord Ennals, might realistically say that I have had six months in which to think about it, what about it? Quite honestly the Government have been doing much in the past six months, not least adding, mid-year, £2 billion to the amount of money they are prepared to make available for the health service. With that background, is this the moment to spend extra money on what is essentially, for the best of all possible reasons, administration? I rather doubt it. I wish to echo in a sense what my right honourable friend the then Minister for Health said in another place: that 999 this does not mean that the subject will quietly go away. We intend to pursue this matter, and when we have proper evidence that things are not working properly, we shall take it up with the relevant health authorities. Just at this moment I rather regret having to say that I do not think it is right to put this very rigid power into a Bill of this sort.
§ 6.45 p.m.
My Lords, before the noble Lord, Lord Ennals, replies, will the Minister answer a question? Quoting the Minister in another place, he said that the overwhelming majority of health authorities shared the view as expressed in this new clause. My question is: what about the small minority who do not? The noble Lord went on to say that there were means available to deal with backsliders. Could he give the House an example of a backslider who has been dealt with? Can he tell us the means that were used to deal with the backslider in that case?
§ Lord Skelmersdale
My Lords, no, off the top of my head, I could not. That is for the simple reason that I do not personally know of any backsliders in this area. The noble Lord talked about backsliders, except that he did not call them backsliders. I said that there were means available to deal with them, "Tell me where they are, and I shall make darned sure that they are dealt with". That was the point of my remark.
§ Lord Ennals
My Lords, the Minister has just given a very important assurance that if we draw his attention to situations where we feel that there is a failure to communicate effectively, with an overemphasis on secrecy rather than public knowledge, he will seek to do something about them. He will not be surprised that I was a little disappointed in his reply. He anticipated one point that I would make: that since the Government had been given six months for consideration, I thought it was fair that that line could have been used for that as well as for other things. It seems to me that if a health and medicines Bill is going through Parliament, one should do as quite clearly the Government have done with the rush of new clauses in the past few minutes or days. I put it that way, to be fair. When there are things that the Government think should be done, if there is a vehicle for doing them, if the Government think it important they should use that vehicle. If they do not think it is important, they do not use that vehicle.
I only wish to touch on two arguments which the Minister used. Of course, there must be a procedure for going into public session or for making documents confidential where they relate to private matters of patient care, and private matters relating to patients in any sense. I am not doubting that those circumstances exist; but I am not certain whether the the Minister will feel confident that there are not some local authorities which take advantage of that privacy coverage to take too many subjects in private session rather than in public. That is the first point. I should have liked the Minister to be more responsive.
Secondly, if there are very few health authorities which wish to keep things under cover and under 1000 wraps, I do not imagine that much cost would be involved by what is suggested in this new clause. If most of the provisions are already implemented by most authorities the cost for the others to implement them, if that is desirable, as the Minister indicated it was, must be negligible. I do not see this provision as being defeated by an argument of cost. I believe that the cost would be minimal.
The Minister has made no offer to give way. I shall certainly not press this matter to a Division at this stage. I take some satisfaction from the fact that the Minister said that, although this provision has been under consideration for six months and nothing has come forward, it will continue to be under discussion. As both the Minister and I agree that the principle is of great importance, I shall seek another opportunity to return to this issue in your Lordships' House. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 23 [Commencement and transitional]:
§ Lord Skelmersdale moved Amendment No. 19:
§ The noble Lord said: My Lords, this is a technical amendment, intended to rectify an omission from the list of repeals which may be effected by an appointed day order.
§ I hope that no frisson of horror goes round the Chamber at those words. The repeal of the legislation establishing the General Practice Finance Corporation is included by this amendment in that list, and Sections 17 and 19 of the Health Services Act 1980, which also relate to the corporation, should have been included. This amendment makes sure they are. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 20 not moved.]
§ Lord Skelmersdale moved Amendment No. 21:
Page 20, line 15, at end insert—
("section [Construction of references to publications];").
§ The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 16. I beg to move.
§ On Question, amendment agreed to.
§ Clause 24 [Northern Ireland]:
Lord Skelmersdale moved Amendment No. 22:
Page 12, line 7, leave out ("and sections 15 to 17") and insert (" sections 15 to 17 and section [HIV testing kits and services.]").
§ The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 17. I beg to move.
§ On Question, amendment agreed to.
Lord Skelmersdale moved Amendment No. 23:
Page 21, line 8, after ("Sections") insert ("13(3) and (4)").
§ The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 14. I beg to move.
§ On Question, amendment agreed to.1001
Lord Skelmersdale moved Amendment No. 24:
Page 21, line 8, leave out ("and 20") and insert (", 20 and [Construction of references to publications]").
§ The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 16. I beg to move.
§ On Question, amendment agreed to.
Lord Skelmersdale moved Amendment No. 25:
Page 21, line 11, leave out ("sections 14 and 20") and insert ("those provisions").
§ The noble Lord said: My Lords, this amendment was spoken to with Amendment No. 14. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 2 [Consequential Amendments]:
Lord Winstanley moved Amendment No. 26:
Page 22, line 44, at end insert—
§ In section 30(1) of the Opticians Act 1958 (interpretation), at the end of the definition of "optical appliance" there shall be added the words "and includes glasses, contact lenses, eye drops and cleaning fluids".").
§ The noble Lord said: My Lords, this amendment, as I know the Minister will recollect and as I am sure many other noble Lords will remember, is essentially a probing amendment. Noble Lords will remember that at an earlier stage in our discussions on this Bill I drew attention to the fact that there was some doubt about the entitlement or otherwise of people who had contact lenses to have a prescription for those contact lenses.
§ The situation had arisen in which if someone who had contact lenses lost one of them and was, say, up in the north of Scotland, the only way he could get a replacement would be to go all the way back to where he had obtained the original lenses, which might have been in Penzance, for example. That of course was not a very convenient position.
§ I said that, whether or not there was an entitlement to the prescription for contact lenses, from my experience I knew that people had grave difficulties in obtaining it. I knew that if they asked for such a prescription they did not obtain it. In his reply the Minister confirmed my view that under the regulations as they now are there is no entitlement to the prescription for contact lenses. I think that there should be, in order to deal with the situation to which I have referred.
§ The Minister said that I had brought this matter to his attention and that he had not previously been aware of it. That appeared to be an implied undertaking that he would look into the matter. I move this amendment in the hope and expectation that the Minister will be able to tell me what progress he has made. I beg to move.
§ Lord Skelmersdale
My Lords, to paraphrase Julius Caesar, I would say that I came, I looked and now I am producing, I hope, results. The Government accept it as sensible that customers should have the right to their prescription and specification for contact lenses if they are suited to wearing such appliances. However, having said that, 1002 the result of my consideration is that I consider it unnecessary to amend the Bill to achieve this aim, which, I agree, is very worthy.
The General Optical Council already has the power to make a statutory rule requiring opticians, who provide the vast majority of contact lenses, to hand over the lens prescription and specification. It has indicated its support for making such a rule and we think it is right to let it do so. The GOC is already active in regulating the contact lens field in the consumer interest, having recently made rules specifying certain minimum qualifications for contact lens fitters.
We are confident that GOC rules for the handover of contact lens prescriptions and specifications will be an effective means of securing the consumer's rights. If it is not, I am quite sure that the noble Lord will come rocketing back at whoever occupies this position whenever the matter arises, and we shall have to look at it again. But for the moment I advise us to leave this matter to the GOC.
My Lords, I am most grateful to the Minister for that reply. It would appear that the department has recognised the problem and has done its best to meet it without the necessity for legislation. That is achieved by relying on the goodwill and good offices of the General Optical Council.
Without implying any criticism, my confidence in the General Optical Council is not without bounds. Therefore, I merely ask, in the circumstances under which an optician or a supplier might refuse to hand over a prescription, what sanctions are available. I am sure that the Minister can reply to that point. Probably the GOC has certain sanctions. But the Minister is absolutely right in saying that if this measure which he has announced does not appear to work satisfactorily—in other words, if people with contact lenses are not able to obtain prescriptions—I shall be back again. I thank the Minister for what he has said and I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Skelmersdale moved Amendments Nos. 27 to 30:
Page 23, line 18, leave out from ("3") to end of line 19 and insert ("for the words "paragraph (a) of section 5(1)" there shall be substituted the words "section 5" ").
Page 23, line 20, leave out from ("4") to end of line 21 and insert ("for the words "paragraph (a) of section 5(1)" there shall be substituted the words "section 5" ").
Schedule 3, page 24, line 22, at end insert ("and the words" (and the additional provisions set out in Schedule I to this Act have effect in relation to this paragraph"").
Page 25, line 6, column 3, leave out ("(2)") and insert ("(4)").
§ The noble Lord said: My Lords, I beg to move Amendments Nos. 27 to 30 en bloc. They were all spoken to with Amendment No. 8.
§ On Question, amendments agreed to.
§ In the Title:
Lord Skelmersdale moved Amendment No. 31:
Line 3, leave out ("and to amend the Medicines Act 1971") and insert (" to amend the Medicines Act 1968 and the Medicines Act 1971 and to empower the Secretary of State to make regulations about HIV testing kits and services").
§ The noble Lord said: My Lords, in moving this amendment to the Long Title, I wish to say how 1003 grateful I am that we have conducted our business in such an animated though expeditious way this afternoon. We are about to finish rather earlier than we could possibly have anticipated at the beginning of the day. I am grateful to all noble Lords for their part in achieving that.
§ One of the beauties of this House is that we are allowed to amend the Long Title of Bills. When we put in two totally new clauses, as we have this afternoon, it is necessary to do just that to take account of them. That is all Amendment No. 31 does. I beg to move.
§ Lord Ennals
My Lords, in supporting that, I should like to thank the Minister. The fact that we are finishing just about on the dot of when we planned is because the Minister was so reasonable earlier in the debate and did not force us to go tramping our way through the Division Lobbies, which none of us likes doing unless we are forced into it.
I should also like to say that I hope the Minister will be with us for the Third Reading. At least we can have him until the end of this Bill, even though we are sad that we are going to lose him later, for whatever reasons. I thank him for the way in which he has conducted the business of this Bill.
My Lords, permit me to associate myself and my noble friends on these Benches with those remarks. We too are delighted that we have proceeded with such expedition. We too hope that the noble Lord will remain with us while we continue to deal with matters of this kind. We have proceeded very rapidly, which is most satisfactory.
Before I sit down perhaps I may express the hope that, in dealing with any amendments from another place which later return to us on this Bill, it will not be necessary for us to spend a longer time than we have today.
§ Lord Skelmersdale
My Lords, as for the future, I think that that can take care of itself. For the present, I am very humbled by what both noble Lords have said. I can only thank them very much indeed.
§ On Question, amendment agreed to.
§ House adjourned at one minute past seven o'clock.