Health and Medicines Bill

HL Deb 25 October 1988 vol 500 cc1477-509

3.8 p.m.

Read a third time.

Clause 7 [Extension of powers of Secretary of State for financing the Health Service]:

The Parliamentary Under-Secretary of State, Department of Social Security (Lord Skelmersdale) moved Amendment No. 1: Page 5, line 32, leave out ("power—") and insert ("the powers specified in subsection (1A) below; but for the avoidance of doubt it is hereby declared that nothing in this section authorises him or any body to which he gives direction under subsection (1B) below to disregard any enactment or rule of law or to override any person's contractual or proprietary rights. (1A) The powers mentioned in subsection (1) above are powers—").

The noble Lord said: My Lords, in moving Amendment No. 1, I should like to speak also to Amendments Nos. 2, 5 and 7. During your Lordships' consideration of Clause 7 of the Bill on Report, the debate centred on three subjects. The first was whether the standard terms of the Secretary of State's research contract, revised in February 1987, denoted a change of emphasis and were biased, especially with regard to publication, in the Secretary of State's favour. That is the subject of Amendment No. 4 tabled by the noble Earls, Lord Russell and Lord Halsbury, and the noble Lords, Lord Ennals and Lord Adrian.

The second concern was whether the development and exploitation of ideas and intellectual property covered by subsection 7(1)(f) would give fair recompense to the researcher. This is covered by Amendment No. 6 in the name of my noble friend Lord Trafford and supported by the noble Lords, Lord Swann, Lord Ennals and my noble friend Lord Beloff, with which the Government fully agree.

But, my Lords, there was a third concern which I identified on rereading the Committee Stage in Hansard during the Summer Recess. That was a general fear that this clause allowed the Secretary of State to develop and exploit something which he did not own. I thought that unlikely and said so, I am afraid, several times. However that concern persisted and I undertook to bring back a suitable amendment to cover the point on Third Reading. Amendments Nos. 1, 2, 5 and 7 fulfil that undertaking. If I may be allowed to paraphrase them, they mean that this clause gives the Secretary of State or anyone to whom he may give directions no right—none at all—to break any law or to override any contract or rights of property, which of course includes patents and intellectual property, whether published or not.

The amendments apply to the income generation provisions of Clause 7 as a whole and I hope make it absolutely clear that the clause makes no change to the ownership of property whether intellectual or physical. If under the Patents Acts, Copyright Act, contract law or the common law the Secretary of State owned or would have owned the property before the Bill, he will own it after Royal Assent. If under statute or common law the researcher owned or would have owned property before the Bill, he will own it after Royal Assent. The Bill makes absolutely no difference to that position.

In a meeting with the noble Lord, Lord Swann, the other day I promised to write to the Committee of Vice-Chancellors and Principals indicating the right of researchers and academic institutions in respect of intellectual property. While it may no longer he appropriate for me, I readily commit the department to doing so.

To sum up, the amendment makes it clear that the clause gives the Secretary of State no power to steal what lawfully belongs to someone else. That must be right. I believe that the amendments will be welcomed by all parts of the House. I beg to move.

Lord Ennals

My Lords, from these Benches I welcome the amendment. The noble Lord offered the amendment in the discussion which he kindly had with a number of Peers from all sides of the House who had taken part in the debate on Report. We did not feel that it took us much further. As he will know, a further amendment was tabled which might well have proceeded to a Division today had not Amendment No. 6 been tabled, at which we shall look later.

The amendment, while welcome, does not take anyone very far. As the Minister said, it assures us that the Secretary of State will not break the law. That is jolly good. We do not want the Secretary of State to break the law. The amendment is purely presentational. It gives no new rights, nor does it reduce any existing rights. To the extent that it emphasises that contractual and proprietary rights should not be overruled, the amendment is welcome.

I was glad to hear the Minister say that he would be writing to the Committee of Vice-Chancellors and Principals. It would be helpful if he could send a copy of his reply to me, and I should think that it would be of interest to those Peers who took part in the debate on the issue last week and who may do so today. I should have pressed some of the questions that the Vice-Chancellors have put to seek clarification on one or other of the amendments, but if the Minister is going to write to the committee, perhaps he could keep us informed. With those few words, I welcome the Minister's initiative.

Lord Campbell of Alloway

My Lords, the point arising briefly is fair compensation for the exploitation of ideas and intellectual property under Clause 7(1)(f) as regards which there is no provision in the Bill as it stands and hence the concern of many noble Lords, especially the noble Earl, Lord Halsbury, expressed on Report.

It is not a question of stealing property; the question relates to the provision of fair compensation. With respect to the noble Lord, Lord Ennals, the amendment goes quite a long way, but I agree with him that as it stands it does not go far enough. However, I shall support it for what it does.

There is no provision under the clause to issue any implementing regulations. There is no provision to issue any code of practice which has any legal effect. The question is how the concept involved in the amendment is to be implemented, grounded in fair compensation, unless at least two things happen: first, that there is someone vested with authority to negotiate fair compensation; and, secondly, that if there is no agreement on compensation there should be recourse to the courts.

The hope must be that in another place those matters will receive further consideration. The amendments were a rushed job between the last stage and the present stage of the Bill. It is unreasonable to expect any government to achieve a wholly acceptable solution under extreme pressure. I hope that in another place there will be time to introduce amendments to implement the concept to which the amendments adhere. In the meantime, with that hope, I fully support the amendments.

3.15 p.m.

Lord Winstanley

My Lords, were I to leap to my feet every time I saw a grammatical error in an amendment I should never be off my feet. It occurs to me that in line 3: nothing in this section authorises him or anybody to which he gives direction", It must surely be "to whom". Had it been "anybody" it is possible that "to which" might be justified. But with "anybody" it must surely be "to whom".

Having said that, I welcome the amendment in so far as it is welcome to those who raised this important amendment. I do not yet know the reaction of the Committee of Vice-Chancellors and Principals and whether it regards it as wholly satisfactory. It is true that we have later amendments to do with publication. The principal anxiety of many of us was whether there would be any kind of embargo or restriction placed upon the publication of research work. That is a matter about which many of us are still concerned. I do not believe that the amendment deals with that problem. I shall not oppose the amendment, but if it deals with all the matters about which the Committee of Vice-Chancellors and Principals is concerned one wonders why we had all the trouble to start with.

Did the Government seek a dispute with the Committee of Vice-Chancellors and Principals or did the draftsmen merely put the matter in that way? If the Government had no intention of precipitating the kind of row that we have had, why on earth did that provision appear in the original form of the Bill?

Lord Trafford

My Lords, I welcome the amendment. Although it may not carry us much further forward in certain respects with regard to some of the subjects discussed by noble Lords on Report, it goes some way in terms of clarification.

However, there is one point upon which I would take issue with the noble Lord, Lord Campbell of Alloway. He referred to the question of patents, rights, individual compensation and recourse to the courts, but in no way does the amendment affect the ordinary rights under the Patents Act. I believe I should be right to draw his attention to Sections 39 and 44, which lay down how in the event of disagreement arbitration can be carried out and how in the event of disagreement with regard to an arbitrator's appointment that too can be resolved.

It does not seem to me that the amendment in any way affects the previous situation with regard to any patent or compensation, any rights of arbitration or any rights as to the appointment of an agreed arbitrator. Therefore I am not certain that I take on board the noble Lord's point.

To return to the main amendment, I agree that we should pay tribute where it is due—to those who have tried as a result of the expressions of opinion in the House to meet those wishes and at least, if not advancing the law in all regards as we might have wished, to make the effort to clarify the law and bring forward the amendment on behalf of the Government.

Lord Campbell of Alloway

My Lords, I wonder whether my noble friend appreciates that paragraph (f) goes far wider than patents.

Lord Trafford

My Lords, I do not wish to indulge in a long argument about patent law with the noble Lord which I would doubtless lose but I do not believe that the amendment makes any difference to the rights of the individual under the Patents Act 1977; nor do I believe that it has any effect upon the rights of compensation or the appointment of arbitrators; nor does it need another place to alter it; and nor does it need any further question to be raised about the appointment of an arbitrator.

Lord Swann

My Lords, perhaps I may say a brief word welcoming the amendment of the noble Lord, Lord Skelmersdale. I do not think I understand these matters, but in so far as I do, I feel it is reassuring to the people who are worried. I thank the Minister also for taking note of what was said in this House. I am particularly glad that he will write to the university world and explain—we hope in words of not too many syllables and in a friendly manner—just what it is all about. The majority of research workers in the universities or anywhere else do not have the faintest idea what their rights are and it is just as well that they should know.

Lord Skelmersdale

My Lords, until the noble Lord, Lord Swann, spoke I had the impression that I was being damned all round the House with faint praise. I was going to say that I should have to be satisfied with that. I am glad that the noble Lord welcomes my intention to write to the Committee of Vice-Chancellors and Principals. I promised him earlier that this was what I should do. It is what the committee would like, and I undertake to have that commitment fulfilled, as I said earlier. Certainly I shall make sure that copies of that letter go to all noble Lords who have spoken both in the short debate now and when we were considering this subject on Report.

Lord Ennals

My Lords, before the noble Lord sits down, perhaps I may ask him also to send the letter to the Association of University Teachers, which has shown very great interest and a great deal of concern. If they receive reassurance, whatever the letter says, they will appreciate that just as much as the vice-chancellors.

Lord Skelmersdale

My Lords, yes. I have always regarded any letter, published or not, that I write to any Member of your Lordships' House or on your Lordships' behalf to organisations in which noble Lords are interested as public property. Therefore I am very happy to have the letter circulated as widely as noble Lords wish.

My noble friend Lord Campbell of Alloway raised the subject of compensation, which does not fit into this amendment but most certainly fits into Amendment No. 6 in the name of my noble friend Lord Trafford. I shall consider the points made by my noble friend and respond to them on that amendment.

Lastly, there is a drafting point, I suspect, from the noble Lord, Lord Winstanley. There should be a space between "any" and "body"; therefore it would he "any body to which". I hope that satisfies all noble Lords. I beg to move.

On Question, amendment agreed to.

Lord Skelmersdale moved Amendment No. 2:

Page 5, line 46, leave out ("and") and insert— ("(1 B) The Secretary of State").

On Question, amendment agreed to.

Lord Skelmersdale moved Amendment No. 3: Page 5, line 46, at end insert ("(having regard to the existing work of voluntary bodies)").

The noble Lord said: My Lords, I believe that this amendment to Clause 7 will be welcomed on all sides of the House. It concerns the role of voluntary services in hospitals, a matter raised by the noble Lord, Lord Wallace of Coslany, most recently at Report. I know that we are all agreed that the work of voluntary bodies is enormously valuable in the running of the health service and that there should be nothing in this Bill which detracts from their present and continuing role. The noble Lord spoke with feeling on this issue and convinced me that a reference in the Bill to the work of voluntary bodies is the right way to proceed.

At Report I undertook to bring forward an amendment which would meet the concerns expressed. What the wording in this amendment does is to insert in the part of the clause which is concerned with the Secretary of State's power to give directions to health authorities the requirement to have regard to the existing work of voluntary bodies". I trust that this amendment fully satisfies the noble Lord, Lord Wallace, and other noble Lords who expressed their support and is an indication that the Government appreciate the role of voluntary bodies and do not wish to see them diminished in any way. I beg to move.

Lord Wallace of Coslany

My Lords, naturally I accept and welcome this amendment. It has been rather a long road but I am glad that the Government have decided to insert the amendment and in so doing put in legislative form their appreciation of the work of voluntary societies, which do far more than some people imagine. I do not wish to waste too many words. I am very grateful indeed to the Minister for the way in which he has dealt with this and I welcome the amendment.

Lord Auckland

My Lords, having supported the noble Lord, Lord Wallace, in his amendment on Report, I too wish to thank my noble friend the Minister for having brought forward this amendment, which goes a long way towards encouraging the leagues of friends. As noble Lords know, I am president of the friends of my local Epsom District Hospital in Surrey. I wish only to add that I hope that "having regard" will turn into something practical and that this will be a partnership between the Department of Health and the voluntary bodies and that there will be much more consultation in the future. Having said that, I feel that this amendment is extremely welcome.

Lord Winstanley

My Lords. I am sorry possibly to appear churlish or to be constantly looking gift horses in the mouth. However it seems to me that this amendment is in precisely the form in which it was introduced at Committee stage by the noble Lord, Lord Wallace of Coslany. At that time the Minister in reply produced all manner of difficulties which made the amendment highly undesirable. I am delighted that all those difficulties have evaporated, but I wonder how they arose. It seems to me that civil servants from the moment when they take office, from the word go, are trained to find a difficulty for every solution. I suspect that the difficulties emerge from them. We could have been saved much trouble if the noble Lord had accepted this amendment at Committee stage because it seems precisely the same to me.

Lord Wallace of Coslany

My Lords, before the noble Lord sits down, perhaps I may say that I recognise that a government amendment has more chance in another place than a Back-Bench amendment emanating from another side.

Lord Ennals

My Lords, just for the record, I totally accept the Minister's amendment. I think that it is an absolute and complete fulfilment of the pledge that he gave and under those circumstances it is almost churlish to start making representations about it. I am glad it is there and will be in the Bill, and the noble Lord, Lord Wallace, is to be congratulated as well as the Minister.

On Question, amendment agreed to.

3.30 p.m.

Earl Russell moved Amendment No. 4: Page 6, line 7, at end insert— ("Provided that the Secretary of State shall not have the power to pevent the publication of academic research or to delay it beyond 28 days.").

The noble Earl said: My Lords, I should like to join with noble Lords who have expressed their thanks to the noble Lord, Lord Skelmersdale, for the care, courtesy and consideration with which he has handled the issues before the House which resulted on this clause. The meeting we held last Wednesday was a model of its kind. I was extremely grateful that it was held and for the effort which the noble Lord put into it. I say this nevertheless as the person who happened to draw the short straw in the proceedings that resulted from that meeting.

We have here a considerable series of concerns which have become intertwined. The noble Lord has made some significant concessions which I warmly welcome on other concerns and left the matter of this amendment isolated and without concessions. So the amendment still has to be argued out. There is a history to this matter. The new form of the Department of Health research contract goes back to February 1987. Prior to that, permission to publish seems to have been unquestioned. It is now subject to the permission of the Secretary of State, such consent not to be unreasonably withheld. The reasons for this change have never been entirely clear. We have been given a number of justifications, not entirely mutually consistent, none of which is, I think, entirely convincing.

This amendment seeks to make the Secretary of State's claims to stewardship of intellectual property contingent on his willingness to abandon the power he is claiming to prevent publication of academic research commissioned by the department. This is a matter of fairly strong feeling both among medical and among academic opinion. It is a matter about which for well over a year I have been listening to people fuming when I come into lunch.

On Report the noble Lord urged us in pressing this matter not to throw out the baby with the bath water. That is a line of argument to which one must always try to respond. But I confess to having had considerable difficulty in discovering the noble Lord's baby. It must be a very little one because the justifications that have been offered for this change do not seem to hold together. In fact I strongly suspect that the department's policy on this is like Dogberry's swearing—it goes by the book.

What the department appears to have done—here I am following what the noble Lord said on Report—is to have applied strictly the doctrine of the rights of the employer at common law, according to which the work of the employee will become the employer's property. I admit that is the position at common law. Nevertheless, it has been a matter of convention and reasonable political compromise that in the past that doctrine has been modified in practice when it has been recognised that the employee's employability depends in part on something other than his loyalty simply to his employer. In fact it depends on his loyalty to some strictly professional ideal. That is a matter that concerns not only academics. It concerns doctors, it obviously concerns clergy and lawyers and in some matters it might concern artists.

There are places where a strict and rigorous application of this doctrine of the right of the employer at common law may end with the employer getting rather less than he thinks he is paid for. Here we have a culture clash. We who are moving this amendment are not suggesting that the Secretary of State has any systematic plan to censor research. We do not believe that he has such a plan. Nevertheless, there is on occasion such a thing as the arrogance of power. Mrs. Edwina Currie was quoted in New Society last October as having said to a researcher: It is our intention that the research we support has greater relevance to Departmental policy and the needs of the NHS. To that end we are … trying to gear the capacity of our funded Research Units to meet the Department's research requirements and, as a matter of policy, examining all completed research reports for timeliness and relevance as well as scientific excellence, in order to decide whether we have had good value for the money spent on that research". A researcher reading those words might be forgiven for thinking they were saying that some forms of research were more acceptable than others.

When I spoke on Report I made the comparison with the secret ballot. If the secret ballot were to be taken away, I do not think the argument against that proposal would necessarily depend on the argument that those who did it intended to destroy freedom of election. Electors on occasion, as those of us who have canvassed know, can be timorous creatures. They are capable of believing, if their vote is not secret, that it might carry with it repercussions which it probably will not. If the secret ballot were lost, I think to a very substantial degree the freedom of election would be weakened.

The same argument applies with academics. Academics are no better than other men. We are subject to the same hopes and fears: the same fear of loss of grants, the same hopes of publication and promotion. In a situation where freedom to publish may be withheld, there will be, even if unconsciously, an attempt to tailor the research, both the questions and the answers, to what people believe to be acceptable. We should not of course do that. No first-rate person will. But there is no profession on earth which is entirely made up of first-rate people. Academics are subject to human weaknesses like the rest of us. If this contract remains in place, the quality of the research offered will as a result be substantially diminished. The department's claims to get value for money will be thereby very much weakened.

Some safeguards have been offered. The point about judicial review has been made already. My noble friend Lord Winstanley has answered that point before. Judicial review takes a very long time. In medical research, which is I think the most international of all forms of research, delay is quite peculiarly likely to lead to someone else anticipating publication. Therefore the Secretary of State may find at the end of it he had no intellectual property to exploit.

The noble Lord, Lord Trafford, made the point in defence of the contract that there is a right not to sign. Yes, there is, but there is force in the point that beggars cannot be choosers. The noble Lord, Lord Beloff, pointed out that research funding is in very short supply. If anybody wishes to sign a research contract without this clause, the noble Lord must take the risk that he will find that person doing it on the other side of the Atlantic. That may not be in the interest of the Secretary of State.

There are alternative models available. There is the Home Office contract which has already been mentioned. There is the formula used by Mrs. Edwina Currie in another place on 8th March 1988 of a possible restriction in cases of libel, breach of confidence or factual error. There is room for compromise in this matter, but speaking for myself I find the contract in the form in which it stands unacceptable. I beg to move.

Lord Ennals

My Lords, the noble Earl has made an overwhelming case and a very convincing one. I am only sorry that the second speaker on the amendment is not the noble Earl, Lord Halsbury, who certainly on Report spoke with great vigour and conviction. It would have been helpful for your Lordships' House to hear his speech today. However, the noble Earl unfortunately has a medical appointment which keeps him away.

I argued this case in the absence of the noble Earl, Lord Russell, on Report. Therefore, I need not take very much time in making my case today. Research is absolutely vital in all the fields that we are talking about, and especially in medicine. Its validity and its utility are largely dependent on freedom to publish the results of that research. Research which is locked up and is not seen is of no value to anyone else other than the researcher. That would be a tragedy.

During the debate on Report on 17th October (at col. 942 of Hansard) I quoted an extract from the new contract concerning the publication of research results. It stated that the publication: is subject to the prior consent of the Secretary of State, which consent shall not be unreasonably withheld". That of course is a step in the right direction, but it leaves a lot of questions unanswered. What does "unreasonably withheld" mean? No attempt is being made, nor could it, to put that provision in the legislation. But a question could arise as regards the publication of a piece of research being withheld because the Secretary of State thought that his argument was reasonable. At some stage Mrs. Edwina Currie may become Secretary of State, God forbid. However, that is a possibility. The quotation read out by the noble Earl proves the danger that could be inherent there.

The amendment takes us to roughly where the Home Office research contract stands. I shall quote briefly again from what I said on Report (at col. 943 of the Official Report) regarding Home Office research contracts: It is the intention of the Secretary of State that is the Home Secretary— 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". So I should say that the quality and integrity of scientific research largely depends upon the results of such research being freely communicated and discussed with the scientific fraternity.

I should like to refer to the guidelines of the general conference of UNESCO, which Her Majesty's Government approved. The guidelines, contained in Article 37 of the recommendations on the status of scientific research and adopted in 1974, state: Member States should, in consultation with scientific researchers' organisations and as a matter of standard practice, encourage the employers of scientific researchers, and themselves as employers seek,

1. (a) to regard it as the norm that scientific researchers be at liberty and encouraged to publish the results of their work;
2. (b) to minimise the restrictions placed upon scientific researchers' rights to publish their findings, consistent with the public interest and the rights of their employers and fellow workers".

There are two other provisions; they deal largely with the terms of contracts so I shall not quote them.

I believe that the amendment is necessary. As the noble Earl, Lord Russell, said in moving the amendment, this is one part of the nexus of issues we have been debating which, if the amendment is not carried and put on to the statute book, will mean that there could be a real step away from the freedom of researchers—qualified, as we recognise, by the discussion. Acceptance of the amendment would largely relieve widespread concern in the universities and the academic community about the powers which are sought and will be grated by the Secretary of State in this legislation. I warmly support the amendment.

Lord Boyd-Carpenter

My Lords, the problem with the amendment—while its general approach seems harmless—is that it assumes that there can be no circumstances at all in which publication of the results of research could not be harmful to the public interest. I accept that in the vast majority of cases publication would be a good thing and helpful to the public interest. However, it is going very far to assume, particularly with developments in modern science today, that there could not be some object of research which would be very dangerous to the public interest if published.

Let me give one example which came to my mind as the noble Earl, Lord Russell, was speaking. We know well that the Soviet Union among its many defence preparations is spending a good deal of time, effort and research on germ warfare. It is at least possible in the area of medical research that some of our research organisations might come across a fact relevant to the dangers of germ warfare, either from the point of view of facilitating its use or negativing defence against it. When one is dealing with medical research, with its immense developments and speed of change, one cannot exclude that possibility. That is just one example. There are obviously others, perhaps in the area of nuclear research.

I, for one, would be happier if the Secretary of State had a reserve power to prevent publication if he were convinced that the national interest so demanded. I believe that it would be very dangerous in the modern world to strip him of that power as this amendment appears to do.

3.45 p.m.

Lord Adrian

My Lords, before I address myself to Amendment No. 4 I should like to thank the noble Lord, Lord Skelmersdale, for the amendments which he has put down. They go a long way to meeting some of the anxieties. I should like to apologise to him for not having been able to attend the meeting which he so kindly agreed to call.

I wish to confine myself almost entirely to the issue of publication and the power to delay publication. I believe that the present amendment—and this is the reason why I support it—is designed to prevent unfair delay and to concentrate minds on both sides of the bargain so that the delay in publication does not become undue by inadvertence. Perhaps I may describe what I mean from my own experience.

Some years ago I supervised the work of a research student who was working on methods of measuring calcium in the intra-cellular environment. He was funded by a research contract with the Science and Education Research Council which included a clause specifying that any potential inventions had to be submitted to NRDC—a reasonable enough clause and one to which we had both agreed. The student did indeed come up with something of particular interest in the field in which he was working that had potential for exploitation. This was duly reported to NRDC who asked that he should delay publication of his PhD thesis until such time as it decided whether or not it wished to patent the compound.

It took NRDC 18 months to make that decision. The young man's thesis was thus embargoed before he could write up the work and submit it for publication. Eighteen months may not seem very long to someone sitting behind a desk in Whitehall or NRDC. It seemed a very long time to that PhD student who was anxious to get his work published. After all, the esteem of his peers and his future employers depended considerably upon his ability to publish his work.

The outcome of the story is relatively happy. I do not believe that the student's future was damaged by the delay. He has subsequently had a remarkable career in the United States. However, it is a history which leaves me very unsure that bureaucracies and ministries will not delay publication unreasonably. For that reason I strongly support the amendment.

The arguments put by the previous speaker suggested, to me at any rate, an almost infinite extension of the Official Secrets Act in scientific research. I must say that I found myself wishing to support the amendment even more strongly after hearing his argument.

Lord Boyd-Carpenter

My Lords, is the noble Lord suggesting that if there were some research the result of which if published seemed to those responsible to be damaging to the security of the state, he thinks nonetheless that it should be published?

Lord Adrian

My Lords, with the leave of the House, no. I believe that the judgment would have to be reached by agreement between the researcher and those people who knew what he was doing.

Lord Boyd-Carpenter

My Lords, with respect, only the Secretary of State can have the ultimate responsibility, surely.

Lord Campbell of Alloway

My Lords, I wholly accept that unfair delay in publication and delay by inadvertence is unacceptable and ought to he prevented for the reasons that have been given. However, the amendment as drafted goes far wider than that.

My noble friend Lord Boyd-Carpenter—to whom it is always a pleasure to be able to give way—dealt with the aspect of the public interest. Without moving into the security network and the area of the Official Secrets Act, there are areas in which. in the national interest, it might well be proper that publication should at all events he delayed.

Surely the fair way of dealing with this matter is not quite in the form in which the amendment is drafted. After "publication of academic research". one could insert the words "without just cause" or "without reasonable cause" and then on the second limb have: "to delay it beyond 28 days". That is proposed to be inserted in the statute. Why 28 days? Twenty-eight days from when?

I shall give way in a moment. If I may, I shall not take one moment more. So, 28 days from when? Is it from the time that the Secretary of State sees it? Is 28 days long enough for him to form a judgment? Is this not to put his whole consideration into a straitjacket? In other words and quite shortly. is this an apt vehicle to implement the concept, which the noble Lord has rightly espoused, that unfair delay in publication and delay by inadvertence ought to be prevented?

Lord Grimond

My Lords, there is no doubt that there is very strong public interest in this matter quite apart from the researchers' interest. There is also an interest outside the realms of medicine. Certainly that interest is basically on the side of publication. There is a strong public interest in research being published.

Serious points have been raised against total right of publication. Perhaps the suggestions of the noble Lord, Lord Campbell, should be examined further. For my part I believe that this is an exceptionally important amendment, whether or not the drafting is exactly right, and it should be accepted in spirit by the Government and by this House. I am always alarmed when it is proposed to give Ministers an absolute right to determine what is the public interest. We well know that what governments consider to be the public interest is very often coloured by their opinions and is not in fact always in the public interest as understood by the rest of the nation.

If there is to be any check upon publication, some means must be found of handing over to someone other than the Secretary of State the interpretation of "security" or "public interest". Certainly if the Secretary of State is given powers to prevent publication, what we all should understand as the public interest will be very badly affected. Should there be a few cases in which exceptions have to be made, those exceptions should not in my view be left in his hands.

I think it is only right to say that this issue is causing wide concern in universities and indeed outside them. Should the Government feel that they cannot accept this amendment as it stands, they must reassure us that any controls will not simply be used for political reasons by the government of the day. For instance, one can imagine the Government stating that it was against the public interest to publish research which revealed that they themselves had made a very severe error. I have an idea that the argument of public interest would appeal very strongly to any government if research turned up the fact that there had been a very grievous error in their own administration. However, it surely would not be in the public interest for that finding to be suppressed.

I hope that your Lordships will accept this amendment or at least force the Government to promise some amendment to the Bill which will protect the genuine public interest and not encourage the feeling which is already widespread in the universities that the Government are too anxious to interfere in the universities' internal affairs and indeed in their research.

Lord Trafford

My Lords, I wonder whether we are not wandering slightly wide of the amendment and the purposes of this clause. I agree with every word of the noble Earl. Lord Russell. I agree entirely with freedom of publication. In fact I think that it is the most important single aspect of research. It is the lifeblood of an academic and researcher to follow wherever his work should lead him and he should have the right to publish that work. It is as much his lifeblood as the greenback is the lifeblood of the banker. People should appreciate how deeply this issue is felt among research workers and those in universities, medical schools and similar institutions. I share their views.

It concerns and worries me that in our discussion of this amendment every example so far given has been concerned with contracts, which is no concern of this specific clause in the Bill. Indeed, as I understand it, with clue respect to the noble Earl. acceptance of this amendment by the Government will make no difference whatever to the publication or hastening of the young man's thesis, for example, to which the noble Lord, Lord Adrian, referred. That was done under a different aegis; namely, a contract.

I am not arguing the question of contracts in connection with this amendment. It seemed to me that at Report stage we obtained three very important statements from the Minister. We were obliged to him for them. The first was a suggestion for a meeting, to which other noble Lords have referred. The second, which has not yet been referred to in discussion of this amendment, was to the effect that he would review the basis, type, stringency and working of the contract as operated, and operated in this case by the Department of Health. It has not been referred to, but I think it is right to say that we are grateful to the noble Lord, Lord Skelmersdale, for producing an agreement to look at the contracts. The third statement was that he would hold further conversations with regard to the issue under discussion; namely, paragraph (f) of Clause 7(1).

I return to the point I made earlier. This is a clause about income generation in the National Health Service and is intended to further that purpose. I do not think that I have heard anybody in this House object to the idea of further income generation in the National Health Service under this clause. The argument has been extended —I imagine because of paragraph (f)—to questions of academic freedom, the public interest and the right of the Secretary of State to stop publication, and so on. However, I imagine that 99 per cent. of all research would not be covered by this amendment. It is done either by research councils under contract, firms under contract or departments under contract, or it is performed by one of the agencies of government or the universities, also by and large under contract.

I am jumping the gun somewhat because I had intended to make the point later, but my personal concern is that this clause covers people who perform work in the normal duty of their office, which is quite different from those who carry out any form of research under contract. That seemed to me to be a difficult point. Therefore the quandary in which I find myself placed is that, while I agree with the noble Earl, Lord Russell, that we should ensure that somewhere (I am not quite sure where) the right to publish so far as concerns contract work is underwritten or put on the face of some Bill, I doubt whether it should be in the Bill that it is to generate income for the National Health Service.

I should have thought that, even were the Government to accept this amendment, placing the provision here would have no effect at all on any contracted work. For example, it would have no effect at all on the rights of employers to intellectual property, or on any outside or external contract. Therefore, with due respect to the noble Lord, although I understand precisely his purpose and I agree with it entirely, it seems to me that this amendment does not meet the requirement. That is the great difficulty that I should have if he pushed this matter any further. I do not think that it is appropriate to this subsection or indeed to this clause of the Bill; but I am certain that somewhere, sometime and in another Bill this type of right should be established for all those who work in all types of research.

4 p.m.

Lord Swann

My Lords, once again as a Cross-Bencher I find myself in agreement with the noble Earl, Lord Russell, and the noble Lord, Lord Trafford. I wish to make one small point. It may arise from this Bill or from some other Bill. I should like to remind the Government of a famous saying of the late President Truman of the United States. I do not know the exact background which led him to say it. However, he said something that is of high relevance for a Secretary of State, his department, a government and the whole of society. He said, "Get the facts or the facts will get you".

Lord Peston

My Lords, listening to the noble Lord, Lord Trafford, I feel that he has a clearer view of the Bill than I have. However, I should like to raise one or two questions on which the noble Lord, Lord Skelmersdale, may wish to comment when he replies. Whatever we are discussing, as I understand it the Secretary of State has no powers to restrict the publication of research which is none of his business. In other words, he cannot possibly restrict the powers of academics, or anybody else, who do not work for him.

The question is: what are we discussing here? It seems to me that we are discussing only two matters—either the employees of the Secretary of State (a quite different matter which is not before us) or research contracts. The noble Lord, Lord Trafford, said that we were not discussing research contracts. It seems to me that if we are not discussing research contracts we are not discussing anything. Having spent a little time in this House, I am perfectly willing to say that the most likely hypothesis is that we are not discussing anything. However, if we are discussing something it must be a contract.

Perhaps the noble Earl, Lord Russell, will clarify the position. I assume he has in mind that the Secretary of State should not have contracts of a kind which have any predisposition towards non-publication. My general remarks also apply to the intervention of the noble Lord, Lord Boyd-Carpenter. With regard to almost all the likely cases which will concern the national interest—and I do not doubt for a moment that there are such cases—the Secretary of State will have no powers to do anything about them. And no one else has such powers. The most likely person to be doing some research in connection with germ warfare will be an ordinary academic in some place—goodness knows where—who will simply publish. I am glad to say that that is the way the world works.

Lord Boyd-Carpenter

My Lords, will the noble Lord allow me—

Lord Peston

My Lords, I shall sit down in a moment. I do not think that this is quite as big a problem as one or two noble Lords have suggested. Nonetheless I believe that the noble Earl, Lord Russell, has put his finger on a small but important matter.

Lord Boyd-Carpenter

My Lords, if the noble Lord is right, and none of the circumstances which some of us fear could conceivably arise, what is the point of the amendment?

Lord Peston

My Lords, with the leave of the House, the amendment arises in a small number of cases in respect of which we are hoping to hear that the noble Lord, Lord Skelmersdale—following upon his remarks about looking at the contract—will take on board the point that the noble Earl, Lord Russell, has made. There is a distinct possibility that we could reach some degree of agreement on this matter. I do not believe the issue is quite so major as some noble Lords have suggested.

Lord Butterworth

My Lords, I wonder whether, in about three sentences, I may attempt to clear the confusion which we went through at Report stage. First, the right to publish flows from the ownership of the copyright. In the case of research commissioned under a government department contract, the copyright must be the Crown's under the copyright Act. Therefore the problem about publication will relate to the contract under which that research occurred.

However, we are talking today about a much narrower issue. We are concerned with Clause 7 of the Bill. The clause relates to the raising of money for the NHS. Unless the question of publication is directly linked to the raising of money for the NHS—and that will be very rare—this amendment will not affect the right to publish. It would therefore seem that the whole question of the issue of publication rights is quite misplaced and inappropriate to be embedded in Clause 7 of the Bill.

As my noble friend Lord Trafford said a few moments ago, at Report stage we were given an undertaking that the wording of the new Department of Health research contract would be reviewed, I believe, it was said, in 18 months' time. And reasons were given why that date was chosen. It is at that point that the question of publication should be considered. If amendments are to be made they should be made to the department's contract and not to Clause 7 of this Bill.

Lord Annan

My Lords, I am bound to say that I think the noble Lord, Lord Butterworth, is entirely right in his interpretation of this clause. However, I would also say that publication is not the only way in which things are made public in the scientific world. I well remember Dr. Sidney Brenner, head of the renowned molecular biology unit at Cambridge, saying to me, "If you want to keep something secret, publish. It is done by word of mouth".

Lord Skelmersdale

My Lords, I am not quite sure whether that last remark was a reference yet again to Spycatcher, which figured in absentia at Report stage. Speaking more in sorrow that in anger I am very much afraid that noble Lords are indeed hitting at the wrong target in this amendment. I agree with my noble friends Lord Butterworth and Lord Trafford and others who have made this point.

The concerns of the supporters of the amendment centre on academic freedom and in particular freedom to publish research. As has been made abundantly clear, these concerns cover all work commissioned by the Secretary of State. Let me say straightaway that I understand these concerns. Anyone who lived through our rather tortuous debates on this subject on Report would have to understand the concerns voiced by your Lordships.

However, the choice has been made to try to amend Clause 7 of the Bill which, as the preamble makes clear, is concerned only with raising money for the National Health Service, as my noble friend Lord Trafford explained. Therefore, unless the question of publication is directly linked to raising money for the NHS, and that, as I have said on several occasions, will be rare, this amendment will not affect the right to publish. It simply will not bite.

Having said that, I wish to make it absolutely clear to the noble Lords, Lord Swann, Lord Adrian and others, that the Secretary of State's firm intention is that all research should be published and published promptly. The department's research contract already provides for a copy of the report to be submitted at least 28 days before the intended date of publication and it intends to answer within 28 days. If it cannot, the department had undertaken to explain its reasons. I do not of course know the details of the case brought to your Lordships' attention by the noble Lord, Lord Adrian, but if he wishes me to look into it, most certainly I will.

Lord Adrian

My Lords, with the leave of the House, I am perfectly happy that it should be left as history. It was 10 years ago. It was not the DHSS; it was the NRDC. I produced it as an example of the kind of delay about which I was seriously worried.

Lord Skelmersdale

My Lords, I am grateful to the noble Lord. Even if it had been a contract of the NHS and the Secretary of State for Social Services 10 years ago, it would have been under the old contract and I suspect that this debate would not have taken place. Perhaps we may therefore temporarily ignore the noble Lord, Lord Adrian.

Our standard research contract necessarily constrains this general intention slightly. I have referred to publishing research and publishing promptly. One such constraint is that mentioned by my noble friend Lord Boyd-Carpenter. I quote from the contract: No information which may lead to the identification of persons shall be included in any publication without the prior agreement in writing of the Secretary of State and any other relevant persons or authorities". I cannot imagine anybody objecting to that. Equally I cannot imagine anyone objecting to prohibition of publication by the Secretary of State in the national interest. Indeed I believe that my noble friend's point had wide agreement.

A second necessary constraint is that the contract states that the rights of copyright belong to the Crown and are subject to the Copyright Act 1956. Again that is not unreasonable because the work is commissioned and paid for by the Crown. That point was made forcefully by the noble Lord, Lord Peston.

Let me remind the House that the amendments we passed earlier—Amendments Nos. 1 and 2 with their consequential—Amendments Nos. 5 and 7 which are yet to come—make it absolutely certain that Clause 7 does not take away the rights of any researcher or university to intellectual property, and therefore makes no difference to what the Secretary of State may or may not publish.

The problem though, if problem it is, is that the copyright is controlled by the Secretary of State and from what your Lordships have been telling me today and at Report stage the general belief in academic circles is that the revised standard contract leans towards the ability of the Secretary of State to prohibit publication. It has not worked that way since February 1987 when the contract was revised. Not one piece of research has been refused publication. When I asked earlier today whether even under the old contract any research had been refused publication I was advised that no such piece of research had been refused publication.

Your Lordships have recognised that in the past the department has had an excellent record on the publication of academic research, but equally fear that one day this may be different. I believe that the right way to deal with concerns which are already matters of contract are, as my noble friend Lord Butterworth said, in the contract and certainly not in Clause 7. Indeed the amendment—and I am advised any conceivable amendment to Clause 7—could only have the most peripheral effect on the operation of the contract.

First, as my noble friend Lord Trafford said, the powers in Clause 7 are concerned only with raising money for the health service. I do not know how often academic research will be commissioned specifically in order to raise money for the NHS—but I imagine it will be very rare indeed. I do not know incidentally how often money is made from the publication of academic research. From my limited experience, you tend to think yourself lucky if you break even!

Secondly, although the clause refers to the Secretary of State, the powers are essentially needed in relation to health authorities and will be delegated to them. It is health authorities which will be engaged in raising money from intellectual property, and it is much more likely to be from the sale, for example, of computer applications than from the publication of academic research in, say, a book. It will be still rarer for the Secretary of State to raise money for the health service through the publication of academic research. Indeed I cannot readily imagine any circumstances in which he would do so. This clause has virtually no relevance to academic research, still less to academic research commissioned under the standard DHSS research contract. The amendment has little effect and is, I am afraid, inappropriate to the Bill.

Nevertheless, concerns remain, which I understand. I believe I have recognised that by making the government commitment at Report stage which has been referred to this afternoon. I am happy to repeat that commitment today. In 18 months' time my right honourable friend will enter into consultations to see whether it is necessary to revise the contract. The current revision will then have been operating for nearly four years, which is plenty of time to ascertain whether it is or is not restricting publication.

This commitment covers all academic research by the department, every single tiny little bit of it, not just that leading to income generation for the health service, which is all that the amendment would cover. Much has been made at Report and today, and indeed outside your Lordships' House, of the more liberal Home Office research contract. I believe it was the noble Lord, Lord Ennals, who mentioned it this afternoon. But some of the quotations that we have heard have been from an out-of-date version. For the same reasons that we revised our contract, similar changes were made to the Home Office contract 27 months ago. Its new revised contract, which came into use some six months earlier than the revised DHSS contract, states that: the results of work undertaken in accordance with this Agreement shall be the property of the Secretary of State". In other words the contract is only about the ownership of copyright; and it gives examples of circumstances in which work can be refused publication. It goes on to say that Crown copyright applies, and permission shall he required … for the reproduction … of such a report. Thus there is no essential difference between the Home Office contract as revised and the DHSS contract as revised. Both new contracts achieve substantially the same result. I have to advise noble Lords, and the noble Earl, Lord Russell, particularly, that the amendment is not the way to meet their concerns and it will not give them what they want. If they persist, which I hope they will not, I shall advise my noble friends to reject the amendment.

4.15 p.m.

Earl Russell

My Lords, the debate, apart from a slight tendency to length, has been a model of its kind. There has been a real attempt at meeting of minds, to which the Minister has made a welcome contribution. I should like to answer a few points that have been made in some of the speeches. I tried to say that I was not arguing that the right to publish was absolute in all circumstances. I mentioned a few possible grounds for exception. I was not discussing contracts made by the Ministry of Defence. The issue of security raises separate problems, although I agree with the point made by my noble friend Lord Grimond that in matters both of security and even more in the public interest, the Government's judgment is not necessarily always the last word. The noble Lord, Lord Campbell of Alloway, asked why 28 days. It is that because that was the department's normal practice until February 1987: 28 days to run from submission of the work to the Minister.

The purpose of the amendment was simply to restore the status quo ante contract. It is one which seemed in the past to be working well and I do not see why it should not work again. The department has in the past been prepared to work with it.

I take the point that the noble Lord, Lord Trafford, made about my failure to mention the Minister's offer of an 18-month review. That was in my notes, but I left it out because I feared that I would trespass on the patience of the House. I welcome that offer very warmly. However, it goes only a little way towards meeting my concerns. It goes some way towards meeting the danger of specific and visible abuses of position by the Government. It is therefore strong evidence of the Government's good faith and I welcome it as such. But it does not meet the point that if freedom to publish is not secure, the quality of the research offered will thereby be very much diminished. Though I welcome the offer, I am afraid I cannot find it sufficient to move me to withdraw the amendment.

I take also the point made by the noble Lords, Lord Trafford and Lord Butterworth, as well as by the Minister, that the clause is concerned with income generation. As the noble Lord, Lord Butterworth, put it, it is concerned with raising money. But should Parliament say to the Ministers of the Crown, "You may raise money if you also do X"? I do not think it would be the first parliament to do so. I commend the amendment.

4.19 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 99; Not-Contents, 144.

DIVISION NO.1
CONTENTS
Adrian, L.	Llewelyn-Davies of Hastoe, B.
Airedale, L.	Lloyd of Hampstead, L.
Amherst, E.	Lockwood, B.
Ardwick, L.	Longford, E.
Attlee, E.	Lovell-Davis, L.
Banks, L.	McGregor of Durris, L.
Birk, B.	Mcintosh of Haringey, L.
Blease, L.	Mackie of Benshie, L.
Bonham-Carter, L.	McNair, L.
Boston of Faversham, L.	Mason of Barnsley, L.
Brooks of Tremorfa, L.	Mayhew, L.
Bruce of Donington, L.	Molloy, L.
Campbell of Eskan, L.	Mulley, L.
Carmichael of Kelvingrove, L.	Murray of Epping Forest, L.
Carter, L.	Nicol, B.
Cledwyn of Penrhos, L.	Northfield, L.
Cocks of Hartcliffe, L.	Oram, L.
David, B.	Paget of Northampton, L.
Davies of Penrhys, L.	Peston, L.
Dean of Beswick, L.	Phillips, B.
Diamond, L.	Pitt of Hampstead, L.
Donaldson of Kingsbridge, L.	Ponsonby of Shulbrede, L.
Dormand of Easington, L.	Prys-Davies, L.
Elwyn-Jones, L.	Rea, L.
Ennals, L.	Ritchie of Dundee, L.
Ewart-Biggs, B.	Robson of Kiddington, B.
Ezra, L.	Ross of Newport, L.
Flowers, L.	Russell, E. [Teller.]
Foot, L.	Sainsbury, L.
Gallacher, L.	Seear, B.
Galpern, L.	Sefton of Garston, L.
Graham of Edmonton. L. [Teller.]	Stallard, L.
	Stedman, B.
Grey, E.	Stewart of Fulham, L.
Grimond, L.	Stoddart of Swindon, L.
Hanworth, V.	Strabolgi, L.
Harris of Greenwich, L.	Swann, L.
Hatch of Lusby, L.	Taylor of Blackburn, L.
Hughes, L.	Taylor of Gryfe, L.
Hunt, L.	Turner of Camden, B.
Hutchinson of Lullington, L.	Underhill, L.
Jay, L.	Walston, L.
Jeger, B.	Whaddon, L.
Jenkins of Hillhead, L.	Williams of Elvel, L.
John-Mackie, L.	Willis, L.
Kagan, L.	Wilson of Rievaulx, L.
Kilbracken, L.	Winchilsea and Nottingham, E.
Kilmarnock, L.
Kirkhill, L.	Winstanley, L.
Leatherland, L.	Winterbottom, L.
Listowel, E.

NOT-CONTENTS
Alexander of Tunis, E.	Balfour, E.
Allerton, L.	Belhaven and Stenton, L.
Ampthill, L.	Beloff, L.
Annan, L.	Belstead, L.
Arran, E.	Bessborough, E.
Ashbourne, L.	Birdwood, L.
Auckland, L.	Blatch, B.

Borthwick, L.	Macleod of Borve, B.
Boyd-Carpenter, L.	Mar, C.
Brookes, L.	Margadale, L.
Broxbourne, L.	Marley, L.
Butterworth, L.	Maude of Stratford-upon-Avon, L.
Caithness, E.
Cameron of Lochbroom, L.	Merrivale, L.
Campbell of Alloway, L.	Mersey, V.
Campbell of Croy, L.	Middleton, L.
Carlisle of Bucklow, L.	Milverton, L.
Carnegy of Lour, B.	Monk Bretton, L.
Carnock, L.	Montgomery of Alamein, V.
Cathcart, E.	Morris, L.
Coleraine, L.	Mottistone, L.
Colnbrook, L.	Mowbray and Stourton, L.
Constantine of Stanmore, L.	Munster, E.
Cottesloe, L.	Murton of Lindisfarne, L.
Craigavon, V.	Nelson, E.
Cranbrook, E.	Norrie, L.
Cullcn of Ashbourne, L.	Nugent of Guildford, L.
Dacre of Glanton, L.	O'Brien of Lothbury, L.
Davidson, V. [Teller.]	Onslow, E.
De Freyne, L.	Orkney, E.
Denham, L. [Teller.]	Orr-Ewing, L.
Dormer, L.	Oxfuird, V.
Dundee, E.	Pender, L.
Ellenborough, L.	Pennock, L.
Elliot of Harwood, B.	Peyton of Yeovil, L.
Elliott of Morpeth. L.	Piatt of Writtle, B.
Faithfull, B.	Porritt, L.
Forbes, L.	Rankeillour, L.
Fortescue, E.	Renwick, L.
Fraser of Kilmorack, L.	Rochdale, V.
Gardner of Parkes, B.	Rodney, L.
Gibson-Watt, L.	Romney, E.
Gisborough, L.	Rugby, L.
Gridley, L.	St. Aldwyn, E.
Grimston of Westbury, L.	St. Davids, V.
Grimthorpe, L.	Saltoun of Abernethy, Ly.
Harmar-Nicholls, L.	Sanderson of Bowden, L.
Harvington, L.	Seebohm, L.
Henderson of Brompton, L.	Selkirk, E.
Henley, L.	Sempill, Ly.
Hesketh, L.	Shannon, E.
Hives, L.	Sharples, B.
Holderness, L.	Skelmersdale, L.
Home of the Hirsel, L.	Somers, L.
Hooper, B.	Stodart of Leaston, L.
Hunter of Newington. L.	Strathcarron, L.
Hylton-Foster, B.	Strathclyde, L.
Uchester, E.	Sudeley, L.
Ironside, L.	Swansea, L.
Johnston of Rockport, L.	Swinfen, L.
Kaberry of Adel, L.	Terrington, L.
Kimberley, E.	Thomas of Gwydir, L.
Kinloss, Ly.	Thomas of Swynnerton, L.
Kinnaird, L.	Trafford, L.
Lauderdale, E.	Tranmire, L.
Long, V.	Trefgarne, L.
Lothian, M.	Trumpington, B.
Lucas of Chilworth, L.	Ullswater, V.
Lurgan, L.	Vaux of Harrowden, L.
Lyell, L.	Waldegrave, E.
McAlpine of Moffat, L.	Westbury, L.
McFadzean, L.	Young, B.
Mackay of Clashfern, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.27 p.m.

Lord Skelmersdale moved Amendment No. 5: Page 6, line 11, leave out ("conferred by subsection (1)") and insert ("specified in subsection (1A)").

The noble Lord said: My Lords, I spoke to this amendment when speaking to Amendment No. 1. I beg to move.

On Question, amendment agreed to.

Lord Trafford moved Amendment No. 6:

Page 6, line 15, at end insert— ("(4A) The Secretary of State shall exercise the powers specified in subsection (1)(f) above only after consulting (to the extent that it appears to him to be practical) any person who appears to him to have an interest through his own previous research in the ideas or intellectual property in question as to whether he should exercise them and, if so, as to any financial arrangements.").

The noble Lord said: My Lords, the amendment refers not to those who work under contract or under other authorities, universities and so forth, but to those who work within the National Health Service or within a context related to the facilities provided, such as hospital services or universities having a joint function.

Our concern arises because of questions about the rights of intellectual property and the exploitation of ideas. These have already been discussed widely in the House and we do not need to pursue them much further. There is general agreement on the background feeling for freedom of research and the rights to publication.

I am concerned about the possibility that the extension of the Secretary of State's power might lead to the exploitation of ideas or intellectual property without the knowledge of, or consultation with, those who generated the original ideas, research and so forth. The right of intellectual property rests with the employer. Those people I have described—researchers and, in terms of hospitals, clinicians, technicians and so forth—would not necessarily have the right to be consulted about what happens to their work.

The amendment proposes that a minor qualification be added to the extension of the powers of the Secretary of State—if one extends the powers of the Secretary of State there is no reason why one should not add a qualification here and there— whereby he shall exercise the powers specified in subsection (1)(f), only after consulting … any person who appears to him to have an interest", with the qualification to the extent that it appears to him to be practical". It continues, through his own previous research in the ideas or intellectual property in question as to whether he should exercise them and, if so, as to any financial arrangements".

Part of that is covered already under the Patents Act 1977. We have referred today to the rights of the individual employee relative to those of the employer under that Act. We have referred also to the rights of compensation and the appointment of arbitrators; and in the event of disagreement how an arbitrator is appointed under that Act. We are aware in general terms that the intellectual property is owned by the employer; this is, the Secretary of State in the case to which I refer.

I re-emphasise the point by reference to Section 39 of the Patents Act. It states that, an invention made by an employee shall … be taken to belong to his employer for the purposes of this Act and all other purposes if—(a) it was made in the course of the normal duties of the employee or in the course of duties falling outside his normal duties, but specifically assigned to him". In other words, it is nearly everything that could affect any employee in the health service or in a related area. This applies to the delegation of authority that the Secretary of State is allowed to make, for example, to regional or district health authorities or any other body.

I am aware that the argument that I used earlier about the question of income generation still applies. This is related mainly to the question of income generation. It is true also that the Patents Act refers principally to equipment and the development of inventions and discoveries. These matters certainly arise in many computer sections of any health service, in any hospital, in any university research area or in any area in which the Secretary of State may have his rather long fingers. This could quite easily happen.

The question of the development and exploitation of intellectual property is more difficult. As the Minister rightly said earlier, in the context of the NHS it is difficult to see how one could promote an idea as a result of academic research, especially for exploitation from the point of view of the generation of income. Nonetheless, this can happen in regard to a number of features here. The amendment goes a long way towards satisfying the requirement that those who work in and are related to this field will have a say, after consultation, in what happens to their work.

I pay tribute to the Minister, who has spent much time on this with considerable courtesy. He has discussed at length the wording and the possibility of what the Government might be prepared to accept in this regard. I thank him for having kept his promise to the full in discussing the matter with us. I beg to move.

Lord Ennals

My Lords, I have no sense that there has been any waste of time on this nexus of issues either in the debate on Report or in the debate today because we have achieved a number of things. The first is the amendment moved earlier by the Minister. Secondly, we have achieved this amendment. We understand that the Minister will accept it—if he does not, I shall be very angry! We have achieved a good deal also in terms of the assurances that he gave in reply to the debate on Amendment No. 4. That we have gained a great deal is a matter of some satisfaction to those who have been concerned about certain aspects of the Bill. It is a significant victory although no votes have been won. It is a mistake to assume that a victory is won only when it is won in the Division Lobbies.

I express sincere thanks to the Minister, as did the noble Lord, Lord Trafford, for the way in which he has handled the matter. When I withdrew my amendment on Report he agreed to consult not only me but other noble Lords. That has been very productive. A series of discussions took place which ended only yesterday. This is an example of the Chamber at its best in working across party boundaries when considering issues that deeply concern us.

I thank the noble Lord, Lord Trafford, who has played an important role in bringing us to this amendment. The amendment is not entirely satisfactory. It is a very inelegant sentence, as indeed the phrasing of Amendment No. I was inelegant. However, one cannot judge by eloquence; one should judge rather by commitment, and we have had a series of commitments from the Minister that are significant to the whole field of research.

Lord Campbell of Alloway

My Lords, I support the amendment, which I welcome. I wish to draw attention to the words, as to any financial arrangements". In a powerful speech the noble Earl, Lord Halsbury, explained the necessity for implementing financial arrangements. He spoke of his experience of how this type of financial arrangement was implemented in industry and in aspects of government service. In deference to the noble Earl. I wish to ask how the Government propose to implement the concept enshrined in the amendment, which I understand that they support. The question is put with no kind of animus; it genuinely seeks information on how the Government propose to implement the concept of the amendment which they support. To go back to the speech of the noble Earl, although my noble friend Lord Trafford identified the type of person affected, the type of idea in intellectual property involved and the consultation envisaged, nobody seems ever to have come to grips with how it is to work in practice and how fair compensation is to be devised. I have made two suggestions which it would be wrong to repeat as they are on the record. I should like to know how the Government propose to implement the concept of the amendment.

My noble friend Lord Trafford is right in stating that there is adequate machinery for patents under the Patents Act. We are not here concerned with patents. One goes back to the speech of the noble Earl to see that one is concerned with the realm of ideas but not patents, and compensation for ideas. How is this to be implemented? With that qualification, I wholly welcome the amendment.

Lord Beloff

My Lords, as one of those who have signed this amendment perhaps I may say that I do not share the approach of my noble friend Lord Campbell of Alloway because it does not seem to me that the financial aspect is at the heart of the matter. I think the intention of those who moved the original amendment last week and who took part in the discussions with the Minister which have been referred to was very much the same point that was made in this House during the passage of the Education Reform Bill as it referred to universities; that any government intervention which may be necessary in the affairs of bodies such as universities or research institutions should normally be made only after consultation with those affected. Ultimately that was written into the Education Reform Bill and in the form of this amendment will now apply to the Department of Health in its relations with these bodies.

I join in the thanks to the Minister for his cooperation, but I take up the point made by the noble Lord, Lord Ennals, about lack of elegance. Elegance is lacking. Elegance, as any writer knows, is the fruit of long travail. What worries me in looking back on this episode, which on the whole has had a very satisfactory outcome, is the lack of time. The gap between Report stage, when these issues were aired, and this afternoon's proceedings—a gap which included a weekend—was an extremely short one. The Minister is to be congratulated on having managed to come forward with words which, if not elegant, at least on the whole express the wishes of the House.

I hope that when the Leader of the House and others contemplate our programme for next year we will not again be confronted at the very end of the summer, or during an overflow period, with having to race in order to achieve results—not through the Division Lobbies as the noble Lord, Lord Ennals, said, but results which can be achieved by discussion. Such discussion fulfils the role of this House as a revising Chamber, but that role cannot well be fulfilled under a pressure of time which many of us feel on this occasion was too great.

Earl Russell

My Lords, in one sense I agree with the noble Lord, Lord Ennals, in welcoming this amendment and I thank the Minister and the noble Lord, Lord Trafford, for the effort that has gone into it.

Lord Swann

My Lords, I shall also be brief. Everyone seems to be nice to the Minister and I too should like to be nice to him. He has done what I have to say Ministers sometimes do not do. Earlier I quoted President Truman. I remind your Lordships of what John Henry Newman said about this, which we were edified to hear from the noble Lord, Lord St. John of Fawsley, during our proceedings on the Education Reform Bill. He said that it was a matter for praise and encouragement rather than reproach when a Government listened and altered their view. I find it pleasing that the Government have done so. I am sure that my fellow Cross-Benchers agree.

Lord Adrian

My Lords, at the risk of once more being ignored, I add my thanks to the Minister for his great willingness to bring forward these amendments and to agree to this one.

4.45 p.m.

Lord Skelmersdale

My Lords, it comes as no surprise to your Lordships that I welcome this amendment. It is a refinement of one moved at Report by my noble friend which was designed to ensure that researchers and academic institutions that have a legitimate interest are properly rewarded when the products of their labour are developed for monetary gain for the greater good of the health service.

The debate on my noble friend's amendment took place in the aftermath of the main debate on intellectual property at Report and was discussed rather more concisely than it might otherwise have been. Of course I sympathise with his concern to get a fair deal for researchers; but noble Lords will recall that I was somewhat sceptical about adding the words "by agreement" to Clause 7(1)(f). My two main concerns were agreement by whom, and what would happen in the case of non-agreement. Since then I have been worried about the practicalities of obtaining agreement—what happens when you cannot find the research worker; and the possibility that a rogue researcher—begging the pardon of the noble Lords on the academic Benches for that expression—might hold the authority to ransom by refusing his consent unless he got, say, 95 per cent. of the proceeds of the profits from the authority's intellectual property.

Clearly similar thoughts have been going through the mind of my noble friend and his supporters. The amendment moved by him today neatly side-steps these difficulties while still achieving his objective. If this amendment is agreed, the Secretary of State cannot exercise his powers under Clause 7(1)(f) to make money available to the health service unless he first consults with any person who appears to him to have an interest. I am advised that this would include the academic institutions where the researcher was working. That consultation must comprise two facets: first, as to whether he and the Secretary of State should exploit the products of the research, and, secondly, as to the financial arrangements between the parties—if that had not already been agreed in the contract.

Of course the amendment refers to the "Secretary of State", but it will virtually always be the health authority that will be raising money for the health service in this way. The Secretary of State will delegate these powers to health authorities and it is they who will consult the parties concerned and negotiate the financial arrangements.

I should explain to my noble friend Lord Campbell of Alloway how I envisage procedures under this amendment working. When the question of exploitation arises, an official delegated by the Secretary of State—possibly an officer of the health authority concerned—will write to the research institute concerned and, through it, to the individual researchers. He will need to explain that he would like to exploit the property but has to consult about whether to do so and, if so, the basis of any compensation. He will refer those concerns to any existing contractual financial arrangements.

Of course if there is no contract he will be in a different position to negotiate direct with the owner of the rights. He would, I imagine, ask for any comments to reach him within a reasonable time—say, six weeks—and conclude that if he does not receive any response within that period those concerned are content with his proposals. If he receives comments he will need to consider them and reach a decision in the light of them about financial arrangements, whether to proceed or whatever. I should add that there will be guidance issued to health authorities by the Secretary of State on income generation. The commercial use of intellectual property will be covered.

I am sorry that my noble friend Lord Beloff agreed with the noble Lord who said that this was an inelegant amendment. Notwithstanding the Motion recently tabled by my noble friend the Leader of the House to dispense with the standing order on the interval between stages of Bills (which was agreed to without a Division by your Lordships) the Report stage was dealt with on Monday and now, slightly over a week later, we have the Third Reading. In the Companion to the Standing Orders the recommended interval between Report stage and Third Reading is of course only three days; so I have had extra time and as a result my shoe leather is even thinner than it would have been.

Another point that I should make is that we in this House have the luxury of tabling amendments on Third Reading, whereas I understand that in another place they do not have that procedure. Therefore, to make one final reference to Mr. Truman, I believe he had on his desk a little placard which stated: "The buck stops here." On this occasion the buck has stopped with me. I am delighted that it has. I find my noble friend's amendment an ingenious one which will ensure fair play for researchers while avoiding the pitfalls of earlier versions. The lawyers may regret the loss of earnings which might have arisen for them from the earlier versions, but I commend this amendment to the House.

Lord Trafford

My Lords, I thank the Minister for his comments and I also thank all noble Lords for supporting me today in moving this amendment.

On Question, amendment agreed to.

Lord Skelmersdale moved Amendment No. 7: Page 6, line 16, leave out ("conferred by subsection (1)") and insert ("specified in subsection (1 A)").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 1 and I beg to move.

On Question. amendment agreed to.

Lord Hesketh moved Amendment No. 8: After Clause 16 insert the following new clause:

("Arrangements for provision of general medical services,general dental services, general ophthalmic services and pharmaceutical services.

.—(1) Withot 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 sections include power—

1. (a) to make provision as to the investigation (following a complaint or otherwise) of any matter relating to services under the section in question;
2. (b) to specify—
1. (i) who is to conduct an investigation;
2. (ii) whether an inquiry may be held in connection with an investigation:
3. (iii) rights of appeal following a decision or recommendation on an investigation;
4. (iv) who is to conduct an appeal; and
5. (v) the procedure to be followed on any investigation, inquiry or appeal;
3. (c) to direct that in prescribed circumstances one or more of the sanctions specified in subsection (2) below shall be available:
4. (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 1504 provision contained in Part II of the National Health Service (Service Committees and Tribunal) Regulations 1974 or, as the case may be, Part II of the National Health Service (Service Committees and Tribunal) (Scotland) Regulations 1974.

(2) The sanctions mentioned in subsection (1)(c) above are—

1. (a) in the case of any person—
1. (i) recovery of an amount by deduction from his remuneration or otherwise; and
2. (ii) a warning that he should comply more closely with his obligations under arrangements made in accordance with the relevant regulations; and
2. (b) in the case of a dental practitioner, a restriction on his carrying out treatment or a description of treatment without first obtaining from a body prescribed by the regulations approval of an estimate in relation to it.

(3) Regulations made—

1. (a) before the passing of this Act; or
2. (b) after it hut before the coming into force of this section. shall he 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 should like to speak to the Government's new clause, and a consequential amendment to Clause 25. Your Lordships recollect that at Report stage I introduced a new clause relating to the complaints procedures under which family practitioner committees and health boards investigate complaints relating to the family practitioner services. These procedures have been operating in a roughly similar form since before the inception of the National Health Service. Our new clause as originally drafted confirmed these arrangements and was intended to bring together references scattered over various Acts into one specific piece of primary legislation. It was made retrospective to preclude any suggestion which might arise that the present primary legislative cover for the procedure was deficient in any way.

At Report stage, however, the noble Lord, Lord Ennals, put down an amendment to our clause which sought to specify that the only sanctions which should he applied to practitioners were those already contained in current regulations. We agreed to look at this point in view of the concerns of the noble Lord, Lord Ennals, and the BMA. I am happy to be able to return to the House today with a revision of our clause, which does take account of the point raised at Report stage. We were unable to use the actual wording of the amendment tabled by the noble Lord, Lord Ennals, but the clause now specifies the actual sanctions currently available which may be used in prescribed circumstances.

I trust that the noble Lord, Lord Ennals, will find our revised new clause satisfactory. I repeat that this new clause aims simply to clarify the present procedures, and does not represent a change in policy or the underlying principles of service committee and tribunal regulations. I beg to move.

Lord Ennals

My Lords, I am grateful to the noble Lord. Lord Hesketh, for what he said and for the amendment. I consider that it completely meets the points that I raised and also the concerns of the British Medical Association. Therefore. I am very happy to see this amendment go through.

On Question, amendment agreed to.

Clause 25 [Commencement and transitional]:

Lord Hesketh moved Amendment No. 9:

Page 22, line 33. at end insert— ("section [Arrangements for provision of general medical services, general dental services, general ophthalmic services and pharmaceutical services] (3):").

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 8 and I beg to move.

On Question, amendment agreed to.

Clause 26 [Northern Ireland]:

Lord Skelmersdale moved Amendment No. 10: Page 23, line 3l, leave out ("those provisions") and insert ("the provisions mentioned in subsection (3)").

The noble Lord said: My Lords, this is a technical amendment designed to ensure that the commencement provisions in Clause 25 extend to Northern Ireland where that is appropriate. I beg to move.

On Question, amendment agreed to.

Lord Skelmersdale

My Lords, I beg to move, That the Bill do now pass. This Bill was introduced in another place getting on for a year ago on the same day as my right honourable friend the then Minister for Health announced the publication of the Government's White Paper on primary health care. Promoting Better Health. This set out the Government's strategy for primary health care and our key objectives. These are to make the services more responsive to the needs of the consumer, to raise standards of care and to improve value for money. But most of all— and I have emphasised this again and again in this House—the intention is to move away from an illness service to one that promotes health and prevents illness.

Our primary health care strategy has been very much welcomed in this House and elsewhere, as have the additional resources which we intend to devote to primary health care: more than £500 million a year extra by 1990–91. The Bill paves the way for the implementation of some parts of this strategy, although others can be accomplished without new legislation. The Bill also goes wider than primary care, for example, in the provisions which your Lordships approved just now, giving health authorities powers to generate additional income for patient care.

In this House, just over half the amendments tabled have been incorporated in the Bill. In the closing moments of the Committee stage of the Bill, the noble Lord, Lord Ennals, said that we had not always agreed in our discussion on the Bill but that, where we had differed, wisdom had prevailed. I did not say so at the time, but I did not entirely agree with him on that point. Indeed, what he said at Report as regards the decision of the House on the deregulation of reading glasses makes me believe that he himself has somewhat changed his message. However, it is true that in some ways, if not in all, this is a better Bill as a result of your Lordships' deliberations. I am sorry I have not been able to commend all your Lordships' actions, but that is a fact of political life and we all know it.

I should like to end my remarks by thanking all those who have contributed for the clear, persuasive and, above all, courteous way in which they have pressed their case. This is an important Bill. It paves the way for major improvements to primary health care. It gives health authorities greater freedom to generate income to improve patient care. It ensures that HIV testing is carried out under the supervision of a doctor and it makes other important changes in the social services and medicines fields.

I shall miss the wise advice and occasional jousting with your Lordships upon health matters, in which I have been ably supported by my noble friend Lord Arran, and more recently by my noble friend Lord Hesketh, into whose hands I pass the primary responsibility for speaking for the Department of Health in this House. I beg to move.

Moved, That the Bill do now pass.—(Lord Skelniersdale.)

Lord Ennals

My Lords, when this Bill came before the House on Second Reading I did not welcome it. I do not believe that it has very much to do with the objectives set out by the noble Lord a few minutes ago. However, I believe that the Bill has been greatly improved at its various stages, or, to put it another way, there has been a good deal of damage limitation as a result of the wisdom of your Lordships' House.

We have reached a degree of compromise and consensus as regards the difficult issues of research, the export of ideas and intellectual property. We have greatly improved the role of the Secretary of State in the provision of a community dental service in Clause 10. We have given clear recognition of the role of the voluntary organisations in Clause 7. We have also taken a clear and principled decision against the Government's proposals to impose charges for dental examination and sight tests.

I have heard a rumour that the Government have the intention to reverse these wise decisions reached by your Lordships' House. I hope that this rumour will prove to be utterly unfounded. Those who really know what the effects would be on dental and optical health care have said so. They did so in your Lordships' House and those observations came from the noble Baroness, Lady Gardner of Parkes, and from the noble Lord, Lord Colwyn, drawing on their great experience. Other observations came from general practitioners such as my noble friends Lord Pitt and Lord Rea and the noble Lord, Lord Winstanley. They have all expressed their views and we have also expressed the views of the professions. The House has agreed by significant majorities not to take the advice that the Government were seeking to give and to deny them the power that they were seeking to take. In my view it would be a mean and petty decision to reverse the decision taken by your Lordships. I believe that it would be a major breach of an old all-party consensus of 40 years' standing to reinstate charging for sight tests and dental examinations.

It would be bound to produce conflict between our two honourable assemblies, all for a modest cash saving, by a Government who are constantly boasting of the strength of the economy and of their support for the National Health Service. This is a moment when they should reflect upon their intentions and stand by their principles and the advice given by those who can make a fair assessment of the consequences of a certain course of action. Ye shall know them by their actions, not by their words.

I have given much credit to the noble Lord, Lord Skelmersdale, for his handling of the Bill and of the various amendments and proposals that have been put forward. I hope that I do not have to withdraw any of my tributes to the noble Lord if by some mischance the Bill comes back for further consideration. On the assumption that it does not, most warmly do I thank the noble Lord, Lord Skelmersdale, for the way in which he has handled affairs in this House.

5 p.m.

Lord Winstanley

My Lords, I do not wish to weary the House by listing any of my remaining minor misgivings about the Bill or indeed by listing the many improvements we have made to it. I certainly agree very much with the noble Lord the Minister and with the noble Lord, Lord Ennals, that we have greatly improved it. At this stage I merely express the hope that the Bill stays improved and that we are not shortly required to try to improve it again.

Finally, I should like to say how much I have appreciated the unfailing courtesy with which the noble Lord, Lord Skelmersdale, has dealt with these matters. I admire the extent to which he has come to terms with a complex subject and has learnt his brief thoroughly. It is an unhappy situation in your Lordships' House that, when we have a Minister who finally learns the job and knows all about it, he is snatched from us. I say that without disrespect to those who are to replace him but I want the noble Lord to know how much we on these Benches appreciate the work he has done in speaking on health matters in this House.

Lord Cullen of Ashbourne

My Lords, I should like to support what the noble Lord, Lord Ennals, said about the Government not reversing the decisions taken in this House on dental and eye examination charges. I hope that we do not get the Bill back again with just a few cosmetic changes. That is not good enough. The House made its view perfectly clear and that should stand. I hope too that when the Bill goes to another place, honourable members there will remember that the BMA has made it perfectly clear that it does not like the suggestion of charges for dental and eye examinations. It is well aware that doctors are neither trained nor equipped to carry out the screening activities which up to now have been so well done by opticians.

Lord Mottistone

My Lords, I should like briefly to say how much I agree with both my noble friend the Minister and the noble Lord, Lord Ennals, that the Bill has been tackled courteously. I am sorry that my noble friend will not be taking health Bills through the House in future but I am sure that my noble friend Lord Hesketh will do it well.

Having heard that the Government were giving thought to reversing what I believe are important amendments passed by the House with a substantial majority, I wondered how I might improve my own standing with your Lordships in order to make it quite clear how important I consider the matter to be. I have asked the Association of Optometrists to cease paying a fee for my advice so that I need not declare an interest when I address the House on these subjects. I think it important to take as strong as step as that in order to make this clear.

We have an unfortunate group of people, of whom sadly the noble Lord, Lord Winstanley, is one, who seem to think that optometrists are a money-grubbing set of retailers. They have sought to discredit optometrists at different times and at various places. I learnt in the early 1970s when I was director of the Distributive Industry Training Board that we have here a respected professional body whose members have university degrees and that it was created as part of the National Health Service structure by an Act of Parliament. Many, if not most, general practitioners rely on it to produce a back-up service to a much greater extent than the noble Lord, Lord Winstanley, was prepared to admit at Report stage. I find it necessary to say that yet again in order that your Lordships may appreciate the importance of optometrists in backing up the health service and so providing a satisfactory life for people who would otherwise go blind.

It is also a fact—although people sought to deny this—that its range of prices for spectacles, of which it has sold one and a half million since the NHS range became available, compares favourably with the kind of spectacles that people will be able to buy over the counter. There is not a great difference. People like my noble friend Lord Orr-Ewing, who is not present, say that they cannot find these cheap spectacles. Perhaps they cannot find them because they do not want to.

I say firmly that we in this House have introduced three changes dependent on what one might call across-the-board Back-Bench support. The most important amendment restores free eyesight tests. It had the largest majority—a margin of 26—with just over 200 noble Lords voting. Roughly half the votes were from the Labour Party. Of the others, roughly one-third each came from what we used to call the Alliance. from the Cross-Benches and from noble Lords on this side. Of the votes against the amendment, only one was from a Cross-Bencher. That is an important fact to which I hope those in another place will pay due regard.

The other important amendment, on free dental inspections, had a majority of 21—not as great. The majority for the amendment of the noble Lord, Lord Winstanley, which the Government have accepted, was only four. It is very important to understand that these are complementary. The fact that your Lordships have accepted the amendment of the noble Lord, Lord Winstanley, which allows people to buy reading glasses that will be quite useless to those who have a problem when driving motor cars, watching television or operating machinery, could be positively dangerous. It is even more important therefore that the amendment allowing a free eye test should be retained.

On the balance of the voting for the amendment on free eye tests I suggest that it would be an insult to your Lordships' collective judgment for the Bill to be sent back with that amendment rejected. If we find ourselves in that unfortunate position, nothwithstanding all the efforts that have been made to get a rational view understood, I hope that your Lordships will seek to reject it, however inconvenient to the Government that may turn out to be.

Lord Skelmersdale

My Lords, I have listened with interest to the views expressed from all around the Chamber. However, they are based on speculation and rumour; and on those I would never ever comment. In the meantime, I am grateful for the personal good wishes of your Lordships. I beg to move.

On Question, Bill passed, and returned to the Commons with amendments.