Lords Sitting of 29 June 1995

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Southwark): The CHAIRMAN OF COMMITTEES on the Woolsack.

St. Pancras Chambers: Future
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
Whether they are satisfied that the requirements of the law upon owners of historic buildings to keep their buildings in an adequate state of repair are promptly observed.
Baroness Trumpington: My Lords, where an owner fails to maintain a listed building in an adequate state of repair, local planning authorities have powers under the Planning (Listed Buildings and Conservation Areas) Act 1990 to require repairs to be carried out. We are satisfied that those arrangements work.
Lord Peyton of Yeovil: My Lords, I congratulate my noble friend on being satisfied. I am sure that she will not be surprised to know that I refer to St. Pancras. Is she aware that, if the building had been in private hands, the Secretary of State, with his reserve powers, would have been down on the owners like a ton of bricks long before now? Further, do the Government understand that to allow the building to go to a bidder for a railway franchise is a pipedream behind which the Department of Transport currently shelters its nakedness? Does my noble friend not agree that it should be put up for sale to a more general market? The Government never know what they might get for it. Incidentally, I should like to know what value they put on it.
Baroness Trumpington: My Lords, the supplementary question from my noble friend reminds me of the boy who wrote home to his mother with these words, "Dear Mum, no mun, your son". Unfortunately, his father intercepted the letter and replied: "Too bad, how sad, your Dad".
The St. Pancras Chambers will form part of the package of assets passed to the private sector promoter of the CTRL as part of the Government's contribution towards the cost of building the rail link. By developing St. Pancras station as the CTRL terminus, it is considered likely that a private sector interest in funding an acceptable new use for the Chambers will be found.
To return to the money side, since 1990 £10 million has already been spent on St. Pancras. English Heritage has spent £200,000, and it has just gained two prestigious awards. English Heritage is satisfied that the building is safe.
Lord Boyd-Carpenter: My Lords, on the general matter raised by the Question, is it not a fact that the Government make the task of those responsible for maintaining the buildings much more difficult by imposing a charge of VAT on every penny spent on bricks?
Baroness Trumpington: That is as may be, my Lords.
Lord Wright of Richmond: My Lords, given the amount of money already spent on the building, is it not sad that it can no longer be said of it, "C'est magnifique, mais ce n'est pas la gare"?
Baroness Trumpington: Mais, mon cher, c'est the gateway to Europe in the future.
Lord Monkswell: My Lords, the Minister will be aware that the Forth rail bridge is one of the most magnificent national structures in our country. She will also be aware that there is considerable public disquiet that it is not being adequately maintained and repaired. Will she take steps to ensure that the local authority responsible for chasing up the owners of the Forth rail bridge uses its powers in the matter?
Baroness Trumpington: My Lords, I shall pass on the noble Lord's remarks. However, the powers of local planning authorities plus English Heritage in London and the Secretary of State in respect of urgent works, repairs and compulsory purchase of listed buildings apply to all buildings, irrespective of grade.
Baroness Rawlings: My Lords, returning to the original Question, with the imminent arrival of the Green Paper on listed buildings, will the Government take account of it and give favourable treatment to private owners? Will they ensure that the owners are not treated like fly-by-night developers? Can the Minister assure us that such people, who have a long history of dedicated commitment to their historic houses, are given the consideration that they truly deserve?
Baroness Trumpington: My Lords, I believe that we all agree with my noble friend. Government funding for historic buildings is channelled through English Heritage. In 1994–95 English Heritage paid out £33 million in historic building repair grants. That is expected to rise to £35.7 million in 1995–96. I do not believe that that looks like "fly-by-night".
Lord Donoughue: My Lords, does the Minister agree that the whole area of north central London—St. Pancras, the New British Library and King's Cross and its hinterland—offers enormous potential for coherent cultural and environmental development? No other major city in Europe would allow development to proceed in the present piecemeal and ad hoc fashion. Is it not yet another example of the need for a single strategic authority to govern London?
Baroness Trumpington: Most certainly not, my Lords. I return to what I said; it is a matter for the local planning authorities. My right honourable friend the Secretary of State is well aware of that district of London. I shall bring the noble Lord's remarks to his attention.
Lord Ironside: My Lords, is my noble friend aware of the added historical significance of the St. Pancras site? It was part of the Sandhills Estate owned by Sir Andrew Judd, who was one of the worthies of England, founder of the free grammar school at Tonbridge, Lord Mayor of London and the last Mayor of the Staple of

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Calais in 1587 when—surprise, surprise—the French moved back in again. The property was sold by the school governors, the Skinners Company, to the Midland Railway Company in 1871. Does not Sir Andrew's uncanny foresight in earmarking while at Calais the site for the Channel Tunnel London terminal add to the importance of the building which should be fully preserved now?
Baroness Trumpington: My Lords, all I can say is that St. Pancras has a much better pedigree than I have!
Lord Cledwyn of Penrhos: A yw'r Gweinidog yn sylweddoli fod pobl Cymru yn gwerthfawrogi eu hadeiladau hanesyddol? Will the Minister tell the Prime Minister that we shall not be satisfied until we get a Secretary of State who understands that?
Baroness Trumpington: My Lords, I once tried to say Happy Christmas and a Happy New Year in Welsh to your Lordships. Nobody understood a word that I said.
Lord Peyton of Yeovil: My Lords, I ask my noble friend not to be too bemused by the pipedream of the Department of Transport. Of the current four bidders for franchises, I understand that two very wisely said that they would not touch the chambers. Will my noble friend at least approach her colleagues about the possibility of putting the building up for sale to a wider market and of perhaps finding a bidder who would fulfil the necessary conditions and keep it as it ought to be kept?
Baroness Trumpington: My Lords, my department believes that there is a commercial future for the building, particularly in view of the fact that, as I said, it is at the gateway to Europe. I cannot comment on the present bidders; that is commercially confidential information. However, as there are bidders, there must be interest.
Lord Howie of Troon: My Lords, will the Minister assure the House that the Government will not permit London Underground to desecrate Sir Marc Brunel's Thames tunnel between Wapping and Rotherhithe, as it seems determined to do, without a public inquiry? Any reply will do!
Baroness Trumpington: My Lords, I am unaware of that particular problem. I shall write to the noble Lord.

Domestic Workers from Overseas
3.11 p.m.
Lord Archer of Sandwell Lord Archer of Sandwell asked Her Majesty's Government:
Whether they are satisfied with the additional measures announced in December 1994 to ensure that employers of domestic workers accompanying them on visits to the United Kingdom are fully aware of their obligations.
The Minister of State, Home Office (Baroness Blatch): My Lords, yes. We believe that these are useful measures to help to remind the employers of domestic workers from overseas of their obligations.
Lord Archer of Sandwell: My Lords, since the avowed purpose of the measures is to ensure that the parties are aware of their obligations, will the noble Baroness reflect on the thesis of St. Paul that knowing what is right and doing what is right do not always coincide? Since the victims are left to pursue whatever legal remedies they may have on whatever advice is available to them, and since they are not allowed to take employment with anyone other than the employer against whom they are complaining, are the Government still not abdicating responsibility for the situation that they have allowed to arise?
Baroness Blatch: No, my Lords, the Government are not abdicating their responsibility. First, it is very important to understand the reasons why these people enter the country in the first place. They enter as specific workers of somebody making a specific visit to this country. Approval for entry is given on the basis that they come as employees of that employer. When they are here, they have full protection under the criminal law, and absolute protection under employment rights law. In addition, we have improved and tightened up the entry requirements. We make absolutely certain that the employee coming in is given, in his or her own language, access to help, information and advice, and contact points in this country. We make sure that they are given as much information about their rights as employees as it is possible for the Government to give. I believe that the Government have honoured their obligations to these young people.
Lord Gisborough: My Lords, does that also apply to all the ladies of the harem?
Baroness Blatch: My Lords, if the ladies of the harem are bona fide domestic workers of the visitor, if they have gone through the entry clearance requirements and conform to all the criteria, then yes, it would apply.
Lord Dean of Beswick: My Lords, in her reply the Minister referred to these people as having protection under British employment laws. The Minister must be aware that there have been reports of extremely low rates of pay, and of these people being outrageously exploited. Will the Government look into this matter and see if there is any way to prevent it?
Baroness Blatch: My Lords, the noble Lord raises an important point. The Government's responsibility is to make sure, by questioning and getting written assurances from the employer, how he will pay and whether he will look after the needs of the employees while they are here—in other words, providing them with proper accommodation and ensuring that they are fed. We do not, nor should we, enter into the contract between the employee and the employer. However, in interviewing the employee quite separately from the employer, which is part of the process, we try to ensure so far as is possible that the employee is freely entering into the contract with the employer. Therefore, once the contract is established, it must be a matter between the employee and the employer.
Lord Hylton: My Lords, will the Minister ask her right honourable friend the Home Secretary to consider why imported domestic workers sometimes kill their

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employers, even in London? Is it because they are driven to desperation by abuse and exploitation? Will the Home Secretary make it possible for such domestic workers to change their employer?
Baroness Blatch: My Lords, abuse is abuse, and the criminal law is there to protect people. We are doing what we can to make sure that the employees understand all the help, advice and information contact points to which they can go if they believe they are being abused. The prerequisite is to let them know at the point of entry what their rights will be when they arrive here, and when they arrive to avail them of all the protection that any citizen of this land should have. The Government are honouring their obligations. We cannot allow entry as a domestic employee of a specific employer to be a mechanism for coming into this country and taking jobs that are otherwise for the resident labour force.
Lord Avebury: My Lords, has not the Minister given the game away by saying that these rights are explained to the domestic worker at the point of entry? Do not the problems arise after the undertakings have been given by the employer, as she has described, and when nobody is there to check what is happening within the domestic environment? In any other form of employment, would not the employer be subject to periodic visits from inspectors to make sure that the undertakings had been honoured? Why do not the Government try to do the same in relation to domestic workers, so that months afterwards, when employees are having to endure a form of domestic slavery, they can at least talk to somebody outside the household in their own language?
Baroness Blatch: My Lords, as I explained, the Government have gone a very long way to make sure that young people who enter the country as domestic workers for a specific employer know their rights. They are given leaflets to help them. Other than that, they have the full protection of the criminal law and the full protection of employees' rights. The employers, too, have obligations. But it would create a bureaucracy that was disproportionately costly to have a policing system for every domestic servant in the land.
Lord McIntosh of Haringey: My Lords, the Minister gave a number of answers about the nature of the additional measures announced in December 1994. That is now more than six months ago. Will she tell the House whether there has been any decrease in the number of cases of abuse and mistreatment coming before the courts?
Baroness Blatch: My Lords, the noble Lord reminds me that it is very early days—only six months. I cannot give specific statistics, but if information is available I will certainly write to the noble Lord. The fact that we hear about such cases proves that the criminal law applies.
Baroness Seear: My Lords, the Minister said that we cannot have people coming in from outside taking jobs that local people want. Does the noble Baroness have any evidence that there are queues of people wanting domestic work in this country?
Baroness Blatch: No, my Lords, that was not the context of the question. They seek entry into the country as employees of a specific employer who is coming for a temporary stay. That is the reason that they are allowed to enter this country. We simply cannot have people who have entered changing their employer, and thus changing the terms upon which they entered. It would turn into a mechanism for entering the country and then becoming a general employee and taking work that properly belongs to the labour force here.
Baroness Robson of Kiddington: My Lords, will the Minister assure the House that the pamphlet to which she referred that is handed to these poor girls on arrival is printed in their own language, and not in English?
Baroness Blatch: Yes, my Lords, I can give that guarantee. More than that, it is explained to them and they are talked through it in their own language.

"Bull Bars"
3.18 p.m.
The Earl of Kinnoull The Earl of Kinnoull asked Her Majesty's Government:
How soon they will introduce a ban on "bull bars" on cars.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, we are currently carrying out a study of pedestrian accidents involving vehicles fitted with bull bars to assemble evidence on the injuries caused to pedestrians or other road users. That analysis, which should be complete later this year, is needed as a basis for deciding how to take matters forward.
The Earl of Kinnoull: My Lords, I thank my noble friend for that reply. Is he aware that bull bars originated in Australia to fend off kangaroos; and, despite the fact that not too many were found on the M.25, the consequence was that they were copied in the late 1980s as an ornamental design? Does he agree that they have proved to be a dangerous, serious menace to pedestrians in particular and especially to children? Is my noble friend further aware that the Government's own research laboratory in 1992 highlighted the dangers; police figures in 1994 disclosed disturbing evidence of serious injuries; the RAC and the AA have been campaigning for over two years to ban bull bars; and even a European transport commissioner not unknown to Members opposite is sympathetic? What further evidence is required before this menace is removed from our roads?
Viscount Goschen: My Lords, we take very seriously indeed the issue of bull bars—"roo" bars, as my noble friend called them, or cow catchers, however one wants to describe them. That is why we commissioned that additional research. The work that my noble friend described in his supplementary question was not based on examination of actual incidents but on predictions developed from testing. I feel that we must have the proper information in front of us before we can make an informed decision on how to act, if at all.
Lord Allen of Abbeydale: My Lords, can the noble Viscount say whether we would be able to ban the use of these bars, irrespective of what happens in the rest of Europe?
Viscount Goschen: My Lords, indeed we could ban bull bars in this country under the Construction and Use Regulations; but we should have to allow bars that complied with the European Type Approval Directive.
Lord Clinton-Davis: My Lords, can the Minister say why the Government originally asserted that they were constrained from taking prompt action by reason of European legislation, when the commissioner concerned, Commissioner Kinnock, has made it abundantly plain that the Government are free to act when the personal safety of people is involved? Why must we have all this study taking place at the present time, when it is plain that such appendages to vehicles constitute a grave danger to people and to other vehicles? Will he accept that prompt action is required, not all the study that the Government envisage?
Viscount Goschen: My Lords, I am sorry hear that the noble Lord is against informed research to determine whether a problem exists, exactly what it is and how many incidents and accidents can be attributable not just to vehicles fitted with bull bars but to the bull bars themselves making the accident worse. The noble Lord is right. There are options available, both European and domestic. We should like to see action from the Commission on the draft Pedestrian Safety Directive, which would make the fronts of all cars softer and more "pedestrian friendly"—if that is the right expression. This is a better solution which encompasses all the problems facing pedestrians from vehicles with hard edges.
Lord Astor of Hever: My Lords, is my noble friend aware that bars fitted after the purchase of a car can interfere with the operation of the car's airbag in that sensors will not detect the crash at the proper time?
Viscount Goschen: My Lords, I am grateful for that information. There is also concern that some bull bars have very hard and sharp edges. They could cut people and injure pedestrians, possibly children, more than vehicles not fitted with them. However, there is a great deal of speculation about the matter. Only when we have the results of the proper research will we know the extent of the problem and what action is appropriate.
Lord Clinton-Davis: My Lords, can the Minister confirm that some police authorities have given the department abundant evidence of the dangers that already exist, of accidents that have occurred, of injuries and even some deaths? If the Government want to carry out the research quickly, why does not the Minister ensure that the 21 police authorities which have failed to assist the department are required to do it with some promptitude? This is a matter of great urgency. It is not a question of having detailed research into a problem that already clearly exists and represents a major hazard.
Viscount Goschen: My Lords, the noble Lord contends that bull bars represent a major hazard. The simple fact is that the research is not yet there to support
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his contention. That is why we commissioned the research. When we have the results, we shall decide on the action to take.
Lord Monson: My Lords, is the Minister aware that a number of London delivery vans which are wholly urban, two-wheel drive vehicles, are now being fitted with bull bars for no valid reason? Incidentally, it has the effect of making their drivers drive even more recklessly than hitherto. Is it not time that we followed the example of the Royal Parks, which in the past few days most commendably have banned vehicles fitted with bull bars?
Viscount Goschen: My Lords, I understand that a number of delivery vehicles are fitted as the noble Lord said. I do not believe that that fact on its own is enough to ban those bars or to bring about a decision on what action to take. I believe that I have already fully rehearsed the Government's position. We want to take a fully informed decision.
Lord Whaddon: My Lords, does the Minister agree that it would make a lot more sense if the Government were to ban the bars first while the research is being carried out and then allow them if the research shows that they are safe?
Viscount Goschen: My Lords, I am not sure that that is always the best way to go about business, particularly perhaps in view of comments that are sometimes made about legislation which has not been thought out as fully as it might have been. Those are the accusations. We need to have the full facts and figures in front of us before we decide what to do.
The Earl of Kinnoull: My Lords, can my noble friend estimate how long the research will take?
Viscount Goschen: My Lords, as I said, we expect it to be complete before the year's end.

Private Members' Bills: Parliamentary Time
3.25 p.m.
Baroness Castle of Blackburn Baroness Castle of Blackburn asked Her Majesty's Government:
Whether they will provide parliamentary time to allow a Private Member's Bill to amend the Interpretation Act to proceed.
Lord Strathclyde: My Lords, time for consideration of Private Members' Bills in another place is allocated under the relevant standing order and sessional order. In your Lordships' House, Private Members' Bills are timetabled in the same way as other business.
Baroness Castle of Blackburn: Is it not a fact that the Private Member's Bill introduced in another place is designed to bring into operation the recommendation of the Committee of Ministers in the Council of Europe that all member states should review the terminology of their public documents, and in particular their laws and Acts of Parliament, to remove sexist terminology from them? Is it also a fact that that recommendation, which

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was presumably supported by the British Government representative in the Committee of Ministers, maintains that, as part of the work for human rights and sex equality, it is vital that the need for non-sexist terminology in all public documents and procedures should be pursued; and rejects the claim, often made in this House, that the masculine gender is a generic term which embraces women as well as men?
Can we begin a long overdue reform by this Government, which themselves ought to have introduced such a Bill, at least making time for that brave effort by the Member for Bristol East to reach the statute book?
Lord Strathclyde: My Lords, I am all in favour of the use of non-sexist language. However, when it comes to legislation, I am primarily interested in Bills being drafted in ordinary language, as simply as their subject matter permits. Most important of all, there should be clarity of language, so that there is certainty of how the law will be applied. In this country the interpretation of statutes is left to the Interpretation Act 1978. That is quite clear in its explanation, under Section 6, that words importing the masculine gender include the feminine, words importing the feminine gender include the masculine, words in the singular include the plural and words in the plural include the singular. What could be clearer than that?
Lord Bruce of Donington: My Lords, to deal specifically with the Question on the Order Paper, will the noble Lord be kind enough to confirm that so far as concerns this House any Member of this Chamber who complies with the necessary procedure in standing orders can introduce a Bill into this House, including the Bill of which my noble friend has given some particulars? Will he confirm that? Otherwise, I might have to give him advance notice that I intend to introduce a Bill at a later stage to repeal the European Communities Act 1972.
Lord Strathclyde: My Lords, in his customary way the noble Lord has been extremely helpful. He is absolutely right. It is the right of any Member of this House to bring forward a Private Member's Bill and it is up to the usual channels to decide on the allocation of time.
Lord Campbell of Alloway: My Lords, is my noble friend aware that there has never been the slightest problem in finding sufficient parliamentary time for any of the Private Members' Bills over the past 12 years?
Lord Strathclyde: My Lords, I hope that is a judgment on the way the usual channels have operated over the course of the past 12 years.
Lord McIntosh of Haringey: My Lords, is the noble Lord aware that a number of years ago I tabled amendments to government Bills to refer to the Secretary of State as "it", as has been done in a number of states in America, including Oregon? Those amendments were accepted by the Public Bill Office and debated on the Floor of the House. Unfortunately they were not accepted on Divisions, but would that not be a good example to set for the future?
Lord Strathclyde: My Lords, as I said in reply to the noble Baroness, Lady Castle, I am interested in legislation being clear and understandable. I am not sure that calling Secretaries of State "it" is helpful in that respect.
Lord Hailsham of Saint Marylebone: My Lords, is not "it" a neuter word? If the Secretary of State is referred to in that way, would it not be a breach of human rights to neuter him?
Lord Strathclyde: My Lords, as is usual in these debates, my noble and learned friend has been extremely helpful.
Baroness Castle of Blackburn: Can the Minister explain whether, in his reply, he is rejecting the 1990 recommendation of the Ministers of the Council of Europe, who are advocating the very changes to which I referred and which he has just been disparaging? Can he tell us whether or not the Government are in favour of that resolution?
Lord Strathclyde: My Lords, there is nothing under the law of this country that stops non-sexist language being used. Therefore we already fully comply with any requirements because it is not illegal to use such language.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that I am pleased that he confirmed that this House has the right to introduce Private Members' Bills? Does he recall that this House passed, without any opposition, my National Health Patients Accommodation Bill? It is designed to outlaw mixed sex wards in National Health Service hospitals. The Bill went to the other place. Can the Minister say why the Government are blocking that Bill in the House of Commons?
Lord Strathclyde: My Lords, I hope the House agrees that the question the noble Lord puts is slightly wide of the one on the Order Paper. However much we wish our will to encourage another place, on Private Members' Bills it is up to another place to decide how best to use its time. It may well be that the noble Lord's Bill has run out of time.

Business of the House: Summer Recess
3.32 p.m.
Lord Strathclyde: My Lords, it may be for the convenience of the House to know that, subject to the progress of business, the House will rise for the Summer Recess on Friday, 21st July and return on Monday, 16th October. It is expected that the House will sit at 11 a.m. on Friday, 21st July.

Child Support Bill
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage of the Child Support Bill be marshalled and considered in the following order:
>Clause 1,
Schedule 1,
Clauses 2 to 6,
Schedule 2,
Clauses 7 to 30,
Schedule 3.—(Lord Mackay of Ardbrecknish.)
On Question, Motion agreed to.

Geneva Conventions (Amendment) Bill [H.L.]
Report received.

Medical (Professional Performance) Bill
3.34 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, I beg to move that this Bill be now read a second time. Being a doctor is tough. Not only is the speed of medical advance frenetic, but those advances have propelled the Government into making dramatic changes in the organisation of the National Health Service. Old certainties, time-honoured practice, historic institutions and centuries of traditions all seem far from secure.
This Bill is not just a minor titivation. It is the acknowledgement by doctors that the great and lasting value that they offer is their integrity and their professionalism. In a time of change they acknowledge and have asked for more powers to uphold their profession. Most people will say, "We trust the doctor". If people trust their doctor, other things fall into place.
The Bill introduces new procedures to further build the confidence of the public and to enable the General Medical Council to deal with those doctors whose performance falls below the standard we have a right to expect. It is part of a range of measures to ensure that, where professional standards are not maintained, effective remedial action is taken whether the doctor practises in the NHS or privately. Where there are shortcomings we wish there to be well understood and effective channels through which people can complain. Patients, their families and friends must have complaints dealt with quickly, thoroughly and fairly. Where justified they should receive an apology, an explanation of what went wrong, an assurance that the same thing will not happen again and action to put things right. In most cases people do not seek financial compensation. Their genuine concern is that no one else should have to suffer what they have been through.
The underlying cause of a patient's dissatisfaction may not always be obvious. Is it the fault of the doctor or the fault of the hospital procedures? Is it poor communication within general practice? Are other members of the clinical team at fault? In the knowledge that complaints procedures are not always clear, in
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March we published Acting on Complaints, a paper setting out our plans to improve the way complaints are handled as recommended by the Wilson Committee.
We believe that, in order to ensure a speedy resolution, initially at least, it is best for the complaint to be dealt with by the people providing the service. The new complaints procedure will provide for a review by a lay panel. The panel will have a majority of members who are independent and will be advised by clinical assessors. As recommended by the Wilson Committee, there will be a clear distinction between complaints and disciplinary procedures. Where a complaint raises serious disciplinary issues, relevant information will be passed quickly to management or professional regulatory bodies so that they can consider what other steps may be necessary.
Your Lordships recently passed the NHS (Amendment) Bill. That Bill strengthened the powers of the NHS tribunal. A health authority will in future be able to ask the tribunal to suspend a family health service practitioner in order to protect patients before a full hearing takes place. The authority can only do so when it is seeking to disqualify a practitioner from providing healthcare. The scope of this power covers all practitioners in the family health services, not just doctors.
The new GMC procedures in today's Bill will complement existing disciplinary measures. For instance, at the moment NHS procedures do not cover doctors in private practice. Nor can they always prevent a doctor who resigns from one NHS post moving to another NHS post or to private practice. The proposed new powers will cover all doctors whether or not they work in the NHS. I am pleased to say that the General Medical Council has undertaken wide consultation on these proposals and there has been strong support from both within and outside the medical profession.
The General Medical Council has increasingly focused its attention on its role in protecting the public. The Bill will be a fitting tribute to Sir Robert Kilpatrick who has worked tirelessly and given strong, clear leadership during his distinguished six-and-a-half years as president. He retires at the end of August, leaving the GMC in tip-top condition, as any physician should. In its new publication, The Duties of a Doctor, the GMC has made clear that:
"Patients must be able to trust doctors with their lives and wellbeing. To justify that trust we as a profession have a duty to maintain a good standard of practice and care".
It also made clear that doctors have a duty to report cases. It says,
"You must protect patients when you believe that a colleague's conduct, performance or health is a threat to them. The safety of patients must come first at all times".
The Bill is part of the same picture—protecting the public.
Under its existing powers the GMC can address incidents of serious professional misconduct and serious impairment of fitness to practise arising from a doctor's own state of health. It cannot deal effectively with cases where a doctor's overall performance is seriously deficient unless it can pin down the complaint to specific incidents of grave misconduct.

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The GMC's professional conduct committee must focus on specific, closely defined allegations about particular incidents. The allegations must be supported by evidence which would be admissible in a criminal court. The evidence is tested to the standard of proof in adversarial proceedings—and that is as it should be. However, the GMC receives details of many other cases on which it cannot take any formal action under its current powers; yet the underlying performance of the doctor concerned is very poor or, in the terminology of the Bill, the standard of professional performance is seriously deficient. At present those doctors can remain on the register and the GMC has no power to require them to put right their shortcomings.
The professional performance procedures proposed in the Bill are designed to plug that gap. Complaints may come from patients, their relatives, doctors, or other professionals and organisations. The purpose of the new procedures is to inquire into the underlying causes of any problems that have been reported and get the doctor to put them right. The GMC will consider whether the matters complained of, particularly where there is a series of complaints, indicate a pattern of serious shortcomings in the standard of the doctor's professional performance. If the allegations suggest that that may be the case, the doctor will be asked to have his performance assessed by an independent assessment panel appointed by the GMC. This will include two doctors of the same specialty plus one lay person.
The key role of the assessment panel is to identify whether there are any significant weaknesses in the doctor's performance, to discuss those with him and to give advice on what the doctor might do to remedy the situation. The new procedures could therefore work in some cases without the need for a GMC committee to be involved. However, it is clearly important that the procedures should also work where the doctor does not consent or remedial training is not effective. There is provision for a doctor's registration to be suspended or for conditions to be attached to his registration if this is in the public interest and will help to protect patients. An appeal mechanism is included which will allow a doctor to put his case to a new assessment referral committee if he objects to having his performance assessed.
I commend to the House the short paper prepared by the GMC on its proposed performance procedures. This explains step by step how the system will work. A number of copies have been placed in the Library.
The Bill is short—only six clauses. Much of it makes amendments to the Medical Act 1983. It is not possible to follow through the procedures by reading the Bill by itself. I have therefore placed in the Library a revision of the relevant provisions of the 1983 Act as they would appear on consolidation of the Bill in that Act. I have sent this report to a number of your Lordships.
Wherever possible we want expensively trained doctors to be put back on the right track. But the overriding need is to protect patients. In some cases sanctions may need to be imposed. There will be some doctors who may decide that they should retire. Those cases are provided for in Clauses 1 and 2 of the Bill.
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Clause 1 deals with the powers of the new committee on professional performance. This committee has been described as the "sanctions committee". The committee will be empowered to impose conditions or to suspend a doctor's registration. It will do this where the doctor's professional performance is seriously deficient and the committee considers that sanctions should be applied to protect the public. Although a doctor may in the worst cases have his registration suspended indefinitely, his name will not be erased—he will not be "struck off". This is a fine but an important distinction, as the intention is remedial. The committee can also impose sanctions where a doctor has failed to co-operate with the assessment.
In cases where a doctor's failings may be considered to be beyond remedial action, the doctor may himself ask for voluntary removal from the register. The doctor may be falling behind with the latest medical techniques which have become the accepted norm and he may realise that it is time "to call it a day". He can then ask to have his name removed from the register. This is the subject of Clause 2 of the Bill.
We realise that less scrupulous doctors might use the provisions of voluntary removal to escape scrutiny of their performance or indeed to evade a conduct hearing. In order to minimise that risk, Clause 2 also provides for a reference back to the relevant committee should the doctor apply at a later date for his name to be reinstated on the register. I intend to bring forward an amendment at Committee stage that will ensure that the GMC has the discretion to turn down the application for removal of a doctor about to be brought before the professional conduct committee.
Clauses 4 to 6 have the usual technical effects. The schedule gives the GMC the power to make rules and regulations; first, to set up the assessment referral committee and the committee on professional performance. Rules will also provide for the constitution and proceedings of the two committees and also of the assessment panels. Assessment panels will be given powers to inspect medical records and, where obstructed, to apply to a magistrate for a warrant. An offence will be created where any person obstructs the work of the panel.
During the passage of the Bill in another place the Government agreed to the insertion of two amendments; first, to give a power to the GMC's health committee to impose indefinite suspension in cases where the doctor has already been suspended for two years. This power is similar to the power to be given to the committee on professional performance. The amendment is now in the Bill. The second promised amendment will extend the powers of interim suspension by the GMC's preliminary proceedings committee. At present the committee can only impose interim suspension for two months. We propose that this period should be six months and that further periods should be imposed if necessary. An amendment will, with the leave of the House, be brought forward at Committee stage.
The task facing the GMC to implement these procedures is not a small one. However, we are confident that the new procedures will fill the gap identified by the GMC and enable it to do its job more

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effectively. The GMC is well on the way to setting up and testing its assessment programmes which will underpin the new procedures but this may take up to 18 months to complete. Nevertheless, we believe that the introduction of the Bill to Parliament has given a clear signal to doctors whose performance is not up to standard that the remedy is in their own hands.
We have been encouraged by the fair wind given to the Bill in another place by the Opposition parties. We nevertheless expect the usual close and challenging scrutiny of the detail of the Bill here in Committee. I hope, and firmly believe, that the Bill should emerge as a valuable addition to the statute book and command widespread support both within and outside Parliament. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Baroness Cumberlege.)
3.46 p.m.
Baroness Jay of Paddington: My Lords, I should like, first, to thank the Minister for introducing the Bill. Although this is a straightforward measure, both the practical arrangements it proposes and the legislative changes which will enable them are complex. I am very grateful to the Minister for the clear explanation she has given this afternoon.
I am also grateful for the detailed written briefing the Government have provided, particularly the document that the Minister referred to which illustrates the way it it intended to amend the Medical Act 1983. The General Medical Council has been extremely helpful. Sir Robert Kilpatrick, the president, has been generous with his time and most courteous in answering detailed questions. In a way, this Bill is almost his Private Member's Bill. I join the Minister in congratulating him on persevering to achieve the introduction of this measure, which follows many attempts by what one might describe as real Private Members in another place to achieve some of these changes.
We all agree that some changes in medical self-regulation need to be made. The Minister has said that this is not a contentious Bill. We on these Benches support its principles and hope that once this House has had the opportunity to consider it carefully the Bill will find its way speedily onto the statute book.
The Bill raises two important issues fundamental to successful healthcare: the need for consistently high standards from the medical profession and the need for patient confidence in the doctors who look after them. The picture for both has changed substantially over the past few years. Doctors have always jealously guarded their right of professional self-regulation but recently this right has been questioned in other fields, such as the law and the police; even legislators have sometimes been challenged to justify their ability to regulate themselves. The GMC has rightly recognised the general pressure to tighten regulatory procedures and to make them less opaque. But at the same time the health professions have been coping with greatly accelerated advances in medical science and technology. These have made it hard even for the most dedicated doctor to keep abreast of every professional development. That is why
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we on these Benches welcome the remedial nature of the new sanctions that the GMC may impose on a practitioner who is judged seriously deficient.
We are all anxious in this country to avoid the litigious atmosphere that has developed in the doctor/patient relationship in the United States. It is clearly more satisfactory if the spectre of a suit for malpractice does not hang over ever clinical consultation, and yet the patient must have the right to expect the best possible care and some kind of redress if he does not receive it.
Today, patients are encouraged to challenge the tradition that "Doctor knows best" and to question their treatment. In some areas—I would cite obstetrics and HIV-AIDS services as particularly good examples—that has produced noticeable improvements in patient care. But concerns still remain. Despite the new NHS complaints system and the Patient's Charter, individual patients feel somewhat frustrated sometimes when they "want to do something", as they would describe it, about what they see as inadequate or inappropriate treatment.
On the other hand, doctors sometimes feel burdened rather than helped by the pressures of keeping up with continuing medical education programmes and clinical audit procedures, which are designed to keep them up to scratch. It would be pointless to pretend that there are not a very few who are just too indolent or unconcerned to take part in voluntary postgraduate training and education. For them perhaps professional sanctions against bad performance may be the only recourse and it is really this small group that the Bill deals with—a small minority.
The centrepiece of the proposed change is to give the GMC the power to investigate cases where a doctor's professional performance is alleged to be seriously deficient. In proven cases the GMC will be able, as the Minister has already explained, either to suspend the doctor's registration or make it conditional on receiving remedial training. I entirely support this proposal which will substantially widen the grounds on which a complaint may be made.
Most of my questions and comments are largely ones of detail about the mechanics of operating the procedure. I hope that the Minister may be able to answer some of the points in her response this afternoon as some of them are unfinished business from another place. Indeed, in suggesting the amendments that the Government will bring forward at Committee stage, the Minister has already answered some of those points.
One substantial issue which was discussed at length in Committee in another place, but was never really resolved, was the question of precisely measuring and defining a seriously deficient professional performance. It emerged in another place that new codes of conduct will be widely and publicly promulgated, but no details of performance standards were announced and key performance criteria, which are regularly used now in the NHS, were not discussed. I hope that we might move towards more exact understandings before the Bill becomes law.

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Anyway, it seems probable that whatever criteria of professional performance are used in the future, they are bound to be based mainly on technical skills and knowledge. There are, after all, means of measuring these by objective standards.
Much more difficult, but I believe often equally important to patients, are standards of what one might call "personal conduct". All of us who have heard complaints about doctors know that they may sometimes concern a seriously deficient "bedside manner". Rudeness, dismissiveness, arrogance and indifference could all, in common sense terms, constitute a seriously deficient professional performance. It would be helpful if the Minister could make it clear whether or not the new procedures can be triggered by failures of personal behaviour, not only failures of professional skills. I would add in parenthesis that it is particularly difficult to imagine how failures of personal behaviour, and personality even, if they are to be included, can be measured, and indeed whether or not they could be improved by remedial training. I am reminded of an employer of mine who, several years ago, never mentioned what were described as "irremediable personality faults" in annual reviews simply because they were thought to be unanswerable.
One further matter in this area which needs to be finally resolved is whether or not a one-off episode of a seriously deficient performance will be enough to qualify for GMC investigation. Much of the background briefing and explanatory papers refer to a pattern of poor performance. But again, in common sense terms, it is possible to imagine circumstances where a one-off act of negligence, for example, could be sufficiently catastrophic to be defined as a "seriously deficient performance". When the Minister replies, perhaps she can tell us what exactly the situation is as regards single complaints and whether a complaint about one incident is liable to be treated less sympathetically than one which reveals a track record of inadequacy.
The proposed mechanics of investigation and action by the GMC, once the procedure has been triggered are, I must say, extraordinarily complicated. They are also extraordinarily thorough and therefore must be commended. But one does need the proverbial "wet towel" to follow them, particularly during a hot week in summer.
I wanted to make a positive suggestion that all health authority non-executive members and community health councils, should be circulated with a revised version of the GMC consultation paper on the new performance procedure once the legislation is passed. After all, they are often the first recipients of complaints. But I have to say that I was made so cross-eyed by the diagrammatic representation of the procedures that I thought that the document as it stands might do more to hinder than to help lay understanding. I do recognise that I am personally diagram-blind, but I do not believe that I am unique.
I very much hope that the information about the new arrangements will be widely distributed and understood. I would urge that perhaps professional copywriters or advertisers be employed to make the procedures clearer, and therefore more accessible, to anyone who may wish
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to use them. After all, one of the basic points about professional regulations is that the systems must be seen to be open and readily available.
There is disquiet on these Benches that hearings under the new performance procedures will be heard in private. There is an odd anomaly in the Bill as it stands at the moment that allows a doctor under investigation to request a public hearing, but not a complainant. That suggests that the GMC and the Government have no objections in principle to public hearings, but simply wish that only a doctor may lift the "in camera" rule. I hope that the Minister will be able to reconsider this or perhaps reassure us, as was indicated in another place, that these arrangements will be kept under review and may be altered once the system has been tested for a time.
If and when an individual case does make its way through the procedural maze of assessments and committees which are proposed, the GMC and the doctor in question have, as the Minister has explained, various options for action. All of these were explored in detail in another place. I was delighted to hear the Minister tell us this afternoon that the right of a doctor facing disciplinary proceedings to remove himself voluntarily from the register, will be circumscribed. As that stands at the moment, it seems potentially open to abuse. For example, it has been suggested to me by a very senior doctor closely involved with the GMC, that a suspect practitioner might well choose to remove himself from the register, lie low for a few years, and then reapply and hope that his past was well forgotten. As the Minister has explained her amendment this afternoon, it will be those doctors facing immediate consideration by the performance committee who will not be allowed to reapply in this way. But it will be very helpful if we can have an understanding about how long the surveillance of voluntary withdrawal from the register will be allowed to continue before it becomes unsurveyed.
The British Medical Association is still most concerned about the financial implications of remedial retraining, which may be a condition of a new registration for a doctor who is finally judged to be seriously deficient. Apparently, it was originally understood that this retraining would be paid for by the health service. Now it seems that only hospital doctors will be able to be funded. There has been a recent exchange of correspondence between doctor Ian Bogle, the chairman of the BMA Medical Services Committee, and the Minister for Health, since the Bill left the other place. In a letter of 6th June, Mr. Malone states categorically,
"I do not think it fair to the taxpayer, or to the great majority of GPs who do use the existing provisions to continue their professional development and maintain high standards, for special arrangements to be made for the few GPs who will come under the General Medical Council's new procedures".
I believe that that is an unfortunate decision. To start with, it seems to confuse the type of remedial education and training proposed in the Bill with the system for continual medical education as it stands at the moment.
The other point is costs. The costs of the projected retraining are said to be substantial. Apparently, they can be anything between £6,000 and £20,000. It does

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seem that if GPs have to pay for this out of their own pockets, it will amount to what is a fine, and a very heavy one at that, whereas as the Minister has explained and as is certainly clear from the legislative proposals, the basic idea of the new procedures is that they are remedial and not punitive. The BMA is also concerned that, knowing about the possible personal costs, colleagues of failing doctors may well be deterred from instigating procedures. I ask the Government to think again about that particular arrangement.
Those are all important points and I hope that it will be possible easily to resolve them. The principle of the Bill is uncontentious and very valuable. Its proposals will offer both responsible improvements in self-regulation for the medical profession and a greater sense of confidence for patients who wish legitimately to complain about their treatment. Both are welcome developments in our healthcare system.
3.59 p.m.
Baroness Robson of Kiddington: My Lords, I too thank the Minister for outlining the Bill so clearly. Having listened also to the speech of the noble Baroness, Lady Jay, I echo to a large extent many of the questions that she posed to the Minister.
We on these Benches welcome the Bill particularly warmly because the impetus for it came not from the Government but from the General Medical Council itself. Doubts are often expressed about self-regulating authorities. The fact that the General Medical Council is prepared to look for improvements in the law and in its procedures is welcome evidence of the council's determination to achieve the highest standards of medical performance and to provide the best possible care for patients.
The two new committees that are to be set up under the Bill—the assessment referral committee and the committee on professional performance—follow structures in line with the procedures that exist in other professional bodies. The Institute of Chartered Accountants, for example, has an investigatory committee hearing as a first instance, which is followed by a disciplinary committee hearing if that proves necessary. Therefore, the proposed new committees are in line with the practice of existing self-regulating authorities. That two-stage procedure gives members of the medical profession the opportunity to take remedial action through retraining and co-operation in order to avoid referral to the committee on professional performance where sanctions affecting a doctor's registration can be imposed. If those sanctions are renewed twice for a 12-month period, it could lead to an indefinite suspension.
The noble Baroness, Lady Jay, referred to the cost of the remedial training and to the question of who will pay for it. According to the Explanatory and Financial Memorandum, the costs of remedial training will be met by the NHS for doctors in practice within the NHS. I hope that I have not misunderstood that. It is estimated that that will increase NHS expenditure by £530,000 per annum. Like the noble Baroness, Lady Jay, I am concerned about the cost that appears to have to be
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carried by doctors in general practice. The noble Baroness said that the cost of remedial training would be between £6,000 and £22,000. That is far too great for a general practitioner to carry. Indeed, it would not even be the total cost for a general practitioner because it is likely that while absent from his practice for remedial training he would have to pay for a locum.
I plead with the Government: the NHS should be honour-bound to pay for the retraining of family doctors. That should be done through the family health services authorities. That would ensure that a doctor's attempt to retrain so that he can become a valuable member of his profession does not become a sentence in itself which he is unable to fulfil.
We welcome the government amendments that were introduced on Third Reading in another place relating to the procedures for dealing with doctors who suffer from health problems. Those amendments are welcome because at the moment a doctor who is suspended for health reasons can be suspended only for a period of 12 months and has to appear before the health committee every year if he happens to suffer from a long-term serious health problem. That is upsetting for the doctor concerned and is time-wasting for the health committee of the General Medical Council. We welcome those amendments.
The Minister said that she will introduce amendments in this House—that is welcome—but the Government also undertook on Third Reading in the other place to table an amendment in this House relating to the preliminary proceedings as to professional misconduct and unfitness to practice procedures in order to extend the period of interim suspension. We look forward to considering that amendment in Committee.
I hope that the Minister agrees that the NHS has an important role to play in all of those issues. It is necessary that we improve the flow of information between different parts of the NHS so that when a doctor applies for a job the question of whether he is facing proceedings before the General Medical Council can be ascertained quickly. We all know of cases where such doctors have moved from one part of the country to another and been given a new appointment. That is of particular relevance to the employment of locums within the service. During my years as a regional chairman, I came upon such cases on many occasions and I could spend quite some time talking about anecdotal evidence of consultants and doctors who failed in one way or another, but I shall not do that because it is unnecessary. I very much welcome the Bill and only wish that its provisions had been in force during my nine years with the health service.
4.7 p.m.
Lord Walton of Detchant: My Lords, I join others who have congratulated the Minister on the exceptionally lucid and careful way in which she presented to the House the provisions of this Bill which I believe is to be widely welcomed not only by those who serve at present on the General Medical Council but also by the medical profession at large.

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When I was appointed to the General Medical Council in 1971, I served for some years under the distinguished presidency of the late Lord Cohen of Birkenhead. During the time that I served under his presidency, it became increasingly clear to many of us that doctors were coming before the council's disciplinary procedures committees who were not so much wicked, nor had they committed criminal offences, but who were sick and deserved to be handled very much more compassionately. Subsequently, the Merrison Committee reported in detail upon the regulation of the medical profession, and the General Medical Council was reconstituted.
I should like to take this opportunity to pay a special tribute to a president under whom I served, then Dr. John Richardson, now the noble Lord, Lord Richardson, for the way in which he and the late Lord Hunt of Fawley succeeded in this House in establishing through the Medical Act of 1978, subsequently consolidated into the Act of 1983, the reconstitution of the General Medical Council. They also established for the first time procedures through which it was possible firmly but compassionately to deal with doctors whose health rather than whose conduct was the problem.
The health committee and the health procedures enabled the council to take action in the case of a complaint brought before it by a patient, by someone acting in a public capacity or through other mechanisms by inviting a doctor, in whose case it seemed that it was likely that his or her professional performance was being impaired by reason of ill health, to undergo a medical examination by consultants nominated by the council and, if he or she so wished, a medical examination by a consultant of his or her choice, and then through the work of the council to be able to accept, if he or she so wished, certain voluntary conditions upon the restrictions which might subsequently be imposed upon his or her practice while undergoing treatment with regular examination.
That health procedure, informally introduced, proved to be enormously successful in rehabilitating sick doctors. But where a doctor failed to collaborate with those informal procedures, there was available the health committee to which he or she could be referred. That health committee had the power to suspend that doctor's registration.
Perhaps I may at this juncture say how much I welcome the amendment which was inserted into the Bill in another place because, having chaired the health committee of the council, I found it distressing on a number of occasions to see doctors who were suffering from a long-standing illness and not responding to treatment having to be brought back to the health committee every 12 months to have that suspension renewed. That amendment is one which should be widely commended. It is now in the Bill, allowing a much longer period of suspension. It is something we should all he pleased to see.
Subsequently, under the noble Lord, Lord Richardson, who chaired that council, as one member said, with grace and distinction, it became increasingly clear to me as I served on the professional conduct committee—a successor of the previous disciplinary
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committee—that there were some doctors who had been referred by the preliminary proceedings committee to the council's conduct procedures who were not so much wicked but whose professional performance fell below an acceptable standard. But it became apparent when I followed the noble Lord, Lord Richardson, as president of the council that the council's procedures did not allow us properly to deal with doctors who fell into that category.
It is true that over the past 10 years or more the medical professional at large has been introducing, with increasing success, programmes of voluntary audit of professional procedures, examining doctors' standards of practice and bringing to their attention in an informal way deficiencies which may therefore be exposed relating particularly to the outcome of illnesses which they have been treating or relating to the way in which they have handled certain clinical problems, but those are voluntary procedures.
I would, however, reassure the noble Baroness, Lady Jay, with most of whose comments I wholly agreed, that there is an increasing body of expertise now in the medical profession—not just examiners of medical students in final examinations in medicine, both internal and external, but examiners taking part in voluntary audit procedures and postgraduate examinations carried out by the Royal Colleges and their faculties—fully capable of forming, with lay opinion and advice, the assessment panels for which the Bill makes provision—people who are now experienced in assessing professional performance and in being able to assess a doctor's knowledge, skills and attitude. I therefore have every confidence that the assessment panels proposed in the Bill could prove to be extremely effective.
As the noble Baroness said, the Bill's principle features are, first, to establish an assessment referral committee which will consider cases where doctors refuse to agree voluntarily to have their performance assessed. That is in many ways comparable to the voluntary procedures which have been in existence for some years in relation to health. That committee cannot impose sanctions on the doctor's registration, but it can require the doctor to undergo assessment.
In the latter years of my presidency of the GMC, I began to consider whether it was right to think about establishing, alongside the health committee, a competence committee. But I have to say that Sir Robert Kilpatrick and his colleagues on the GMC have come up with something very much better in proposing, as now set out in the Bill, a professional performance committee which will be a "committee of last resort"— a committee to which doctors failing to collaborate with the informal assessment procedures and proposals arising therefrom could then be referred, with the committee having the right to suspend the doctor's registration where his or her performance has failed to improve despite remedial help.
Clause 1 gives that committee its principal powers: conditions may be imposed—conditions which arc not just informal conditions that the doctor is invited to accept, but conditions which will have the force of law. Alternatively, the committee may impose suspension for renewable periods of 12 months.

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Doctors will of course, as in all of the GMC's procedures, be able to appeal against those sanctions (on a point of law only) to the Judicial Committee of the Privy Council. There is within the Bill a very proper provision in that the committee on professional performance can order immediate suspension, where it is seriously concerned about the low level of performance demonstrated by the doctor, to cover the 28-day appeal period.
The committee will not have the power of erasure from the register because, as in the case of the health committee, the council proposes—I wholly agree with this—that those procedures should not be punitive but remedial in character. Perhaps I may say how glad I was to hear from the Minister that an amendment will be brought forward in Committee. It is clearly important that doctors who are elderly, and whose performance may be failing, should have the right, as under the Bill, to take voluntary erasure from the register (voluntary removal) as an alternative to facing the complicated performance procedures. It is crucial that that provision should not be used by a doctor who is about to face procedures under the conduct regulations relating to conviction or serious professional misconduct. We look forward to seeing the government amendment on that basis.
I welcome the Government's intention to introduce a further amendment to increase the powers of the preliminary proceedings committee in relation to interim suspension and interim conditional registration. At present, when the preliminary proceedings committee of the council forwards a case to the professional conduct committee or the health committee, it can impose, in exceptional cases, interim suspension or interim conditional registration, but for two months only. That period is not long enough to protect the public where there is a prima-facie case of serious professional misconduct. It is therefore important that an amendment be brought forward to extend that period to six months in order to allow the procedures to take their full effect.
Of course the Bill contains only enabling powers. Much of the detail of the procedures will be set out in rules to be approved ultimately by the Privy Council. I commend the enormous burden of work which Sir Robert Kilpatrick and his colleagues in the GMC have carried during the past few years in obtaining the universal approval of these procedures by the medical profession and those in the other health caring professions.
I also commend the Bill to the House. In doing so, perhaps I may ask the noble Baroness for two assurances. The first relates to a defect which emerged in the Medical Act 1978—it was subsequently corrected—or which arose perhaps unintentionally after the health committee was established. It turned out that a doctor suspended under the health procedures might find his or her contract of employment with his or her employing authority ended by virtue of that suspension. May we take it that doctors suspended under this Bill will have their contract of employment preserved and maintained?
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Secondly, I am aware that the medical profession is concerned about the cost of the remedial training. The cost of those procedures which are to be carried out by the General Medical Council will not be inconsiderable. The cost will be covered by a substantial addition to the doctors' annual registration fee paid to the GMC, and therefore the cost will be a burden on the medical profession at large. Surely, therefore, it is right that the cost of the remedial procedures is borne by the NHS, whether in hospitals or in general practice. I hope that the noble Baroness will give your Lordships an assurance on those issues. I warmly commend the Bill to the House.
4.21 p.m.
Lord Colwyn: My Lords, perhaps I may preface my remarks by saying that it gives me great pleasure, first, to follow the noble Lord, Lord Walton, and, secondly, to take part in a Second Reading debate on a government Bill that has received such enthusiastic support from all sides of the House. I too welcome the Bill and I declare an interest in that I am a practising dental surgeon. I shall try to explain the relevance of that a little later. I am chairman of Dental Protection and a council member of the Medical Protection Society.
I support this all embracing Bill, which will go some of the way to ensure that high quality professional performance is maintained by doctors whether they are working in general practice, in hospital or in the private sector. It is centred on standards of care for patients and is doctor-led.
As my noble friend the Minister said, this Bill follows the government document Acting on Complaints, which responded to the Wilson Report, and is very much in line with the new code of openness, which is the policy brought into the NHS by the present Government and my right honourable friend the Secretary of State. Acting on Complaints proposed that the resolution of complaints in the NHS should be local, speedy and more accessible and streamlined than the present procedures.
With the continual changing face of medicine, with new technologies and new techniques, it is important that professional standards are carefully monitored. Professional performance is now a factor in all aspects of medicine and I hope that eventually it will be linked in some ways to performance pay—a way of encouraging doctors to keep up to date. However, some form of accreditation, either in the NHS system or the regulatory body, could well deal with this matter before it becomes a real concern.
Although I tried to listen carefully to my noble friend's opening remarks, I cannot recall whether she covered the cost implications of the Bill. Perhaps that has something to do with a long working relationship with mercury and dental fillings! However, I remember that the noble Baronesses, Lady Jay and Lady Robson, covered the costs. The GMC has indicated that it will fund Stages 1, 2 and 4 of the procedures from the annual retention fee but that it does not consider it appropriate to expect doctors in general to pay for Stage 3 of the procedures; that is, the remedial training. I agree with the GMC and the BMA that the employing body for hospital doctors—usually the NHS trust—and the health

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authority for public health doctors should pay the full costs of remedial training. I hope that my noble friend can go a little further on this. As we have heard, there is the possibility of an inequity if some GPs have to pay for their own retraining and other doctors are funded by trusts or the regional department of the Department of Health. I should also like to hear how this might affect doctors who purely work in the private sector.
Redeclaring my interest as a council member of the MPS, I should make it quite clear that it is not a cost which—as has been suggested elsewhere—should be met by the medical defence organisations, certainly requiring a large increase in annual subscription already at a high level for indemnity purposes.
Medical defence organisations already undertake comprehensive "risk management" programmes which are expanding. They are available to all members and can identify doctors who are "at risk". This initiative by the defence organisations will minimise the number of doctors involved in this procedure and, it is to be hoped, will reduce the incidence of claims against doctors and reduce costs for the trust, health authorities and the defence organisations themselves.
At present, the GMC has no power to act against a doctor unless it has been found that his fitness to practise has been affected by ill-health, or that he has been found guilty of professional misconduct or convicted of a criminal offence. This defect in self-regulation will be corrected with this Bill and maintain the right for medical professionals to continue self regulation.
I hope that I am not venturing outside the remit of this debate if I ask my noble friend whether the Dentists Act could be opened to enable similar changes for NHS and private members of the dental profession. Doctors currently face a double jeopardy situation, where they may have been convicted and sentenced by the courts or have a finding against them of a breach of NHS terms of contract and a withholding of salary and are then brought before the GMC disciplinary committee. Current NHS regulations in dentistry also can impose a triple jeopardy on health service dentists; a withholding of fees, prior approval restrictions and an automatic referral to the GDC querying competence as well as the inevitable claim for negligence. A similar scheme via the GDC could similarly filter out poor professional performance within the dental profession.
It would also embrace the ever increasing number of private dentists, including third party funded dentists as in the Denplan scheme, so that all dentists could be more fairly dealt with and in the best interests of patients. At present, the only redress a private patient has, is to sue in law alleging negligence.
As my right honourable friend the Secretary of State said in another place, the Bill aims to achieve what many people say that they want when they complain; to inquire into the underlying causes of any problems; and to see that something is done to stop a similar incident happening again.
The Bill should take the heat out of medical negligence claims. Justice will be seen to be done and that justice will be educational not punitive. As with the
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present system, feedback to the patient still allows a claim for negligence to be considered and taken forward where avoidable harm has occurred.
Should this eventually embrace the dental profession, the cost of retraining could be borne by the GDC through the annual retention fee, which might also include a competence payment. I could envisage the introduction of further compulsory vocational training for continuing registration and the supervision of further postgraduate training in order to retain an NHS list number.
During recent years the GMC has modernised itself and simplified some of its registration procedures. It has increased its lay membership to ensure that non-doctors play a full role in its deliberations. If the Government could consider a Dental or Dentists (Professional Performance) Bill, the opening of the Dentists Act would also allow similar changes in the composition of the Dental Council with more lay members so that the public could see that governance of the dental profession is more influenced by patients.
This Bill will be helpful to doctors who, for a variety of reasons, show standards of practice which are not acceptable. The remedy is in their hands and is doctor-led. I hope that it will have a speedy passage through this House.
4.28 p.m.
Lord Richardson: My Lords, I declare an interest in the Bill; I support it unequivocally. I am extremely grateful for the way in which the Minister outlined the difficulties of the Bill, which are considerable, in such a straightforward and understandable way. I feel greatly indebted to the noble Baronesses, Lady Jay and Lady Robson, who spoke from the Opposition Benches making highly relevant points.
The noble Baroness, Lady Robson, mentioned the difficulties about knowing what is deficient behaviour. Part of the purpose of the Bill is to address that problem. To my mind, the answer is that, as a whole, doctors understand what is good doctoring and understand what is a good way to handle patients. I doubt that it will he possible to be very much more precise than to rely on the doctor's ethos to provide an answer as to what is inadequate and unacceptable conduct.
I have listened to all the speeches with the greatest interest. Each one has touched on an extremely important subject, as did the noble Lord, Lord Colwyn. However, I must confess that I listened with the greatest possible care to the words of my friend, colleague and successor, the noble Lord, Lord Walton of Detchant. I longed to find something that he had left out, but I found absolutely nothing. I longed to find something that he had not made absolutely clear, but the answer was the same. Had I found something about which he was wrong, I should have achieved something that I have never succeeded in achieving in the past 20 years. Therefore, I fall back on the fact that I am a doctor and the few words which I wish to say will be from the point of view of a doctor and not as past president of the GMC.

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The idea behind this legislation is benign. It is absolutely specific to its basis that the conduct and sanctions which the conduct committee can impose do not come within this particular discussion or Bill. In the first place, what happens? The scanners, one of whom may or may not be the president, although in my case, I was, will look at about 1,000 cases of complaints per year. That figure may now be higher. At present only a very small percentage will be considered suitable to be sent on to be dealt with by the disciplinary mechanism with its preliminary committee and so on.
It was perfectly clear that there was a great gap. It is that gap between unacceptable behaviour, skills and knowledge and serious professional misconduct—which used to be called, rather horribly, infamous conduct in a professional respect—about which something needs to be done.
In my day, the council was doubling its size. There was the Merrison Report and it was not the time to tackle this problem. The noble Lord, Lord Walton, began and did a great deal in terms of thinking about and reorganising procedures. Sir Robert Kilpatrick has done wonderful work. He has managed to talk the doctors into accepting an extension of the GMC powers. It has taken 150 years to do that. Although those of us who wish to see this Bill become an Act have felt impatient as the years have passed and have wanted to see it happen, it has taken a very short time out of that 150 years for the negotiations, which I know have been extremely difficult in relation to certain matters, to be completed successfully.
The noble Lord, Lord Walton, mentioned the health committee, which has been a success. It was set up largely due to the work of the late Sir Dennis Hill, who was a man of remarkable ability and persuasiveness. He had the power to make people trust him. That has worked. Again, its actions have been benign. For the most part, they are carried out peripherally and it is to be hoped that the matters which we are now considering—knowledge, skill and behaviour—will be dealt with peripherally and not have to be dealt with by the new statutory committee.
The setting up of the peripheral mechanism will be extremely complicated and time-consuming. I am sure that Sir Robert's successor, Sir Donald Irvine, will be an ideal person to take on that particular task because he is a general practitioner. In the 150 years that I have mentioned already, he is the first general practitioner to hold the office of president.
Therefore, the wind looks fair. I believe that this legislation will work although it is not an easy matter. I hope that your Lordships will find it possible to expedite its passage so that we can get on with the work.
4.36 p.m.
Baroness Macleod of Borve: My Lords, I should like to start my few words to your Lordships by paying tribute to the late Lord Ennals. He was a Member of this House for 12 years during which time I too had the privilege to be here. He did a great deal for the medical
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profession, for patients and the hospital world in general. I believe that he would have approved of all that we are discussing today.
I thank the Minister for being so cogently helpful in her introduction of the Bill. The measure is extremely comprehensive but, at the same time, short; it is very, very important. We have heard brilliant speeches from professional medical people. No one could have listened to more professional contributions.
I come to the debate as an ordinary but extremely grateful patient. I have been a patient for a long time, having had a birthday the other day. The Bill is important to me and to all people who are interested in the medical profession because it comes from the GMC. It is extremely rare in this Chamber or indeed in the other place for a Bill to receive the overwhelming support of the people whom it is hoped that it will help or put right. Therefore, the Bill is unusual. I hope that it will go through with the one or two amendments which the Minister outlined.
Clause 1 deals with professional performance. It seems to dot every "i", cross every "t" and meet every single hedge before it is galloped over. I hope that the Bill works. I am sure that some members of the legal profession will try to find holes in it, but I do not believe that they will be able to do so.
I should like to know who can report a case if a medical practitioner is thought to be below standard. It worries me that ordinary members of the public—the ordinary patients—would not want to let down the doctor who had probably been very helpful but who perhaps on occasions should, in the patient's view, be reported. How do they do that? How many reportings do the Minister and the department think are likely to be brought before the GMC? Will it be hundreds? I hope so; I would certainly not expect thousands. Moreover, can a doctor's colleagues report him? Can hospital trusts report such doctors? I presume members of the public can. Unless the ordinary person is able to report a doctor, however unwillingly, I fear that some will not be put in the firing line as is intended under the Bill.
I was very interested to read paragraph (7) in the schedule on page 9 of the Bill which says that individuals will not be identified. I believe that to be most important. However, we all know that leaks occur in all parts of public life these days. At the same time, a doctor's whole future and life might be ruined if such identification is possible. I hope that just causes will be found to make it absolutely certain that the hearings will be in private and certainly not with the public being allowed to attend. I was also interested to see that counsel or a solicitor will be able to represent people who are brought before the General Medical Council.
I have very little else to say, but way back in 1952 my late husband was made Minister of Health. He held that position for four years. They were exceptionally happy years, but they were extraordinarily disorganised. We had no money, the doctors were coming out of the forces, and nurses were difficult to find; indeed, the hospitals were way below standard. However, since then, science, technology and motivation—everything that a proper health service, National Health Service or private, has—have increased enormously. I wanted the

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House to know how proud my husband would have been to take part in the Bill's proceedings here or in the other place. I am certain that the Bill would have had his support had he been with us today.
4.43 p.m.
Baroness Masham of Ilton: My Lords, we have before us a Bill which covers a very serious subject. It is both necessary and important. It deals with the doctor's standard of professional performance when it is found to be seriously deficient. FHSA members, hospital trust members, health authority members and CHC members will, I am sure, welcome any progress that the Bill makes towards raising the standard of doctors who fall below an acceptable level.
However, the people who are of the greatest importance are, I think, the patients. I feel that they will benefit most. Patients are the most vulnerable and at risk if they are treated by incompetent doctors. One only has to look at some of the results regarding women who have had breast cancer and were given the wrong dose of radiation: some of them now have useless arms.
When dealing with matters as sensitive as those contained in the Bill, I hope that all the procedures will be undertaken as quickly as possible. It has been of great concern to many people over the years that, when things go wrong when treating patients, there have often been cover-ups. Patients have sometimes been transferred to other hospitals when they have had serious complications. I remember one patient who had been given an epidural when giving birth to her baby in a London hospital. She became paralysed and was transferred, without any medical notes, to a spinal unit.
When one looks at the Bill and sees that there will be remedial training to improve doctors' professional performance, it makes one wonder why it had not been done many years ago. However, the noble Lord, Lord Richardson, explained that to us. I am pleased that the Bill covers doctors working in the private sector as well as those in the National Health Service. All patients need protection whoever they are and wherever they come from.
I believe that retraining will be paid for by the National Health Service trusts. But general practitioners, as self-employed contractors, would have to pay for any retraining themselves. Surely it would be possible for FHSAs, or the new health authorities, to help them with some training schemes. I would be grateful if the Minister would explain how the GMC will decide whether the complaint is a performance or a misconduct issue. Do not many complaints involve both?
I should like to bring to your Lordships' notice the very real problem in our society of alcohol and drug abuse at the workplace. Only last week, while listening to my car radio, I heard that doctors were one of the highest professional categories at risk of having alcohol problems. Very often doctors, many of them general practitioners, have an alcohol problem which they may hide even from their colleagues. That can affect their competence. If a train driver, a pilot or a bus driver was found to have an alcohol problem, would he not be suspended? Is this not a very real problem when doctors have responsibility for people's lives? Further, is that
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not serious professional misconduct which can make a doctor incompetent? So many people with a drink problem will not recognise that they have one. How does one deal with rehabilitation if someone refuses to admit that they have a problem?
Can the Minister say whether that very real problem will be covered by the Bill? I believe that all doctors in medical schools should be given training as regards addiction so that they can address the issue, not only for their patients but also for themselves and their colleagues. I am glad that retraining is an important part of the Bill. But it seems necessary for the GMC to be able to put conditions on a doctor's activities for a period when he or she is restored to the register after having been struck off. Otherwise, does the Minister not agree that such people could slip back into bad habits? Will there be a monitoring system?
So many patients trust their doctors without reservation. With the responsibility of this important Bill before us, should not your Lordships make it as safe as possible? I hope that we can do so. I should like to conclude by asking the Minister one further question. Will there be such a Bill for dentists? That question was also posed by the noble Lord, Lord Colwyn.
4.50 p.m.
Lord Harmsworth: My Lords, I wish to speak briefly in support of the Bill. In my view it provides the General Medical Council with powers that can only be beneficial in dealing with the complexities of any situation where not only the interests of patients but those of practitioners need to be safeguarded. It provides the GMC with the kind of refinements of existing powers which, with the benefit of hindsight and practical experience, have become evident over the years and have now crystallised in the form of the measures in the Bill. Unless I am mistaken in my understanding of the position in relation to Clause 2, I suspect that the wording will require a little tightening. I have been in touch with the private office of my noble friend the Minister in that regard. Changes, however, must wait for later stages of the Bill. The Bill has been well received in another place by the major parties. Further endorsement is hardly required from me, but I wish the Bill well.
I, like other of your Lordships, have found tremendously helpful the consolidation of the Bill with the relevant parts of the Medical Act 1983 as provided by my noble friend the Minister and her department. I well remember times of yester-year when I would sit at my desk cutting and pasting little bits of legislation in order to make more quickly intelligible seemingly unravellable cross-references in Bills and Acts. I wonder why, with all the modern technology about and the huge power of even the most humble secretarial word processing software, it is not possible, within reason, immediately to consolidate every instrument in this way. How much more simple would life become for the humble politician and his professional advisers if that were so? But that is another story.

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I extend my congratulations to the Minister. May the Bill get a fair wind.
4.52 p.m.
Lord Milverton: My Lords, I rise to welcome the Bill and support Her Majesty's Government. It seems to me that the Bill gives assurance both to doctors and patients that where there is a complaint or dissatisfaction one way or the other both believe that there is a fair foundation for a hearing and a proper result will come from it. That is important both for patients and the whole of the medical profession.
Performance is important not only in very serious, complex illnesses but in minor ones. Who is to make a complaint? I suppose that I could have made a complaint based on one experience. On my way home from the House I intended to visit my daughter who was then in London. To that end, I was on my way to Notting Hill tube station. I do not know whether I slipped on something or, as the doctor whom I saw afterwards in Bath thought, I was mugged. Whatever the cause, one minute I was walking along and the next I was on the ground. I tried to get up and completely passed out.
When I came to I found myself sitting on the pavement propped up with several people around me. An ambulance was called and I was taken to a hospital, the name of which I will not give. I thought I had made it plain to those in the hospital that I believed that I had done something to my arm or shoulder. The net result was that they thought I had suffered a heart attack or something like that. At about 11 o'clock at night they discharged me on the basis that I was all right when I knew that I was not. When I was told to get dressed I knew that if I did not lean against the bed I would probably fall over. I had to ask the nurse to help me. I could not get home that night and went to see my daughter. The moment that I spoke to her through her Entryphone she knew that something was wrong. The next morning I nearly passed when getting in a taxi. My wife and doctor had been informed. My wife met me at Gillingham station. As soon as I saw my doctor he spotted that I had a broken arm.
I have great respect for the medical profession and for health service hospitals, but how can that happen? I have heard of other instances of people who have been discharged in similar circumstances or a wrong diagnosis has been made. I hope that such incidents will become less common. For someone to walk round with an untreated broken arm for 24 hours is a little disconcerting. When I was X-rayed at Bath hospital I had a pretty bad break and another problem. I do not quite know how I managed to get home, because I could not hold my arm up; it was just dangling down. How I got dressed the next morning I do not know. I believe that doctors and nurses should be able to diagnose a broken arm. Unfortunately, it occurred when a world cup soccer competition, or something similar, was taking place. England was playing that evening. They thought that there was nothing wrong with me, having treated me for a heart attack. I hope that the Bill will further professionalism in hospitals. I believe that what
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happened to me was a disgrace. When I told people about it they were astounded. My doctor could not believe it.
I wish the Bill well and that all of the good things that have been said about it will happen. I also hope that the suggestions that have been made to the Minister by the noble Lord, Lord Walton of Detchant, will be taken into account. I believe that the British Medical Association, like the General Medical Council, is happy with the Bill and has only a few suggestions to make. If those suggestions can be incorporated into the Bill it will be all to the good.
I congratulate the Government. I also welcome the amendments with which the noble Baroness will deal on behalf of the Government.
4.58 p.m.
Lord Pearson of Rannoch: My Lords, many of us who work in the City of London are often, I am afraid, automatically a little suspicious of self-regulation. But I have listened to the whole of this debate and join wholeheartedly with all noble Lords who have welcomed this Bill. A point which does not seem to me to have been made, perhaps because it is too obvious to make, is that the very existence of these new procedures will do much to concentrate the minds of the very few doctors in our excellent medical profession who are not doing their stuff. I think that it would go a long way to reduce a certain arrogance, which I have unfortunately found personally in some of those doctors, leading to the very many cases of appalling medical treatment with which all of your Lordships are familiar.
I have only one slight worry about the Bill as drafted, which concerns the difficulty which people who are perhaps not used to public arenas may have in bringing complaints. It may be that I am speaking particularly for those in isolated rural areas where the fear of complaining against a local doctor is a very real one. Often that allows such doctors to continue in practice for very much longer than they should. In that respect I join with the noble Baroness, Lady Jay, in finding some of the procedures rather complicated. It was there that my innate suspicion of self-regulation came into play, and I wondered whether in the lengthy debates which no doubt produced this Bill the procedures perhaps became more complicated than they need have done.
Certainly I worry about the question of a public hearing. I understand that it is only the doctor who can request a public hearing. That seems to me a very real dilemma. Of course public hearings are good things, but public hearings can very much discourage the kind of people who I feel should be encouraged to complain about some of the treatment they have received.
I do not know the answer to the problem I pose. Perhaps it is a problem for the guidelines when they eventually emerge. Or perhaps it is a question of making sure that the new procedures receive very wide publicity when they have been enacted, in the clearest possible terms.
I look forward to any comments my noble friend may have on those few remarks and join with all other noble Lords in welcoming the Bill.
5.1 p.m.
Lord Rea: My Lords, in winding up from these Benches I should like first to thank the noble Baroness, Lady Macleod, for her tribute to my noble friend Lord Ennals. All of us, not only on these Benches but in the whole House, will miss him greatly, both personally and for his contributions to your Lordships' House. He was a champion of the downtrodden in all countries of the world. At his funeral a moving message from the Dalai Lama was read out.
There is little new that I can add to the remarks—all supportive of the Bill and certainly of its intentions—made from all sides of the House. In my view this is a good example of how a profession should regulate itself, although I accept the remarks of the noble Lord, Lord Pearson. Perhaps the noble Baroness will comment on the complexity of the wording of the Bill.
The Bill has had a long gestation, as both the previous Presidents of the General Medical Council have indicated. Much of the thinking has emanated from the General Medical Council itself. The final form of the Bill is largely the work of Sir Robert Kilpatrick, the recently retired president of the GMC.
The extension of the powers of the General Medical Council to suspend doctors whose performance in their role as trusted advisers to the public is seriously deficient will be welcomed. It has already been welcomed by many doctors, the representative organisation of the medical profession—the British Medical Association—and many organisations representing patients.
Almost every citizen has been or will be at some point in his or her life a patient. There are times when a patient has to surrender his or her autonomy to a doctor or surgeon. Therefore, trust is essential. By allowing anyone to inform the General Medical Council when they suspect that a doctor's practice is seriously defective some power is put back into the hands of the patients. However, as the noble Baroness, Lady Macleod, said, some patients may feel reluctant to come forward if they are to be named. They would not necessarily like the doctor to know that it was they who made the complaint. Can the noble Baroness say how that might be covered and whether it would be possible for a member of the public—a patient or a patient's relative—to make a complaint and remain anonymous?
If they are certain of their ground, doctors can anonymously inform the General Medical Council when they feel that one of their fellow practitioners is letting the profession down through incompetent or dangerous practice. Thus the profession is enabled to act as a watch-dog over its own members. In itself that should help to maintain good standards. No doctor who is practising adequately and as trained, both as an undergraduate and throughout his or her professional life through postgraduate education, need fear that provision. However, that provision might possibly be misused. Can the noble Baroness say whether a doctor falsely or malevolently charged with incompetence and then cleared by the assessment referral committee will ever know who reported him or her to the General Medical Council? It might be difficult to conceal that information as most doctors work in a fairly closed professional community.
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I should like to pick up some points made by other noble Lords and reinforce their remarks.
I turn first to the question of the cost of retraining those doctors who are suspended and thought likely to benefit from further remedial training. My noble friend Lady Jay, the noble Baroness, Lady Robson, the noble Lord, Lord Walton, the noble Lord, Lord Colwyn, and the noble Baroness, Lady Masham, asked how the costs were to be met. Will they be met by the trusts, by local health authorities—which now include FHSAs—or from some other source? In the Explanatory and Financial Memorandum it is stated that the cost of administration of the new measures will be met by an £8 increase in the annual retention fee that doctors pay. As 100,000 doctors are registered that means that an extra £800,000 will be collected. The sum of £500,000 is mentioned as the possible cost of retraining doctors who are suspended. I hope that the noble Baroness will be able to address that point.
The noble Baroness, Lady Robson, put forward a very important point; namely, that it should be possible for health authorities and other employing authorities to know quickly who has been suspended so that they do not make any mistakes.
The noble Lord, Lord Walton, raised the question of the contracts of employment with trusts or other bodies within the National Health Service of doctors who are suspended for re-education. How will those be preserved while the doctor undergoes remedial training, how long will they be maintained, and can they be put into cold storage? I would be grateful if the noble Baroness could address the problem.
In conclusion, we on these Benches can assure the noble Baroness and the House that we wholeheartedly welcome the intention of the Bill. A few points need clarification, as I outlined, and I hope that the noble Baroness can reassure us so that amendments at the Committee or Report stages can be cut to a minimum.
5.10 p.m.
Baroness Cumberlege: My Lords, I am grateful to your Lordships for your wisdom, knowledge and constructive contribution to this debate. That is not surprising when there is such a body of expertise present in the House. Noble Lords are aware of the tragic consequences that can arise when a doctor's performance does not reach the standards required. I sense this afternoon that there is a consensus that it is only by having sound arrangements that we can ensure that the interests of patients are well protected.
I shall try to pick up some of the points made during the debate. First, I wish to thank all noble Lords who have supported the Bill—I think that is probably every single speaker—but particularly those from the Opposition Benches. The noble Baroness, Lady Jay, asked what constitutes "serious deficiency". Serious deficiency in professional performance is a departure from good medical practice, whether it is covered by the GMC guidance or not; that is, sufficient to call into question the doctor's registration. I appreciate that that is a rather woolly definition, but I understand that the GMC already publishes guidance on standards of professional conduct, known as the blue book. The

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book's full title is Professional Conduct and Discipline: Fitness to Practise. It is available to doctors and the public alike. The GMC has reviewed its advice to the profession to reflect the introduction of these performance procedures. It will publish the book again in the autumn. I hope that then it will become clearer.
The noble Baroness also asked whether one episode of serious lack of performance could trigger a GMC investigation. The performance procedures will look at a doctor's general standard of professional performance and not at individual incidents. Generally, I do not think that it will be apparent from a single instance whether there is a pattern of professional performance. However, where a single case involving a catalogue of errors or a single complaint about a series of incidents indicated that a doctor's standards of performance might be detrimental to patient care, that could trigger the performance procedures.
We very much welcome the noble Baroness's suggestion that we should send clear guidance on GMC procedures to health authorities and trusts. I think that that was also a point picked up by my noble friend Lord Pearson. There is a firm intention to communicate clearly to all employers and to health authorities how the procedures will work. The precise details though will need to be considered by the GMC, probably in consultation with the NHS Executive.
Lord Pearson of Rannoch: My Lords, with the leave of the House, would it be possible for the guidelines to be available further down to the general public than local health boards and so on? It is at the general public level that the people about whom I am worried need guidelines in clear language.
Baroness Jay: My Lords, before the Minister replies, could the guidelines also be in language which is understood by members of the public, who may also be members of the health authorities or community health councils?
Baroness Cumberlege: Yes, my Lords, I am aware of the NHS jargon which permeates every document that we try to produce. My noble friend and the noble Baroness have made a good point. Perhaps we could take it away, think about it and come back at Committee stage. I am sure that we would wish to involve people like community health councils, other organisations and consumer bodies because it is clearly no use having good systems when people do not know about them and when they are hidden from public view. I am sure that our intention is shared, and perhaps we could come back with more practical proposals during the course of the Bill.
I should like now to address the issue of whether the hearings should be in public or in private. Our intention is that the hearings of the committee on professional performance will be held in private unless the doctor wishes otherwise. I know that comparisons have been made with conduct procedures where hearings are held in public. However, the conduct proceedings address specific wilful acts and omissions by doctors and the standard of proof is different. We therefore feel that at
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this time it is not appropriate to draw such comparisons, and the performance procedures are more akin to health proceedings.
The GMC has already consulted specifically on the merits of public and private hearings. The result is generally in favour of private hearings, but at the Commons Committee stage a clear commitment was given that the GMC would review the operation of the committee on professional performance three years after the first hearing. That commitment remains and I am sure that the issue will be addressed again.
The noble Baroness asked about standards of personal conduct—rudeness and those kinds of issues—and whether that would also trigger the new procedure. In principle, yes, it would. But it is unlikely that isolated incidents would do so. The complaint would need to suggest a pattern of behaviour which was offensive to patients. No one would surely want to suggest that occasional instances of, say, impatience would call a doctor's registration into question. It is a matter of getting the balance right.
On the question of voluntary removal and whether doctors facing a performance committee hearing could lie low, as it were, for a few years and hang on, the amendment that we intend to bring forward at Committee stage will give the GMC powers to prevent a doctor taking his name off the register. This will be done where professional conduct, not performance proceedings, are contemplated or are in train. In performance matters, it is intended that doctors should be able to remove their names from the register if they so wish. Conduct is wilful and performance may not be. Therefore, a doctor whose performance is deficient should be able to come off the register because the aim is the protection of the public, not a public example being made of the doctor.
The noble Baroness also asked how long allegations will be kept on file. The GMC has set no time limit at this moment. Any arbitrary cut-off point would, we think, be undesirable; rather, the seriousness of the complaint should in part govern how long such information should be kept on record and reconsidered when the doctor applies for re-registration.
I wish to thank the noble Baroness, Lady Robson, for her warm welcome to the Bill. I know that she speaks from a distinguished career as a former regional chairman. I agree with her that the Bill is overdue. She asked, among other things, about remedial training costs, as did my noble friend Lord Colwyn, the noble Lord, Lord Walton, and other noble Lords. Our view is this and it is quite straightforward. We feel that doctors have a responsibility for ensuring that they keep up to date with current practice. The handful of doctors who will come under the GMC's new procedures should not expect the taxpayer to pay extra costs if they fail to maintain the standard of professional performance and level of competence achieved by their colleagues. Hospital doctors can discuss with their employer the need for support to undertake remedial action. That might include time off and the cost of courses, but it is entirely at the employer's discretion.

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GPs are in a different position. They are independent contractors, responsible for meeting their own practice costs, including the costs of maintaining their professional skills and knowledge, as are doctors in the private sector. Doctors are already eligible to receive a postgraduate education allowance if they undertake regular training. In our view, the few poor performers should not expect to be paid more if they fail to take advantage of what is already available.
Baroness Robson of Kiddington: My Lords, will the Minister allow me to ask a question? The fact that a doctor has taken advantage of the postgraduate education allowance and used it will never prevent him from not performing according to the medical practice that is expected. It is a completely different type of education. It is not remedial for something that is wrong with his whole 'outlook; it is general postgraduate education and it is different.
Baroness Cumberlege: I accept that, but the point that I am making is that there is an annual provision for GPs in order to have training. I do not know what the cost of the remedial training will be in every instance over the course of a year. It may well be that the allowances for that year would cover those costs. However, we are saying that if they do not, we feel that it is reasonable that the general practitioner should carry the costs—as indeed I am sure other professionals in other walks of life who require career development, or as in this case additional training, would carry such costs.
The noble Baroness also asked whether there was a better system for sharing information about doctors, especially about locums, who face the GMC procedures. All NHS employers should check a doctor's references, including his or her contract with the General Medical Council. The NHS guidance is very clear on this matter. We have recognised particular concerns about locum doctors. Indeed, the Chief Medical Officer chaired a locums working group to address the problems to which the noble Baroness referred. The working group's report has been issued for consultation. Officials are currently assessing comments made on it. Among the report's recommendations is a UK-wide alert system which would trigger procedures should there be concern about a locum's performance. The GMC may also be advised of that.
We share the sentiments of the noble Lord, Lord Walton, in praising previous presidents of the GMC, and not least the noble Lord, Lord Richardson, who so changed the remit of the council when he prompted Parliament to introduce the Medical Act 1978. The noble Lord knows the issues so well, and his encouragement for the Bill is therefore very highly prized. I know that behind the scenes over many years he has influenced some of the thinking behind the Bill. I hope that through his many positions of influence the noble Lord will disseminate these proposals.
The noble Lord asked about doctors suspended on performance grounds and whether their NHS employment contract will he preserved. A number of other noble Lords raised the same issues. The answer is yes, in the sense that the suspension does not terminate
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any contract of employment, or indeed arrangements with GPs, to provide general medical services by operation of law—that is, automatically. Rather, the matter is left in the hands of the relevant FHSA or employer. If the facts leading up to the suspension are serious enough, they may lead to a doctor's dismissal or de-listing. But this is not automatic. The whole matter is left to the FHSA or the employer, as is the case in connection with suspension, for instance, by the health committee.
My noble friend Lord Colwyn, the noble Baroness, Lady Robson, and a number of other noble Lords raised the question of costs. The explanatory memorandum states that the cost to the NHS is £530,000 a year. The costs of administering the new procedures will be met by the General Medical Council. Costs will arise from the running of the two new statutory committees, the setting up of the assessment panels and the general support provided by GMC officials. These costs will be met by the medical profession through the annual retention fee. It is expected that when the procedures have been fully implemented, the net increase in the retention fee to cover these costs will be something like £8. For GPs, because of the operation of the GP contract, part of that rise, amounting to about £250,000 per annum, will be met by the NHS. Our estimates of the total cost to be met by the NHS are higher: £530,000 a year. That is because some of the costs of remedial training will, as I have said already, be met by the NHS.
My noble friend Lord Colwyn also asked whether other professions should introduce similar provisions for self-regulation, as did the noble Baroness, Lady Masham. The answer is yes; but it really is up to them to do the preparatory work. In this case the Medical (Professional Performance) Bill arose from the GMC initiative, following a lot of consultation and debate with the medical profession. Should the General Dental Council, or indeed any other health professional regulatory body, wish to develop proposals for change, the Government will of course be interested in them.
I sensed that a degree of frustration was exhibited by the noble Lord, Lord Richardson, in having his fox shot by the noble Lord, Lord Walton. I know that feeling very well indeed: I followed the noble Lord, Lord Walton, on many a platform. I do not think that the noble Lord, Lord Richardson, need have been so modest. His perceptions and insights have greatly enriched this debate, coming as they do from someone who has had a remarkable, distinguished and honourable career in medicine.
My noble friend Lady Macleod is right to paint a picture of the NHS when her husband, lain Macleod, also a remarkable man, made such an impact on the service. He is still extensively quoted—indeed, as recently as last week, when my right honourable friend the Secretary of State for Health made a major speech at the Royal Society of Medicine.
My noble friend asked who will be able to report a case to the GMC, as did the noble Lord, Lord Rea. We expect anybody to be able to make a complaint: patients, professional colleagues, NHS Trusts—anybody. It is an open door. My noble friend asked how many complaints

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were expected. The GMC feels that the number of cases referred to it requiring assessment will be between about 100 and 150 per annum.
I am not quite sure that I fully understood the points made by my noble friend Lord Harmsworth. I am very happy to discuss them later should he wish. If he wishes to table amendments at Committee stage, we shall consider them fully. I believe that my noble friend wondered whether Clause 2 as drafted gives the GMC the powers to make rules as it considers necessary. Following consultations with the professions as to the details, the GMC has said that it will make the rules under Clause 2 once the consultation has taken place. Perhaps I may clarify this later with my noble friend.
The noble Baroness, Lady Masham, raised the issue of doctors with alcohol problems and whether that constitutes serious professional misconduct. Alcohol problems are generally taken under the GMC health procedures and are dealt with already through that mechanism.
The noble Baroness also asked whether the GMC would decide whether a complaint related to misconduct or poor performance. Basically, it is the screener who will first consider whether by its nature a complaint falls within the scope of serious professional misconduct. That is concerned with one or more incidents or events which are in themselves sufficiently serious. Performance procedures, on the other hand, will generally be invoked by a pattern of deficiency within which each incident or event is not itself sufficiently serious to challenge a doctor's registration.
My noble friend Lord Milverton gave us a graphic account of some of the problems that can occur. Of course we try to ensure that mistakes are not made; and that is where training is so important, both initially and at postgraduate level. I am sure, however, that my noble friend, who probably has more experience of dealing with human frailty than most of us, will recognise that we cannot all be perfect.
The noble Lord, Lord Pearson, raised the issue of how difficult it is to bring a complaint, especially perhaps in a rural area where the GP is well known by individual members of the population. I believe that that issue was also raised by the noble Lord, Lord Rea. In principle, there is nothing to stop a patient remaining anonymous, at least in the early stages. The focus of the procedures is on the assessment of a doctor's performance as a whole, not on a particular complaint. But if there is a hearing, the patient need not appear if he or she does not wish to do so.
The noble Lord also raised the issue of whether doctors should know the name of the complainant. I believe that that will depend on the case, but I shall come back to the noble Lord as I do not know the answer.
I am sure that there are a number of points that I have not addressed. I shall read Hansard very carefully, pick them out and write to individual noble Lords if I have missed some of them. In conclusion, the Government believe that self-regulation is the best way to govern a
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profession. It is perhaps a question of "Physician, heal thyself". The profession itself knows what standards its members should meet.
I am sure that your Lordships will wish to support the medical profession in its vigilance to uphold standards and its desire to have the powers to exclude those who jeopardise the integrity of their profession. I believe that it is immensely encouraging that doctors have recognised that the empathy between doctor and patient is even more important when scientific and technological advances enable doctors to offer treatments that are at the bounds of comprehension and the limits of moral and ethical acceptability.
This is an important Bill. It is part of our commitment to make sure that the National Health Service delivers the highest possible standard of care and professional performance. Our changes mean that patients in future will have even greater confidence than they had before in the treatment that they receive and, once this Bill is enacted, in the doctors who deliver that care both within the NHS and outside it. I commend the Bill to your Lordships.
Lord Colwyn: My Lords, before my noble friend sits down, may I ask whether she has any information about the timing of the future stages of this Bill?
Baroness Cumberlege: My Lords, that is an extremely difficult question. I shall have to go to the usual channels and find out. I do not know.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Code of Practice on Industrial Action Ballots and Notice to Employers 1995
5.31 p.m.
Lord Inglewood Lord Inglewood rose to move, That the draft code of practice laid before the House on 11th May be approved [21st Report from the Joint Committee].
The noble Lord said: My Lords, I beg to move. The Trade Union Reform and Employment Rights Act 1993 made various changes to the laws on balloting, including the requirements that ballots should be conducted only by post and he subject to independent scrutiny. These changes mean that union members can now have greater confidence that ballots will be properly conducted.
The 1993 Act also introduced for the first time a requirement for unions to provide at least seven days' notice to employers of ballots and strikes. Notification of ballots or strike action is an important right for employers, enabling them to manage their businesses more effectively and efficiently.
The current code of practice on trade union ballots on industrial action was last revised in 1991. The draft code before the House today has been amended to reflect the changes made by the 1993 Act.
As background it may perhaps be helpful for me to say a few words about the purpose and legal status of the statutory code. The aim of the code is to set out and explain the requirements of the relevant law and to help unions and employers turn what is on the statute book

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into actual best practice. I must stress that, as noble Lords are undoubtedly aware, the code does not—indeed, cannot—change or add to the law. It merely puts the law in a more accessible form and makes some recommendations for good practice. These recommendations are not legally binding. However, the code is admissible in evidence and may be taken into account by a court or tribunal if it appears relevant to any question arising in proceedings.
Section 204(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 states that when a Secretary of State proposes to issue or revise a code of practice, he shall, after consultation with ACAS, prepare and publish a draft of the code, consider any representations made to him about the draft and may modify the draft accordingly. A draft was therefore issued for public consultation last October, for comments by 19th January this year. In all, we received 21 responses: 14 from employers or employers' organisations and seven from trade unions or similar bodies. All comments were given detailed consideration and a number are reflected in the revised code before your Lordships today.
The revised draft code has been given a new title to cover both the balloting process which a union must satisfy to be protected against proceedings which could otherwise be brought to stop it organising industrial action and also the new requirement to give notice to employers of a union's intent to conduct a ballot or call for industrial action following a ballot. In broad terms, the most significant changes from the previous code are: first, new recommendations about the information which a union should in certain circumstances include in its notice to employers of intended official industrial action; and, secondly, new recommendations, and a clarification of the description of statutory requirements, to encourage unions to let employers know if there are significant differences between information notified in advance and what happens when the ballot is actually held. The revised code also confirms that union notices, when they are provided, must represent the union's genuine intentions.
Like the current code, after an opening section describing its scope and legal status, the revised draft code follows the sequential process involved in balloting, with the addition of the provision of notice to employers. It follows the practice of previous industrial relations codes by showing re-statements of the requirements in primary legislation against a shaded background; the remainder of the text comprises "good practice" recommendations or similar guidance.
It may be helpful if I outline briefly the content of the code. Section A explains the scope and legal status of the code, its intended purpose and the assistance that it can provide to unions, their members and others. Section B makes recommendations about observing procedure agreements and other considerations which should be taken into account before a ballot is held. These recommendations are aimed at ensuring that all possibilities are explored and industrial action is genuinely the last resort.
Section C sets out the new requirements for independent scrutiny of ballots where more than 50 members are given entitlement to vote and recommends that a scrutineer should be appointed before steps are taken to satisfy any other requirements of the law. It covers the requirements of the scrutineer's terms of appointment; and states that there must be no interference with this function from the union or any of its members, officials or employees; and that the trade union must comply with all reasonable requests made by the scrutineer for the purpose of carrying out those functions.
The code adds that it may be helpful for a union to entrust additional tasks to the scrutineer (such as the supervision, production and distribution of voting papers and being the person to whom voting papers are returned). It also recommends that unions should make adequate arrangements for scrutiny even where ballots involved 50 or fewer members, though these do not necessarily have to involve an independent scrutineer.
Section D restates the law on the method of voting; entitlement to vote without interference or constraint; and entitlement to vote in secret without any direct cost. Recommendations are made about arrangements to ensure secrecy of voting.
Finally, Section E restates the law on ensuring that votes are accurately and fairly counted and on the notification of details of the ballot result. This section also makes recommendations about procedures to ensure accurate and fair counting of votes; systems to help ensure that statutory requirements about notification of the result are fully satisfied; obtaining and providing copies of the scrutineer's report; notifying details of ballot results; and matters which a union should take into account before deciding to organise industrial action.
An issue which has been of concern to a number of those commenting on the code is that unions may be required to provide names of individual members to employers. There was a full debate on this matter prior to the introduction of the legislation and it would not he right now to go over the same ground in any detail. However, it might be helpful for me to remind your Lordships of what Ministers said during the passing of the legislation; namely, that there could be some occasions when it would be necessary for unions to give names to employers because, realistically, there could be no other means of identifying those involved. Since the 1993 Act, the case of Blackpool and the Fylde College v. National Association of Teachers of Further and Higher Education has shown that the law is working exactly as Ministers had said it would. In that particular case, around a third of the college's lecturers were union members but the employer had no way of knowing who most of them were, and therefore no way of putting the college's case to those who were to be balloted, unless the union provided their names.
It will of course he rare in practice for a union to have to give names. In many cases the employer will know which employees arc to be balloted, for example, because they pay their union subscriptions by check-off deductions from their wages. But nobody need he afraid

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to do so since the law provides full protection for employees against dismissal or other action on the grounds of trade union membership.
This code of practice reflects the spirit and the letter of the 1993 legislation on this issue, making clear that the need to provide names arises only if workers cannot be identified by other means; for example, grade or work activity.
This code, if approved, will be a valuable source of reference for unions, union members and others. Taking account of its recommendations can only help improve the conduct of ballots, and that in turn will help continue the improvement in this country's industrial relations which has been such a feature of the last decade. Following the recommendations of this code will help ensure that union members have a proper, democratic voice in their union's decision on whether to call industrial action; it will enable employers to put their side of the argument before workers vote on whether to strike; and it will enable employers and others to have a reasonable period of notice during which to prepare for the effects of industrial action. The guidance helps explain the requirements of the relevant law, so that nobody can complain that he or she was unaware of the law or could not understand it. Finally, the good practice recommendations are aimed at avoiding disputes both within unions and between unions and employers. Following them will improve industrial relations.
For those reasons I commend the draft code of practice to your Lordships.
Moved, That the draft code of practice laid before the House on 11th May be approved [21st Report from the Joint Committee].—(Lord Inglewood.)
5.40 p.m.
Baroness Turner of Camden: My Lords, I thank the Minister for his explanation of the draft code of practice before the House. He will not be surprised to learn that I do not much care for it. I do not care for the legislation on which it is based—the Trade Union Reform and Employment Rights Act 1993. I accept, with reluctance, that despite vigorous opposition in this House mounted by myself and my noble friends Lord McCarthy and Lord Wedderburn, we were unable to persuade either the Government or the House at that time that the legislation then proposed was weighted heavily against trade unions and was therefore unjust and unfair.
We accept, as the Minister said this afternoon, that industrial action is a last resort. I speak as a former senior trade union official. I spent a large part of my working life as an official and had my share of disputes—and resolved them. It should not be assumed, as the Government seem to, that unions exist for the purpose of running strikes. We accept that strikes are damaging, not only to industry and commerce, but often to the members themselves who have to exist on strike pay and may lose substantial amounts of money. It is a worrying time for the members, their families and union officials who feel themselves responsible for their well-being. But the right to strike must exist as a longstop. It is only forbidden by law in oppressive, despotic and undemocratic regimes. The ultimate right
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of workers who have a grievance collectively to withdraw their labour is an important right; indeed, a civil liberties issue. Having said that, we also agree with ballots and participation by members in the industrial decisions that govern their lives. My union always balloted its members, and not only on dispute action, but also on other issues directly connected with members' employment.
Our objection to the 1993 Act is that it sought to tie up unions in a great deal of bureaucracy before they could obtain immunity; in other words, before their actions would be regarded as lawful within the meaning of the Act. The same thing applies to the draft code. In my copy the coloured sections presumably refer to the actual law while the uncoloured or white sections are the code, which is not the law but a kind of guide. In my view all that simply adds to the red tape, indeed to the hurdles that unions must surmount before they can be sure that they have complied adequately with all requirements.
The code contains great chunks of print dealing with the provision of notice to employers, the printing and distribution of ballot papers, communication with members, counting the votes accurately and so forth, none of which is in the law as I understand it. It simply adds to the amount of material that must be digested by union officials before even contemplating industrial action. It is far too much and elaborates unnecessarily, I should have thought, what is contained in the Act.
Again, the code seems to be one-sided. One would not think, on reading this material, that it takes two sides for there to be a dispute. The employer may well be culpable; may well have refused to negotiate or attempted to undermine existing terms and conditions and so forth. It is clear that in those circumstances the Government feel that employees should put up and shut up. To draw attention to what I mean, the code makes the point—this is stated on the sample ballot paper—that the member must be allowed to vote without interference from or constraint imposed by the union or any of its members. But what about constraints and intimidation—I can assure your Lordships that they are quite common—indulged in by employers?
Furthermore, paragraph 38 states that the union should ensure that nothing appears on the ballot paper which might encourage a voter to answer one way or the other. Apparently, therefore, the union may not make any recommendation to its members. Then there is the point made in paragraph 46 indicating that the ballot could fail to satisfy requirements unless the union makes sure all members, officials, employees and so forth do not, even inadvertently, exercise constraints upon those entitled to vote. That is an impossible requirement, particularly in a large union. It is true that there is a provision whereby the union executive may retain immunity by repudiating the actions of such an individual, but the action may not come to its attention for some time, perhaps not until someone mounts a challenge.
The provisions are much too sweeping and go beyond what the law, bad as it is, requires. Paragraph 48 refers to the special arrangements which need to be made to ensure that voting papers reach members who are on

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holiday, sick or on maternity leave. That again may be asking too much of a union which may have large numbers of members and would not normally keep records of people on maternity leave, on holiday or sick.
There is then the point to which the Minister referred in his explanation, which gave us so much trouble when we debated the Bill in the House. I refer to the requirement which could mean that employers have to be supplied with the names of union members. I well remember the arguments I advanced against this when we debated the Bill. I was assured by the Minister, and it has been repeated this evening, that although the Government wanted to retain that requirement as a longstop, it was most unlikely that it would ever be used in normal practice. It now transpires that there is a case—to which the Minister referred this evening—concerning NATFHE—where the judge did not take the view that it would be a rare requirement; indeed, quite the contrary.
If the Government's view is that that requirement should exist only in rare cases, a much greater attempt should have been made to see that it was quite specifically included in the code. As it is, I can tell the Minister from my own experience that there are members, particularly those in supervisory or senior positions, who may be promoted but who retain their union membership and with that the right to have a ballot paper, who may not want to have their contributions deducted by check-off and who may not want their employers to know that they are still union members and are still entitled to vote. I made a plea on behalf of such people when we debated the Bill and it attracted a little sympathy even from noble Lords on the other side. I am disappointed therefore that more has not been done in the code to emphasise the points that were then made.
Of course the Government claim, and the Minister did so again this evening, that their so-called reforms have reduced the number of industrial disputes and have been responsible for what is claimed to be a great improvement in industrial relations. I do not agree. There has been a large increase in unemployment since the late 1970s when the last Labour Government held power. Not only that; those in employment feel a great deal less secure, as I said when we debated the casualisation of the labour market last week. Manufacturing industry in particular has shrunk in size; far fewer jobs are available in what remains. Those are all potent factors in reducing the number of disputes and the readiness of employees to risk what they have, even if it is unsatisfactory. The legislation has assisted the general sense of insecurity because unions are seen as having less power to protect their members. As I said in the debate last week, the general sense of insecurity and the lack of the feel-good factor may well give this Government a great deal of trouble when the next election occurs.
In the meantime, since the code has already been through the other place, I assume that we have no alternative but to accept it here. However, I understand from my noble friend Lord Wedderburn—who I am glad to see is with us tonight—that he believes that a section
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of the code is actually wrong in law. I believe he has given notice to that effect. If that is so, then the Government should take it away and look at it again.
5.48 p.m.
Baroness Seear: My Lords, we on these Benches supported the earlier stages of the trade union reforms which were brought in by successive Conservative governments and felt that a great deal of reform was needed. But as the legislation progressed, particularly the 1993 Act, we felt that the Government were going much too far and were trying to undermine trade unionism in this country. We have said on a number of occasions that it is not possible to run an industrial country and a successful economy where large numbers of people are employees without having properly organised trade unions with proper rights, properly protected.
The Government must recognise that it is time to strengthen responsible trade unionism rather than attempt to undermine it, which has been their policy all along. We accepted, and accept willingly and support, the idea of ballots. The noble Baroness, Lady Turner, accepted that ballots were a good introduction. It was one of the pieces of legislation to which we gave unqualified support. The Government got what they wanted long ago and it is time to strengthen the position of responsible trade unions rather than to undermine them further.
I agree with the noble Baroness, Lady Turner, that in much of the detail of the order there is a great deal of unnecessary burden placed on trade unions in the organisation of strikes. The right of association is an essential human right. But the right of association in the industrial scene means nothing unless there is the right to withdraw labour and that means that properly conducted and under proper conditions the strike is an essential part of an essential human right. We all know that it should be used only in exceptional circumstances, but when it is being used, the employees and members of the trade union should be entirely untrammelled in their right to use it within the framework of the law.
In our view the Government have gone too far in trying to restrict proper trade union activity. I should like especially to refer to the point made towards the end of the speech of the noble Baroness, Lady Turner, and on which we spoke with considerable force when the legislation was progressing. That is the question of the employer's right to have names of people who arc members of trade unions. To belong to a trade union is a right. It is a right of the individual person and it is not the business of the employer or anyone else to decide who is a trade unionist and who is not. There are people who do not wish the employer to know. While the noble Lord may say that the law protects them against victimisation, there are all manner of ways in which people who displease employers can he handicapped without it reaching the point of being anything which could legally he described as victimisation. We consider that the decision to give the employer the right to have those names is quite wrong.

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The noble Lord, Lord Inglewood, will no doubt say, as so many people on the Government Front Bench say on occasions such as this, that it is only a small matter, that it will not happen very often, that it will happen only on rare occasions. That is no argument whatever. Good law is about dealing with exceptional circumstances. In the majority of cases there are not issues that have to be raised, but it is in the exceptional case that the law is important. The fact that it does not happen often does not make a bad law into a good law or a bad regulation into a good regulation. I repeat that we accept the opportunity for strike ballots and we accept that there has to be a code to deal with that. But we consider that some of the detail of the code is very mistaken.
Lord Boyd-Carpenter: My Lords, this is an excellent document which will be of considerable help to those engaged on both sides of industry in the event of disputes. The noble Baroness on the Opposition Front Bench objected to the code on the ground that it contained too much material. That is a criticism which can so often be made—and rightly made—of a great many government publications. But what I think the noble Baroness failed to recall is that sometimes industrial disputes are conducted not by high-powered unions with skilled and experienced management but by small unions without very much expertise or knowledge available among their officials. Therefore it is desirable, in order to cope with such cases, that there should be a very full exposition of the right conduct of a dispute of this kind.
This document will very much help in, I am glad to say, the increasingly rare cases of disputes of this kind. The noble Baroness tried to brush aside a conspicuous feature of our industrial scene over the past few years. I refer to the striking—that is perhaps the wrong adjective—the noticeable reduction in industrial disputes. It is not good enough just to say that there is unemployment and so on because unemployment itself—
Baroness Seear: My Lords, will the noble Lord give way?
Lord Boyd-Carpenter: My Lords, if the noble Baroness will wait just a moment, I am in the middle of a sentence. I shall give way to her when I have finished it. It is desirable to remember that unemployment is diminishing quite rapidly while, on the other hand, industrial disputes do not seem to be increasing. I shall certainly give way to the noble Baroness.
Baroness Seear: My Lords, I rise to make the point which I am sure the noble Lord is expecting me to make. Of course unemployment affects strikes. All the statistical records show that whenever there has been a high level of unemployment the level of strikes has fallen quite dramatically. We shall have to wait a long time to know whether it is the reforms rather than the economic situation which have had this effect on industrial relations.
Lord Boyd-Carpenter: My Lords, the noble Baroness cannot just brush aside the fact that the number of industrial disputes has very much diminished
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and at the same time unemployment has been diminishing very substantially. She cannot just brush that aside and say that because of low unemployment there has been an improvement. There has been a real improvement in industrial relations.
Baroness Turner of Camden: My Lords, does the noble Lord agree that the new employment, such as it is, is often part-time and very often much more casual and much less secure? It is the lack of security that contributes to the unwillingness to risk what one has.
Lord Boyd-Carpenter: My Lords, that is another very interesting theory. The fact that the noble Baroness cannot dodge is that the number of industrial disputes is only a fraction of what it was a few years ago. Therefore, in that context, it is very desirable that the position should be set out as clearly as it is in this document. It is more than possible, as I was saying a moment ago, that such disputes as there are will be carried on by unions of very limited experience. It is therefore desirable that the legal and other factors affecting the handling of these disputes should be set out clearly and fully so as to give real guidance to those engaged in the dispute, both on the employer's side and on the union side.
I very much welcome the production of this excellent document. It is yet another example of the good industrial relations policies of which the present Government have every reason to be proud.
Lord Wedderburn of Charlton: My Lords, as my noble friend said, I have given the Minister notice, albeit very short notice, of a point which is central to the draft code and I must therefore put aside all points other than that with more than my customary moderation, failing to argue with the noble Lord, Lord Boyd-Carpenter, although he told us that it is important that the code should be clear to both sides—I shall come on to that point—and also with the Minister; we shall see perhaps in Hansard whether he did not justify the protection of those who were taking industrial action by virtue of the protection against dismissal of those undertaking trade union activity. If he did, he was, with respect, wrong, because trade union activity does not in this jurisdiction, although it does in most Western European jurisdictions, include industrial action.
The point of which I gave the noble Lord notice is, it is true, a short but central one to the code and it has emerged only recently, although perhaps some of us should have seen it before. But that can be said of everyone else. If it is right, the Minister must take back the code and have it altered just slightly—I repeat, just slightly—but in respect of a point which has engaged the interest of many of your Lordships. I refer to the section which requires the union, when inducing its members to take industrial action, to give seven days' notice in the course of which it must describe the members. It is quite clear that in many situations that will mean naming them, as the Government now well know from the case to which the Minister averted of Blackpool and the Fylde College.

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When the Government describe the effect of this section they do so in the annexe on page 24. Since this is a point of law I have to ask your Lordships to bear with me in reading the precise words into the record. Paragraph 5 of the annexe states:
"A trade union which organises f industrial action without satisfying the requirements of section 226"…
that is the basic section on balloting—
"or 234A (for notice to employers of official industrial action)"—
that is the section I am addressing to the Minister—
"of the Trade Union and Labour Relations Act 1992 will have no Immunity'. Without immunity the trade union will be at risk of legal action by; (i) an employer (and/or a customer or supplier of such an employer) who suffers (or may suffer) damage as a consequence of the trade union's unlawful inducement to his workers to break or interfere with the performance of contracts".
It is my submission, which is now shared by a large number of people—it was also shared by the Minister, the noble Viscount, Lord Ullswater, during the debates in 1993 in the passage of the Trade Union Reform and Employment Rights Bill—that the words in brackets,
"(and/or a customer or supplier of such an employer)"
are wrong in law. In saying that, I appreciate that this passage is on a white page and not on one of the beige pages which purport to state the law. It would be extraordinary if anyone suggested that merely being on a white page was any excuse for a mistake in law in this code of all codes. It is undesirable that the code should state the law wrongly; it is improper and arguably ultra vires if it does so.
What is the ground on which I put to your Lordships that very simple point? It may be summed up by saying that the Government have extended the range of plaintiffs more widely than Section 234A, which was inserted into the 1992 Act by the 1993 legislation.
The union, in giving seven days' notice, must identify and describe in order that the employer may ascertain the members who are about to take action seven days later which are continuous or discontinuous. But the obligation to make that description is owed and expressly stated in Section 234A(1) to be owed "as respects his employer". It is quite clear that that obligation is "as respects his employer".
It does not stand alone in the Act. There is another place in Section 226A. That also clearly and explicitly imposes the obligations to give the employer a ballot paper and to notify him who is likely to take part by describing the individual members. It appears in two places in the Act. It imposes a duty only "as respects his employer".
What the noble Viscount, Lord Ullswater, and my noble friend Lord McCarthy and myself debated in the course of the passage of the 1993 Bill, was whether or not there were different hoops through which the union must jump as regards the person who turns out to be the plaintiff. That is slightly absurd because the union must decide what to do before it knows who the plaintiff is. That is the point which we kept putting to the Minister.
Later, the Minister corresponded with me. I suspect that his filing system will retrieve the letter more easily than mine. We exchanged correspondence and the Minister agreed with me in the end that it was the Government's intention to insert different hoops for
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different plaintiffs or applicants, as they might turn out to be. The central point of that correspondence was a different person; namely, a member of the union, who can demand a ballot to be supportive of the action as regards the hoops in the new subsection (2) of Section 62.
Noble Lords will understand me when I say that "hoops" describe the large number of acts which have to take place. There has to be a secret ballot; it has to be on paper and by post. All those requirements are of course common to the different categories. But as regards the member of the union, there is one small hoop which is not demanded. That relates to notifying the employer of the result. Regarding what we might call "ordinary plaintiffs", that requirement is inserted in the new subsection (2) of Section 226.
Therefore, we were left with this. There could be a member who, if he applied to the court, the union would get through even though it had failed in just this one small step. There could be the ordinary plaintiff in respect of whom what I might call the ordinary list of requirements such as secrecy, post and so on were satisfied. But then the third hurdle came in which was debated separately during the passage of the Bill. Two extra hurdles were inserted in respect of the employer; namely, Sections 226A and 234A. The ballot notice had to be given before the ballot and after the result the notice of industrial action had to be given to the employer.
That is absolutely clear, and it still is, but I cannot see why. If one is advising a trade union, it is no good saying to them, "Well, if it turns out to be just a member, you could have omitted that, or if it turns out not to be the employer who brings the action, you could have omitted this". But that is the law and that is what the Government confirm it to be. Therefore, it is very important indeed if the Government now say in the code that a plaintiff, who was not included in respect of the two extra requirements for the third category, can now bring a legal action which the Act manifestly says he cannot; namely, a customer, a supplier or anyone else, other than the employer in respect of whom the duty is owed. Plainly, the protection is lost only, "as respects his employer", which is the precise phrase used.
This is not a small point. There are civilised employers. The Minister looks surprised. I shall tell him why it is not a small point. There are civilised employers who are not demanding individual names. There are civilised employers who say, "We believe you ought to give seven days' notice"—the union may disagree with that—"but we are not going to ask for the names of the members as long as we have a general idea". To do that puts the temperature up in any dispute. Anyone who has ever seen an industrial dispute knows perfectly well that it raises the temperature, and some of us wonder why that provision is not there.
If a customer or supplier, and no doubt a lot of other people, can rest on the failure to give names, what is the point of the employer acting sensibly like that? It means that some other person will go running off to court, if the code is right; namely, the customer or supplier. But the law says that that is not the case.

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Either this code is going to encourage a lot of customers and suppliers to waste their money on actions before we get it straight or the Minister can take this matter back and put it right. It is a well-known point in analysis. The 1993 Bill was very difficult to analyse. As I say, it took correspondence after the debates for it to be made clear that we were right in saying that the hoops through which the union must go are not the same as regards all types of possible plaintiff. That is the point.
Section 234A does not give the supplier and the customer a right of action if the union fails in some respect or other. There are other respects because the union has to give seven days' notice and to say whether the action will be continuous or discontinuous. There has to be no commencement of the action before the proper day in either of those categories. Giving the names is only one of the points. The most important introduction to industrial conflict law in 1993, was Section 234A.
Therefore, I urge and entreat the Minister to go away and discuss this matter before he puts it through. He can put it through tomorrow if everyone says that the point I make is wrong. I can certainly bring in a few opinions to say that the point is right. In other words, it is not my particular point. It should have been raised before. To put through a code which is clearly wrong and on a point which is of great importance, which goes to the centre of many disputes, makes one ask: how far are these obligations to be pressed on the factory floor? What goes into the law is not always what happens in real life.
The code as it stands is an incitement to people to say, "Look here, you can't give way on any of this or somebody else will bring an action for an interlocutory injunction"—because that is how it is done. Therefore, I beg the Minister to take the point seriously and although I am sure that the Government are counting their days for legislation on the fingers of a number of hands, it would not waste many hours if the Minister took this point away and got further advice on it from independent counsel.
Lord Inglewood: My Lords, I am most grateful to all the noble Lords who have participated in this debate. I begin by—I shall not say "apologising" because that is probably the wrong word, but by making clear that I am probably the only participant in today's debate who was not present for your Lordships' debates on the 1993 Act. So, not merely because it is beyond the scope of the code of practice that we are debating this evening, but also because I am not in a position to do so, I think it appropriate to leave that matter on one side. Those battles have been fought and won in the past; they are not battles that should be fought again this afternoon.
Equally, much reference has been made to the Government's record on employment and other matters. We have had some kind comments from my noble friend Lord Boyd-Carpenter who underscored the real achievements of this Government in improving the economic condition of this country and, with it, the number of jobs.
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However, criticisms have been levelled at us from the Benches opposite. As the noble Baroness, Lady Turner of Camden, said, we debated such matters just over a week ago, so I hope that the House will forgive me if I say again that because we have discussed the matter so recently, this is not the time to go over all that ground again. We had an excellent debate on that occasion and I do not believe that we can take the matter much further at this point.
A number of criticisms have been made about what we are doing. I shall endeavour to touch on them and to reassure your Lordships. A point that is sometimes overlooked is that, as the noble Lord, Lord Wedderburn, explained, we are talking about an extremely complicated and technical aspect of the law. In those circumstances and against that background, we do not believe that it is appropriate in generic terms to level at this code of practice the criticisms that in some way or another it is too long or too detailed.
As I have said, we are talking about something that is extremely complicated. The purpose of the document is to help ordinary people the length and breadth of the land to deal with a topic which, by anybody's analysis, is extremely difficult. We hope that the provisions will not merely help those who are involved in this area, but that they will also help labour relations in general because, as has been explained, good labour relations are good for the country.
It has been suggested that the code should equally have been addressed to employers. The answer is very simple. The law itself is addressed to unions because it is unions which can benefit from the statutory immunity provided that they follow the correct procedures. The decision to organise a ballot is solely for the union. Any subsequent decision to call industrial action is also solely for the union. The decision on which members to ballot or call out is also for the union alone. The employer has no part in any of this process. His workers may break their contracts of employment with him, and he is entitled to be informed about a ballot and any subsequent call for action, so that he can if he wishes put his side of the argument and take any possible steps to reduce the damage caused by industrial action.
Perhaps I may now refer to the case of the Fylde College and the National Association of Teachers in Further and Higher Education. The reason that the statute provides that the employer should have identified for him those who are union members and who are contemplating action is, first, so that the employer can exercise his legitimate right to put his side of the argument and, secondly—the Benches opposite did not touch on this point at all—because the employer employs people for a particular purpose and if they down tools and leave for a period, he has to find alternative ways of trying to organise his business. In those circumstances, it is entirely reasonable that he should be able to mitigate the damage that he might otherwise suffer.
I fully understand the comments made about this by the noble Baronesses, Lady Turner and Lady Seear, but it would be useful to consider the relevant section of the statute. The relevant notice has to describe, so that he, the employer, can readily ascertain,

913
"the employees of the employer who the union intends to induce or has induced to take part or continue to take part in industrial action".
It is clear that that does not mean having to name names. The test is satisfied however it is done so that the process that I have described can properly be carried out.
I believe that it was the noble Baroness, Lady Turner, who referred to the steps that have to be taken to ensure that ballot papers are properly distributed. Much has been made of the recommendation that the union should make special arrangements to get voting papers to members who are on holiday, sickness or maternity leave at the time of the ballot. Again, I re-emphasise the fact that the code cannot add to the law. The law requires that as far as reasonably practicable every person properly entitled to vote must be sent a voting paper and given a convenient opportunity to vote. Obviously what is reasonably practicable will depend on the circumstances. In a national ballot it would not be reasonable to expect a union to be able to take account of individual members' circumstances. But in a ballot at a small employer where perhaps only 10 or so union members are involved, all of whom are well known to the shop steward, it could be perfectly reasonable to take account of such matters as sickness or maternity leave. The code simply reminds unions that they must do what is reasonably practicable. I do not believe that that is in any way objectionable.
I turn now to the comments made by the noble Baroness, Lady Seear. She seemed to be arguing tautologously. If I heard her correctly, she said that it is right that there should he the right to strike which is untrammelled within the limits of the law. I do not think that anybody in the Chamber would dissent from that basic proposition. What we are concerned about is how circumscribed by the law that activity will be. In contemplating such matters, I believe that it is relevant to say that the way in which we protect unions in this regard is by a form of statutory immunity from actions in tort for inducing breaches of contract—
Baroness Seear: My Lords, the noble Lord referred to me particularly. Of course, I said that there was a right to strike within the limits of the law. The whole point is that I was complaining about the nature of the law.
Lord Inglewood: My Lords, I was far from clear at that stage exactly what the noble Baroness was arguing in this context and where she stood in the context of the legislation as it relates to this code of practice. I am grateful to the noble Baroness for her intervention which has clarified the matter.
The final point that I should like to address specifically is that raised by the noble Lord, Lord Wedderburn, who advised me that he intended to raise a point with regard particularly to page 24 of the code of practice. With your Lordships' agreement, rather than endeavour to give a quick answer to what was on the noble Lord's own admission an extremely technical point and because I do not have the statute before me, I should like to adjourn the House for pleasure for, say, 10 minutes so that I may be properly advised on the particular point raised. It is clearly an important point. Although the noble Lord indicated earlier that he intended to raise a point on that part of the code, we
914
were not exactly clear as to the point that he intended to address. Therefore, I beg to move that the House do now adjourn during pleasure for about 10 minutes.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 6.18 to 6.30 p.m.]
Lord Inglewood: I am grateful to your Lordships for allowing me to take instructions on the matter. I am also grateful to the noble Lord, Lord Wedderburn, for giving us the benefit of his widely recognised expertise.
I understand that the circumstances pertaining to the extent and nature of the immunity referred to in paragraph 5 on page 24 of the draft code of practice are to some extent different. That was the point made by the noble Lord, Lord Wedderburn. We must bear in mind that the paragraph appears in the annex to the code of practice. While it may he in a section which refers to trade union liability, it is not in the part of the code to which I referred in my opening remarks. That appears on a coloured background.
In paragraph 5 we are providing a gloss on the law. The code of practice is not a legal textbook. It is intended in simple language to give a general indication of the law in this regard. In respect of Sections 226 and 234A various immunities are granted. As I have explained, the nature of those two immunities is slightly different. Nevertheless, depending on the particular circumstances—but in any event, relating to the circumstances which are described in paragraph 5—a trade union will be at risk. We are not saying that it is inevitably the case that a successful legal action might be brought. We are saying that there is a risk that there may be a legitimate case. I believe that against that background it is a proper form of words to use in the circumstance.
It is not intended to be a definitive and precise description of the law; it is intended to be a general description of the law in this area. In that regard, I believe that it is correct that, depending upon where the immunities exist, there can under certain circumstances be occasions when those immunities can be challenged in the courts. It is merely the case that in this instance immunity can be changed in a slightly different way, depending on whether the action relates to Section 226 or Section 234A.
When describing the process which led to the order coming before your Lordships' House, I explained that there had been wide consultation on the document. It has been distributed widely and examined by a large number of people. Twenty-one specific responses were received from bodies such as the CBI, the Engineering Employers' Federation, the Trades Union Congress and the Scottish Trades Union Congress. The text was not picked up by anyone as being in any way wrong. That is important because, as I explained earlier, we are talking about a gloss on the law to give an indication of what the law is. We are not giving an exact analysis of a precise situation such as one would expect to find in a legal textbook or to receive in counsel's opinion or from a solicitor.

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I believe that in that context what we have stated in the code of practice is correct. There is a risk of legal action. Because it does not go further than that, we are perfectly in order to have included the paragraph in that particular form of words.
Lord Wedderburn of Charlton: My Lords, perhaps the Minister will allow me to clarify the new interpretation which he has put forward and which, I suspect, is not present in the minds of the many people who were consulted on paragraph 5.
The case appears to be that the Government are saying that without the immunity in question, which includes Section 234A and the duties owed only to employers, the trade union will be at risk of legal action whether the person bringing it is the employer, the customer or the supplier. However, what is implied is that the employer will win the legal action and that the customer or supplier will lose the legal action. The Government are saying merely that someone might bring a legal action, just as they might have said that an Eskimo might bring a legal action or that the union might be at risk of a person in Tunbridge Wells bringing an action whether or not they might win.
Does the Minister assert that that is the way in which the ordinary person, to whom the code is addressed, will read it? Will not the ordinary person say, "When the code says that the union is at risk of legal action by employer, customer or supplier it is saying that the union is going to lose if there is no immunity."? That is the normal meaning of those words. Is it the Government's intention that that is not the meaning? The meaning is that there might be a legal action in one court or another here or in Scotland and that it might succeed or it might not. What is the point of a paragraph stating that when the rest of page 24 deals with who will win and who will lose?
Lord Inglewood: I am grateful to the noble Lord, but it appears that he is now the one who is putting a gloss on this part of the document. He is reading it in a manner which, by his own admission, is intended to spell out that we are trying to make the document as frightening as possible. Under the statute there is a risk that one might break the law under these circumstances. It is reasonable to point that out to people, bearing in mind that they may be going forward and taking the steps that we are debating.
In no sense are we using a valued and weighted phrase in stating:
"the trade union will be at risk of legal action".
If the paragraph had stated:
"the trade union will have broken the law",
I can see that that may well not he true. However, in the generality of the case and in the gloss using layman's language, there is a real possibility that under the circumstances described there could be a risk of legal action against the trade union. I do not believe that the inclusion of those words in any way goes to the heart of the matter.
Baroness Turner of Camden: My Lords, I am not a lawyer and I appreciate that my noble friend Lord Wedderburn knows a great deal more about these issues
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than I do. However, I believe that if the code is intended simply to put a gloss on the law, that gloss ought to be correct and not incorrect. My noble friend suggested that the deletion of the words,
"and/or a customer or supplier of such an employer",
would put the whole statement in line with the law as it now stands. The Minister appeared to agree that my noble friend was right in his estimate of what the law is.
Lord Inglewood: My Lords, the point that I am making—and it was refined by the comments of the noble Lord, Lord Wedderburn—is that Sections 226 and 234A relate to immunity. The important point is that under certain circumstances there may be immunity which may lead to an action by an employer which will not lead to an action by a customer or supplier of such an employer. It is important to look at the text. The word "immunity" appears in the heading in quotation marks. It is a general word. Paragraph 5 of the code states:
"Without immunity the trade union will be at risk of legal action by; (i) an employer (and/or a customer or supplier of such an employer)".
The employer has a wider course of action open to him if he wishes to proceed than does a customer or supplier. But that does not gainsay the fact that there are circumstances when the customer or supplier can bring an action. So long as there is a possibility that such a customer or supplier can bring an action, the proposition as stated in paragraph 5 that the trade union will be at risk of legal action is entirely consistent.
On Question, Motion agreed to.

Companies (Fees) (Amendment) Regulations 1995
6.40 p.m.
Lord Inglewood Lord Inglewood rose to move, That the draft regulations laid before the House on 6th June be approved [22nd Report from the Joint Committee].
The noble Lord said: My Lords, I trust that this matter may he rather less contentious.
Section 13 of the Deregulation and Contracting Out Act 1994 introduced a new company law procedure. It allowed directors of non-trading private companies which had reached the end of their useful lives to apply for them to be struck off the register of companies and dissolved. This new procedure will come into force on 1st July for companies registered in Great Britain. A fee will need to be paid to recover the costs incurred by Companies House in processing the applications. The purpose of these regulations is to prescribe that the fee will be £10 in respect of the making of a striking-off application.
To apply, directors have to fill in a simple form and send it to Companies House. They must also copy the completed form to anyone with an interest in or dealings with the company. Unless there are good reasons why the company should not be struck off the register, it will he dissolved within a matter of a few months.
The new procedure offers a simple, inexpensive and swift way for private companies which are no longer needed to terminate their affairs. They will be dissolved,

917
thus relieving their directors of obligations under the Companies Act which are no longer necessary or appropriate. For example, it will save the costs of preparing statutory accounts and, where necessary, having them audited.
In return, the procedure contains certain safeguards for those dealing with or involved in the company. As I said, directors must send copies of the application and anyone may object to the application by showing the registrar that there is good reason for the company not to be struck off. A good reason might be that the company is still trading or that a creditor is taking steps to recover a debt.
Processing the application will involve Companies House in staff and computer costs and relevant overheads. We propose to set a fee of £10 to cover those costs. Directors will incur other costs in making the application; for example, copying and sending the completed application form to anyone with an interest in or dealings with the company. They may also choose to seek professional advice although Companies House is providing comprehensive guidance notes to assist. I am confident that the fee is reasonable and will not deter applicants. I commend the regulations to the House. I beg to move.
Moved, That the draft regulations laid before the House on 6th June be approved [22nd Report from the Joint Committee].—(Lord Inglewood.)
Baroness Turner of Camden: My Lords, the Minister is quite correct in his assumption that in relation to this instrument, we have no objections to raise. It is entirely non-controversial.
On Question, Motion agreed to.
Food Protection (Emergency Prohibitions) (Paralytic Shellfish Poisoning) Order 1995
Food Protection (Emergency Prohibitions) (Paralytic Shellfish Poisoning) (No. 2) Order 1995
Food Protection (Emergency Prohibitions) (Paralytic Shellfish Poisoning) (No. 3) Order

Food Protection (Emergency Prohibitions) (Paralytic Shellfish Poisoning) (No. 4) Order
6.43 p.m.
The Earl of Lindsay The Earl of Lindsay rose to move, That the orders laid before the House on 31st May and 5th, 19th and 27th June be approved [22nd, 23rd and 24th Reports from the Joint Committee].—(The Earl of Lindsay.)
The noble Earl said: My Lords, I should point out that I am moving all four protection orders, although due to a printing error the Order Paper refers only to three.
I seek your Lordships' approval for four emergency orders made on behalf of my right honourable friend the Secretary of State for Scotland to ban fishing for certain types of shellfish in waters off the east coast of Scotland and around Orkney. They were made as a result of a build-up of the naturally occurring paralytic shellfish poisoning toxin, or PSP as it is known, in excess of the internationally-agreed safety level of 400 units. I beg to move.
Moved, That the orders laid before the House on 31st May and 5th, 19th and 27th June be approved [22nd,23rd and 24th Reports from the Joint Committee] .—(The Earl of Lindsay.)
Lord Graham of Edmonton: My Lords, we have no objection to these orders on this side of the House. They are brought forward year after year and I should not dream of "musseling" in on the Minister's speech.
On Question, Motion agreed to.

Misuse of Drugs Act 1971 (Modification) Order 1995
6.45 p.m.
Baroness Blatch Baroness Blatch rose to move, That the draft order laid before the House on 25th May be approved [22nd Report from the Joint Committee].
The noble Baroness said: My Lords, the purpose of the order is to remove from control under the Misuse of Drugs Act 1971 the substance propylhexedrine. Until 1991 propylhexedrine was among the substances listed in Schedule IV to the 1971 UN Convention on Psychotropic Substances. As a party to that convention, the United Kingdom was required to impose such controls as were necessary to fulfil the provisions of the convention. This was achieved by listing the drug in Class C of Schedule 2 to the 1971 Act and applying the controls of Schedule 4 to the Misuse of Drugs Regulations 1985.
However, in 1991 the United Nations Commission on Narcotic Drugs decided that propylhexedrine could be removed from international control as there had been very little evidence of misuse worldwide for a number of years. Accordingly, it is no longer necessary for the United Kingdom to control it unless, of course, we have any particular domestic reason for doing so. We have no such reason. Propylhexedrine is used in some countries as a nasal decongestant and to reduce appetite in cases of obesity but it has not been manufactured or marketed as a licensed medicine in this country since 1987 and there is no evidence of its misuse here.
Before submitting an order of this kind to Parliament for approval, the Misuse of Drugs Act requires that the Advisory Council on the Misuse of Drugs, the expert body which advises the Government on drugs issues, is consulted. It has considered the question and is content for the substance to be removed from domestic control.
If the order is approved, we shall then bring forward an amendment which will also delete propylhexedrine from the Misuse of Drugs Regulations 1985. The changes would take effect from 1st September. I beg to move.
Moved, That the draft order laid before the House on 25th May be approved [22nd Report from the Joint Committee].—(Baroness Blotch.)
Lord McIntosh of Haringey: My Lords, since the order is brought forward with the approval of the United Nations Commission on Narcotic Drugs and the Advisory Council on the Misuse of Drugs, we are satisfied with it.
On Question, Motion agreed to.

Breast Milk Substitutes
6.47 p.m.
Lord Rea Lord Rea rose to ask Her Majesty's Government why, in the Infant Formula and Follow-On Formula Regulations 1995 (S.I. 1995/77), they have disregarded the World Health Organisation code on marketing of breast milk substitutes by allowing brand name advertising to the public through the healthcare system.
The noble Lord said: My Lords, this evening I shall try to focus my remarks quite narrowly on the words of the Unstarred Question. Of course, there is a much wider issue at stake; that is, the increasing recognition by both government and the health professions of the health benefits of breast feeding and the need to promote it. There is steadily accumulating evidence that human breast milk has health benefits not only in the developing world, where the use of formula milks can be a virtual death sentence, but also in the United Kingdom and other industrial countries.
I shall go into more detail later about the health benefits for both child and mother. But I believe that the Government are fully aware of the evidence which supports the benefits of breast-feeding and they have stated repeatedly that they wish to promote that further. In fact, the whole tenor of the regulations which we are discussing is to control the composition, advertising and marketing of alternatives to breast-feeding in the spirit of the WHO code of 1981, which regulates the promotion of artificial feeds for babies and young children. The implied aim of the regulations is to protect and promote breast-feeding. The regulations implement Commission Directive 91/321 of the EC, now the EU, which was itself the result of prolonged discussion by the European Commission, the European Parliament and MAFF with the overall aim of complying, as far as possible, with the WHO code.
The first United Kingdom version of those directives—the draft version of the regulations in question tonight—was issued in December 1993 by MAFF for consultation. It called for comments from interested organisations and individuals, as is the norm with proposed new legislation. It was enthusiastically backed by 60 organisations concerned with health, including the British Medical Association, the British Paediatric Association, the Royal College of Nursing, the Health Visitors' Association, the Royal College of Midwives and the British Diabetic Association, as well as some 160 individuals. Some of them called for strengthening of the draft regulations further to restrict
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promotion. The draft regulations were opposed, at least in the part dealing with advertising, by 10 organisations, all of which were manufacturers, promoters of distributors of infant formula preparations, as well as just three individuals.
Despite the large body of responsible professional opinion backing the draft regulations, or asking for them to be strengthened, the final version is now law and is more lenient than the draft version instead of being tighter as the professional organisations wanted. To be specific, Regulation 17, which is concerned with restrictions on advertising of infant formulae, has been greatly watered down compared with the draft. Regulation 17 reads:
"No person shall publish or display any advertisement for an infant formula except,

(i) in a publication specialising in babycare and distributed only through the healthcare system; or,

(ii) in a scientific publication".

It then goes on to cover some areas with which I am not concerned tonight. In the draft version which preceded it, which was backed by the health professions that I have mentioned, Regulation 17 started by saying the same:
"No person shall publish or display an advertisement for an infant formula except …. in a publication specialising in babycare… or in a scientific publication".
The wording, up to then, is identically followed by the current regulations. But, after that, the draft law goes on to say,
"publications of which in either case the intended readership is one of independent persons qualified in medicine, nutrition or pharmacy. or having a professional qualification in maternal or childcare".
Those words have been eliminated from the regulations now in force, and the words,
"and distributed through the healthcare system",
have been substituted.
The Minister must surely realise that that is an entirely different proposition. Mothers can be, and are, reached directly through,
"publication[s] specialising in babycare distributed through the healthcare system".
The noble Baroness, Lady Cumberlege, has said that the new regulations put into statutory form the current voluntary agreement with the baby food industry to restrict advertising to the general public. However, the draft regulations, in line with the WHO code, would have tightened up and further restricted advertising to mothers—for example, through the healthcare system. At present that is quietly going on in quite a big way, despite the voluntary agreement. For instance, Bounty Packs, sponsored by the baby milk industry, giving information about baby care, including breast-feeding and also formula milks, to mothers and offering tokens in exchange for usual baby care items such as shampoos, soap and nappies are being given to mothers in maternity units. Indeed, the sponsors pay 70 pence per patient to those hospitals which allow Bounty visitors to see newly-delivered mothers when they are still at a very vulnerable stage. That income is modest, hut, in a maternity hospital which receives 2,000 patients a year, it is a useful, small extra item of income.
The names and addresses of the mothers seen are collected, thus allowing further promotional material to be sent to them by the Bounty sponsors. As the Minister knows full well, the advertising industry is highly ingenious and will use the provision allowing promotion "through the healthcare system" to the full.
Again, the noble Baroness, Lady Cumberlege, stated in a television interview that promotional material under the new regulations will not be going directly to mothers; it will only do so via health professionals. That contradicts her repeated statements, and those of other Ministers, that the new regulations represent the continuation of the present voluntary agreements, which are in fact widely circumvented—or perhaps circumnavigated. I gave your Lordships one illustration, but there are other cases. It appears that the Government have not taken the majority opinion of responsible health professionals who responded to the call for consultation, but have taken the minority opinion of the baby milk producers in watering down the draft regulations issued for consultation in 1993.
I personally feel a sense of déjà vu when asking tonight's Unstarred Question. At about this time last year, I was asking your Lordships to support an amendment which would have restricted the advertising of tobacco products in much the same way as the draft regulations in question would have restricted the advertising of infant formula milks. Then, as now, the Government opposed the proposal while accepting fully the health arguments. In fact, the reduction of smoking was actually a target of The Health of the Nation White Paper. In my view, the Government's position is manifestly hypocritical in both cases.
However, there are still some ways in which the regulations could be made to help control infant formula promotion better than the current voluntary agreement. At present the guidelines for the implementation of the regulations are being drawn up. I hope that the Minister or his colleagues will listen very carefully at these consultations to the views put forward by representatives of the health professions who are on the working group which is drawing up the guidelines. Perhaps the Minister can give me some indication of how soon those guidelines will be available.
In comparison with artificial feeding, breast-feeding has been shown in very careful studies to decrease infections, improve intelligence, decrease subsequent diabetes and reduce pre-menopausal cancer of the breast in women who have breast-fed. The cost to the National Health Service of treating the excess gastroenteritis alone caused by bottlefeeding has been calculated to he about £18 million per annum.
Britain still has a low breast-feeding rate compared with some other industrialised countries. Only 62 per cent. of women start breast-feeding at all and only 25 per cent. are still breast-feeding when the baby has reached three months of age. That rate has actually decreased over the past 10 years, whereas in Norway virtually all mothers start breast-feeding and 90 per cent. of them are still partially breast-feeding when the baby is three months old.
Norway has a strict advertising ban on baby milk promotion, as has Holland, France, Denmark, Luxembourg and Spain. However, Norway has also promoted breast-feeding in many other ways; for example, it has made it compulsory for firms to allow women time off while at work to breast-feed. Not surprisingly, the perinatal and infant mortality rates in Norway are both better than ours, despite the fact that Norway has a scattered and remote population many of whose members live out of the reach of health services.
It would be possible to continue further. Indeed, the subject is complex and there are many lines of argument that I could follow further. However, I believe that I have said enough this evening to amplify the printed words in the Unstarred Question and to give the noble Earl food for thought—a description which could well apply to breast milk itself.
7 p.m.
Lord Monkswell: My Lords, we are all indebted to my noble friend Lord Rea for his excellent introduction to this mini-debate. His contribution this evening has been so extensive that it leaves me with very little to say. I should like to stress one aspect of the subject and introduce a slightly different idea that may he considered.
I believe it to be generally accepted that breast is best and that breast-feeding is beneficial to both mothers and babies. However, it has become public knowledge only through research which has been conducted which has shown that it is beneficial to mothers and babies. It is unfortunate that more publicity has not been given to research which shows that mothers who breast feed suffer a reduced rate of breast cancer. We need to publicise that fact time and time again to get it across to the public at large.
My noble friend referred to déjà vu in terms of the debate last year on tobacco advertising. It is interesting to note that tobacco products carry a health warning. One of the suggestions that I make tonight is that breast milk substitutes should carry a health warning similar to that relating to tobacco products. I believe that it would be sensible for breast milk substitutes to carry words to the effect that the use of those products would increase the risk of breast cancer. It has been elucidated through scientific research that this is a fact. It seems only sensible that we through government action should ensure that that fact is widely publicised. It seems logical that, using the precedent of the health warnings placed on the packaging of tobacco products, we should use a similar system for baby milk formulas and like products.
One of the matters that emerged strongly in the remarks of my noble friend was that, on the one hand, those in the health field in a professional capacity recommended one course of action and, on the other hand, the commercial interests recommended another. It is a little disturbing, but not surprising, that the Government have sided with the commercial interests. I believe it is only sensible that we in Parliament recognise the problems of commercial imperatives. It is

923
a little sad that the Government seem to be able to listen only to the commercial interests and not to professional reports and concerns.
One wonders whether the problem should be viewed in a slightly different way. I draw an analogy with the defence industries. We all know that one of the problems facing those industries is the reduction in demand caused by the peace dividend following the end of the cold war. For a number of years my party has called for a defence diversification agency to ensure that the talents, commercial acumen and abilities of the commercial enterprises that produce defence products can be harnessed to produce peaceful products. I believe we have to recognise that, like the defence industries, here is a whole industry that produces breast milk substitutes. We need to recognise the importance of those commercial interests. They provide employment and economic activity. Perhaps it is sensible to consider the creation of a baby milk diversification agency to look at and develop ways in which the commercial interests, which at the moment produce baby milk formulas, can be harnessed and used in a more beneficial manner. I have been considering this matter for only a short time. The idea came to me a week or so ago. For example, instead of these commercial interests providing a product that is harmful to mothers and babies, perhaps they can produce a product, which may be similar and may use the same technology and raw materials, for use in the pet food industry. Instead of providing a product that is harmful to human beings, perhaps they can provide a product that is beneficial for pets which the British public love so dearly and for which they want to provide nutrition.
That is only one suggestion for diversification of the commercial interests away from the anti-social activities in which they are engaged at the moment into more socially beneficial areas. I notice that my remarks have brought smiles to the faces of some noble Lords who sit on the opposite Benches. But I hope that this matter can be considered seriously. This matter has immense implications for the health of both babies and their mothers. By stressing the risk run by both mothers and babies due to bottle feeding, the fact that breast-feeding is healthy for mothers, and the possibility of the diversion of the commercial interests into a socially responsible activity which will not deny them their operation entirely, we may go forward on this subject.
7.7 p.m.
The Viscount of Falkland: My Lords, I thank the noble Lord, Lord Rea, for introducing this subject in his Unstarred Question. It is a pity that as well as having a qualified medical practitioner speaking in the debate we do not have a noble Baroness to speak also. It is unfortunate that on a subject which involves so much the interests of women and their children it should be an all-male debate. But I am quite sure that, given the usual care and concern that noble Lords give to their speeches, it will not be that much weaker.
My reason for speaking in this short debate is that I have been aware that for a number of years the World Health Organisation has taken a fairly strong line on the
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whole business of the worldwide marketing of breast milk substitutes. Of course, in the third world they have created considerable problems, not just because of the nature of the products themselves but because of the radical changes in behaviour, particularly in tribal areas; for example, the mixing of milks with dirty water on some occasions and so on. One hopes that that kind of problem does not prevail in a country such as ours, although it may.
In 1981 when the argument was raging on a worldwide basis, the British Government signed up to the World Health Organisation's international code in relation to the marketing of breast milk substitutes. That draft code was concerned with the dissemination of totally impartial and non-commercial information to nursing mothers. That is an admirable aim. It did not preclude the passing of authorised information to health professionals in this area.
In 1990 the Government signed up to a European declaration—the Innocentri Declaration—which had two aims. They were to take action to give effect to the principles and aims of the articles of the code and also to stimulate imaginative legislation by European governments to protect the breast-feeding rights of working women. The Government saw no difficulty in signing up to that declaration.
Then in the early 1990s we had draft regulations on the subject. They were followed in 1995 by a statutory instrument. All of those came close to the requirements of the World Health Organisation. Then the Government published The Health of the Nation, which gave great weight to the encouragement of breast-feeding by nursing mothers.
The present regulations which we are discussing represent an important departure from the principles of that international code to which the Government acceded. Quite correctly, the Government sought the views of a number of organisations. A list of 48 organisations has just been shown to me by the noble Lord, Lord Rea. The majority advised that we should not change the practice of excluding commercial advertising to nursing mothers but should adhere closely to the original guidelines laid down by the World Health Organisation. There was a small number of those who felt that the rules should be relaxed. Not surprisingly many of them represented commercial interests in the artificial milk manufacturing industry. That is where the anxiety lies.
The manufacture of breast milk substitutes is a very profitable business. Between £5 million and £7 million a year is spent on advertising these products. I do not know how much the Government spend on their literature encouraging and recommending to nursing mothers that they make every attempt to continue breast-feeding as long as possible. (The noble Lord, Lord Rea, has just whispered in my ear that the figure is £100,000. That is derisory in comparison with the large amounts spent by commercial interests on advertising their products.) It is curious that, against all the advice of non-commercial organisations, the Government have decided that the views of the commercial lobby should prevail in this way.

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I do not want to go into detail, because the noble Lord, Lord Rea, has given us a good and succinct account of the benefits of breast-feeding. After all, mothers have been breast-feeding since the beginning of time and we are all here. In those countries where breast-feeding is still the norm a very high percentage of mothers continue breast-feeding until a late stage. As the noble Lord, Lord Rea, indicated, in the Scandinavian countries the figure is between 95 per cent. and 100 per cent. However, they have the social security support necessary to enable them to do so. That is an important point which was rather surprisingly raised somewhat obliquely by other noble Lords. If one is seriously to encourage women to continue breast-feeding, one has to create the financial circumstances in which they can do so. That may well have been one of the considerations that the Government had in mind in arriving at their decision to allow the further dissemination of information.
I am sure that when he rises to answer the Question the noble Earl will tell us that the Government are seeking to increase the quality and amount of information available to nursing mothers. I hope that he will not say that because I shall not believe a word of it. I do not believe that other noble Lords will either. We all know that everything that is advertised is advertised selectively and, to use the words of the noble Lord, Lord Rea, highly ingeniously. Any sensible person would come to the conclusion, as did many of the 48 bodies that advised the Government, that what is needed is appropriate information provided by professionals so that women can make an informed choice rather than being fed modern promotional information by way of videos, information packs with free gifts and all the paraphernalia of modern commercial advertising.
Here again the Government have lost sight of the main issue. It is not the interests of commercial groups or the interests of doctors; it is not even the interests of mothers. It is the interests of babies. Have the interests of babies been properly considered? The question of whether if one is breast-fed for three months one is less likely to have migraine, gastro-enteritis or whatever is far too technical for me. However, it seems to me that the Government have moved too far on the side of commercial interests. I shall be very interested to hear how the noble Earl will explain the swift decision to come down so strongly on that side.
7.16 p.m.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, this has been a useful debate. I am grateful to the noble Lord, Lord Rea, for initiating it, and I welcome the opportunity to reply to some of the points raised by noble Lords who have spoken.
First, I should like to emphasise the Government's commitment to the promotion of breast-feeding as the hest means of nurturing a baby. That is based on medical advice which is quite unequivocal about the advantages of breast-feeding for both mother and baby, as the noble Lord, Lord Rea, rightly pointed out.
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Government policies have consistently supported breast-feeding. That is reflected in the steps that we have taken and are still taking to promote it. To take two examples, in 1988 the Government set up the very successful Joint Breast Feeding Initiative as a pilot project to assess new ways of supporting mothers who choose to breast-feed; and in 1992 the National Breast Feeding Working Group was set up. Fresh guidance on breast-feeding based on its good work has been issued to the NHS.
The noble Lord, Lord Monkswell, stressed the importance of getting the message across to mothers of the importance of breast-feeding. The guidance recently issued to the NHS on breast-feeding lists the benefits of breast-feeding to mothers as well as to babies. The guidance has been widely circulated among healthcare professionals.
We do not believe that the new Infant Formula and Follow-On Formula Regulations 1995 weaken our commitment to breast-feeding. All noble Lords who have spoken today have criticised the Government for not implementing the WHO code. They should remember that the code has been developed to meet the needs of a large number of countries which inevitably have very different economic and social conditions. The code consists of aims and principles despite its rather legalistic wording. It states that governments should implement its principles and aims in a way that is appropriate to their social and legislative framework. That is what we have done.
I turn now to the specific points about advertising. The WHO code effectively prohibits advertising of infant formula, although it allows some information and supply of product samples to the healthcare system. The UK has never gone so far as that recommendation. Since 1983 our industry has operated in accordance with a code of practice which was drawn up in consultation with government departments and health professionals. It allows advertising in the healthcare system where it is under the control of the healthcare authorities.
The EC Directive 91/321 also did not go so far as the WHO code. It allows advertising in publications specialising in baby care and in scientific publications and lays down detailed rules about the content of the advertising. It also allows member states to he more restrictive if they wish. Indeed, the UK's code of practice is more restrictive than the EC directive.
Before draft implementing regulations were issued for consultation, the Government made it clear that the UK's existing restrictions would be maintained. Nevertheless it was open to us to explore the reaction to a more restrictive option. Therefore, in the draft regulations it was proposed that the controls on advertising should be quite far reaching, allowing advertisements to appear only in magazines where the intended readers would be professionals involved in maternal and baby care. It was no surprise that these proposed controls generated a considerable number of responses to the consultation, split between two opposing views. One view was that, while supporting the advertising controls proposed, the Government should go even further and use the directive's option to its full extent to ban all advertising of infant formula.

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The opposing view was that we should not use the option at all and we should stick to the minimum controls required by the directive. The latter view drew attention to the Government's policy of deregulation and the thrust of my ministry's legislative programme: only to introduce regulation where there is no viable alternative.
There was also very strong feeling, and it is one that I share, that such strict controls would impinge upon a mother's right to have access to information. Those mothers who are not able to, or choose not to breast-feed, have a right to decide for themselves what is best for themselves and their children. Who are we to say that a mother cannot make a judgment for herself? She should also have sufficient information so that her decision is an informed one.
Industry takes the view, and many agree, that advertising of infant formula is not about persuading mothers not to breast-feed, and to bottle-feed their babies instead. Rather, it is about giving mothers, who have already decided to bottle-feed, information about the infant formulae available so that they may make their own choice about the product they wish to select for their baby.
However, while not denying the validity of such views, the Government are, as I have already said, fully committed to supporting the promotion of breast-feeding. We were therefore very conscious that to adopt only the minimum in the directive would have meant controls that were less restrictive than those already in place under the voluntary agreement with the industry. This, we decided, did not provide the support which the promotion of breast-feeding deserves.
It was only after very careful consideration that we concluded that the option which best served this dual purpose was the one that has been operating voluntarily and successfully in this country since 1983. This means that advertising of infant formula will continue to be allowed but only in baby care publications distributed through the healthcare system and in scientific publications, and in certain trade journals not seen by the general public. Although it may be seen to ignore the majority, to paraphrase the noble Lord's words, the force of the argument was with the minority.
This does not mean, as some have argued, that manufacturers will have even more access to advertise. The wording of the regulations also specifies that such publications must be
"distributed only through the healthcare system."
Furthermore local healthcare units will continue to exercise their own judgment about the baby care publications, containing permitted advertisements, which they wish to accept for distribution by them or to be available in places such as waiting rooms or pre-natal clinics.
I am aware that during the debates on these regulations in another place and indeed in your Lordships' House tonight, figures running into millions of pounds have been quoted as the amount the baby milk industry spends on advertising. This amount has been set alongside expenditure by the Government on information about breast-feeding, as if to show a
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difference in commitment towards ensuring that mothers receive appropriate advice. Quite apart from the fact that the industry produces information on breast-feeding and baby care—some of which is quite excellent and unbiased—I would also point to a source of advice for mothers that is not only beyond the ability of infant formula manufacturers to imitate, but also something that they cannot buy—the on-going face-to-face contact with healthcare professionals. No leaflet or magazine can substitute for the opportunities women have to talk through their expectations, concerns or experiences with an appropriately trained healthcare professional. Advertising breast-feeding is an integral part of the day-to-day work of midwives and health visitors. This is why the Government have decided to commit some of the money they spend on supporting breast-feeding to the Royal College of Midwives and the Health Visitors' Association's joint programme Invest in Breast Together—to help improve the quality of advice and support these health professionals are able to give mothers and mothers-to-be.
Much has been made of the fact that during the consultation health professional bodies expressed support for a total ban on advertising. But the results of at least one independent survey would seem to suggest that some of their members think differently. This survey suggests that a ban on advertising of infant formulae is opposed by the majority of health professionals involved in the care of mothers and babies. It seems, from the survey, that professionals at the sharp end agree with the Government that a limited form of advertising should be available. This is the best way to ensure that mothers who wish to choose not to breast-feed make that choice in informed circumstances with professional advice readily available to them.
The noble Viscount, Lord Falkland, pointed to the breast-feeding rates in other countries. The basis of the collection of statistics like that can vary enormously from country to country. That makes it extremely difficult to compare the true rates of breast-feeding. A range of complex social, cultural and psychological factors influences a woman's choice on how to feed her baby. Such things as the attitude of friends and family, public attitudes, the particular difficulties which a mother may experience and what best suits her lifestyle all play a part.
What I do not accept is that the limited and restrained amount of advertising of infant formula that we allow in this country overrides all those other considerations and plays a vital part when a woman makes her decision on how to feed her baby. But what is not in dispute is that our breast-feeding rates are lower than we wish them to be. We must do what we can to improve the situation.
The noble Lord, Lord Monkswell, suggested that infant formula was harmful. Infant formula is harmful in the sense that it can cause an increased incidence of gastroenteritis but the healthcare professionals should make mothers aware of that. At the end of the day, it is for mothers to make their own decision. That is brought out clearly in the Government's publications.

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The noble Lord, Lord Rea, pointed out that Bounty pays hospitals for access to new mothers—something that I learnt at first hand in the past few months. If health professionals are so concerned about Bounty's access to new mothers, they are perfectly free to take steps to withdraw that co-operation.
The noble Lord, Lord Monkswell, said that there should be a health warning on formula products. He said that the product will increase the chance of breast cancer. There is already a requirement in the regulations that the packaging must include a statement, as follows:
"recommending that the product be used only on the advice of an independent person qualified in medicine, nutrition, or pharmacy or having a professional qualification in maternal or child care".
It is difficult to see how we could go much further than that. It is the professionals who should be pointing out to mothers the risks of not breast-feeding.
The noble Lord, Lord Rea, asked what progress was being made by the working party implementing the—
Lord Rea: My Lords, I thank the noble Earl for allowing me to intervene. He mentioned the names of the professionals through whom infant formula information is given. I understood that that was a stipulation in the draft regulations that has been withdrawn from the current regulations. Is the noble Earl saying that those professions are the only ones through which the information is given now? Is it stated in the current regulations or in the draft regulations?
Earl Howe: My Lords, in the current regulations, advertising is permitted only through the healthcare system and certain publications. I am not sure whether the noble Lord referred to the point that I just made in response to the question put by the noble Lord, Lord Monkswell, about labelling. My point was that, as I said earlier, healthcare professionals are in the business of advising mothers and mothers-to-be about the best ways of feeding their babies. If they are conscientious, as we know them to be, they will draw attention to the risks and benefits associated with either method.
As I was saying, the noble Lord, Lord Rea, asked me what progress was being made by the working party implementing the regulations. I assume from the noble Lord's remarks that he was referring to the group set up by the Department of Health to prepare the "Secretary of State's guidelines" as referred to in Regulation 21(3) (b). These are guidelines in respect of the donation of educational and informational equipment or material by manufacturers and distributors of infant formula. The working group comprises representatives from the appropriate healthcare professions, industry and Baby Milk Action. The Department of Health intends to issue draft guidelines based on the work of this group for consultation towards the end of the summer, with a view to issuing the final guidelines by the end of the year.
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The noble Lords, Lord Rea and Lord Monkswell, referred to the difference in the Government's attitude towards tobacco advertising and advertisements for infant formula. Both noble Lords will be aware from what I said that we have not banned advertisements for infant formula. We have set limits on where they may appear, bringing them very much under the influence of the healthcare professions. A person's decision to smoke tobacco is one that directly impacts on him or her as an individual. The Government believe that voluntary agreements with the tobacco industry provide the best way of controlling its advertising and promotion. A mother's choice of feeding method, however, bears directly on her baby. For that reason, we believe that mothers should have the opportunities to talk through all the issues surrounding this decision with an appropriate healthcare professional. The restrictions on the advertising of infant formula have been developed to protect and promote breast-feeding so as to encourage mothers to give their child the best possible start in life.
We considered most carefully the comments of those who responded to the consultation exercise and the views of another place before deciding the final form of the regulations. I am therefore aware of the great strength of feeling that this issue understandably generates from all sides of the argument. The Government remain committed to the promotion and protection of breast-feeding as the best means of nurturing a baby. However, we also remain convinced that mothers have the intelligence to decide for themselves what is best for their baby, and that this limited form of sensible and responsible advertising will not cloud their judgment. I believe that the balance we have struck is the right one.
Lord Rea: My Lords, before the noble Earl sits down, perhaps I may state for the record that the figure of £100,000 spent by the Government on promoting breast-feeding that was attributed to me by the noble Viscount, Lord Falkland, should have been £150,000. Perhaps the noble Earl can tell me whether that is the true figure.
Earl Howe: My Lords, my understanding is that the cash sum expended on promotional material was something of the order of £130,000 to £150,000, but I will take further advice. It is in that region. My point, however, was that there is a hidden effort, as it were, or a hidden sum of money being spent on the promotion of breast-feeding through the day-to-day work of healthcare professionals whose job it is to advise mothers. That is an extremely important element in the Government's effort to promote breast-feeding among the many other initiatives that we have taken.

Sheffield Assay Office Bill
Returned from the Commons with the amendments agreed to.
House adjourned at twenty-four minutes before eight o'clock.