Lords Sitting of 11 January 1999

Preamble
Reassembling after the Christmas Recess, the House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Wakefield.

Mount Vernon Hospital Burns and Plastic Surgery Unit
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
What is their policy on the future of the burns and plastic surgery unit at Mount Vernon Hospital.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman): My Lords, the future of burns and plastics services at Mount Vernon Hospital is to be considered by an expert advisory group commissioned by Hillingdon Health Authority. The establishment of this group follows the public consultations on the future of both specialist and local services at Mount Vernon and Watford Hospitals NHS Trust, undertaken last summer.
Lord Peyton of Yeovil: My Lords, I am grateful to the noble Baroness for that Answer. Does she agree that any proposal to relocate a large team of specialist experts who have an excellent regime under their control is almost certainly doomed to failure; that the proposal to cut it in half and put half in that place which should never have been built—the Chelsea and Westminster Hospital—would be sheer vandalism; and that such a proposal and the process of inquiry is extremely discouraging for staff, all grades of which have rejected it, and for possible donors? I speak as a chairman of a charitable trust.
Baroness Hayman: My Lords, I certainly acknowledge that the concerns voiced by the noble
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Lord, Lord Peyton of Yeovil, were expressed also in the public consultations about the proposals put forward in relation to the future of those specialist services. I acknowledge the work carried out in research and education supported by charitable trusts at the Mount Vernon burns unit.
We must recognise also the importance of highly specialised units being located in environments where they can obtain support from all the necessary services. I am thinking in particular of paediatrics. More than half the patients in the burns unit at Mount Vernon are children but there are no paediatric services on site. Therefore, balances must be struck. But the expert advisory group is looking at those issues and is looking in particular at how the expertise which has been built up can be safeguarded.
Lord Archer of Sandwell: My Lords, does my noble friend accept that such a unit, as the noble Lord, Lord Peyton, pointed out, depends on a whole range of people doing a number of jobs? Many of them depend upon working close to their homes. If an attempt is made simply to relocate a unit, that will inevitably mean the loss of some of the experience of working together gained over a long period of years.
Baroness Hayman: My Lords, I recognise the points that my noble and learned friend makes. However, they must be balanced with the recognition that we need a proper geographical spread of high quality services which are supported by the necessary infrastructure. The expert advisory group has been called in to achieve that balance and it will be wrestling with that problem.
Lord Goodhart: My Lords, I echo what has been said already from both sides of the House. Is it not the case that the Chelsea and Westminster is wholly unsuitable for the relocation of that unit? If it must be relocated, it should be relocated no further away than Northwick Park, which is sufficiently close to enable the staff of the unit to be retained as a whole.
Baroness Hayman: My Lords, that was a point put forward extremely clearly in the consultation process.

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There was debate on two issues: first, the necessity of relocation in the first place; and, secondly, as regards the relocation site were it to go forward. It was clear that the preferred option of the health authority for Chelsea and Westminster was challenged within the consultation process. As I understand it, that is one of the reasons the expert advisory group has been formed—specifically to look at that issue.
Baroness Gardner of Parkes: My Lords, is it correct that the other plastic surgery and burns unit set up after the King's Cross fire is to be moved northwards? If so, is there not perhaps a gap in the south? Now that there is one health authority covering the whole of London, does the Minister not agree that it is extremely important to have those facilities distributed evenly throughout the London area? In the past, other relocations have worked extremely satisfactorily; for example, the paediatric gastroenterology unit to the Royal Free Hospital.
Baroness Hayman: My Lords, the noble Baroness makes an important point. We must not look at such proposed moves in isolation but in relation to providing the right spread of specialist services to serve a region or an area as a whole. That is one of the reasons we are supporting the British Burn Association's national burn care review which is looking to produce guidelines for the NHS that can give advice on commissioning burns services and ensure that there is access to a high level of specialist care on an even geographical basis.
Lord Walton of Detchant: My Lords, does the Minister agree that, irrespective of any decision that may be made on strategic grounds to locate these services, as a point of principle when one is dealing with a unit with a major international and national reputation and a proud record of research, it would be a profound error to divide that unit into two? That would inevitably have a detrimental effect upon the quality of the service and the research carried out.
Baroness Hayman: My Lords, I take seriously the contribution made by the noble Lord, Lord Walton of Detchant, on this issue. There is always concern that one may lose by movement, particularly when splitting up services. As I say, these are not easy balances to be struck, as the noble Lord is well aware. It is because they are not easy balances to be struck that the expert advisory group, which will draw in a range of expertise on these issues, is being consulted.
Lord Stallard: My Lords, given the uncertainties that have arisen since the consultation programme started, can my noble friend tell me how much longer the consultation process will take? Also, does she have a rough idea when we will reach the end of it and how we will ensure that we obtain a decent result?
Baroness Hayman: My Lords, I understand that the advisory group will report its interim findings to the health authority in April of this year advising on the provision of services and having taken specific account
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of those issues arising from the public consultation exercise. I know it is difficult when these issues drag on. On the other hand, it is important to take into account all the issues that are raised.
Lord Pilkington of Oxenford: My Lords, has the Minister borne in mind that when previous units of excellence were broken up, the staff dispersed? Will the inquiry bear in mind that centres of excellence have been lost as a result of staff dispersing and not awaiting the results of an inquiry?
Baroness Hayman: My Lords, that is borne in mind. As the noble Lord, Lord Peyton, pointed out, there is mixed experience in these areas. Sometimes moves can be destructive and at other times, if they are handled with sensitivity, whole teams can be taken across and moved for the benefit of the service.

Millennium Dome
2.46 p.m.
Baroness Rendell of Babergh Baroness Rendell of Babergh asked Her Majesty's Government:
What is the state of progress on the construction of the Millennium Dome.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I visited the Millennium Dome last week, shortly after my appointment. Very few people, if any, who have visited or seen the Dome can fail to be impressed. It is a triumph of British design, architecture, engineering and construction. The construction of the Millennium Experience Dome at Greenwich continues to be on time and on budget.
Installation of the foundations and steelworks for the Dome's exhibits began on schedule in late autumn last year. Development of the detailed design for each exhibit and other aspects of the Dome's content is progressing to programme. The body and the mind exhibits, revealed at the 400-day mark last November, provide tempting glimpses of the quality, innovation and fun which will be offered throughout the millennium experience in the Dome during the year 2000.
We remain confident that the millennium experience will be the once-in-a-lifetime event which will place the UK firmly at the centre of the world stage in the new millennium.
Baroness Rendell of Babergh: My Lords, I thank my noble and learned friend for his enthusiastic reply and at the same time congratulate him on his appointment as Minister responsible for the Dome. Can he tell me whether sponsorship contributions to the Dome have been satisfactory? Also, how much more is needed to reach the target of £150 million?
Lord Falconer of Thoroton: My Lords, I am grateful to my noble friend for her kind congratulations. As she says, the target for sponsorship is £150 million.

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The position is that £120 million has already been raised and the remaining £30 million will be comfortably raised in the moderately near future. We believe that sponsors are right behind the Dome.
Lord Luke: My Lords, from these Benches I associate myself with the noble Baroness, Lady Rendell, in welcoming the Minister to his new and onerous responsibilities. I hope that he has had time to consider access to the Dome. However successful it is, access to the Dome is vital. If the final section of the Jubilee Line extension opens on schedule in October, is the Minister satisfied that three months is enough to iron out possible teething troubles that can occur with a lot of new technology? What contingency plans are there to get 20,000 people away from the Dome if there is a major breakdown in transport?
Lord Falconer of Thoroton: My Lords, I am grateful to the noble Lord for his kind congratulations. I recognise that the job will be hard but I regard it as a genuine privilege to be invited to join the Millennium Dome team. As regards access to the Dome, I have sought to acquaint myself with the position. The Jubilee Line extension will connect central London—namely Waterloo—and North Greenwich, the site of the Dome in summer 1999. It is expected that by the end of October 1999, Waterloo will be connected with Green Park, completing the Jubilee Line extension. I am confident that that is more than enough time for the service to be up and running so that it can bring visitors to the Dome.
The Lord Bishop of Wakefield: My Lords, in the light of the welcome progress being made in the design of the spirit zone with its greater emphasis on the significance of Christianity for this country and the place being accorded to other faith communities, does it remain the intention of the Government to reflect the significance of the millennium for Christians in other parts of the Dome, and in particular in the opening ceremonies?
Lord Falconer of Thoroton: My Lords, I recognise the obvious significance of the millennium celebrations to the Christian religion. I believe that considerable work and effort have gone into making the spirit zone acceptable to the Christian religion as well as to other faiths, and that such significance will be reflected in the celebrations on 31st December 1999.
The Viscount of Falkland: My Lords, can the Minister tell us a little more about the shortfall on sponsorship? Is £150 million seen as the necessary overall figure or are certain zones or components of the Millennium Dome not attracting sponsorship? Can he enlighten us on that?
Lord Falconer of Thoroton: My Lords, I think it would be quite wrong to describe it as a shortfall. The process of raising sponsorship for the Dome has
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gone according to plan. We have £120 million of the £150 million sought. I do not think there will be any difficulty in raising the remaining £30 million.
Lord Peyton of Yeovil: My Lords, my congratulations to the Minister on his new office will at least be tempered with sympathy and concern as to how that may affect the noble and learned Lord's future.
Lord Falconer of Thoroton: My Lords, as ever I am grateful to the noble Lord for his sympathy and concern, which I believe is misplaced. I feel sure that the Millennium Dome will be a great success and I shall make every contribution to try to achieve that.
Lord Monkswell: My Lords, is my noble and learned friend aware that my wife and I took the opportunity yesterday of going to east London and viewing the Dome—admittedly from a slight distance? We were both very impressed. However, we noticed a regular-shaped hole in the roof on the west side. Is my son right in thinking that that is for the purpose of inserting the exhibits or is there some other reason for it?
Lord Falconer of Thoroton: My Lords, I did not know that the noble Lord and his wife went to east London on Sunday, but I am grateful to hear it. I am not acquainted with the detail of the particular hole that he has in mind. I shall make inquiries and hope that there is no problem related to it.
Lord Glentoran: My Lords, is the Minister aware that less than 25 per cent. of the Millennium Commission's funds have gone to the Dome? Although the millennium is a spectacular happening for London, is he aware that Millennium Commission projects will be celebrating the occasion on over 3,000 sites throughout the country?
Lord Falconer of Thoroton: My Lords, I am aware of that. I am grateful to the noble Lord for pointing out that the millennium celebrations will take place not just in London but throughout the nation. We believe that the celebrations in England, Scotland, Wales and Northern Ireland will be a great credit to the nation as a whole.

ITV Companies: Licence Obligations
2.54 p.m.
Lord Thomson of Monifieth Lord Thomson of Monifieth asked Her Majesty's Government:
What steps they propose to take to ensure that reductions in payments to the Treasury by independent television companies lead to increased expenditure on programmes.
Lord McIntosh of Haringey: My Lords, under the Broadcasting Act 1990, the terms on which Channel 3 licences are renewed are solely a matter for the Independent Television Commission. The commission has made clear that licence renewal terms were set to

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enable licencees to continue to provide the same range and quality of services as before while providing a fair return to the Exchequer for the right to broadcast to nearly every home in the United Kingdom.
Lord Thomson of Monifieth: My Lords, I thank the Minister for that Answer and recognise that the immediate responsibility rests with the Independent Television Commission. However, does he not agree that it is a proper concern of government and of taxpayers generally that putting right these absurd anomalies of the Conservatives' Broadcasting Act 1990 involves a cost to the Exchequer of £90 million? Therefore, would it not be right that such tax concession and change can be justified only if vigorous steps are taken to ensure that that money is used primarily to improve programme standards, which are badly in need of improvement, and does not go into the pockets of shareholders?
Lord McIntosh of Haringey: My Lords, it is certainly true that as a result of the renegotiation there is less money for the Exchequer. However, the £90 million to which the noble Lord refers is offset in part by the additional revenue from Channel 5 and Teletext services. The licence renewal process which the ITC went through was not intended to be a negotiation about the content of programmes; it was as set out in the Broadcasting Act 1990, for which I claim no responsibility. It was there to recognise the difference in value of the licences which were originally allocated in 1993.
Lord Campbell of Alloway: My Lords, leaving aside all technicality and dealing with the quality of service, is the Minister aware that, as regards the television programme about this House, nobody apparently seems to be aware of what on earth is going on?
Lord McIntosh of Haringey: My Lords, I assume that the noble Lord refers to the BBC2 programme on Sunday nights, which is a little remote from the Question. I am sure that when noble Lords have finished watching those programmes they will form strong and diverse views about their quality.
Lord Davies of Coity: My Lords, does the Minister agree that the standards of television are dropping dramatically and that over Christmas it was widely thought that they dropped to a new low? What are the Government going to do about it?
Lord McIntosh of Haringey: My Lords, I never watch television at Christmas so I do not have any personal experience of those programmes. I do not think that audiences at Christmas are dropping dramatically. I am not sure that there is general agreement with the assertion which my noble friend makes.
The Lord Bishop of Wakefield: My Lords, in the context of this Question, would the Minister want to encourage independent companies and the BBC to
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include religious broadcasting in any increased expenditure on programmes? I refer particularly to Christmas morning, when latterly, sadly, there is no live broadcast of worship. If there were, perhaps the viewing figures would increase.
Lord McIntosh of Haringey: My Lords, as I made clear in a previous answer, the licence renewal process, set out in the Broadcasting Act 1990, did not involve a renewal of the licence requirements. The existing licence requirements, including programme obligations, and those for religious programming, remain in force and have not changed.

Children: SEN Assessment Criteria
2.58 p.m.
Lord Quirk Lord Quirk asked Her Majesty's Government:
Whether they are satisfied with the criteria used for assessing children as having special educational needs.
The Minister of State, Department for Education and Employment (Baroness Blackstone): My Lords, the Government are satisfied with the two statutory criteria for deciding whether school-age children have special educational needs. These criteria are, first, whether the children have a significantly greater difficulty in learning than the majority of children of their age, and, secondly, whether the children have a disability which prevents or hinders them in making use of educational facilities of the kind generally provided for children of their age. It is the responsibility of schools to decide whether an individual child has special educational needs.
Lord Quirk: My Lords, I am grateful to the Minister for that explanatory reply. As special educational needs may arise from a complex array of psycho-physical conditions, many of them ambiguous, there is obviously scope for disagreement and inconsistency about assessment. But does that explain the quite staggering variation in the percentage of SEN pupils throughout the country? How can it be that in the single London borough of Tower Hamlets and among children from strictly similar social and ethnic backgrounds, 5 per cent. of pupils are classified as having special educational needs in one school—the Kobi Nazrul School—while between 60 per cent. and 70 per cent. of pupils are classified as SEN in neighbouring schools? Can it possibly be that, in some instances at least, we face not children with learning disabilities but staff with teaching disabilities?
Baroness Blackstone: My Lords, the Government would be concerned to see variations such as those cited by the noble Lord, Lord Quirk, unless there were good reasons for them. It is open to schools to seek the advice of local education authority educational psychologists, who have the expertise, to support school assessments.

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I shall take up the noble Lord's specific point about neighbouring schools in Tower Hamlets and shall write to him about it.
Lord Rix: My Lords, is the Minister satisfied that children with special educational needs, particularly those with profound and multiple disabilities, are being properly assessed and their parents fully consulted before such children are excluded?
Baroness Blackstone: My Lords, it is extremely important that parents are consulted when children with special educational needs are being assessed—and certainly before a child is excluded from a mainstream school. As the noble Lord knows, the Government have relatively recently issued a Green Paper on special educational needs and have responded with an action programme for improving provision for such children. As a result of the Comprehensive Spending Review the Government have also invested considerable additional sums in supporting such children in mainstream schools as well as in continuing to provide good facilities in special schools for the small numbers who need to be separately supported in such schools.
Lord Taylor of Blackburn: My Lords, is my noble friend continuing the previous government's practice of adhering to the principles of the Warnock Report? Furthermore, will the Government build on those principles?
Baroness Blackstone: My Lords, since coming into office in May 1997, the Government have issued a Green Paper and have consulted on special educational needs. Tomorrow we are publishing a consultation document to review the SEN code of practice. I am sure that that will lead to revisions to the previous provisions in the light of further consultation on the code of practice.
Lord Tope: My Lords, are the Government now satisfied that there is general recognition in all maintained schools of the special needs of dyslexic pupils and that appropriate methods are being used to help such pupils to overcome their problems? How many teachers in England and Wales have successfully completed approved courses in helping dyslexic pupils?
Baroness Blackstone: My Lords, I cannot give a specific answer on the number of teachers who have received special training for dealing with dyslexic pupils. However, it is certainly the case that over many years teachers insufficiently recognised that some children have that problem. Indeed, the existence of that problem was sometimes denied. I believe that the new requirements for initial teaching training courses, introduced in 1996, will ensure that newly qualified teachers understand their particular responsibilities for identifying the problem. The Government will continue to monitor the progress that is being made.
Lord Renton: My Lords, will the Minister bear in mind that if a child with special educational needs
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(although not severely handicapped in that way) attends an ordinary school, he or she will be at a psychological disadvantage which may add to his or her other problems and that, in any event, it will interfere to some extent with the education of the other children at that ordinary school?
Baroness Blackstone: No, my Lords, the Government do not accept that proposition. We are anxious to ensure that as many children with moderate learning difficulties as possible can be integrated into mainstream schools. The Government believe that many teachers are committed to supporting such children in ordinary schools. Moreover, the Government take the view that it is beneficial to children who do not have such needs to mix with those who do and to help to encourage such children rather than separating and segregating them for their entire school careers.
Baroness David: My Lords, can my noble friend tell me whether local authorities are coping with the number of children coming forward for statements? I believe that at one time they had to wait for quite a long time before they could be provided with the statements they had requested.
Baroness Blackstone; My Lords, approximately 3 per cent. of children are given statements. That is a small proportion of the total number of school pupils. However, the Government are anxious to try to reduce the number who have statements and to deal with their needs without going through what is a complex, time-consuming, and, to some extent, bureaucratic process involving a lot of paperwork. It is sensible to try to respond to the needs of such children without using the statementing process and by carrying out that work in schools. I believe that that is the right approach. If we go down that route we shall not have large numbers of parents waiting for statements for many months.
Lord Quirk: My Lords, although the 1994 code of practice which the Minister says is currently being reviewed and revised rightly stresses the earliest possible intervention for the assessment of special educational needs, does not the Minister agree that over-assessment of SEN—that is, so assessing too many children—is likely to produce a double jeopardy: on the one hand, lowering the self-esteem of otherwise perfectly normal children and, on the other hand, diluting resources which should be devoted to those who are genuinely and severely in need?
Baroness Blackstone: My Lords, the Government accept that this is a difficult balance to strike. It would be wrong to fail to support those children who have special educational needs. They must be identified. Moreover, they should be identified early. The Government are attempting to do that through their early assessment of children before they reach the age of five. On the other hand, we must avoid too many children

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being unnecessarily labelled as having special educational needs. They should be allowed the opportunity to develop without being given such a label.

Business
3.8 p.m.
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble friend Lady Hayman will, with the leave of the House, repeat a Statement that is to be made in another place on the National Health Service. It has been agreed through the usual channels that a convenient time to take the Statement will be after the debate on the Second Reading of the Contracts (Rights of Third Parties) Bill.

Monetary Policy Committee of the Bank of England: Select Committee
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, on behalf of the Committee of Selection, That the Lord Poole be appointed to serve as a member of the Select Committee in the place of the Lord Tebbit.—(The Chairman of Committees.)
On Question, Motion agreed to.

Trustee Delegation Bill [H.L.]
3.10 p.m.
Lord Falconer of Thoroton: My Lords, on behalf of my noble and learned friend the Lord Chancellor, I beg to move that the Bill be now read a second time.
This is the first of two short but important Bills coming before your Lordships for Second Reading today which stem from the work of the Law Commission. This first Bill sets out to clarify the law relating to the delegation by individual trustees of their trust responsibilities and to improve the protection of beneficiaries.
Before I go on to explain the Bill in detail, perhaps your Lordships will allow me to remind you of how it is that such Bills come to be introduced. The Law Commission, founded by the Law Commissions Act 1965, has as its chief aim the review and updating of the law of England and Wales. It prepares programmes of work which are presented to the Lord Chancellor for approval from time to time. Each item of the programme will generally result in a report which will make recommendations for reform, often accompanied by a draft Bill.
In order to arrive at that stage, the Law Commission will review the state of the law in an area and produce a consultation paper setting out the perceived problem, the current state of the law and a range of potential solutions. To achieve the widest possible circulation, the consultation document will be circulated among experts in the relevant field and will also be available to the
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public. In the light of the responses, the commission will prepare the final report. Though each project is the responsibility of a particular commissioner and his or her legal team, your Lordships might like to know that the commission has developed a collegial system of working which requires each stage of a project to have the agreement of all of the commissioners before proceeding to the next. The final report will be presented to the relevant government department, which will then consider whether or not to accept the recommendations and what priority implementation of accepted recommendations should have.
The rigorous working methods of the commissioners and their staff result in products of high quality, and having been through the commission's painstaking processes this Bill comes before your Lordships to day very little changed from the form in which it appeared in the report to which it was appended. Your Lordships will also be pleased to know, I am sure, that a well-informed response to the consultation paper overwhelmingly supported the Law Commission's provisional recommendations, which were those upon which the Bill is based.
Perhaps I should say at this stage that my noble and learned friend the Lord Chancellor has signed a certificate under Section 19 of the Human Rights Act 1998 saying that, in his view, the provisions of the Bill are compatible with convention rights.
To turn now to the Bill itself, I am afraid to say that, though it is short, it deals with matters of some complexity. I hope that what I shall say now, taken together with the new style explanatory notes published with the Bill, will make things sufficiently clear. The primary responsibility of trustees has traditionally been to hold property on behalf of the beneficiaries under the trust. A trustee must safeguard the property and deal with it in the best interests of the beneficiaries. It is a general rule of trust law that a trustee, having voluntarily agreed to act, cannot delegate the exercise of his or her powers and duties. That rule is subject to the following exceptions: first, if the instrument establishing the trust specifically authorises delegation; secondly, if delegation is permitted by all the beneficiaries, though for this exception to apply all the beneficiaries must be both mentally capable and at least 18 years old; or, thirdly, if delegation is permitted under Section 25 of the Trustee Act 1925 or Section 3(3) of the Enduring Powers of Attorney Act 1985.
The Bill that I am introducing is not concerned with the third exception so far as it relates to Section 25 of the Trustee Act. That section has stood the test of time and needs only minor improvement. However, Section 3(3), of the Enduring Powers of Attorney Act has been criticised since its enactment for failing to protect the interests of beneficiaries. It was for this reason that the Law Commission was asked to consider the operation of the present law. It issued a consultation paper in 1991.
To explain how the difficulty arises, I should tell your Lordships what Section 3(3) was intended to do and why the result is problematical. Section 3(3) provides that:
"Subject to any conditions or restrictions contained in the instrument, an attorney under an enduring power, whether general or limited, may (without obtaining any consent) execute or exercise

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all or any of the trusts, powers or discretions vested in the donor as trustee and may (without the concurrence of any other person) give valid receipt for capital or other money paid".
At the time that the Enduring Power of Attorney Bill was going through its parliamentary stages, a decided High Court case was reported. Taken together with Clause 2(8)of the Bill, which provided that a power of attorney under Section 25 of the Trustee Act could not be an enduring power, this case was found to make it impossible for an attorney under an enduring power to dispose of any of the donor's property held on trust. Section 3(3) was introduced to remedy the position for people who are co-owners of land.
As the noble and learned Lord, Lord Hailsham, then the Lord Chancellor, said on introducing the clause:
"Most married couples nowadays hold the matrimonial home upon a trust for sale, so that the inability of an attorney under an enduring power to dispose of trust property would have widespread effect and reduce the efficacy of the scheme contained in the Bill. This amendment seeks to remedy this defect".
Though this was an honourable attempt to overcome a potential problem, there are several difficulties with it. I will mention two. First, the effect of an enduring power of attorney, in relation to a person who has responsibilities as a trustee, is that all the donor's trustee powers will be delegated along with other powers unless they are expressly excluded from the delegation. This goes a great deal wider than was necessary to deal only with jointly owned real property. The delegation of those trustee powers may, as a result, be inadvertent. In any event, to continue delegation after the trustee becomes mentally incapable will often be inappropriate, at least where the trustee has no beneficial interest in the property. Secondly, the delegation is not subject to any restrictions to protect beneficiaries unless they are stated in the power of attorney itself. This is in strict contrast to the provisions of Section 25.
The 1925 Act restricts an individual trustee's power to delegate by including some safeguards for beneficiaries. Under Section 25, a trustee may only delegate if, first, the delegation is limited to twelve months; secondly, the attorney is not the trustee's only co-trustee, unless that co-trustee is a trust corporation; thirdly, the trustee tells any co-trustee or anyone who has power to appoint new trustees what he is doing; and, fourthly, the trustee remains liable for the attorney's acts and defaults. Those are the limitations under the 1925 Act.
The response to the Law Commission's consultation paper supported the commission's provisional conclusion that Section 3(3) was inappropriate for delegation by trustees in general, but that special provision should nonetheless be made for co-owners of land. In 1994 the commission published its report The Law of Trusts: Delegation by Individual Trustees.
The commission concluded that the conditions imposed by Section 25 of the Trustee Act 1925 were appropriate for the delegation of trustee powers and duties, subject to certain minor changes, but that Section 3(3), with its very wide scope and lack of safeguards, was not. It also concluded that some relaxation of the rules designed to address the needs of beneficial co-owners of land was justified. The Bill gives effect to these recommendations.
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I shall now turn to the detail of the Bill. Clause 1 creates a new statutory exception to the general rule that a trustee must exercise in person the functions vested in him or her as a trustee. The effect is that a person authorised by a power of attorney to act in relation to property of the relevant kind will not be prevented from acting by the rule that the trustee must exercise trustee functions in person.
The provision will be of particular benefit to co-owners of land. First, it will enable those co-owners, who are essentially trustees for themselves, to delegate without having to comply with the restrictions which apply where trustees hold land only for third parties. The need for this special rule for co-owners of land arises because the 1925 property legislation requires land owned by more than one person to be held on trust. The result is that co-owners of land are, whether they appreciate it or not, trustees of a freehold or leasehold estate in land, irrespective of whether they hold the land for themselves or other people. Secondly, the provision will enable a co-owner to make effective provision for the disposal of the co-owned land if he or she becomes mentally incapable. This is necessary because Section 3(3) of the Enduring Powers of Attorney Act 1985 is to be repealed by Clause 4. Finally, the provision will ensure that a person acting under a power of attorney is able to deal with the proceeds of sale and income from the land as well as the land itself.
Clause 2 supports Clause 1. The problem to be solved is that a person dealing with a donee of a power of attorney under Clause 1 has to know whether the donor of the power has a beneficial interest in the relevant property. This could be left to investigation. However, investigation of title to beneficial interests is notoriously complicated. Clause 2 simplifies the transaction by providing a mechanism by which a purchaser can rely on a written statement by the donee that, at the time that he or she exercised the trustee function, the donor had a beneficial interest in the relevant property.
Clause 3 extends the benefit of Clause 1 to the popular form of power of attorney prescribed by Section 10 of the Power of Attorney Act 1971. Noble Lords who wish to see the effect of this Bill on the 1971 Act will find the relevant extracts showing the amendments set out in Annex A of the published explanatory notes.
Clause 4 repeals Section 3(3) of the Enduring Powers of Attorney Act 1985 subject to various transitional provisions. As I said earlier, Section 3(3) was intended to preserve the efficacy of the enduring powers of attorney scheme, by allowing an attorney under an enduring power to dispose of any of the donor's property held on trust. As I also said, it may have gone further than was necessary to achieve the desired result and may have the much wider and undesirable effect of automatically delegating all the donor's functions as a trustee whether or not he or she owns the trust property in question.
The repeal will ensure that trustees who hold property only for third parties should be able to delegate their trustee functions only by statute subject to the

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safeguards imposed by Section 25 of the Trustee Act 1925. The repeal will also bring to an end the existence of the inconsistent but overlapping regimes of Section 25 and Section 3(3). The transitional provisions are necessary because it is likely that there are in existence enduring powers of attorney in relation to which the donor is no longer mentally capable of making new provision for the delegation of trustee functions.
Clause 5 amends Section 25 of the Trustee Act 1925 in relation to powers of attorney granted after the Bill comes into force. Section 25 allows a trustee to delegate the exercise of the trusts, powers and discretions vested in him or her as trustee, for a period of up to 12 months, by power of attorney. This power to delegate is, however, subject to various safeguards intended to protect the interests of beneficiaries from excessive delegation. These are that the trustee may not delegate to a sole co-trustee unless it is a trust corporation; he or she must give notice of each appointment to specified persons; and, importantly, he or she remains liable for the acts and omissions of the attorney.
If the trust is created by a document, then the document may exclude or restrict the Section 25 powers. The text of Section 25 showing the changes that would be effected by the Bill is set out at Annex B to the explanatory notes as published.
Clause 6 repeals Section 2(8) of the Enduring Powers of Attorney Act 1985, which provided that a power of attorney granted under Section 25 could not be an enduring power. The repeal allows an enduring power of attorney to be used to delegate trustee functions under Section 25 of the Trustee Act 1925 after the Bill comes into force. Importantly, the requirements and protections of Section 25 of the Trustee Act will apply.
I now turn to some clauses of sufficient complexity that I trust your Lordships will allow me to give examples which smack rather of algebraic equations by way of explanation—that is, those who were interested in what has gone before. The examples are repeated in the explanatory notes for those of your Lordships who would wish to essay them with pen and paper.
Clause 7 specifies the circumstances when a person acting alone cannot satisfy a statutory requirement that two trustees are to receive trust money. I shall refer to that rule as the "two trustee rule" when I come to deal with it later. These requirements are that, first, capital moneys arising from land must be paid to, or at the direction of, at least two trustees; secondly, that a valid receipt for such capital moneys must be given otherwise than by a sole trustee; and, thirdly, that a conveyance or deed must be made by at least two trustees to overreach any powers or interests affecting a legal estate in land.
The clause is intended to strengthen and clarify the operation of the general rule of trust law which requires two trustees to receive trust money. The new provision will make it clear that, so long as there are at least two trustees, the rules could be satisfied either by two people acting in different capacities or by two people acting jointly in the same capacity but not by one person acting in two capacities. For example, where A and B are the only trustees: if A and B each appoint X as attorney,
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X (acting alone) would not satisfy the two-trustee rule. However, if A appointed X as his attorney and B appointed Y as his, X and Y could act together and satisfy the requirement. Similarly, if A appointed X and Y as his joint attorneys and B appointed X and Y as his joint attorneys, X and Y can satisfy the two-trustee rule.
Clause 8 inserts four new subsections in Section 36 of the Trustee Act 1925, which contains a statutory power for the appointment of new or additional trustees. The new subsections give the donee of an enduring power of attorney created after the commencement of the Act a new but limited power of appointment of new trustees in certain circumstances. The new power is necessary to prevent the strengthened "two-trustee rule" set up by Clause 7 from frustrating the new power for an attorney under an enduring power to exercise the trustee functions of the donor set up by Clause 1. For example, A holds land for himself and B. A appoints X as his attorney under an enduring power. A loses mental capacity and the power is registered. X wants to sell the land but cannot satisfy the two-trustee rule unless a new trustee is appointed.
Clause 9 inserts a new subsection into Section 22 of the Law of Property Act 1925, which provides that if land which is subject to a trust of land is vested, solely or jointly, in a trustee who is incapable by reason of mental disorder of exercising his or her functions as a trustee, the trustee shall be discharged before the legal estate is dealt with. This provision might prevent an attorney for an incapable trustee, who is acting under a registered enduring power, from dealing with the legal estate and so defeat the policy underlying the Enduring Powers of Attorney Act 1985 and Clause 1 of this Bill. The new Section 22(3) inserted by this clause provides that no discharge is necessary if there is an attorney under an enduring power entitled to act for the incapable trustee.
Clause 10 creates a general rule of interpretation in relation to the extent of the authority conferred by a power of attorney, in relation to land. The new rule will provide that, unless the document specifies to the contrary, in powers of attorney created after the commencement of the Bill a reference to land will include a reference to all the interests of the donor of the power of attorney in the land at the time that the donee acts. This new provision will prevent the technical distinctions between legal and equitable interests in land frustrating the intentions of donors of powers of attorney who may not appreciate the legal niceties. Perhaps I may give your Lordships an example. Here, again, I turn to algebra for clarity. A and B are a married couple who own their own house. As I said earlier, whether or not they appreciate it, joint owners are in fact trustees for themselves. In creating a power of attorney, A may refer to "my house" even though it is jointly owned, but even if he says "our house" he is unlikely to make it clear whether he is referring to his legal interest, which he holds as trustee, or his equitable interest of which he is the beneficial owner.
Clause 11 defines the terms "land" and "enduring power" for the purposes of the Bill, and specifies that references to the creation of a power of attorney are to be taken to refer to the execution of the instrument

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creating it. I shall not weary your Lordships with the definitions but will point your Lordships to the glossary of terms provided in the Bill. Clause 12 refers to the schedule setting out the repeals to be effected by the Bill and Clause 13 provides for the short title, the commencement, which is to be by order of the Lord Chancellor on such day as he may appoint, and the extent, which is to England and Wales only.
It is unusual to encounter such relative complexity in so short a Bill. I apologise for the complexity of the explanation, but I genuinely believe that this is a worthwhile Bill. I commend it to your Lordships' House.
Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)
3.30 p.m.
Lord Goodhart: My Lords, I congratulate the noble and learned Lord, Lord Falconer of Thoroton, on his most interesting lecture. I hope that all of us are now qualified to sit the examination paper on the Trustee Delegation Bill which I assume he will set us!
I welcome this Bill wholeheartedly. It is an example of the kind of minor but useful reform which can be achieved by the Law Commission. As a practitioner with a good deal of experience in trust law, I am sure that it will do considerable good and no harm. I have no criticisms at all of the substance of the Bill. I have one minor comment on the drafting of it which I fear will be of interest only to enthusiasts of the minutiae of parliamentary draftsmanship such as myself, the noble Lord, Lord Renton, and the noble and learned Lord, Lord Brightman, who I am glad to see present today.
My comment is that this Bill contains a number of what might be called "explanatory parentheses". A good example is in Clause 3 of the Bill where more than half the clause is taken up by a parenthesis which explains the effect of Section 10(2) of the Powers of Attorney Act. This has no substantive effect on the Bill whatsoever and is simply a guide to the reader of it. The practice of including parentheses of this kind has become common in recent years. However, we now have full Explanatory Notes which is a considerable improvement on previous practice. Those notes explain exactly what is being amended and why it is being amended. Surely it is not now necessary to include the explanatory parentheses which, as I said, have no substantive effect on the Bill itself.
I have one more important general comment. The Law Commission itself is a tribute to that most distinguished Labour Lord Chancellor, Lord Gardiner. The Law Commission is a successful tribute to him. It has achieved a great deal in recent years. However, the work of the Law Commission is valueless if its reports do not get onto the statute book. We had no Law Commission Bills at all in the long Session which ran from May 1997 until November 1998. The result of that was that the backlog in enacting Law Commission Bills, which was already substantial, has become worse. Apart from this Bill and the Bill which will be debated next, there are 20 further reports from the Law Commission which await action by the Government.
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Therefore, while I welcome these two Bills I believe that if we are to keep up with the work of the Law Commission we need a target of four to five Law Commission Bills every year. Some of those Bills are certainly meatier than others and may take up more time, which may of course reduce the time available for other Bills. However, this Bill, and the contracts Bill which we are to debate next, will not need long debates. I certainly hope that there will be time for further Bills in this Session. If, as now seems at least possible, your Lordships' House will not have to spend the whole of the time from April to the Summer Recess in debating its own future, that might perhaps leave more time for further Bills, such as the two I have mentioned, and enable useful and practical reforms to the law to be achieved. Having said that, I repeat once again that I believe this is an admirable Bill to which I give full support.
3.35 p.m.
Lord Kingsland: My Lords, I am somewhat daunted in having to speak after the noble Lord, Lord Goodhart, who is a truly eminent Chancery Silk. I, too, wish to congratulate the noble and learned Lord, Lord Falconer of Thoroton, on the remarkable exposition that he has given of the Bill. I am pleased that despite his new responsibilities, he still has time to come to your Lordships' House to practise his old trade.
In a minute I shall see whether I pass the test set by the noble and learned Lord in understanding the purpose of the Bill. I believe the Opposition have absolutely no quarrel with it whatsoever. As I understand it, its main objective is to repeal Section 3(3) of the Enduring Powers of Attorney Act 1995—that is achieved by Clause 4 of the Bill—in order to deal with a decision which I believe is called Walia v. Michael Naughton Ltd. and to protect Section 25 of the Trustee Act 1925.
I think the noble and learned Lord's starting point was the Powers of Attorney Act 1971, which sets out a statutory procedure under Section 10 to delegate powers of attorney. The limitation of the 1971 Act is that it does not deal with the question posed by the automatic revocation of a power of attorney on the onset of mental incapacity. It was with that matter that the 1985 Act set out to deal. Section 1 of that Act provides power to establish an enduring power of attorney, anticipating circumstances in which someone unfortunately suffers from mental incapacity.
I think I am also right in saying that the 1985 Act did not seek to change the rules set out in Section 25 of the 1925 Trustee Act, as amended by Section 9 of the 1971 Act. That must be right because where a trustee is dealing with other people's property, strict rules should apply as to the delegation of the trustee's powers.
While the 1985 Act was under consideration, the case of Walia was decided. I think it involved three co-owners of property who were, by virtue of the 1925 Law of Property Act, also trustees. Under Section 10 of the 1971 Act, one of the co-owners sought to delegate to another a power of attorney. However, the learned judge held that this could be done only under Section 25 of the 1925 Trustee Act. This would have proved a

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huge millstone in property transactions. That was the background to the enactment of Section 3(3) in the 1985 Act.
Unfortunately, it appears that the words of Section 3(3) have gone too far. This Bill simply deals with that problem by limiting the section's effect to correcting the consequences of Walia and, at the same time, protecting Section 25. If that is essentially what the Bill sets out to do, it seems to me an admirable objective and one with which the Opposition are entirely in tune.
It is to the great credit of the Law Commission that the Government have accepted almost in its entirety the draft that the commission set out. It is with some hesitation that I say that Her Majesty's Government have got it right in view of the fate of Section 3(3); but I hope for all our sakes that they have.
3.40 p.m.
Lord Falconer of Thoroton: My Lords, I am grateful for both speeches. I say genuinely that the support given to the Bill by the noble Lord, Lord Goodhart, is the most eloquent indication that it is worth while. The noble Lord is an eminent Chancery practitioner.
Perhaps I may deal with two points made by the noble Lord. The first relates to the brackets in various sections of the Bill. I agree that they are necessary for the purpose of giving effect to the purport of the Bill. They seem useful. If, for example, one is in a solicitor's office trying to deal with a question of the delegation of power that might arise in relation to a property, it would be of some value to know what subsection (3) of Section 3 of the Enduring Powers of Attorney Act 1985 said in summary without having to go to the explanatory notes, which might not be available. Therefore, although I take the noble Lord's point that they make the Bill longer, they have some value.
Secondly, the noble Lord made the point that the Law Commission's efficacy depends upon the Government giving effect to its Bills. I agree with the principle. Nevertheless, there are questions of priorities. There is a full legislative programme this year, as there was last year, and will probably be the case next year. I hesitate to say it, but I believe that other Bills will fill the gaps in time that are left as a result of the saving of time in relation to the House of Lords Bill, and I fear that they will not be Law Commission Bills.
I give the noble Lord, Lord Kingsland, 100 per cent. in regard to his exposition of the Bill's intention. After a sticky start in getting the subsection wrong, he then showed that he completely understood the substance. I am grateful for his support. I therefore urge the House to give the Bill a second reading.
Lord Renton: My Lords, before the noble and learned Lord sits down, perhaps I may mention a point wisely made from the Liberal Democrat Benches regarding our ability to deal with a number of Law Commission Bills. They are the kind of Bills that can perfectly well go to the special Select Committee which
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sits in the Moses Room and not take up Committee time on the Floor of the House. That being so, we could get through a great many in one Session.
Lord Falconer of Thoroton: My Lords, as I indicated in response to the noble Lord, Lord Goodhart, in principle, like everybody, I am keen that as many of these Bills as possible should go through. But however it is done, there is still a question of how much time they will take up, and there are other legislative priorities. However, I will bear in mind what the noble Lord said.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Contracts (Rights of Third Parties) Bill [H.L.]
3.43 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move that this Bill be now read a second time.
It gives me real pleasure to bring before your Lordships, so soon after your Lordships have considered the Trustee Delegation Bill, a second Bill to give effect to recommendations for law reform made by the Law Commission. This Bill implements the recommendations which were made in the Law Commission Report No. 242, Privity of Contract: Contracts for the Benefit of Third Parties, published in July 1996. I should like to thank the Law Commission for another excellent piece of work which continues its valuable contribution to law reform.
The common law doctrine of privity of contract means that, as a general rule, a contract cannot confer rights or impose obligations on any person except the parties to it. So third parties cannot acquire or enforce rights under contracts, even contracts which have been made for the express purpose of conferring benefits on them. The non-recognition of third party rights has been much criticised by the judiciary, academics and law reform bodies. The Law Commission thought that it had been the rule which senior judges have criticised more than any other rule of English contract law. Nearly 20 years ago it was described by Lord Diplock as,
"an anachronistic shortcoming that has for many years been regarded as a reproach to English private law".
More recently, the noble and learned Lord, Lord Steyn, said that,
"the case for recognising a contract for the benefit of a third party is simple and straightforward. The autonomy of the will of the parties should be respected. The law of contract should give effect to the reasonable expectations of contracting parties … there is no doctrinal, logical or policy reason why the law should deny effectiveness to a contract for the benefit of a third party where that is the expressed intention of the parties".
The Bill will give effect to that simple and straightforward principle.
The Bill provides that a third party will have a right to enforce a term of the contract, both when the contract expressly provides that he should have that right and also where there is no such express provision but there is a contractual term which purports to confer a benefit

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on him. Once the third party has a right to enforce the term, there will be limitations on the extent to which the contracting parties may modify their contract without the third party's consent.
The contracting parties will not be obliged to give enforceable rights to the third party on whom the benefit is to be conferred. If it is apparent from the contract that they did not intend to do so, the third party will still be unable to enforce the term.
I emphasise that the Bill does not change that part of the rule under which a burden cannot be imposed on a third party without his consent. It is clearly right that the principle should remain. The Bill deals solely with benefits conferred on third parties.
The reform brings English law into line with the position in Scotland, most member states of the European Union and much of the common law world, including the United States of America. The harmonisation of commercial law in this way can only be beneficial to the interests of the business community.
As many of your Lordships will be aware, the Law Commission generally produces with its reports a draft Bill to give effect to its recommendations. The report on privity of contract was no exception. However, the Bill before your Lordships today is not identical to that draft Bill in every respect. Since the report was published we have been working closely with the Law Commission in considering comments which have been made, and we have included a number of improvements which have been suggested. As always, I am grateful to the Law Commission for the continuing assistance that it has given. None of the changes goes near the heart of the Bill, but it may be helpful to your Lordships if I mention briefly the main modifications which we have made before turning to the detailed provisions of the Bill.
The principal changes are additions to Clause 6, which excludes certain types of contract from the operation of the Bill. Other legislation already governs the question of third party rights under particular contracts, and it would be contradictory for this Bill to apply to them.
Clause 6 now prevents a third party from suing an employee for a breach of his contract of employment. Without this exception it could be thought that there was a risk of the rights of workers to take lawful industrial action being restricted in unexpected ways. It is not intended by a by-wind to upset the present balance on our labour laws.
Clause 6 now also prevents third party rights arising from the "deemed" contracts under Section 14(1) of the Companies Act 1985 under which the registered memorandum and articles of the company constitute a contract between the company and its members in respect of their rights as such. The peculiar nature of these deemed contracts makes them unsuitable for enforcement by a third party under a general reform aimed at giving effect to the parties' intentions.
I should also mention that the drafting of the present Bill has been modified to reflect the fact that a third party's interest may be limited to particular terms of the contract rather than the contract as a whole.
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A full explanation of the current law and the proposed changes can be found in the Law Commission report to which I have referred. As your Lordships will be aware, we have not produced notes on clauses as a separate departmental publication, as was the previous practice. Instead, the Bill is accompanied by Explanatory Notes which we have prepared to assist readers of the Bill and help to inform debate upon it.
Clause 1 is the core of the Bill. It sets out the circumstances in which a third party may have the right to enforce a term of a contract. He or she will have that right if the contract contains an express term to that effect. A third party may also have the right where there is a contractual term purporting to confer a benefit on him or her, unless it appears on a true construction of the contract that the contracting parties did not intend the third party to have a right to enforce it. In order to acquire that right, the third party must be expressly identified in the contract but need not be identified by name. It is sufficient if he or she is identified as a member of a class or answers a particular description. The remedies available to the third party will be the same as those available to a party to a contract bringing an action for its breach.
Clause 1 also contains the essential definitions of "the promisor" and "the promisee" as used throughout the Bill. "The promisor" is the party against whom the contractual term is enforceable by the third party and "the promisee" is the contracting party by whom the term is enforceable against the promisor.
Clause 2 restricts the way in which the contracting parties can alter the third party's entitlement under the contract without his or her consent once the third party has the right to enforce a term. They may not do so after the third party has accepted the term, or relied on it, when the promisor knows of, or can reasonably be expected to have foreseen, that reliance. The court may, however, dispense with the third party's consent in particular circumstances, such as where it cannot be obtained because his or her whereabouts are unknown. In keeping with the Bill's preservation of the contracting parties' freedom to agree their own terms, these rules will be displaced by an express term of the contract providing that the contract can be cancelled or varied without the third party's consent or that the third party's consent is to be required in specified circumstances different from those specified in Clause 2.
Clause 3 deals with the defences, set-offs and counterclaims available in proceedings by a third party to enforce a term of the contract. Broadly, the promisor can rely on defences or set-offs which arise in two different ways. He or she can rely on any defence, set-off or counterclaim which might arise in connection with the contract and which could have been relied on by the other party to the contract. For example, a defence that a contract is void or that it has been discharged is a good defence whether the action is brought by the promisee or the third party. The promisor may also rely, in an action by the third party, on a defence, set-off or counterclaim which related specifically to the third party and arises otherwise than

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in relation to the contract. It may be available, for example, under a separate contract between the promisor and the third party.
Clause 4 provides that the Bill does not affect the rights of the promisee to the contract to enforce a contract term which benefits a third party while Clause 5 makes provision to avoid the double liability of the promisor to both the promisee and the third party.
As I have explained, Clause 6 provides for types of contract to which the new rules in Clause 1 will not apply. I have already mentioned contracts of employment and deemed contracts under Section 14(1) of the Companies Act 1985. Also excluded are contracts for the carriage of goods by sea, as defined in the clause. It would have contradicted the policy behind the Carriage of Goods by Sea Act 1992 if third parties to contracts which are covered by that Act were also able to rely on the provisions of Clause 1 of this Bill. Nor will the provisions of Clause 1 apply to contracts for the international carriage of goods by road, rail or air which are covered by international conventions. It might undermine our commitment to those conventions if this was not the case. Nevertheless, this Bill will allow third parties to enforce exclusion or limitation of liability terms in these two types of contract.
For example, a contract between the charterer of a vessel and the owner of the goods to be carried may provide that the shipowner is not to be liable for damage caused by negligent stowage. The Bill will enable the shipowner, as third party, to rely on that exclusion in an action by the owner of the goods. Similarly, so-called "Himalaya clauses", under which the defences available to the carrier are extended to servants, agents and independent contractors engaged in loading and unloading, will be effective without having to resort to artificial reasoning based on concepts such as implied contract, as has been necessary in the past.
Another type of contract which is excluded from benefiting from the provisions of this Bill is one which is contained in a bill of exchange, promissory note or other negotiable instrument. As the Law Commission explained, other legislation may confer rights on third parties, subject to certain conditions, where they are "holders" of those instruments, and it would cause unacceptable uncertainty to open up the possibility of third parties, who were not holders, having rights to enforce those contracts under the provisions of this Bill.
Clause 7 preserves any rights or remedies which may be available to a third party at common law or by statute apart from the Bill, but ensures that the third party cannot invoke Section 2(2) of the Unfair Contract Terms Act 1977 to contest the validity of a term excluding or limiting the promisor's contractual liability to the third party, under the Bill, for negligently caused loss or damage. This again is consistent with the underlying policy of the Bill which is to enable contracting parties to confer rights on third parties but to allow them to retain control over the nature and extent of those newly conferred rights.
Finally, Clause 8 provides that the Bill is to come into effect six months after Royal Assent and will apply only to contracts entered into after it comes into force. Six
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months is a reasonable period to allow the professions and the public to become familiar with the legislation and to make any necessary modifications to standard form contracts.
This is a useful law reform measure which has been long awaited. I commend it to the House.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
3.57 p.m.
Lord Borrie: My Lords, more than 60 years ago, the Law Revision Committee, which was a part-time predecessor of the present Law Commission, recommended that where a contract by its express terms seeks to confer a benefit on a third party, that third party should be entitled to enforce the provision in his own name.
Thirty years ago. I well remember as a member of the Law Commission's Advisory Panel on the Codification of the Law of Contract that the draft code provided for the creation of rights in third parties. Sadly, neither the 1937 report nor the abortive attempts of the Law Commission 30 years ago to create a codification of the law of contract came to anything and here we are in 1999.
The noble and learned Lord the Lord Chancellor quoted senior members of the judiciary, including the late Lord Diplock, as condemning the non-recognition of third party rights rule as anachronistic. Surely Lord Diplock was right in his criticism, as have been other members of the senior judiciary. Indeed, the story of our failure in England—notice that I do not say the United Kingdom—for so long to make the changes now to be made by this Bill is not a happy one. Other common law countries have got rid of the rule; Scotland and most European Union countries recognise and enforce the rights of third party beneficiaries under contracts.
The noble and learned Lord the Lord Chancellor is to be congratulated on promoting a Bill relatively soon (I say to the noble Lord, Lord Goodhart) after the comprehensive 1996 report of the Law Commission. One of the problems that many lawyers have experienced with this subject over the years is that the simple logic of the privity of contracts rule—that only a party to a contract may enforce it—has been widely regarded as a fundamental principle of the law of contract. There was no firm rule either way until the mid-19th century. Nor was the logic all one way. The noble and learned Lord, Lord Steyn (who unfortunately is not here today) put the matter very clearly in 1995 when sitting in the Court of Appeal. He said:
"there is no doctrinal, logical or policy reason why the law should deny effectiveness to a contract for the benefit of a third party where that is the expressed intention of the parties".
It is true that over the years a number of exceptions to the third party rule have been created by Parliament or the judges, but many of them are technical and artificial and give rise to anomalies. How much better therefore it is to do what we are beginning to do today and abolish the rule and give effect to the parties' intentions. The Married Women's Property Act 1882 provides that if a man takes out life assurance expressly

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for the benefit of his wife and/or children such dependants can enforce the contract, but that Act does not help a co-habitee or stepchildren, even though they may be expressly named as intended beneficiaries.
The rule in a whole number of fields causes problems and injustices. Suppose that an employer takes out medical expenses insurance for his employees. The employees have no right to enforce the contract. Building contracts are notorious, especially where sub-contractors are involved, for creating difficulties. An example given in the 1996 report of the Law Commission is where one contracts with a builder to do work on the home of one's daughter. The work is done defectively. As a contracting party one can sue the builder but one will get only nominal damages because one has suffered no direct financial loss. However, the daughter who is not a party to the contract cannot claim at all even though she may be expressly identified, named and specified in the contract.
The situation would be changed for the better if this Bill were enacted. In the words of Clause 1(1) a person who is not a party to a contract (a third party) may in his own right enforce the contract if it expressly provides that he may do so or it purports to confer a benefit on him. I leave aside the qualification in Clause 1(2) but I stress the qualification in Clause 1(3) that the third party must be expressly identified in the contract by name as a member of a class or as answering a particular description. My query is whether this may be over-restrictive. To take a slight variation of my previous example, instead of arranging for work to be done on your daughter's house you may buy a piece of antique furniture for her but you do not identify her to the retailer. It is delivered to your home for the good reason that you want to give it to her for Christmas and not in advance. Therefore, the retailer knows nothing of your daughter. Some time after Christmas the furniture is found to be infested with woodworm which causes damage to other furniture that is owned by your daughter. She could not sue now or, as I see it, under this Bill because she would not be expressly identified in the contract of sale. If you sued you would get only nominal damages.
Problems can arise when a retailer against whom a purchaser normally has Sale of Goods Act rights becomes insolvent. The purchaser could not instead claim against the manufacturer who had sold to the retailer unless the manufacturer-retailer contract expressly identified the ultimate consumer as having rights to claim direct against the manufacturer. That is not normally the situation in the case of a manufacturer-retailer contract. In its 1996 report at paragraph 7.54 the Law Commission admits that the Bill that they proposed, which this Bill largely follows, falls short of providing so-called consumer third parties with comprehensive remedies.
My final point relates to the Unfair Contract Terms Act 1977 which has been referred to by the noble and learned Lord the Lord Chancellor. Among other provisions the 1997 Act renders void any contractual clause that excludes liability for negligently caused death or personal injury. I am glad that under this Bill if a third party brings an action against a builder or seller
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of goods, for example, any clause in the contract that seeks to exclude such liability will no more be effective against a third party than it is against a contracting party. However, by virtue of Clause 7 of this Bill a contractual provision that seeks to exclude liability for other kinds of damage—not personal injury or death—will be effective against a third party although it is subject to a reasonableness test under the Unfair Contract Terms Act if the action is brought by a contracting party.
I believe that the policy of the law should be against unreasonable contract clauses whoever relies upon them and in whatever circumstances. The Law Commission seeks to justify this at considerable length in part 13 of its report but admits that there is an inherent contradiction in amending one subsection in one section (Section 2(2)) but not another (Section 2(1)). I know that the Government are keen to implement the proposals of the Law Commission more or less as they stand, but I ask the noble and learned Lord the Lord Chancellor whether they would be prepared to reconsider the matter of the Unfair Contract Terms Act.
Apart from those queries, I wish the Bill speedy success.
4.7 p.m.
Lord Wilberforce: My Lords, I should like to interpose a few words in the gap. I apologise for not having put down my name owing to uncertainties of movement. First, I thank the Government, and in particular the noble and learned Lord the Lord Chancellor, for so rapidly introducing the two reports of the Law Commission, thereby implementing an assurance that he gave in the debate on the Queen's Speech in relation to a question that I put to him. I am very grateful that these have been so promptly brought forward. I follow the noble Lord, Lord Goodhart, in expressing the very strong hope that this may be the first of many other Law Commission reports to be given similar treatment.
There is no doubt that this matter deserves legislation in spite of the efforts of the judges. For many years the judges have done their valiant best to get round in some way or another the rule against giving effect to contracts in favour of third parties. In this connection one thinks most of the noble and learned Lord, Lord Denning, who is very much in our thoughts at this time. I made an effort in relation to stevedores in the case of the "Eurymedon" in 1975. However, my reasoning in that case has been stigmatised as artificial. That adjective was taken up not only by the noble and learned Lord but also by the noble Lord, Lord Borrie. Artificial or not, it is good that the efforts of the judges should be generalised and carried forward in the form of legislation. One can only express the hope, as voiced by the Law Commission, that room will be left and encouraged for judicial creativity even after this Bill has been passed.
The first point that I should like to make on the Bill relates to Scotland. The Bill applies only to England and Wales, the reason being that Scotland itself recognises the jus quaesitum tertio, and it was thought it was unnecessary to interfere with that. It is curious that

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Scottish law, having recognised this over many years and given effect to it, should hardly be mentioned in the report of the Law Commission. In the very valuable report No. 242, which is a mine of learning and jurisprudence, there is only one tiny reference to Scottish law, in parenthesis on page 42. One would have thought that some use would have been made of the experience of the Scottish judges and jurisconsultus over the years in framing the English legislation.
The McGregor contract code, which has a valuable section on this subject of rights of third parties, examines the law of Scotland in some detail and referred to the institutional writers, particularly the noble Earl, Lord Stair, and a number of distinguished judgments not only in the Scottish courts but in this House on appeal in which this matter was carefully considered. One would have thought that they would have contained something which could have been drawn on for the benefit of our legislation.
Are we to be satisfied at the point we have reached that there is now no divergence between Scottish and English law? The McGregor Code was very emphatic on that point, and its provisions were designed to promote unanimity between the laws of the two countries. It is obviously desirable that that should be so; otherwise, in every case of a contract crossing the Borders one would have to decide whether the law of Scotland applied or the law of England.
Can the noble and learned Lord give an assurance that examination has been made of this matter and whether the two laws are harmonious, identical or nearly the same? If any divergence exists, can he assure noble Lords that the law of Scotland will be adjusted, as necessary, to bring the two laws together?
My second point relates to arbitration clauses. There are a number of contracts to which the Bill may have relevance which contain arbitration clauses. Building contracts are conspicuous in that regard. The question then arises where third party rights may be involved, whether the third party may take advantage of the arbitration clause.
This matter was examined by the members of the Law Commission at considerable length and they expressed the view that this was the most difficult question that they have had to consider. Ultimately they came to the conclusion that it would not be right to include arbitration clauses among those of which a third party could take advantage for the reason that if the third party were to be able to take advantage of an arbitration clause it would have to follow that an arbitration clause could he voted against the third party. That would contravene the principle to which the noble and learned Lord has drawn attention; namely, it is not the purpose of the Bill to impose any burdens on third parties.
For that reason the Law Commission decided not to allow arbitration clauses to be taken advantage of by third parties, and their draft Bill contains, in Clauses 6(2)(d) and (e), provisions excepting arbitration clauses and jurisdiction clauses from the operational clause, Clause 1: in other words, saying that a third party cannot take advantage of an arbitration or jurisdiction clause.
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Those two provisions do not appear in the Bill in Clause 6. It may be that the matter is dealt with in some other way which I have not been able to discern, but I should be very grateful if the noble and learned Lord could give the philosophy underlying the elimination of those clauses or tell the House that the matter is disposed of in some other way.
Subject to those points, I give the Bill a very hearty welcome.
4.14 p.m.
Lord Meston: My Lords, those who believe that the process of law reform is sometimes painfully slow will find support in the time that it has taken to achieve what the Bill proposes. As the noble Lord, Lord Borne, reminded us, the changes in the Bill are largely based on the recommendations of the Law Revision Committee in 1937. It has long been realised and taught that the principle of privity of contract when it frustrated the legitimate expectations of third parties was out of touch with reality and fairness. In the classic case of Beswick v. Beswick in 1967, Lord Reid said:
"If one had to contemplate a further period of parliamentary procrastination this House might find it necessary to deal with this matter".
He was referring to this House in its judicial capacity. More than 30 years on, Parliament is now able, through the Bill, to deal with the problem.
Perhaps there are two fortunate features of this delay. First, the Bill derives from the Law Commission. The report of the Law Commission provides a penetrating and compelling analysis and, because other jurisdictions have moved faster, it has been possible to learn how statutory reforms have been framed and operated elsewhere, particularly in the United States and in the Commonwealth. That said, I wish to support the observations made by my noble friend Lord Goodhart, and his suggestion that there might be an annual target set for processing a number of Law Commission Bills. Furthermore, the noble Lord, Lord Renton, reminded noble Lords that there is the admirable procedure of the Jellicoe Committee.
The Bill skilfully gives effect to what the Law Commission report at paragraph 3.28 describes as its basic philosophy for reform:
"That it should be straightforwardly possible for contracting parties to confer on third parties the right to enforce the contract".
Through the provisions of the Bill that proposition can now be applied from sophisticated commercial contracts to ordinary domestic and consumer contractions, when it can often be almost a matter of chance which member of the family is formally the contracting party. I happily adopt the example given by the noble Lord, Lord Borrie.
The Bill, sensibly and satisfactorily, deals with the problem of the incidental beneficiary by the mandatory terms of Clause 1(3). Again as the noble Lord, Lord Borne, pointed out, that may be at some cost to the intended beneficiary, who is unknown to the seller.
The Bill also deals with the other real problem of defining the circumstances in which such contracts can and cannot be varied and cancelled. In that respect,

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Clause 2 prevents variation or cancellation of a term where there has been reliance by the third party. The concept of reliance is familiar to lawyers, but it can create evidential problems, and there is no definition of it in the Bill. However, paragraph 9.14 of the Law Commission report should help in guiding the courts. There it is stated:
"Reliance on a promise, in our view, means 'conduct induced by the belief (or expectation) that the promise will be performed, or at least, that one is legally entitled to performance of the promise'. The reliance need not be detrimental: that is, the conduct need not make the plaintiff worse off than before the promise was made".
I do not wish to take further time in questions of limited interest to non-lawyers. As the Law Commission suggests in paragraph 12.27, the question of non-party rights under insurance contracts should be kept under review. All practitioners will need to consider the implications of the Bill for their own areas of specialisation. I was glad to see that it preserves the principle to which the noble and learned Lord the Lord Chancellor referred, that an employer cannot unilaterally assign the right to his employee's work to another.
On family law, there does not seem to be much scope for use of this law reform, although if the Government decide to give some statutory force to pre-nuptial contracts—about which it was thought that the Government were enthusiastic last year—I wonder whether the Bill will enable a particularly battle-scarred and pessimistic husband to make future provision for several prospective ex-wives in one agreement! I hasten to say that that is not a serious suggestion.
Finally, I said that there were two fortunate features of the delay in the change to the law. The second is this. As has already been noted by the noble and learned Lord, Lord Wilberforce, and as every lawyer will recognise, in the Bill we reach fulfilment of something tenaciously advocated for many years by the noble and learned Lord, Lord Denning, whose 100th birthday will be reached in just 12 days. I hope that the noble and learned Lord will accept the Bill as an early present.
4.20 p.m.
Lord Kingsland: My Lords, although there will probably be a few voices against it, I wish to give my warm and unqualified congratulations to the noble and learned Lord the Lord Chancellor on bringing forward the Bill. As the noble Lord, Lord Borrie, said, the strict application of privity of contract is relatively recent deriving, I think, from the early 1860s. On many occasions before that, the common law enforced contractual promises for the benefit of third parties.
Indeed, as many noble Lords have said, throughout the late 1940s and 1950s the noble and learned Lord, Lord Denning, strove to establish the situation that prevailed before the middle of the 19th century. He finally failed in his task in a case called Midland Silicones Limited v. Scruttons Limited, where the late Lord Chancellor, Lord Simonds, said quite uncompromisingly, that if any change were to be made to the law it would have to be made in your Lordships' House by legislation.
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Since that time, many ingenious efforts have been made by the Judicial Committee of your Lordships' House to get round the rule. A number of those have been mentioned in the debate. The noble Lord, Lord Meston, referred to the case of Beswick v. Beswick; and there have been many adjustments of the rules of agency and assignment to remedy injustice that flowed from the strict rule. There have also been circumstances where the promisee sought to enforce the contract for the benefit of the third party.
Just as I felt daunted by the presence of the noble Lord, Lord Goodhart, in the earlier debates, I now feel daunted by the presence of the noble and learned Lord, Lord Wilberforce, in this debate. In the case of the "Eurymedon" he used the—I shall not use the word "artificial" but perhaps the expression "jurisprudentially ingenious"—technique of the unilateral contract to gain for the benefit of third parties the protection of exclusion clauses which had been negotiated between the main contracting parties.
There are, of course, those who say that when further cases of injustice arise, further ingenuities will come forward from the courts to meet them. There are also those who say that the present proposals do not comprise a comprehensive change in the law. Many statutory exceptions to the rule of privity will remain untouched by the proposals.
However, in my submission the arguments advanced by the noble and learned Lord the Lord Chancellor for change are overwhelming. First, the Judicial Committee of your Lordships' House has been calling for change for a long time. The noble Lord, Lord Meston, mentioned Lord Reid in 1967. More recently, the noble and learned Lord, Lord Goff, in a case in the Judicial Committee in 1996, again called for legislation change. The fact of the matter is that most Commonwealth countries and nearly all of our European Community partners provide enforceable remedies for third parties. It is very much in the interests of the United Kingdom that we have a uniform commercial law for the benefit of international traders. All those factors conspire to make the changes desirable.
As regards the Bill, as the noble and learned Lord the Lord Chancellor explained, there are a number of areas where there is a legitimate difference of view about the right approach. For example, to what extent should consumers benefit from the Bill? To what extent should overlapping claims be adjudicated upon by legislative rules? What should be the proper extent of the Unfair Contract Terms Act 1977 in relation to exclusion clauses? How should exclusion clauses and set-offs apply to the relationship between third parties and the promisor?
The Bill has sought solutions to all these problems. Not everyone will agree with everything that has been decided. For my part, I cannot find anything in the Bill which is so unreasonable that a reasonable legislator would conclude that it would not be a sensible way of approaching the problem. So the Opposition give their full support, through the the noble and learned Lord the Lord Chancellor, in promoting the Bill.
4.25 p.m.
The Lord Chancellor: My Lords, I am grateful for the warm welcome which the Bill has received and for the contributions of the noble Lords who have spoken in support of it. I am sure that the House would wish to join me in acknowledging the Law Commission's greatly valued contribution to the cause of law reform; and, if I may respond to the noble and learned Lord, Lord Wilberforce, in acknowledging the creativity of the judges over the years which certainly ameliorated the position but which did not prove to be quite sufficient to remove the need for this Law Commission-inspired Bill.
I am also happy to take this opportunity to acknowledge our debt in this area of the law, as in so many other areas of the law, to the noble and learned Lord, Lord Denning, whose 100th birthday looms and whose appointment to the Order of Merit by Her Majesty a little time ago gave so much pleasure to so many across the whole of the common law world.
The one question which, has been asked I think rightly, about the Bill is not why it has been introduced, but why it has not been introduced before. It is a good question—but this Government have introduced it.
The noble Lord, Lord Borne, had some questions of detail. While it is unsurprising that there has been unanimous support for the reversal of the rule which prevents third parties from enforcing contractual terms intended to benefit them, it is inevitable in a complex area such as this that there may be some divergence of view about the extent and the consequential effects of that reversal. However, one of the special merits of Law Commission Bills is that they are the result of the widest possible consultation on points of detail as well as broad principle.
I listened with care to the noble Lord, Lord Borrie. I wondered about the illustration he gave under Clause 1(3). I shall reflect on it, but I should have thought that in practice the purchaser could have ensured that the contract could have been enforced by his daughter, for I do not doubt that the seller would have written such a provision into the contract of sale in order to secure the sale.
The noble Lord then turned to the broader issue of consumer protection. The Law Commission considered that issue in its report at paragraphs 7.54 to 7.56. Plainly, the Bill will have a significant effect in adding to consumer protection where the third party who acquires rights in accordance with the intentions of the parties to the contract is also a consumer—for example, where a contract between a manufacturer and a retailer confers rights on a purchaser. But to provide that contractual rights are automatically conferred on consumers regardless of the intentions of the parties to the contract would go far beyond the purpose of the Bill. On this point the Government are of the view that the Law Commission got the matter right.
The noble Lord, Lord Borne, then called attention to what I accept is a very difficult question; that is, the Unfair Contract Terms Act and in particular Clause 7 of the Bill. This difficult question is whether legislation in place to protect consumers should apply to the rights which will be enjoyed by third parties if the Bill
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becomes law. Why should the legislation not protect third-party rights, just as it already protects the rights of contracting parties? There are persuasive arguments both ways. It was a question which caused the Law Commission difficulty. In its report it went as far as to say that it had agonised about it. I am persuaded, as the Law Commission was, that the balance lies in favour of preserving the rights of the parties who have chosen to bind themselves by the terms of their contract rather than enlarging the rights which they have chosen to confer on third parties.
It is important to remember that the Bill will confer rights which could not exist before. Under the previous law, third parties could have no enforceable rights under the contract. They might have acquired rights outside the contract—for instance, under the law of negligence—and those rights will not be taken away or diminished in any way by the Bill; Clause 7(1) ensures that. The Bill cannot take away any rights which third parties would have had before. But the Bill gives the contracting parties the absolute right to control the rights which may be enjoyed and enforced under the contract by those who were not parties to it. For example, they have the freedom to specify that no third party shall have any enforceable rights at all under the contract. Equally, they should have the freedom to limit such rights as they choose to confer. One possible way of looking at the matter would be to regard the right conferred on the third party as a donation and to say that it is right that the donors should be able to limit the extent of the gift as they choose.
The noble and learned Lord, Lord Wilberforce, spoke in the gap. I take his question about Scotland and am familiar with the McGregor commercial code and the Scots doctrine of jus quaesitum tertio. The Law Commission consultation paper of 1991 contained 20 pages about the law in other jurisdictions, including two pages on Scotland. However, the noble and learned Lord's question goes to whether we are satisfied that there is no material divergence between Scots law and English law as it will become when the Bill is passed. That is a matter on which I am happy to undertake to write to the noble and learned Lord.
The noble and learned Lord also raised a question about arbitration and exclusive jurisdiction clauses. This was another of the more difficult issues which the Law Commission recognised that it faced in this project. One apparent difficulty was that, while arbitration and exclusive jurisdiction clauses should be enforceable by third parties, those clauses cannot operate satisfactorily unless the entitlement to enforce also carries a duty on the third party to submit to arbitration or to comply with the jurisdiction agreement, as the case may be. But, as I said, the reform deals solely with conferring benefits on third parties, not with imposing duties or burdens on them. It would be unsatisfactory, however, if the third party could take the benefit of a clause such as this, without being bound by it. That was the state of thinking then by the Law Commission to which the noble and learned Lord called attention. However, the noble and learned Lord should know that, on further reflection, the Law Commission concluded that in practice the third party would not be able to do so. The Law Commission

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concluded that, although in theory the third party might seek to rely on an arbitration clause to stay court proceedings without being bound to arbitrate, in practice no stay would be granted by the court unless he had shown willingness to go to arbitration. On that basis, the conclusion was that there was no good reason to exclude these clauses from the operation of the reform. I give that rather full explanation to the noble and learned Lord. If he wishes to write to me on the subject, I shall, of course, respond.
I am grateful for the general statements of support made by noble Lords who have contributed to the debate, which reinforce my confidence in commending the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
Lord Hunt of Kings Heath: Before we move to the Statement on the National Health Service, I should like to take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

National Health Service
4.37 p.m.
Baroness Hayman: My Lords, with the permission of the House, I should like to repeat a Statement being made in another place by my right honourable friend the Secretary of State for Health.
"Madam Speaker, I should like to make a Statement on how the National Health Service is coping with the recent sharp rise in the number of people falling ill.
"First, on behalf of everyone in the country, I want to thank all the people working in the health service and local social services for the huge effort they have put in to try to make sure that everyone is getting the treatment and care that they need. They have done all this because there has been a surge in the numbers of people going to see their doctor and an even bigger surge in the number of people calling ambulances, calling helplines and going to hospital. This sharp increase in the level of illness is confirmed by the increase in the number of people dying, which in some parts of the country has meant that families trying to arrange funerals face long delays.
"From the figures put together by the Public Health Laboratory Service from returns made by the Royal College of General Practitioners, the present outbreak of flu and flu-like illnesses seems likely to be on the same scale as in the winters of 1994 and 1996—although it may go higher. These figures reflect the increased numbers of people with flu-like symptoms who see their local GP. Up till now flu and flu-like illnesses have been worst in the West Midlands and the North, but there have been sharp peaks elsewhere.
"The demand for ambulance and hospital services has shown a much larger increase, with daily ambulance journeys almost doubling in some places.
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Both the Merseyside and the Greater Manchester ambulance services saw the demand for ambulances shoot up to over 1,000 journeys per day compared with an average of 500 to 600. For the London ambulance service, this New Year was the busiest on record with over 4,700 journeys compared with a daily average of 3,000.
"There have also been some tragic fatalities due to meningitis. I extend my sympathy to the families concerned. Of course parents are right to visit their family doctor to seek advice if they have concerns. In November, the Chief Medical Officer advised GPs to refer suspected cases promptly to hospital, and he will be renewing that advice shortly.
"The NHS is better prepared than ever before to cope with these illnesses, and in most places most hospitals have coped well with the pressures they face. In August I asked the NHS to prepare itself to strengthen emergency and ambulance services; make best use of the beds which are available; improve discharge arrangements; and prevent unnecessary admissions to hospital in the first place. And it has done so. Over 2,200 schemes are under way nationally, backed by the £159 million announced by the Chancellor in the pre-Budget Statement. They include £750,000 to improve intensive and high dependency care in London; £200,000 for one-stop clinics in Walsall; £175,000 for better home treatment and care in Leeds; £140,000 for a community-based phlebotomy service in Gloucestershire; and £45,000 to help prevent fractures in the elderly in Kent.
"In August we also announced GPs could this winter, for the first time, offer flu vaccinations to all their patients over 75 rather than confine vaccinations to particularly vulnerable groups. As a result more than a third of a million extra doses have been given this year compared with last and vaccine remains available.
"And we are tackling particular pressure points. Over the last week those parts of the NHS which are suffering particular problems which can be helped by more cash have been told they can draw on the £50 million contingency fund which is there for that purpose. In some places that will mean more high dependency beds are being provided to help relieve pressure on intensive care beds.
"The position today is that 35 adult intensive care beds are free and available for use. The situation seems to be easing but it could well get worse again if icy weather were to lead to a lot of falls, particularly among the elderly. The NHS cannot be complacent. It is not and I am not.
"I will not pretend that the NHS everywhere has coped as well as the public is entitled to expect. Such an increase in illness will always cause difficulties. And those difficulties are worse because of the serious underlying problems we have inherited.
"We inherited a run-down NHS, with serious staff shortages. Many buildings are out of date. Much equipment is old and unreliable. Methods of working are not making the best use of new technology, particularly information technology. There are not

35
enough staffed beds. The Government are getting a grip on the short-term consequences of these problems, and also laying longer-term foundations to build a modern and dependable NHS. Much of this work is already underway.
"One of the causes of the shortage of nurses is the cuts which the previous government deliberately made in the numbers of nurses going into training—down from 15,000 a year at the time of the 1992 general election to fewer than 13,000 when they left office; and having fallen at one point to just 11,700. If they had not made these cuts there could have been an extra 11,000 nurses available today. It takes three years to train a nurse and so the country is now paying a heavy price for these years of neglect.
"This year, 15,500 nurse training places will be available and 2,500 more people are already in training now compared with when we took over.
"As I have said before, we must also reform the system of nurse education and training which was introduced in the 1980s. It has achieved some of its objectives but its emphasis on the academic element has put off some potential recruits. Many nurses when they do qualify feel they lack the practical skills necessary on a ward. The transfer of responsibility to the education sector from the health service has broken the old links between individual hospitals and nurses in training to the disadvantage of both. Many nurses and nurse managers recognise the need for change and so I hope to carry the profession with us—but reform there must be.
"The previous government refused, right up to the end, to recognise that there was a shortage of nurses. This Government recognise that reality and training extra nurses is a major objective. We spelt that out in our evidence to the Pay Review Body. This year we also made clear that the review body should give special attention to the pay of nurses in the lower grades. Like the nurses themselves, we want to see a reform of the present rigid grading structure and better career development prospects so that these vital staff have a modern, fair and flexible system for both pay and promotion.
"I repeat my hope that the independent review body will propose a settlement which is fair to nurses and midwives and which the Government will be able to implement in full.
"We are also addressing the concerns of qualified nurses who have left the NHS. We want to attract them back, not just with better pay but with family-friendly shift patterns and a better and safer working environment. If we are to retain existing staff, recruit new staff and persuade former staff to return, we must provide them all with the modern buildings, plant and equipment that they need. We have already started on the biggest hospital building programme in the history of the NHS and there is more to come. A high priority for more small-scale investment will include replacing out-dated and unreliable equipment.
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"Last September the Prime Minister announced that the National Lottery New Opportunities Fund will help provide new and better quality equipment for the detection and treatment of cancer. He also announced that from April we will be investing £30 million to renew a quarter of all accident and emergency departments to make them better and safer for both patients and staff. Ambulance services will be getting new control systems, new vehicles and new equipment. All these will help the NHS cope better with winter pressures in future.
"New methods of working will also help. We started three pilot schemes in Newcastle, Preston and Milton Keynes to test out NHS Direct—a nurse-led 24 hour helpline. These have been a great success. Providing advice and reassurance round the clock, they have been very popular with patients and have had a positive impact in helping patients look after themselves and reducing unnecessary calls on other services. Over the Christmas and New Year period, the NHS Direct pilots took almost double their usual number of calls—itself an indication of the upsurge in illness. After receiving advice from the nurse they spoke to, about half the patients with flu-like symptoms were able to look after themselves. This shows how the NHS is delivering new and better services. It is being extended to the rest of the country.
"From the special investment of £44 million which we have provided, NHS Direct has already been extended to the West Midlands where it took over 1,150 calls in its first week of operation. By April this year it will cover more than 20 million people in the West Country, Manchester, South London, West London, Essex and Nottinghamshire—over 40 per cent. of the population. This will both provide a new and better service for patients and, at the same time, help people avoid resorting unnecessarily to the GP or the 999 service or their local hospital.
"Finally there is the question of beds. Under the previous government, the number of acute beds was reduced by 40,000, and the number of general beds by a further 23,000. In September I announced a review of beds in the health service, how many beds, what sort of beds and where they should be. Preliminary work for the review is showing that the health service needs more beds. Our extra investment in the NHS over the next three years will see to it that we can respond rapidly when we have the final report.
"Then there is the question of intensive care and high dependency beds. Soon after coming into office, on the advice of the specialists in children's intensive care, I authorised a shift of extra funds from the paperwork of GP fundholding into children's intensive care and for the service to be concentrated in regional and sub-regional centres, with special arrangements for retrieval of very sick children by specially trained and specially equipped staff. As a result of the additional investment, the service can now provide up to 300 children's intensive care, very specialist new-born and high dependency beds. The new system has been working well, but recently there was an unacceptable delay in despatching an

37
ambulance from Nottingham to Rotherham. In the light of that experience I have insisted that each children's intensive care unit, with its local ambulance service, reviews its arrangements to ensure that it is possible to stabilise and transfer very sick children safely and promptly.
"Intensive and high dependency care beds are vital to the treatment of many people who have had operations as well as accident and emergency cases. They demand a huge amount of resources. Intensive care is not just a matter of a bed and some specialist equipment. To care properly for one patient for one day in intensive care can require the services of around six specialist nurses as well as specialist intensive care doctors, anaesthetists and others. Previously the overall level and availability of intensive and high dependency care has not had the attention it deserves. That is why the Audit Commission is now co-operating with the NHS and the Intensive Care Society to carry out a detailed study of the operation of intensive and high dependency care in the NHS. I hope this will provide a sound basis on which to plan for better services in future. I am also reviewing the role of the Emergency Beds Service and the National Intensive Care Beds Register. None of this is a criticism of the people working in these services; they, more than anyone else, want the system to be modernised.
"It has always been a source of pride in our country that when difficulties crop up people rally round to help out. They have certainly done so on this occasion. I should like to thank them all. In particular I should like to thank Dr. Ian Bogle, Chairman of the BMA, for his advice to the public that normally healthy adults should use services in a considerate and responsible way.
"Madam Speaker, from next April for the first time in 20 years the NHS will operate on a budget entirely set by a Labour government. It will benefit from the first stage of our £21 billion extra investment.
"I know that the people of this country realise that when so many people suddenly fall sick, as they have in some places recently, it is inevitable that treatment and care cannot be as prompt as at other times. I want to make sure that we provide the people who work in the NHS with sufficient tools and resources to ensure that its impact is much less in future.
"Over the past few weeks, nurses, doctors, midwives, health visitors, cleaners, kitchen staff, managers, porters, ambulance staff, laboratory scientists, therapists, pharmacists, telephonists, clerical, administrative and maintenance staff and social services staff have all performed wonders at a time when their own ranks have been severely depleted by the same illnesses as are affecting the rest of us. Many of them have kept on working while 'under the weather' themselves; many have returned early from leave to help their colleagues; others have cancelled leave which they planned to take. I thank them all. They have done us proud".
My Lords, that concludes the Statement.
4.51 p.m.
Earl Howe: My Lords, I am grateful to the Minister for repeating the Statement which, as I am sure she will acknowledge, addresses the deep concerns felt throughout the country about the pressures currently being experienced within the NHS. The Statement is right to highlight the immense efforts of doctors, nurses and ambulance staff everywhere to cope with the surge in numbers of flu victims, particularly in the North and the Midlands.
It is perhaps indicative of the intensity of this winter crisis that the Government are already drawing on the contingency fund for high dependency beds. Can the Minister say whether that fund looks set to be fully utilised and whether £50 million will be sufficient? Will she also confirm that the other expenditure plans set out in the Statement are in fact a reannouncement of money already set aside?
The Minister mentioned that there are 35 adult intensive care beds currently available for use. Can she say where those beds are? It is no use telling someone on a trolley in the north of England that there is a free bed somewhere in Cornwall. It matters that the beds are available for use by real patients.
There is one aspect of this serious situation about which the Statement made no mention at all; that is, the effect on the availability of beds of the Government's drive—one could almost call it an obsession—to reduce the numbers of those on waiting lists for elective surgery. The fact is that in many parts of the country the hospital system is being run at far too high a level of utilisation of bed capacity solely because hospitals have been pushed, badgered and even threatened to force through a reduction in waiting list numbers. That is happening in order to enable the Government to meet their election pledge to reduce the numbers on hospital waiting lists by a certain date.
That election pledge made no sense when it was made and still does not. It hangs like an albatross around the Government's neck. Even without this winter crisis, it was serving to distort and undermine clinical priorities. I put it to the Minister that the crisis in the health service is far worse than it need have been as a direct result of the Government's political priorities. Can the Minister say how many hospitals continue to admit routine waiting list cases while emergency patients are being kept on trolleys or turned away altogether? Is it not time for the Government to admit that their manifesto pledge is detrimental to patient care and that they should drop it in favour of more sensible targets focused on waiting times for individual conditions?
On the subject of trolleys, does the Minister recall her right honourable friend Miss Harriet Harman—and indeed the Prime Minister—promising the public before the last election that, when elected to office, they would immediately set up a task force on "trolleys" under a Labour government? Can the Minister clarify what happened to that task force? I wonder whether it too is stuck on a waiting list?
The Statement mentioned nurse numbers and I should like to cover that point. Will the Minister confirm that the Government have actually cut back nurse training

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by 3 per cent. from the levels that the Conservative government planned for 1997–98? The NHS is crying out for more nurses. How will the Government's wish-list for nurse recruitment be met? When and where do they expect to find the extra nurses we need when morale in the health service is as low as it is? If the Government are now acknowledging the shortage of nurses, why is it that in the national priorities guidance issued last year nurse recruitment did not feature at all?
I must put the record straight on nurse numbers. The Government claim that the last government cut the number of nurse training places. The fact is that nurse training places funded by the Conservative government actually increased by 8 per cent. in 1995–96 and by 14 per cent. in 1996–97. Another 14 per cent. increase had been planned for 1997–98 and, as I mentioned, by Labour's own figures the Government have cut back that target by 3 per cent. Once again they are trying to take the credit for an increase that was planned by the last Conservative government and which now has been cut back.
The claim that there were only 11,000 new trainee nurses in 1996–97 is not right. That figure only counts the Project 2000 scheme—33,000 or so graduate nurses over three years. As the Minister well knows, Project 2000 is only one scheme designed to replace the Nurse Learner Programme which accounts for the paper falls—they are only paper falls—in the early 1990s; they do not count all the other nurses who were set to come on stream such as midwives, practice nurses working in the community and the extra 1,000 intensive care nurses that we created over the last five years of our time in government.
I welcome the words of comfort relating to nurses' pay. We shall see what that expression of hope amounts to at the end of this month or shortly thereafter when the pay awards are announced. I quite understand that the Minister cannot say more about the actual awards or on the question of staging. However, can she say what the Government's policy is should the review body recommend an award that is higher than inflation and the Government agree that recommendation? Will she undertake to fund the hard-pressed health authorities in order to avoid money being siphoned off from patient care to other areas?
The Statement makes a strident boast in relation to hospital building. The fact is that the Government's hospital building programme was largely planned for by the last government, as the Minister will know, and the only reason that the present Government are trying to take credit is that they enacted legislation which we framed in order to clarify the powers of trusts to enter into PFI contracts. Of course we welcome the new hospitals being built, but let us give credit where credit is due.
Can the Minister assure the House that the Government are prepared to learn the lessons from the past week of crisis? In particular, will she take on board the fact that there is spare capacity in the private sector? Will she confirm that during the crisis our health service has now started to make use of the resources of the private sector, as we on this side of the House have
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been urging for a long time? If that is so, will she now acknowledge that the ideological barrier that this Government have erected, really a dogmatic refusal even to talk to the private sector, is not in the best interests of patients or hospitals and should be reconsidered in the face of the past week's evidence that our health service is simply unable to do it all?
5 p.m.
Lord Clement-Jones: My Lords, on behalf of these Benches I too thank the Minister for repeating the comprehensive and important Statement made by the Secretary of State in another place. I only hope that the noble Baroness is not suffering from her own winter pressures as regards her health.
It has not been a good start to the new year for many patients, with overflowing hospital beds and overloaded emergency services and intensive care units. Staff in the NHS have performed heroically in the face of current circumstances. I join the Minister in paying tribute to them.
We welcome the eventual acknowledgement by the Secretary of State, after some days of stalling, that there is a crisis in the National Health Service. We welcome many of the steps being taken to cope with it. This is not, however, an exceptional winter and there is not an exceptional flu epidemic, as has been acknowledged. However, without wishing to be unduly combative at this stage in the Session, the air is thick with the sound of chickens coming home to roost.
With their eyes open to the possible consequences, in their first two years of office, with some broad exceptions, the Government stuck to the former government's spending plans for the NHS. They phased nurses pay last year which effectively meant that their award then was worth less than the full award. They failed quickly enough to grapple the issues underlying the problems of nurse recruitment.
By concentrating so heavily on cutting waiting lists for elective surgery—indeed, spending 10 ten times more money than originally envisaged—they skewed priorities within the health trusts.
Some of the reasons for the current problems were created by the previous government. The number of acute beds has fallen inexorably since the 1980s. There are now only some 100,000 acute beds. The occupancy rate, as has been referred to, is as high in many hospitals as 95 per cent. The new private finance initiative developments will, it appears, reduce the number of beds even further. What assessment is being made of the specific consequences of PFI in that respect? Will the department think again if the review shows that the current level of development under the PFI will reduce those beds to an unacceptable level? No doubt the Minister will have seen speculation in the press that in some cases PFI development cut beds by as much as one-third or one-half.
As regards recruitment of nurses, we welcome the Statement made by the Secretary of State concerning training. We look forward to the recommendations of the nurses pay review body. The figure of 5 per cent. has been widely trailed, but if parity with newly-qualified

41
teachers is to be achieved the pay rise needs to be substantially more. Will the Minister confirm that the department recognises the fact that not just a fair settlement should be reached but that a generous pay rise is needed for nurses and that that will not be phased? Without that, we will carry on with the ever-rising cost of agency nurses, which has doubled in the past seven years, overtime totalling £600 million at the last count, and an inability to staff beds, even if they are available.
We have a massive shortage of doctors coming down the track as a result of the Calman training reforms and the New Deal. That will be further exacerbated by the working time directive. What plans do the Government have in that regard? At the end of the day, however, as the Minister knows, the issue is not purely about resources and recruitment: there is the key issue of public expectations. We cannot have a situation where the Secretary of State continues to reassure us that there are enough resources for virtually every treatment when every health professional will tell you that there is some form of rationing at every level within the National Health Service.
Without government realism on the subject, is it any surprise that members of the public imagine they have a right to ring an ambulance when they are suffering from a bout of flu? The Secretary of State has commended the BMA on its advice. Can we expect similar realism from the Government?
5.4 p.m.
Baroness Hayman: My Lords, I am grateful to the noble Earl and the noble Lord for the support they gave to the efforts made by NHS staff over the past difficult couple of weeks. I shall try to answer the points that have been raised.
In terms of the 35 intensive care beds that were available today, as the noble Lord will understand, the situation changes hour by hour and day by day. At lunch time today there was availability throughout England in each of the regions except for the West Midlands, which started the day with three potential beds expected to become available during the day, and the eastern region where two beds were expected to become available. The bids that have come in under winter pressure funding schemes for expanding high dependency beds in order to ease pressure on ICU beds are also spread throughout the country. I do not think we can ever totally eliminate transfers in intensive care when we are under that sort of pressure. On the other hand, we want to minimise such transfers to acceptable levels. The general picture is not of an uneven spread across the country. I believe that is the issue that the noble Lord raised.
I turn to the number of beds available overall, which was raised by the noble Lord, Lord Clement-Jones, in terms of the possible consequences of PFI schemes. It is important to stress that the review being undertaken will be broad and strategic. It will look at overall needs and ensure that we have the resources available to meet such needs. After that, we shall need to look at individual areas as regards availability.
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As concerns PFI schemes and the hospital building programme, which is not exclusively PFI, it may well be that the previous government had grandiose plans. Unfortunately, they did not deliver on them through the PFI schemes. That is why the success of this Government in signing up and getting the building on track is important and has to be acknowledged.
I believe there is a general acceptance that we have a real and pressing need to recruit more nurses. The issue is more complicated than just getting more nurses into training, important though that is. It is important that we look at the other measures taken by the Government. I have given the figures. For example, I refer to the encouragement through bursaries for enrolled nurses to convert to trained nurses and to the encouragement for healthcare assistants and others already working within the health service to be able to train as nurses without losing income by guaranteeing their income during that time.
The noble Earl, Lord Howe, asked what we have been doing. The recent advertising campaign on nurse recruitment had some 14,000 responses. Throughout the country, individual units are working hard to encourage nurses. There is a vast workforce of people who were trained as nurses who are not working in nursing or not working at all at present.
Although pay is obviously an issue overall for the profession, for many nurses flexibility is as important as pay. We must ensure that we provide opportunities within the NHS for people to work flexibly. On a visit to Addenbrooke's Hospital over Christmas I was very impressed with its work to replace the use of agency nurses by running its own internal agency through a bank system. Often people work through agencies because they provide flexibility. That system is useful, not only in saving fees to agencies but in providing the opportunity for people who were thinking of returning to work to try it over a period of time without making a full-time commitment.
Both the noble Earl and the noble Lord asked me to comment further on the pay review body's possible recommendation on nurses' pay. I am sure that both will understand that it is not possible for me to hypothesise about what we may do if certain things happen; nor is it possible for me to give commitments about what we shall do. We made it clear in evidence to the pay review body that we are looking for a settlement that will be fair to the nurses as well as affordable for the NHS. We said that we were anxious to consider issues relating to nurses' starting pay.
If we are serious about increasing the morale and status of nursing, we must recognise that there is more than one problem. I have referred to family-flexible employment policies and to money, but there is also the question of the career structure in nursing. We must allow people to develop and progress within their profession without having to leave hands-on nursing. The more examples we can give of that and the more rewards we can give to such people, the more we shall encourage people to stay in nursing.
Perhaps I may deal finally with the ideology or political commitment to particular ideas, if I may put it that way. In the past, ideological barriers to co-operation

43
created difficulties for units which may have felt that, first and foremost, they had to continue to fulfil their contracts. The recent willingness of units to co-operate has been encouraging. The flu outbreak has been patchy and some units have recognised that if they have spare capacity it is important to make it available for acute medical admissions rather than to continue with their routine elective surgery. I am glad that the noble Lord raised that point. It is a complete canard that the waiting list initiative has in some way been fuelling the current difficulties.
Noble Lords who know the NHS well will be aware that in the two weeks immediately preceding Christmas very little routine elective work takes place anyway. Units under pressure have been cancelling elective surgery so that they can meet the emergency pressure. That causes problems for potential elective patients. Some conditions requiring elective surgery are not minor, but are major conditions. Cancelling such treatment causes problems and difficulties.
I make absolutely no apology for being committed to fulfilling our manifesto commitment on waiting lists. From the letters that I receive every day of the week, I know that it is important to patients that we continue to fulfil that commitment. In doing so, we are reducing waiting times, as well as numbers. However, with the current difficulties, the priority must be to meet the needs of the severely ill patients who are coming into accident and emergency units. This weekend I saw for myself how that operated, when I visited a community unit which, under waiting list initiative money, had opened beds to deal with elective orthopaedic discharges from hospital. Last week that unit had stopped dealing with surgical cases and had handed over those beds for medical cases. So the flexibility is there; we recognise the priorities and, as I said earlier, NHS staff are working extremely hard to meet the stresses on the system.
5.13 p.m.
Lord Laming: My Lords, I thank the Minister for repeating that helpful Statement. It is absolutely right to pay tribute to National Health Service staff and, in doing so, to recognise that we are referring not only to hospitals and to the services associated with them, but also to primary care, which has taken a particular burden on itself in the past few weeks.
With that in mind, I should be grateful if the Minister could also pay tribute to the contribution made by local government, and in particular to those involved in the social care services and the home helps who have given intensive help and support to individuals, many of whom live alone and are bedridden. Will the Minister also acknowledge the help given through increasing respite care and through speeding up hospital discharge arrangements? Increasingly, health and social service providers are working together much better than ever before. Good health care depends on effective social care.
Baroness Hayman: My Lords, I am glad to have the opportunity to do exactly as my noble friend requests.
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Social services staff have played an enormously important part. When talking to NHS staff, a recurring refrain is how much worse the situation would have been if last winter we had not built up the relationships that are paying dividends this winter. We tend to focus on A&E departments, but the difficulty can go right through the system. If the system is not working smoothly and if there is not adequate social care provision to enable those who are well enough to return home to do so, the difficulty will again be felt at the acute end, in the A&E departments. Indeed, A&E consultants focus on the importance of social care to them in managing their workload. It is interesting to note how much of the £159 million that has already been allocated has been given specifically to social services schemes. I know that in the eastern region some of that extra money is being spent on pressure-reducing mattresses so that patients can be safe at home with good quality care.
That reminds me that I did not respond earlier to the noble Earl's point about the £50 million which is being made available. I should not like to be definite about this because bids are still coming in and being assessed, but my impression is that we shall probably have just about the right number of effective and robust bids to tally with the £50 million which has been kept back from the £209 million.
Lord Naseby: My Lords, is it not depressing that, when the situation is nowhere near an epidemic, parts of the NHS cannot cope? Will the Minister confirm that it was her Government who voluntarily accepted the spending plans that they inherited and who decided to phase nurses' pay? Is it not a fact that in the past 12 months the number of nurses leaving the profession has been at an all-time record? Against that background, surely the Minister can give this House a commitment that in the year to come the pay awards of all medical staff will be implemented in full, at whatever level they may be?
Baroness Hayman: My Lords, the noble Lord is sufficiently experienced a parliamentarian to know that I cannot give that commitment to this House in advance of the report of the pay review body. The noble Lord is absolutely right that a number of issues result in nurses leaving the profession as well as in people not entering it, and that we must address those issues. The Statement referred to some of the long-term and medium-term measures that we are taking to do precisely that.
On the incidence of illness, the noble Lord said that this is nowhere near an epidemic. I shall check the figures, but it is interesting that the rate of 200 GP consultations per 100,000 was, until 18 months ago, classified as a "moderate epidemic". The terminology was then changed. The noble Lord is absolutely right that this is not a major epidemic, but the threshold is the same. The incidence of flu this winter is above the winter norm.
In addition, we are seeing the four-yearly cycle of mycoplasma illness, which is particularly difficult to deal with. There is some evidence that some of the flu-like illnesses that are being reported are of particular

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severity for those with respiratory problems. That is creating more demand for hospital rather than primary care services and for intensive care beds. Obviously, however, the picture is still emerging.
Baroness Ludford: My Lords, while I welcome the Minister's recognition that the health service needs more beds, does she accept that many Londoners regard it as a pity that the Government did not reach that conclusion nearly two years ago when they came into power? The Government might then have accepted rather less of the previous government's disastrous decimation of London hospitals. What beds in London hospitals will it now be possible to save from closure? What are the implications for hospitals in London? For instance, Barts has a splendid intensive care unit but, under PFI scheme merger plans, many of the local beds will be lost. What will be the immediate consequences of the Government's recognition that there is a lack of beds?
Baroness Hayman: My Lords, I do not think that there are immediate consequences other than the schemes that are being put in place under the additional winter pressure funding expenditure this year. I have explained before to your Lordships' House, and made it clear in the Statement, that we are carrying out a national review in order that we can look properly at the need for, the disposition of and the types of beds that the health service overall requires. As the noble Baroness is well aware, the Turnberg Review was particularly helpful in this. Given the controversy that there has been over many years about London health services and the appropriate pattern, it is not possible to come into government and take a snap decision and say "This is the right way forward". It was appropriate to have the Turnberg Review and it is absolutely appropriate to take decisions in the light of the ongoing national beds review.
Lord Davies of Coity: My Lords, it is not my intention to repeat the circumstances that have arisen from the flu epidemic or to comment on the failure of the previous government to train nurses in sufficient numbers, a failure which has given rise to many of the problems that we now have. It is my intention to address the severe criticism that the Conservative Front Bench has made of the commitment of the Labour Party in its manifesto to reduce the waiting lists of patients requiring medical treatment.
That criticism is not only unjustified but lacks compassion. It demonstrates the clear difference between the Conservative Party and the Labour Government. The way that the term "waiting lists reduction" or "increase" is used by the Opposition reflects some kind of paper exercise. The Labour Government recognise that it means people. It means people who are waiting for medical treatment—large numbers of them waiting for surgery—and waiting for months, sometimes years. It means people who do not have private medicine available as an alternative. When the Labour Government talk about reducing waiting lists, they are concerned about the people.
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I still remember the great cry at one time—
Lord Skelmersdale: My Lords, if the noble Lord will allow me, The Companion makes it quite clear that Back Bench responses to a statement should not occasion a debate. I am sure that the Minister would welcome a question from the noble Lord. To pursue this in the form of a debate is not in the traditions of the House.
Lord Davies of Coity: My Lords, I will finish this last sentence and then ask the Minister if she recalls and agrees with me that there was a cry by the previous government to the effect that "The health service is safe in our hands". We know that was not true. The British people knew that it was not true, and decided on it in 1997.
Baroness Hayman: My Lords, my noble friend very eloquently confirms that it is not a matter of either/or in the health service. We have to meet the needs of all those who require treatment and care, whether they are waiting for admission for surgery or are acutely medically ill. It is about balancing those needs and providing for all of them throughout the system. We must recognise that each of the statistics represents an individual, whether it is an individual waiting for a long time on a trolley or an individual waiting for admission to hospital and having that admission cancelled. They are individuals and we have to be very well aware of the impact on them and their families.
Lord Alton of Liverpool: My Lords, I would like to be clear about what the Minister said about the seriousness of the situation on Merseyside. She mentioned that the number of calls on ambulance drivers has risen from the usual 500 per day to more than 1,000 per day. In the light of the seriousness of the crisis there, will the Minister say what emergency steps are being taken in the area to address that problem?
In addition, the Minister will recall that a large number of beds were closed in the previous four years, including the Broad Green Accident and Emergency Unit. As part of the review which is now under way, will the Minister ensure that those areas which have suffered a loss of beds or the closure of units are particularly looked at with a view to reinstating them?
As to the subject of nurses, may I commend to the Minister the article which appeared yesterday in the Sunday Times, penned by Melanie Phillips. I hope that she will find the time to read it, as it deals with a number of the questions which have been raised here today.
Baroness Hayman: My Lords, luckily I found the time to read it over the weekend. I am not sure that I shall have a lot of time this week.
Yes, Merseyside has had a particularly difficult time. It is important that we look at the lessons to be learned from the pressures of this winter, both in planning for next winter and in the context of provision in response to the findings of the overall bed review.
As to the specific help which is being given to Merseyside at the moment, for example, schemes are being carried out to reduce intensive care transfers in

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Liverpool and East Lancashire, with an extra ICU in Manchester and a HDU in Stockport, and so on across the area. Perhaps I could write to the noble Lord in a little more detail about that.
Lord Bruce of Donington: My Lords, it is always easy to be wise after the event. After having listened to Her Majesty's Opposition on this matter, I cannot help but question the depth or otherwise of its wisdom after presiding over the health service for some 18 years, during which so little that was constructive was done.
It is already quite clear—and was made clear by a Government report published only a few weeks ago—that there are gross disparities in the health of people depending upon their own individual circumstances. By and large, the poor, the unemployed, the homeless and those that are badly housed are more susceptible to bad health than other sections of the community. And yet, over the past few years, the Opposition has said exactly the opposite and pooh-poohed any suggestions of that kind.
Does my noble friend agree that, on taking office, the difficulty is to make some assessment of the resources that will be required to restore matters to a degree of normality? Does she agree that perhaps we overestimated the savings that could be made by the administrative actions necessary to take this wretched internal competition out of the health service? Perhaps we should have estimated that it would cost a lot more and that it would probably restrict the Government's ability financially to deal with the matter. Does she also agree that, far from being a matter for the Department of Health alone, health is a matter for the whole Government—for the Cabinet and every department that has any impact at all on the health of the nation?
Baroness Hayman: My Lords, I particularly agree with the last point made by my noble friend. It is certainly important that we take a view across government about improving people's health. That should be done as much by policies in connection with public transport, pollution reduction and those sorts of issues as by the direct provision of health care.
We also have to recognise the time frame in which investment starts giving a return. Although we are putting money into nurse training now, we shall not get new nurses trained and through for three years. The money that we are putting into supporting smoking cessation now will be tremendously advantageous, but not immediately. We have to deal with a long legacy of ill health. That is why it is important that we look across the board and that, while we focus today on immediate pressures, we do not lose sight of the long term.
Baroness Emerton: My Lords, perhaps I may ask the Minister about the timing of the review as regards the increase in acute beds. I am the chairman of an NHS acute trust. Last week we had to cancel the admission of 109 elective patients. We do not have flu down in our part of the world, but the admission of those elective patients, some of whom are suffering from cancer, had to be cancelled. I am pleased to know that the
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Government have acknowledged the pressure as regards acute beds. However, it would be helpful to know when the review will come to fruition. Can the Minister give us some information in that respect?
I should also like to make an observation about the training of nurses. In the Statement the Secretary of State said that reform was necessary. Would it be possible for us to have some idea of when such reform will take place? I say that because correlation of theory and practice is certainly something which we need to see; and, indeed, we do need to see change. It would be most helpful to the profession itself, as well as to higher education and the trusts (where the clinical placements are), if the education programme could be changed.
Baroness Hayman: My Lords, as regards nurse education, there are very major structural issues to be addressed. However, there are perhaps less controversial issues on which many parties are agreed; for example, the importance of introducing practical experience early in the curriculum. Progress could then be made through the local educational consortia in the short term. I would not like to think that we were ruling that out but that we are in fact supporting those sorts of agreed changes. I believe that we need to look at what can be done in the short term as well as in the medium and the long term.
As far as concerns the review of beds, I cannot give a specific date. As I said when repeating the Statement, preliminary work has shown a need for more beds. We are trying to ensure that the investment which will take place over the next three years will enable us to respond rapidly when the final report becomes available.

Broadcasting (Restrictions on the Holding of Licences) (Amendment) Order 1998
5.32 p.m.
Lord McIntosh of Haringey Lord McIntosh of Haringey rose to move, That the draft order laid before the House on 11th November be approved [48th Report from the Joint Committee, Session 1997–98].
The noble Lord said: My Lords, the order will lift the restrictions in broadcasting legislation which prevent British Telecom and other public telecommunications operators, which I shall henceforth call PTOs, from providing broadcast television through their telecommunications network. At present, any PTO which wants to deliver such entertainment services has to create a subsidiary company to compete in the auction of cable franchises run by the Independent Television Commission. If it were successful—as was the case for the Milton Keynes and Westminster franchises—the PTO had to build a new cable network separate from its existing telecommunications network. This order will enable PTOs to hold such broadcasting licences directly.
We published in April last year a policy paper, Broadband Britain—A Fresh Look at the Broadband Entertainment Restrictions, setting out how the Government intended to deliver our manifesto commitment to end the entertainment restrictions on

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PTOs. In that policy statement we made clear that PTOs, cable operators and others should immediately have the option to compete in the provision of broadcast entertainment to the 17 per cent. of UK homes currently outside any cable franchise area. We also announced our intention that PTOs and cable operators should be allowed to compete in the provision of television services by wire throughout the whole country from 1st January 2001. This will bring to an end the previous licensing practice of awarding exclusive cable franchises to the highest cash bidder.
The order before your Lordships' House this evening is the only change to broadcasting legislation that is required to implement Broadband Britain. It may be helpful if I briefly explain what steps have been or will be taken by the Independent Television Commission to deliver, by administrative means, the commitments in Broadband Britain. The Department of Trade and Industry is currently considering in close consultation with DCMS, the ITC and Oftel, how best to take forward the necessary changes to telecommunications licensing arising from Broadband Britain.
The Independent Television Commission has already implemented the Government's commitment to enable open competition in the provision of broadband services to those areas currently not covered by cable franchises. On 2nd November, the ITC published its invitation to apply for local delivery service licences to cover the 4 million UK homes currently outside cable franchise areas. These licences—in accordance with the ITC's revised policy reflecting Broadband Britain—will be non-exclusive. So. PTOs, cable operators and others can already compete openly in the delivery of services to both businesses and consumers in the currently enfranchised areas.
In April the ITC announced that existing cable franchisees could apply to the commission to replace their existing exclusive licences, which contain terms set to reflect that exclusivity, with new non-exclusive licences containing revised terms. To date, licensees in 10 franchise areas have replaced their existing licences with new non-exclusive ones.
Finally, the ITC intends to invite applications in mid-2000 for further licences in areas which are currently exclusive to be effective from 1st January 2001. This will complete the delivery of the principal broadcasting objectives of Broadband Britain—which, incidentally, is impossible to say—ending the exclusive nature of cable franchises and opening up competition between different cable operators, public telecommunications operators and others in the provision of broadband entertainment services.
The phased introduction of the Government's approach to the licensing of cable franchises balances the need of existing cable operators to finance the remainder of their network provision against the needs of all service providers to plan and finance their strategies for digital services with confidence. The introduction of truly open competition from 1st January 2001 will benefit the industry and the consumer.
The implementation of the new broadcasting licensing regime, which was set out in Broadband Britain, is an example of the Government's evolutionary
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approach to tackling the implications of convergence. We have used administrative measures to deliver the practical results that the industry wants and needs rather than rushing in with stop-gap revision to the statutory regime. Assessment of changes to that statutory regime can be made in a more considered manner, taking advantage of responses to our Green Paper, Regulating Communications, which we are now considering. So any changes will be more fully thought through, and we will avoid regulatory uncertainty at a critical time for the broadcasting industry as it invests in the new digital technology.
The order before us today is one step in achieving this Government's broadcasting objectives, and the lifting of the current entertainment restrictions on public telecommunications operators is one, I hope, we can all agree is necessary. I commend the order to the House. I beg to move.
Moved, That the draft order laid before the House on 11th November be approved [48th Report from the Joint Committee, Session 1997–98].—(Lord McIntosh of Haringey.)
Baroness Anelay of St. Johns: My Lords, I thank the Minister for his explanation of the order. I begin my remarks by making it clear that I support the making of the order. The full implementation of the ruling of the European Court of Justice on the Broadcasting Act 1990 arises from the view that it expressed in September 1996. In practice, the order will remove the last anomaly of the now defunct domestic satellite system regime, which was ended in 1997 by the satellite television service regulations.
There is now no logical place for a division between the domestic and the non-domestic satellite services market. It is far more sensible and rational to have a unified satellite market. Under the previous arrangements, the all-satellite broadcasters were defined as non-domestic, although BSkyB, which is a British company, invests considerably in this country each year. We therefore support the removal of the last vestiges of that division, which is now redundant.
The proposals also start in train the removal of a further division within the broadcasting market. Opening the market for UK homes outside the current franchise area is indeed an exciting new development in the world of television, and will enable about another 4 million homes in future to have access to the latest multi-media entertainment. For example, those north of the Border in the Highlands will almost certainly be able to benefit from a major change—that is, the introduction of multi-media entertainment—in a way that was previously impossible for them. The expanding and ever-developing world of transmission will therefore allow millions of homes to experience quality far beyond that which is provided by any analogue service. As one of those who has just recently changed to digital, I certainly appreciate the advantages, as Woking, where I live, suffers from poor aerial reception. Like others, I welcome the developments in digital and other methods of delivery of communications.

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The previous Conservative government were fully aware of the need to free up the market and sought to do so when they deemed it appropriate. They took the view that allowing growth through small, exclusive cable franchises was the best initiation to a broader, non-exclusive, cabled Britain. The present Government consider that now is the time to allow PTOs—like the Minister, I shall use the abbreviation—access to those areas of Britain not yet covered by franchises. They also see 2001 as the appropriate time for competition throughout Britain.
The Minister said that the commitments in Broadband Britain would be fully met by the administrative means that he has outlined. Can the Minister confirm that primary legislation will be needed to achieve the final removal of broadcast restrictions, and, if so, when is it planned to introduce that legislation to the House? I welcome the freeing up of the market, as I have mentioned previously, but I hope that sufficient time has been allowed to enable smaller operators to compete with the larger networks of PTOs. Naturally I am aware that the cable sector was able to contribute to the consultation exercise that preceded the publication of Broadband Britain last April. I hope that its views and concerns have been taken properly into account. It is the cable companies and other new entrants which have made significant strides in providing broadband capability, innovation and competition in the core telephony market.
In an era of rapidly changing technology, an environment is now being created that should enable computer, media and telecommunications companies to provide telephone, television and computer services. The lower costs of much of this new technology are spurring on the creation of that environment.
The creation of a healthy, competitive cable services market is an important step in the continuing multi-media revolution. It will bring entertainment to many who otherwise would have missed out. This is an exciting and fascinating time in the development of multi-media and digital services. All these technologies will make an important contribution to building superhighways throughout the country, providing a wide spread of the population with access to advanced services in the digital information age. We are therefore happy to support the Government in this matter, which we hope will continue the development of a better overall service for the whole of Britain.
5.43 p.m.
Lord McNally: My Lords, like the noble Baroness, we on these Benches support this order. However, it is worth noting that this is secondary legislation dealing with an important and powerful industry or group of industries. It is important that Parliament does not allow secondary legislation simply to slip by, particularly as regards broadcasting where, quite frankly, it has proved almost impossible for primary legislation to keep up with the pace of technological change. Therefore of necessity successive governments have had to build into
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broadcasting legislation powers of secondary legislation which are nevertheless extremely significant. This is also a significant order.
As I know that the Minister maintains a close interest in these matters I should place on record the fact that I am the president of the British Radio and Electronic Equipment Manufacturers' Association (BREMA). However, I am assured by that association that manufacturers have no direct interest in this order. I am present by order of our Whips. However, it is interesting to remember that originally BT was kept out of the cable industry because the previous government did not want an overlarge cuckoo in the cable nest while the cable industry was developing. However, as is so often the case, technology has simply bypassed that restriction by means of the digital revolution and technology convergence. Therefore I think we are right to sweep away that provision as outdated.
I wish to put two points to the Minister in this context. In relation to Broadband Britain he referred to the need for action on the part of the ITC and Oftel. However, we now have the ITC, the DTI, Oftel, the department of culture and heritage, the OFT and the European Commission all with fingers in the regulatory pie as regards the converging electronic media. At the same time the various bodies are taxed in different ways. Competition laws affecting various parts of the electronic media are either different or are still to be tested by the new Competition Act. I accept fully that the Government are committed to genuine competition in the industry. Technology allows such divergence and choice and yet there is a danger of dominance in the sector by global multi-media empires.
Today BT does not regard other public telephone operators as its major competitors. Its major competitors are News International, United Newspapers, EDS, IBM or Microsoft. These are powerful players in separate markets now entering a converging market. These powerful players may have been governed in the past by separate regulatory and tax regimes. Towards the end of his remarks the Minister mentioned my next point. I hope that when the Government consider this industry or group of industries, they will consider that there is a need for an assessment of how these powerful vested interests will be kept under proper political and parliamentary surveillance. As I say, we are talking about powerful forces. Many of the regulatory regimes are relatively untested. What is also untested is the political will power to ensure the convergence of technologies and the power that that brings will be properly addressed.
I believe that new primary legislation will be needed in the near future to make sure that the various regulatory bodies, the various taxation regimes and the various national and international controls on these technologies are subjected to—I mention an overworked phrase—a level playing field. It is an important matter. Although this is just one order laid under the provisions of an Act, it is part of an important trend on which Parliament should continue to keep a close eye.
Lord McIntosh of Haringey: My Lords, I am grateful to both noble Lords for the welcome that they

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have given to the order and the principles behind it. I am particularly grateful to the noble Lord, Lord McNally, for placing the order in its proper historical context. As the noble Lord said, the regulation of broadcasting and communications in its widest sense is a constantly moving matter. We cannot expect legislation in one decade to last until the following decade, or even more than a few years at any time.
Perhaps I may deal first with a point made by the noble Baroness, Lady Anelay, about the decision by the European Court of Justice. That is much more trivial than the noble Baroness thinks, if she does not mind my saying so. The European Court of Justice remarked on an oversight under which the 1997 regulations did not amend the Broadcasting (Restriction on the Holding of Licences) Order 1991. There was no practical consequence to that oversight as the 1991 order merely prohibited PTOs from holding a licence category which no longer existed. There never has been any restriction on the non-domestic satellite service licence on which all satellite licences are now based. So we are using the opportunity of this order to amend the 1991 order to correct this minor point.
I am grateful to the noble Baroness for saying that this extension of competition was anticipated by the previous government. I do not agree with her that the right approach in 1990 was to set up individual cable companies with exclusive licences in particular parts of the country. I remember that when the Cable and Broadcasting Bill was before the House in 1984 the only Members in any part of the House who said that cable would take a great deal longer to reach a large part of the population were myself and the late Lord Hill of Luton, who knew what he was talking about even if I did not. The idea that 15 years later we should have reached only 87 per cent. of Britain using the exclusive licence technique confirms what we said then. I hope that Charles Hill is listening to my remarks.
The noble Baroness asked whether this was the final removal of broadcast restrictions. I adopt the view of the noble Lord, Lord McNally, that it is becoming increasingly impossible to distinguish between broadcasting and telecommunications. That is what our Green Paper, Regulating Communications: Approaching Convergence in the Information Age, is about. There will still be a need for primary legislation in regard to telecommunications. Some of that will affect what we now consider to be broadcasting. However, it is not our intention and we have no plans at present to introduce further primary legislation in relation to broadcasting.
The noble Baroness asked for an assurance that there had been adequate consultation with the cable companies. I assure her that there has been very detailed consultation with the companies and with everyone else concerned. In particular, our Regulating Communications Green Paper was a consultative document. The consultation period ended on 30th November last year. We are now considering the responses and will place our conclusions before Parliament as soon as we possibly can.
I am slightly surprised at the comments of the noble Lord, Lord McNally, on secondary legislation. I thought that we were doing rather well to carry out so many of
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the objectives of Broadband Britain by administrative means without bothering Parliament with them. The ITC had those powers and, with our encouragement, has been able to use them. However, the noble Lord is right, in that primary legislation cannot keep up. In due course there will have to be further primary legislation in relation to the whole range of these issues.
Although we have rejected the view of the then National Heritage Select Committee in another place that there should be a communications ministry, I believe the noble Lord will recognise that our plans on the regulatory side bring together the regulation of broadcasting and telecommunications in a way that I hope he will welcome.
The noble Lord raised the issue of global multi-media empires. I remind him that existing regulation provides that national public telecommunications operators with a turnover of more than £2 billion are prohibited from taking part in licences for Channel 3 and Channel 5. That covers BT, and those restrictions are still in place.
Lord McNally: My Lords, to clarify my concern, last year I spent a lot of time on the Competition Act with the noble Lord, Lord Simon, as DTI Minister. We spent many happy hours talking about competition in the telecommunications industry and how the Competition Act would help ensure that. It remains a worry to me, particularly in view of technology convergence, that part of the forest seems to be policed by the DTI and part by the Minister's department and yet the beasts are increasingly entering both parts.
Lord McIntosh of Haringey: Yes, my Lords, I had noticed that the noble Lord took some part in the deliberations on the Competition Act. The Whips noticed as well. This is not an order about competition policy. I merely repeat my previous remarks. We recognise the convergence. That is why we published the Green Paper. That is why both the Broadband Britain document and the convergence document are joint publications of the Department for Culture, Media and Sport and the Department of Trade and Industry. That is why our plans for regulation recognise the fact of convergence and we shall be prepared for that fact. At the same time, I hope it offers some assurance to the noble Lord that the restrictions on BT in regard to Channel 3 and Channel 5 continue. There is no relaxation of the regulatory provisions.
It is true that the whole process that we are undergoing will be subject to continuing change. I have no doubt that this will not be the last piece of secondary legislation placed before Parliament before we reach the stage in due course of primary legislation.
I hope that the noble Lord's party took the opportunity to respond to the convergence document. I hope that when we come to report to Parliament he will find some matter in it with which to disagree. Meanwhile, I rely on the universal support that the order has received again to commend it to the House.
On Question, Motion agreed to.

MMR Vaccine
5.58 p.m.
Lord Clement-Jones Lord Clement-Jones rose to ask Her Majesty's Government whether the Department of Health plan to issue new guidance on MMR (measles, mumps and rubella) vaccine in the light of new medical evidence and litigation recently instituted against pharmaceutical companies manufacturing the vaccine.
The noble Lord said: I initiate this debate not so much as a Front Bench spokesman but more as the concerned parent of a small child of 10 months with the need to take a decision on whether or not to vaccinate in the next few months.
I wish to stress that I am not anti-vaccination as such; but the more I have looked at the facts surrounding the MMR vaccine, the more perturbed I have become. Many parents share my concerns. There are now well over 1,800 families who have contacted solicitors because they believe that their children have been permanently damaged after being given MMR or MR vaccination. Of those cases, more than 350 have now been investigated by the solicitors. The common factors are: first, that the parents are convinced that their children were developing normally before taking MMR vaccine; that the children were given the vaccine and that the children have acquired physical injuries and/or disabilities after receiving the vaccine.
The injuries recorded include conditions such as: autism, bowel problems, epilepsy, encephalitis, behavioural problems, diabetes and multiple sclerosis. Autism is numerically the greatest. The cost to society of caring for these injured children could be huge.
The original three MMR vaccines were: Pluserix, Immravax and MMRII. They were introduced into the UK in 1988. The Public Health Laboratory Service, when it first tested the vaccines, only looked at three weeks' experience after receipt of the vaccination. Pluserix and Immravax vaccines were hastily withdrawn in September 1992, following evidence from research commissioned by the Department of Health and carried out at Nottingham which, contrary to the Department of Health's expectations, demonstrated a strong link between the Urabe strain of mumps contained in the former two vaccines and meningitis. MMRII, which contains the Jeryl-Lynne strain of mumps, continued in use, but some 1,000 cases of injury appear to be related to this vaccine.
In February 1998, an article in the Lancet by Dr. Andrew Wakefield of the Royal Free Medical School and others postulated, but did not—as they acknowledged—prove a link between developmental and bowel disorders and MMR vaccination based on the study of 12 children.
The Department of Health shortly thereafter held, under the auspices of the then Chief Medical Officer, Sir Kenneth Calman, and Dr. John Pattison, a meeting of experts to review and discuss available evidence. This included neurologists, paediatricians and immunologists, including Dr. Wakefield.
In its subsequent summary of the meeting, the Department of Health gave the impression that the meeting conclusively decided that no linking evidence between measles vaccine or MMR immunisation and either Crohn's disease or autism had been found.
In fact, however, the evidence was not treated as conclusive. The Medicines Control Agency set up a working party to examine links between autism and MMR vaccine which is due to be published shortly. The MCA clearly had genuine doubts, but did not share those doubts with the general public at the time.
What is the medical evidence we have so far? The most definitive study was carried out in 1994 for the US Centers for Disease Control—the Vaccine Safety Datalink Project—which monitored the progress of half-a-million children. Their key finding was that the incidence of seizure increased dramatically, by three times the norm, after MMR vaccinations. This was confirmed by a similar study carried out in the UK by the Public Health Laboratory Service, but it was withheld until the 1994 vaccination campaign, Operation Safeguard, was over.
Research suggesting a link between measles vaccine and acute encephalopathy was published by Robert Weibel and others in paediatrics in the US in March 1998. The most recent published evidence comes from the University of Michigan College of Pharmacy and has been published in the peer reviewed journal Clinical Immunology and Pathology. It was carried out by Drs. Singh and Yang and looked at a study of 48 autistic and 34 normal children and measured the levels of antibodies to measles virus. This study suggests that measles or MMR vaccines may in some way prompt some people's immune systems to act in a negative way to brain tissue.
In research, which is currently being prepared for publication, Mr. Paul Shattock, director of the autism unit at the University of Sunderland, has discovered a peptide derived from food in autistic children's urine. He postulates that the cause of the brain damage of all types to the children appears to be the lodging of measles virus in the gut which causes inflammatory bowel disease. This allows the peptide to cross the so-called blood-brain barrier and to effect neurotransmission, which leads to the behavioural disorders mentioned.
All those studies, while not proving a link beyond doubt, certainly provide powerful circumstantial evidence. It appears to be only a matter of time before further virological research proves the link. The fact is that our understanding of the immune system, whether in connection with research such as this, or that carried out into Gulf War syndrome, is still in its infancy.
The medical evidence is backed up by home video evidence in many cases, which demonstrates the children developing normally, talking, laughing and then suddenly, after the time of the MMR vaccine being administered, demonstrating behavioural problems, lack of speech and interaction. The most common age to develop autism is between one year and two years old. The videos show autism developing at much older ages.
The guidance given to GPs on vaccinations is contained in what is known as the Green Book: Immunisation against Infectious Diseases. Guidance to the general public is given by the Health Education Authority. The plain fact is that the dangers of mumps, measles and rubella have in recent years been consistently overplayed in recent guidance and that the dangers of vaccination are underplayed.
Many of us had mumps, measles and rubella as children, as a matter of course. In the literature of the time, these were not described as serious or life-threatening diseases, but as being likely to go away within 10 days, without serious ill effects. Contrast that with this extract from a Health Education Authority publication of 1994:
"Unfortunately, measles can be much more serious than people think. School age children who get it are likely to be very ill. Measles can cause pneumonia, blindness, deafness and even brain damage. Measles can also he fatal. In fact it's the disease most likely to cause inflammation of the brain".
Many people agree that the 1994 campaign—Operation Safeguard—undertaken by the Department of Health to promote the specific MR vaccine grossly over-dramatised the dangers of mumps, measles and rubella. The fact is that deaths and serious complications from measles are not now common in developed countries. Current Health Education Authority literature, MMR—The Facts, makes inadequate mention of the risks of vaccination and is even misleading.
In some other cases, the Department of Health has adopted the precautionary principle: animal growth promoters, human albumen and general anaesthesia for dentists. However, rather than adopting the precautionary principle here, they appear intent on promoting the vaccines in question. GPs are actually being given incentives to vaccinate their patients. To receive an annual bonus, they need to exceed a minimum 70 per cent. immunisation rate in their practice. They therefore have a direct incentive to reassure parents to allow their children to be vaccinated with MMR against a parent's better judgment.
The UK vaccine compensation scheme is wholly inadequate. Currently, the 1979 Vaccine Damage Compensation Payment Act only allows up to £40,000, the figure that was changed last year. It is wholly inadequate to compensate for the costs of bringing up a disabled child. Initially, when the Act was first passed, claimants were limited to £10,000—an even more inadequate sum.
There are many parents who may believe that their child has been damaged by a vaccine, but compensation under the Act is only available when that child is regarded as having its capacities impaired by more than 80 per cent. Many of the children are now in their 20s and 30s and are still being looked after by their parents. It is high time that justice is done for them. We need a scheme which pays compensation on a level with that in the US and Japan. In the US, over I billion dollars have been paid out over the past 10 years under their no-fault scheme.
The Medicines Control Agency receives reports under the yellow card scheme by which doctors, pharmacists and coroners are meant to report adverse reactions to
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vaccinations. But there is evidence that only 5 per cent. of adverse reactions are reported. Has the Department of Health considered what improvements to the yellow card scheme could be made, to make it work effectively? Even the Medicines Control Agency has admitted that only a small percentage of even serious reactions gets reported. Some doctors appear to be unaware of the system.
One of the key concerns of campaigners is the fact that very little tracking is done of the incidence of autism. Although about 350 cases are reported each year, there appear to be as many as half-a-million children in this country with the condition. Yet this cannot be confirmed by the Department of Health because it has no central tracking system, so it is difficult to assess that there has been a growth in autism across the UK. The fact remains, however, that from a problem that was perceived to affect only a small proportion of the population a decade ago, there is now a huge number of cases in total which cannot be explained by better diagnosis alone.
One of the key problems also encountered by parents and others wishing to understand more about MMR and its consequences is secrecy. The advice and recommendations of the Committee on Safety of Medicines and the Joint Committee on Vaccination and Immunisation are secret. Information held by them on cancellation of product licences is commercially confidential. That is not so in the States. It is high time that this was remedied by a freedom of information Act.
What can parents do now? As a result of doubts about MMR and MR vaccines many parents seek to have their children vaccinated with single vaccines. The experience of helplines in this area is that many parents distrust MMR and believe that doctors are pressuring them to accept vaccination to fulfil their targets. The experience of parents, however, is that it is virtually impossible to obtain them in the UK except via enlightened pharmacists and a friendly doctor. Parents have to sign a disclaimer and even now they make trips to France to get their children vaccinated.
In the face of the desire of parents to obtain the single vaccine the statement in April by the then CMO was:
"There is no evidence that it has any benefit and indeed may be harmful".
This seems to be based on the fact that children may have one injection a year rather than all in one go and are therefore "at risk" of contracting mumps, measles and rubella for rather longer. But how can the Department of Health explain the incredibly low incidence of any problems with the single measles vaccine in the 21 years before 1988? The UK appears to be the only EU country where single vaccines are not available.
In summary, what do I seek in initiating this debate? It is clear that a number of key steps must be taken by the department. First, there must be much more balanced guidance from the Department of Health to doctors and the public about the merits of the MMR vaccine and the risks of mumps, measles and rubella. Secondly, there must be a comprehensive programme of research to establish the links between MMR vaccination and

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damage. Thirdly, a decision should be taken by the Department of Health to allow GPs to prescribe single vaccines for mumps, measles and rubella. Patients should not have to travel abroad or get these vaccinations for their children privately. Fourthly, there must be a much better system for tracking adverse reactions to vaccines such as MMR and for publicising them so that parents are clearly aware of what they can do to report problems. We need a comprehensive database of those children already believed to have been damaged so that it can be analysed fully. Fifthly, there must be an end to the secrecy of the Committee on Safety of Medicines and the Joint Committee on Vaccination and Immunisation so that it is clear to the public when there are problems with vaccines or the formulation of them is changed. They should be championing children's health not commercial interests
Sixthly, there should be a major improvement to the terms of the Vaccine Damage Payments Act so that the compensation payable is higher and parents of vaccine-damaged children can obtain compensation without having the current burden of proof which requires over 80 per cent. impairment. In addition, the levels of compensation paid out to vaccine-damaged children to date should be reviewed. Seventhly, the Department of Health should start immediate discussions to see if the current litigation between the drug companies and parents of children damaged by MMR vaccines since 1988 can be settled with proper compensation to the children. Eighthly, the department should cease giving incentives to GPs to immunise using the MMR vaccine. I look forward to the Minister's response.
6.13 p.m.
Lord Winston: My Lords, I have great sympathy with the noble Lord, Lord Clement-Jones. Some years ago I took my febrile child to the casualty department of the Royal Free Hospital—the same hospital from which Dr. Wakefield emanates. The child had just had a convulsion having been vaccinated 24 hours earlier. I was convinced that I had damaged the child. It was only afterwards that it became quite clear that the viral infection that my child had had nothing to do with the vaccination but had been picked up three days earlier from contact with another infant. That is exactly the problem here. We are looking at something that has been reported in an extremely anecdotal fashion. While parents are quite justifiably worried about vaccination, a close look reveals a great lack of evidence that there is a serious cause for any concern.
These fears are extremely reminiscent of those relating to pertussis vaccine in the early 1970s. When pertussis vaccination in this country fell from about 81 per cent. to 30 per cent., there was a great rise in whooping cough and in consequence children who could have been saved died. This happened not only in this country but in several others. In other countries the reduced coverage of this vaccine resulted in a very serious crisis, with many children being lost who need
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not have died. There is a very close parallel between what happened in the mid-1970s and what could happen if we look at MMR vaccination in the wrong way.
The evidence relating to inflammatory bowel disease and MMR was based initially on a study of women in pregnancy. It showed that in pregnancy women who contracted measles were more likely to give birth to children with inflammatory bowel disease. A larger study showed that this was purely anecdotal and that there was no real evidence. The studies by Wakefield published in The Lancet, which are the most crucial ones in this area, probably should not have been published, certainly not in the form of an early report. An early report is to an extent hypothetical.
In 1978 I published an early hypothesis in The Lancet which turned out to be totally wrong. Very often The Lancet is happy to publish preliminary data which may spark debate that influences how people think about a particular medical situation. I believe that the publication of Wakefield with regard to bowel disease contains so many flaws in both the histological methodology—the way that bowel biopsies were viewed through the microscope to see whether or not the virus was present—and the selection of the 12 children who were studied in this anecdotal report that it might have been better to look at more comparative data. The truth is that when that study has been repeated with a much more precise look at the RNA—the molecular fingerprint of the virus—we have not been able to find any evidence of it in the bowels of children with Crohn's disease or inflammatory bowel disorders.
Nor is there any clear evidence of a link between autism and MMR. After all, MMR has been in use in the United States for 25 years, with some 200 million doses of MMR having been given. There is simply no evidence that autism has increased during that time. A detailed study on this very issue which has taken place in Sweden has also proved negative. Studies have been made to try to link both inflammatory bowel disease and autism. These have also not shown any significant rise, which would be expected in populations where this vaccine was in use.
I should like to quote from a paper by Duclos and Ward published within the last three weeks in Drug Experience. These people have no vested interest in this matter. This does not have a financial aspect. I regret that a suggestion has been made that there may be some financial motive behind the suggested need for vaccination. I am sure that the noble Lord, Lord Clement-Jones, did not intend to say that. However, here we are talking about the protection of children worldwide. Duclos and Ward say:
"During 30 years of worldwide use measles vaccination has proven to be one of the safest and most successful health interventions in the history of medicines. It is not a 'perfect' vaccine but the benefits far outweigh the risks even in countries with a low incidence of measles and a higher rate of measles vaccine coverage".
Let us consider the risks. If a child has measles its chances of contracting otitis media, which can be very serious, are between 7 and 9 per cent. With this vaccination, the chances are nil. One's chances of getting pneumonia are between 1 and 6 per cent. With vaccination, the chances are nil. The chances of getting

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diarrhoea are 6 per cent. but with vaccination the chances are nil. With measles the chances of getting encephalomyelitis are between 0.5 and one per 1,000 children, which is a very high incidence. If one has the vaccine, the chances are one in 1 million. The chances of getting thrombocytopenia—admittedly, a condition that results in the loss of blood platelets temporarily—are nil with the infection and about one in 30,000 with vaccination. The chances of getting an anaphylactic reaction with the injection of any protein is a possibility, but it is not a very great one and it has never been fatal.
The chances of death with measles are something between 0.1 and 1 in a 1000 children. That is a very high incidence. In the developing world the chance of dying from measles may be as high as between 5 and 15 per cent. The chance with the vaccination is nil: no deaths have been reported with vaccination.
I do not think that we should base very serious medical decisions on anecdotal data. The noble Lord referred to the meeting of the Medical Research Council, which included a string of experts of great repute. He said that their findings were equivocal. The main conclusions of the meeting were as follows:

"(a) That the balance of available biological and epidemiological evidence was against the persistence of measles in Crohn's disease.

"(b) There was no correlation between measles or mumps infection alone and Crohn's disease or ulcerocolitis.

"(c) There was no current evidence linking bowel disease or autism with MMR vaccine and that there was thus no reason arising from the work considered for a change in the current MMR vaccination policy."

Lord Clement-Jones: My Lords, the finding of the experts, all of whom had a number of preconceptions, it appears, was fairly unequivocal, but how can the noble Lord explain the reason for the MCA commissioning further research into the links between autism and the MMR vaccine? Dr. Wakefield, who was asked to give a view to that gathering, was the only one who held the view that he did; all the others, known in advance, were not of that view, yet the MCA still decided to commission further research.
Lord Winston: My Lords, I am very grateful for the intervention, but that is exactly the point of the report: they are simply being responsible, as scientists should be. They are looking at something which is shown to be anecdotal and they want to continue to see the evidence. However, Mr. Wakefield himself said that the notion that there should be a change in vaccination policy was not his view, in spite of his publication in The Lancet.
It would not be a good idea to split the vaccination into separate aliquots. That would mean submitting children to six vaccinations a year and would inevitably reduce coverage of the vaccination. More children would slip through the net. Why should we impose a different regime in this country, when there is no justification for doing so for any solid medical reason, and yet say that it is perfectly all right for the rest of the world? We should not undermine the credibility of a vaccine which has saved something like two million lives per annum.
6.23 p.m.
Lord Colwyn: My Lords, as we can see, there are few more emotional areas in medicine than those involving vaccination or immunisation.
I am grateful to the noble Lord, Lord Clement-Jones, for giving us the opportunity to debate the issues involved with the administration of the MMR vaccine. I have followed his written Questions on this subject over the past three months and have myself raised this issue on various occasions over the past 15 years. I listened with great interest to the noble Lord, Lord Winston. I have the greatest respect for his views and I am delighted that his daughter suffered no ill effects. My interest in MMR started after my youngest daughter was vaccinated in 1983. She collapsed and did not utter a sound for three days after the injection. Luckily she made a full recovery, but other children have not been so lucky.
The noble Lord's opening speech has dealt with most of the issues and much of what I wished to say has already been covered, but I should like to emphasise some of the points. Since the conception of the NHS, the Government, the medical profession and the public have come to accept that immunisation is a good thing and that any criticism is unforgivable since it could lead to the death of weak and defenceless infants. The debate has been going on for over a hundred years and it was only in the mid 1990s that the anti-vaccination lobby gave up their campaign, succumbing to public indifference and media overkill. Immunisation is a divisive issue which cannot easily be resolved. There are important questions which should be answered.
Are measles, mumps, and German measles really that dangerous? If the available statistics are examined, they clearly show that measles is not the random killer that medicine would have us believe. In the American epidemic of 1990, when 27,000 cases were reported, 89 people died but most of the deaths were among children of low income families, where poor nutrition and failure to treat complications were probably the significant factors. Of course, I am aware of the complications of rubella and pregnancy, but research has shown that the vaccination produces immunity until the age of 11 to 13, whereas actual contraction of the disease gives the life-long immunity which is so important.
Death from measles is not common in developed countries. The year before the MMR vaccine was launched, there were six deaths out of 42,165 reported cases in Britain. Between 1979 and 1983, 83 children died out of 467,732 reported cases, this lower percentage probably reflecting the fact that doctors had a better understanding of how to treat the disease.
Until recently, about 93 per cent. of pre-school children received the live triple vaccine. This followed a £20 million extensive media campaign by the government in 1994, aimed at 5 to 16 year-olds, which suggested that measles was a deadly, debilitating disease.

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I have received today a brief from SmithKline Beecham. Under the heading "the safety of MMR vaccine", they state:
"if the vaccine were to be suspended, a large number of healthy children would be put at unnecessary risk from the potential complications of measles, mumps and rubella. Put simply, children would die."
The information given to the public has always been that the MMR vaccine has been safely used in other countries, particularly the United States, and that it provides lifelong protection against all three infections with a single administration. What the public are not told is that in a study that was completed before the launch of the 1994 MMR campaign, children given the injection were three times more likely to suffer convulsions than those who did not receive it, and that the vaccine caused five times more cases of the rare blood disorder thrombocytopenia purpura than expected. Besides sometimes causing dangerous mutations like atypical measles, the vaccine has been associated with numerous side effects, including deafness, encephalitis, febrile convulsions, Guillan-Barre Syndrome and sub acute sclerosing panencephalitis—a fatal wasting disease that is only very rarely associated with measles. The noble Lord, Lord Clement-Jones, mentioned the possible connection with autism.
I have the figures for the adverse reactions to the MMR vaccine reported in the United States between July 1960 and April 1994. There were 5,799 unexpected reactions; 3,063 required emergency treatment; 616 were taken to hospital; 363 were left disabled in some way and 30 died. The US National Vaccine Information Centre believes that, because of massive under-reporting, these figures represent only 10 to 15 per cent. of the total number of side effects, which means that the true figure could be as high as 60,000 adverse effects over the four years since record-keeping began.
As a dental surgeon, I have just been told by the General Dental Council—I presume with government compliance, although I have not received an answer as yet—that dentists cannot now give a general anaesthetic in their surgeries because it is too dangerous. In the same period that we are discussing in relation to this vaccine there has been one incidence of a death caused by a general dental practitioner in about 2 million administrations. When looking at the problems of MMR, I am not sure that I understand the logic of that ruling. I hope the Government will soon be able to explain it to my profession.
I wanted to discuss whether immunisation methods protect to anything like the degree claimed. Time prevents me from giving your Lordships more figures, but it is a fact that epidemics of measles still occur at three-year or four-year intervals despite the fact that immunisation rates in some areas are as high as 98 per cent. Do the Government have a view as to whether the short-and long-term side effects of immunisation are a reasonable price to pay for the possible protective benefits?
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Finally, what advice would I give to parents who are trying to decide whether to have the vaccination? I have said it many times from my place on this side of the House; I have said it countless times from the place I used to occupy on the other side of the House. Resistance to disease is about having an intact, healthy, efficient immune system. It is about healthy nutrition, which can be helped—and here I declare my interest as President of the All Party Group for Alternative and Complementary Medicine, and the Natural Medicines Society—by herbal, homoeopathic and vitamin supplementation. I could speak on that subject for another half an hour or so, but I shall stop. Perhaps the noble Earl, Lord Baldwin, will take it up.
I hope that the Government will examine seriously the points that arise during our interesting debate.
6.30 p.m.
Earl Baldwin of Bewdley: My Lords, I am grateful to the noble Lord for putting down this Question, as I believe that it raises an important issue wider than the MMR vaccine itself which we all need to take seriously if we value our health. I agree with virtually everything he said.
I, too, have wondered for some time about the risk/benefit ratio of vaccination, having read uncomfortable reports which suggest that not all the evidence is presented to the public, and that dangers are sometimes understated and successes exaggerated. For example, just as much of the improvement in mortality rates over the past century has come about through social rather than medical measures, such as better housing and sewerage, so much of the reduction in infectious diseases has occurred for reasons unconnected with vaccination, which often came along only when the disease in question was already a spent force. Graphs plotted against time make this clear.
Vaccines tend to give only partial protection in any case. Added to this, one must beware of the phenomenon known as "re-diagnosis", whereby a belief in the efficacy of a vaccine can lead doctors to change their diagnosis of a child with measles or whooping cough to something different once they learn that he or she has been vaccinated, thus subtly improving the figures for that vaccine's effectiveness.
But we are concerned this evening with safety. My interest in the MMR vaccine was aroused by a letter in the medical press on 21st March 1988 which stated that,
"published pre-licensure studies of MMR vaccine safety have been restricted to 3 weeks".
The noble Lord, Lord Clement-Jones, has already referred to that. Accustomed as I was to medical oddities, I found this claim so extraordinary that I followed it up by writing and later talking to its author—he is also one of the authors of the work cited by the noble Lord—in order to be assured of its accuracy. For a procedure which involves the forceful disturbance of infant immune systems, by a route which does not mimic nature, and when viruses are well known to linger in the body ready to resurface later in life, three weeks seems wholly inadequate.

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A commentary in The Lancet on 28th February, while critical of the research suggesting a possible link between the MMR vaccine and bowel and behavioural abnormalities, spoke of the "extremely high standards for vaccine safety" that were demanded. This does not quite add up. Although I have not been able to give him notice of the question, I should like to ask the noble Lord who will wind up to let me have a note in due course of the justification for the absence of longer-term safety studies in this case. Until much more is known I, too, join the noble Lord, Lord Clement-Jones, in urging that at the very least the component vaccines should be given separately and that more open-minded and active surveillance should become the order of the day. I say "open-minded" because it clearly takes inordinate pressure from parents to get cases of damage reported, so strong is the official belief in the relative safety of this measure.
My chief reason for speaking this evening, however, is not that suggested by the noble Lord, Lord Colwyn, but to draw attention to what I believe to be an inherent danger in public health initiatives. I referred to it in the debate in my name on 16th December on the fluoridation of the water supply. While it is crucial that in measures affecting whole populations the science should be impeccable, it is a paradoxical fact that science often takes a back seat behind other considerations. These initiatives all too quickly become campaigns, whether over smoking, recreational drug use, AIDS, fluoridation, or vaccination. Public positions are taken up, often before the science is properly done and this, when coupled with the tendency towards premature consensus among scientists who are uncomfortable with uncertainty, can result in the defending of positions rather than the weighing of evidence. And of course the longer this goes on the more difficult it becomes to climb down, and the more face is lost.
This situation is not helped by the pressure from big interest groups, such as the makers of the vaccines or AIDS drugs. On my way here today, I found the long and well-presented briefing by SmithKline Beecham, referred by the noble Lord, Lord Colwyn—impressive on the surface but one-sided and tendentious. There was no mention of much of the research referred to by the noble Lord, Lord Clement-Jones. Nor is the situation helped by the laudable wish among politicians as well as scientists to be seen to make a difference—to protect children against mumps or dental decay and to protect the public against passive smoking. Causes such as these carry great emotional power. It is not just the financial aspect mentioned by the noble Lord, Lord Winston. In no time there is a bandwagon rolling and a politically or scientifically "correct" view established which it is more than anyone's career is worth to challenge publicly. Solidarity becomes the watchword, and anyone who casts doubt on the underpinnings of the edifice is seen as a threat and treated accordingly. And if doctors are paid more money the more children they vaccinate, they of all people are unlikely to question its basis.
In such a climate it is very difficult for dissenting voices to be heard, even in the medical press. The Lancet, as we have heard, had to defend itself for
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publishing the recent research on the MMR vaccine and autism, even with all the disclaimers and qualifications that went with it, in the face of the argument that is familiar in such campaigns, "How dare you raise doubts about this measure and put children's health at risk". But of course it is precisely to protect children's health that these questions are raised by responsible researchers, who are simply trying to say, "Please come out from behind your fortifications and look with unbiased eyes at the evidence we are presenting".
The dangers of fashion and dogma are as real in science as they are elsewhere, and the greater the exposure in the public domain, with all its pressures connected with interest groups, money, careers and reputations, the greater these dangers are, and of course the wider the potential for harm.
I should like to end by restating the tentative law which I aired in winding up my debate in December, which is drawn from experience over a number of these cases, to the effect that the quality of the science is usually in inverse proportion to the public profile of the issue. In the true spirit of science I welcome from your Lordships examples which appear to refute as well as confirm this hypothesis. But in the meanwhile I would appeal for an openness over this particular vaccine, a willingness to listen to patients and to reappraise cherished notions when new evidence emerges, and (dare I say it?)a certain scepticism towards official scientific advice which can have its own inbuilt biases and does not always get things right.
6.38 p.m.
Earl Howe: My Lords, the noble Lord, Lord Clement-Jones, has raised a topical and interesting subject for debate today, and the House will be grateful to him for doing so. I believe that he has also earned our thanks for speaking to his Motion in such a succinct and helpful way.
Without wishing to go over too much ground already covered by the noble Lord, I think that it is important that at the outset we root our thinking in some of the underlying facts. Childhood immunisation against measles, mumps and rubella has been available under the NHS in the form of the combined MMR vaccine since 1988. It has been widely used in other parts of the world, notably in the United States, for considerably longer. Indeed, over a period of over 27 years literally hundreds of millions of doses have been administered world- wide in accordance with guidelines issued by the World Health Organisation. In the UK the Department of Health has given an unqualified recommendation to the use of the vaccine in line with advice received from the independent committee on vaccination and immunisation.
The results of this immunisation policy are clear. Since 1988 some 1.2 million children a year have been vaccinated with MMR in the UK. The consequence of this has been a fall in the reported number of measles cases from over 50,000 a year to less than 5,000. The number of deaths from acute measles has fallen from around 20 a year to nil from 1989 onwards.

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Since the introduction of routine vaccination against rubella—and this, of course, goes back further than 1988—reported cases of congenital rubella syndrome in babies have fallen by more than 90 per cent.
That is the millpond into which Dr. Andrew Wakefield and his associates cast their stone in March last year with the publication of The Lancet article to which the noble Lord, Lord Clement-Jones, referred. That article sought to do something relatively limited; that is to say, it aimed to posit a hypothesis linking the MMR vaccine with the appearance of a new syndrome involving inflammatory bowel disease in children combined with a regressive developmental disorder most readily characterised as a form of autism. The precise nature of this alleged link was not spelt out; indeed, the authors of the paper stated in terms that no causal relationship had been proved. Nevertheless, such was Dr. Wakefield's reported concern about the prima facie evidence of an association between the vaccine and the syndrome that he felt compelled to publish.
Limited in its aims or not, the result of that article has been entirely predictable. Press coverage of its central hypothesis has been widespread and prominent, as has coverage of the pending legal action by individuals who claim that their children have been damaged by the MMR vaccine. It is therefore unsurprising that reports are now arriving from many parts of the country of parents refusing to allow their children to be vaccinated against MMR and of some who, in line with advice contained in Dr. Wakefield's Lancet article, are seeking to have their children immunised with the single components of the MMR vaccine as separate injections a year apart. Single vaccinations of this kind are not recommended by the Department of Health, for clinical reasons that were outlined by the noble Lord, Lord Winston, and are not available under the NHS. As the noble Lord mentioned, some people are therefore going abroad with their children to countries where they can obtain these vaccinations.
This is the juncture at which I must declare my hand by expressing grave concern over the direction that events have taken since the publication of the article by Dr. Wakefield and his team last year. Unusually, I find myself in disagreement with the noble Lord, Lord Clement-Jones, in his call for amended guidance on the use of MMR vaccine. I know that I am in danger of appearing to the noble Earl, Lord Baldwin, as part of the established edifice, but I do not believe that there is anything approaching a sound basis on which to doubt the safety and efficacy of the vaccine. The fact is that all authoritative medical opinion, not only in the UK but overseas, has comprehensively repudiated the hypothesis that Dr. Wakefield and his colleagues have advanced. It has been unequivocally rejected by 37 experts convened under the auspices of the Medical Research Council; it has been rejected in equally emphatic terms by the Chief Medical Officer; and in April last year a paper was published by a research team in Finland which came to an identical conclusion based on a survey of 3 million past recipients of the MMR vaccine. Among those 3 million recipients not a single case of Crohn's disease or autism was found.
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In July there were further interesting findings, first from Dr. Wakefield's team at the Royal Free, who reported that they had, after all, been unable to trace the presence of the measles virus in the lesions of inflammatory bowel disease, despite using the most sensitive screening techniques available; and then from a Swedish research team who examined the medical records of a group of children with autism. The Swedes found that there was a higher incidence of autism in those children who had not been vaccinated than in those who had—the very opposite of what one would expect if there were any direct correlation between MMR vaccination and autism.
The advice of the Department of Health therefore remains, as I am sure the Minister will tell us, that MMR vaccine continues to be the safest way for parents to protect their children against measles, mumps and rubella. That is not to say that the claims of parents who believe that their children have been damaged by the MMR vaccine should be dismissed without the fullest investigation; of course they should not be. I understand that to that end the Medicines Control Agency is currently considering case reports of suspected adverse reactions in children following MMR vaccination and it has also commissioned a study to look specifically at the possible association between the MMR vaccine and autism. That is the right and proper course to take. But it is quite another thing to regard this, as the noble Lord, Lord Clement-Jones, appears to do, as a cue for amending Department of Health guidance on the use of the vaccine.
Indeed, I have to ask the noble Lord what form he believes the new guidance should take. The purpose of any such guidance is to give the patient an informed choice. As it is, a GP has a duty to advise a parent of the recognised risks associated with vaccination. In many types of vaccination, including MMR, there is a fairly strong possibility of mild and temporary side effects and a very remote risk of an allergic reaction leading to serious and lasting harm. Those are recognised hazards. Each parent has to weigh up the relative risks and benefits associated with vaccination and non-vaccination respectively, based on the known statistical evidence. Most GPs strongly advise that the risk of not being immunised far outweighs any risk associated with the vaccination.
If one then tells a GP to add a rider to the effect that there is currently a hypothesis, as yet unproven—indeed comprehensively rejected by medical authorities—that MMR vaccine may be linked to Crohn's disease and autism, what is the patient supposed to make of that? It is a way of proceeding which encourages the very antithesis of informed choice. Once doubts have been raised in a patient's mind, no matter how unfounded they are, they thereby acquire a weight and emphasis out of all proportion to their significance.
It is very important that guidance issued to GPs and subsequently promulgated by them to patients is based on proven evidence. If that does not happen, the consequences can be profound. The noble Lord, Lord Winston, mentioned the case of pertussis vaccine. The scare surrounding the pertussis vaccine in the 1970s led to a sharp fall in whooping cough vaccinations and three

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epidemics of whooping cough affecting 300,000 children, of whom more than 70 died—a far greater cost in life and suffering than would have occurred if the immunisation programme had continued uninterrupted. Any vaccination campaign depends for its success on a high level of uptake, under which those who are vaccinated effectively act as a screen against infection for those who have not been vaccinated. I do not know—perhaps the Minister can tell us—what the fall has been in the uptake of MMR vaccine since last spring.
In that context, we should not forget the serious consequences that can ensue from contracting measles—and not just in developing countries. In France, where vaccination coverage is not as good as it is in the UK, 15 children died of measles between 1992 and 1994. According to the Health Education Authority, encephalitis, which is an inflammation around the brain and has a 15 per cent. mortality rate, occurs in one in 5,000 children with measles. Twenty to 40 per cent. of survivors have residual problems. After MMR vaccination the incidence of encephalitis is one in a million.
Those of us whose memories go back 30 years will remember that in the 1960s about a thousand deaf-blind children were horn within a period of four years as a result of congenital rubella syndrome. In the five years 1990 to 1995 there were 25 cases in total, dramatic proof of the effectiveness of the vaccination campaign.
I am personally convinced that the right course is for the Department of Health to remain undeflected in this matter and to continue as hitherto with the national vaccination programme. That is not to say that minds should be closed in any way whatever. That is the course advocated by the World Health Organisation and by scientists worldwide. I believe that it is the only responsible course if we are not to see a resurgence of three devastating diseases.
6.49 p.m.
Lord Hunt of Kings Heath: My Lords, I begin by thanking the noble Lord, Lord Clement-Jones, for raising such an important subject and also for giving me advance notice of some of the questions that he intended to raise. I also thank other noble Lords for their contributions to what has been a short but extremely important debate. It is important not just in terms of the Government's public health policy but important to all of us as parents who must make decisions about our children. In the past 20 years, parents have sometimes been bewildered and confused by conflicting reports in the media and elsewhere and I welcome the opportunity to put forward the Government's views on this important issue.
The noble Lord, Lord Colwyn, referred to the history of immunisation. Vaccines have been one of the greatest successes of public health medicine in this country. It was a little over 200 years ago when Edward Jenner first demonstrated the protection against smallpox that material from cowpox could offer. At the time Jenner was working, few people reached adulthood without having caught smallpox; and around 10 per cent. of
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people who did catch smallpox died. Today the smallpox virus is extinct. That success story was built on a programme of widespread immunisation. The programme involved giving vaccines to hundreds of millions of babies, children and adults around the world.
That highlights the important difference between immunisation and other medical interventions: vaccines are generally given not to people who are already unwell as a remedy but to healthy people to prevent future illness. As such there is clearly a critical responsibility on those who develop, licence and recommend vaccines to ensure that they are as safe as is possible.
Safety of vaccines is uppermost in my mind when considering immunisation. I am sure that many noble Lords present here today will recall the scare in this country over the safety of whooping cough vaccine in the 1970s. We were forcefully reminded of that by my noble friend Lord Winston. Public and professional alarm over stories of alleged brain damage caused by the vaccine caused the number of children being immunised to collapse, from a rate of over 80 per cent. in 1972 to around 30 per cent. in 1975. The result was a resurgence of whooping cough in the late 1970s, which led to three major epidemics of over 300,000 notifications and at least 70 deaths. Although subsequent studies and inquiries failed to support the alleged link, by then the damage had been done.
I describe this background as it is important to today's debate. The noble Lord has raised the issue of the safety of the measles, mumps and rubella—or MMR—vaccine. This subject has received much press coverage in recent years, yet much of the coverage has failed to inform readers fully of the balance of evidence and the real risks and benefits of the vaccine. It is first worth setting out the background to why MMR vaccine is recommended.
In the UK, immunisation policy is based on the recommendations of a statutory independent expert committee—the Joint Committee on Vaccination and Immunisation. Before the introduction of MMR vaccine in 1988, the immunisation programme against measles, mumps and rubella consisted of immunisation against measles for everyone at 12 to 18 months; and immunisation against rubella for schoolgirls only at age 10 to 14. There was no immunisation against mumps.
Despite that policy, measles vaccine uptake was relatively low. In the last year before MMR was introduced in England 86,000 children caught measles and 16 died.
The lack of control of mumps meant that it was the leading cause of viral meningitis in children under 15 and caused about 1,200 hospital admissions each year in England and Wales.
The policy of only immunising schoolgirls against rubella failed to stop the disease circulating in the ready reservoir of all males and girls under immunisation age. That circulating disease was then caught by the 5 to 10 per cent. of pregnant women in whom the vaccine had not worked or by those who had not been immunised. Rubella damage to unborn babies is devastating. In the year before MMR was introduced there were 164

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confirmed cases of rubella infections in pregnancy. Now there are fewer than 10 cases annually. The noble Earl, Lord Howe, very much underpinned those points.
But as the noble Lord, Lord Clement-Jones, explained, a theory that MMR might be linked with new adverse reactions has been raised. The publicity has centred on one group of workers at the Royal Free Hospital who have developed a theory that MMR vaccine might be linked with autism and inflammatory bowel disease. I hope that noble Lords will find it helpful if I set out the work that has been undertaken to examine that theory.
It is our duty to ensure that the advice the Department of Health gives to the medical profession and to parents is based on the view of independent experts. Therefore both the Committee on Safety of Medicines and the Joint Committee on Vaccination and Immunisation have both looked in detail at all aspects of the safety of MMR, as well as any possible links with autism and inflammatory bowel disease.
The Chairman of the Joint Committee on Vaccination and Immunisation along with committee members visited researchers at the Royal Free Hospital to hear about their work at first hand. The committee has reviewed all the evidence on numerous occasions and has advised UK Health Ministers that there was no link between MMR and autism or inflammatory bowel disease.
In March 1998 the Medical Research Council convened a meeting of 37 independent experts under the chairmanship of Sir John Pattison. The group examined published and unpublished research into the suggested association between MMR and autism and inflammatory bowel disease. Researchers from the Royal Free Hospital team presented their work extensively. The independent experts—this was referred to by my noble friend Lord Winston but it bears repetition—concluded:
"There is no evidence to indicate any link between MMR vaccination and bowel disease or autism".
They went on to say:
"There is therefore no reason for a change in the current MMR vaccination policy".
The noble Lord, Lord Clement-Jones, asked about the potential link between vaccination and autism. As he has already suggested, the Medicines Control Agency has responded to requests for individual cases to be studied where parents have associated the onset of autism with MMR vaccine. That review, which is being undertaken by independent specialists, is close to completion. I should point out also that a large study on children with autism in the North Thames region, covering the period before and after the introduction of the MMR vaccine, is also close to completion.
A number of noble Lords asked whether a disease such as measles is perhaps less serious than is presented to the public. As my noble friend Lord Winston made clear, measles can be a very serious matter. In an epidemic of measles in the United States in 1989–91, about 160 children died. To me, that is a serious matter.
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I am not able to answer the points raised by the noble Lord on payments under the vaccine damage payments scheme but I shall ensure that his concerns are conveyed to the Department of Social Security which is responsible for such matters.
The noble Lord, Lord Clement-Jones, also raised the issue of litigation. It is my understanding that a vaccine manufacturer has received writs from a solicitor acting on behalf of a number of parents. But that is a matter for the manufacturer and not the Department of Health. Furthermore, before there could be any consideration of compensation, evidence will need to be provided, which is not apparent in the scientific literature, that MMR vaccine has indeed caused some of those purported problems.
Noble Lords raised the question of single vaccine prescription and asked whether general practitioners could be allowed to prescribe single vaccines for measles, mumps and rubella. My noble friend Lord Winston supplied much useful information on that matter. However, the Government see no evidence whatever that convinces us that it should contribute to putting children's lives at risk. All available published and unpublished material purporting to show risks associated with the MMR vaccine has been studied by the Joint Committee on Vaccination and Immunisation and the Department of Health's independent expert advisory group on vaccines. That committee saw nothing to convince it that there are risks associated with the combined vaccine that would be avoided by separating the components. Indeed, the committee was mindful that separating the components would leave children at heightened risk and recommended against that practice.
Since there is no evidence of benefit and only reason to assume risk, it seems extraordinary for the Department of Health to be asked to promote less than the highest standards of preventive care. When the World Health Organisation reviewed the work suggesting that there may be some link between MMR vaccine, inflammatory bowel disease and autism, its assistant director-general wrote to my right honourable friend, Tessa Jowell, expressing alarm and pointing out that the present study does not meet the requirements for establishing such a causal relationship. Dr. Henderson went on to conclude,
"We believe none of these data provide a basis for providing the different components of this vaccine in separate schedules".
The noble Lord, Lord Clement-Jones, asked about the Joint Committee on Vaccination and Immunisation. The recommendations of the committee are published regularly in the guidance sent to all doctors and other health professionals involved in immunisation in the book Immunisation Against Infectious Disease. At the committee meetings discussions take place that are commercially and clinically sensitive and for that reason the minutes are not published. But wherever there are problems with vaccines, they are conveyed as quickly and effectively as possible to health professionals and the public.
The noble Lord, Lord Clement-Jones, suggested that the department should no longer provide general practitioners with incentives to immunise using MMR

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vaccine. The target payment scheme for general practitioners has been highly effective in achieving and maintaining high coverage that did not exist beforehand. Since there is no evidence that points to real risks associated with the vaccine, it would be extraordinary for the Government to give tacit acknowledgement that the work has failed.
I remind the House of the comments made by Duclos and Ward in its review article on adverse events with measles vaccines, published only a month ago in Drug Safety,
"We suggest that the real issue is one of good science versus bad science. We believe that several of the reports alleging an association between Crohns, autism and measles vaccine are in the public domain due to a failure of the peer review process".
The noble Lord, Lord Clement-Jones, asked about balanced guidance from the Department of Health. The department produced extensive guidance on MMR vaccine in the form of fact sheets for health professionals to use in their discussions with parents and as information leaflets for parents to receive directly. The information within those leaflets represents the best available information on both the benefits of MMR immunisation and the risks. Where there is clear evidence that there truly is a risk associated with the vaccine then that has been accurately reflected.
The noble Earl, Lord Baldwin, asked about risk benefits. I can perhaps quote to him the World Bank's description of immunisation as being the single most cost-effective health intervention. On the other issue he raised in relation to long-term studies, he asked me to provide him with a note and I shall be happy to oblige in that regard.
The noble Earl, Lord Howe, asked whether, in the light of current publicity, there has been a fall in uptake. My understanding is that at the moment there has been a fall of between 4 and 6 per cent. Thankfully, that is
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nothing like that compared with the situation in relation to whooping cough, but it is a warning of what can happen in the light of such publicity.
Perhaps I might conclude by posing three questions. What possible motive could the Department of Health have for continuing to provide a vaccine that may harm children? The answer is straightforward. There is no evidence that MMR harms children in the ways imagined and much evidence that it benefits them. Why does no other country take seriously the claims about MMR? It is because the evidence has been examined over and over again and found to be lacking in scientific merit to convince national authorities. Why has it proved so difficult to find corroborating evidence for the allegations in relation to the risks from MMR vaccine? The answer is clear. As so many commentators have said, when scrutinised the work fails to stand up to the requirements of scientific evidence for causal association. The burden should now fall on those thinking up the stories to actually prove them before causing more anxiety in the minds of parents trying to do their best for their children.
The noble Lord, Lord Clement-Jones, came to this subject as a concerned parent of a small child who needed to take a decision on whether or not to vaccinate. I hope sincerely that the noble Lord has been reassured. I can say to him that the Department of Health has taken every step possible to examine every piece of information made available to it suggesting that there were new problems with MMR vaccine. The weight of evidence is overwhelming that MMR vaccine does not cause those purported conditions. I hope the noble Lord will be reassured and that his decision will be that of so many parents who agree to have their children protected in the appropriate recommended fashion with MMR vaccine.
House adjourned at five minutes after seven o'clock.