Lords Sitting of 22 March 2001

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by Lord Bishop of Wakefield): The LORD CHANCELLOR on the Woolsack.

Royal Assent
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts:

Consolidated Fund Act 2001,

Capital Allowances Act 2001,

Alliance Leicester Group Treasury plc (Transfer) Act 2001,
Colchester Borough Council Act 2001.

Iraq: Exports
Lord Hardy of Wathasked Her Majesty's Government:
What is their estimate of the income received by Iraq in respect of exports of (a) oil and (b) raw materials and foodstuffs, during the last three years.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Scotland of Asthal): My Lords, in the past three years legal oil exports have earned Iraq approximately 40 billion dollars. This revenue is controlled by the United Nations. We estimate illegal oil exports were worth a further 600 million dollars last year. The UNSCR 661 prohibits the export from Iraq of other raw materials and foodstuffs. However, we are aware that Iraq does export those goods, despite claiming that the UN's humanitarian programme does not provide for the basic needs of the Iraqi people. We have no figures for the income generated by this illegal trade.
Lord Hardy of Wath: My Lords, I thank my noble friend the Minister for that reply. Does she agree that those who condemn sanctions, or the no-fly zone, should appreciate that, even with those sanctions, Iraq could have fed its children, treated the sick and secured a much higher level of general prosperity? However, it has chosen instead to maintain armed forces comprising almost 1 million personnel, which is far in excess of the level that would be appropriate for a country with a population of 21 million people. Indeed, it has provided a plethora of presidential palaces, and pursued the development of horrid weaponry that can only threaten international and regional stability.
Baroness Scotland of Asthal: My Lords, I agree with my noble friend that that is the position. Sanctions are
1530
not responsible for the suffering of the Iraqi people; Saddam Hussein is. The UN humanitarian programme is worth billions of dollars per year, but Iraq manipulates and obstructs the programme to deny the Iraqi people maximum benefit. I shall give your Lordships one example. Over 4 billion dollars is currently available to Iraq for the purchase of vital humanitarian goods. That money lies unspent in a UN account.
Baroness Williams of Crosby: My Lords, although agree with the Minister and the noble Lord, Lord Hardy, that there is no question about the possibility that Iraq could meet many of the needs of its civilian population, does the noble Baroness recognise that in moderate Arab capitals the propaganda argument is largely being lost? I was in Jordan two days ago. It was quite clear there that the view is that sanctions are the responsibility of the Western powers. Can the noble Baroness tell the House what is the position of Her Majesty's Government towards the review of sanctions, with a view to moving towards smart sanctions specifically against the Iraqi regime" Can the noble Baroness also tell the House why some 3 billion dollars-worth of humanitarian contracts have been held up by the UN Sanction Committee's SCR661?
Baroness Scotland of Asthal: My Lords, perhaps I may stress that we wholeheartedly understand what the noble Baroness says in relation to the propaganda argument. It is a matter of shame that those who have propagated that do not relay the correct facts. From all the information available to us it is clear that Iraq could feed its people. The medicines are available, but Saddam Hussein is choosing not to avail himself of that aid.
In relation to smart sanctions, I can tell the House that the sanctions regime is already targeted at military and other issues that are destructive. The food for oil programme was meant to do precisely what the noble Baroness suggested; namely, to allow humanitarian aid through so that the Iraqi people do not suffer. We shall continue to pursue that policy. The noble Baroness also referred to hold-ups in this respect. We have been clear in our approach to ensure that those matters are dealt with smoothly and swiftly. As for our participation, I can certainly reassure the House that we are doing everything that we can to make sure that we are not the problem. Indeed, I can further reassure the House that we are not the problem: Saddam Hussein is.
Lord Howell of Guildford: My Lords, does the Minister accept that we strongly support, the sentiments just expressed by the noble Lord, Lord Hardy, and, indeed, reinforced by the noble Baroness herself? It is clear that stronger and more effectively targeted sanctions are needed against this evil man who is depriving his own people of both medicine and food. What chance does the noble Baroness see of us persuading our French allies and partners of the same view? Is not the problem the fact that, when it comes to the common foreign and security policy, France

1531
regards the current situation quite differently, as it does in regard to Zimbabwe and as it does, apparently, in NATO? Is it not time to try to reinforce the CFSP, or, alternatively, should we just give up on the matter?
Baroness Scotland of Asthal: My Lords, I hear what the noble Lord says in relation to the attitude adopted by France. However, I should remind the noble Lord that the current UN sanctions are adhered to by everyone. It is our common position that the UN sanctions should bite on Iraq. To the best of our knowledge and belief, all our partners are adhering to that line. I know that it is an issue as to whether there should be further review on the matter. Noble Lords will not be surprised to know that this is often a matter of discussion. Nevertheless, I should reinforce the fact that the current regime is working. It is controlling Saddam Hussein; it is preventing him from using weapons of mass destruction; and it can facilitate proper humanitarian aid if he chooses to avail himself of it. That is something about which both we and our partners are in agreement.
Baroness Nicholson of Winterbourne: My Lords, can the Minister confirm that in 1988 Saddam Hussein's regime earned 18 billion dollars of oil revenue and spent 13 billion dollars on weapons? Can she also confirm that, in 1998, Iraq earned 16 billion dollars and ordered no medicines at all? Therefore, given the inadvisability of lifting military sanctions, does the Minister agree that the time is ripe to take the distribution of food and medicines, and their ordering, out of the hands of the Baghdad regime and to place them in the hands of a neutral body, such as the United Nations or the Red Cross/Red Crescent movement?
Baroness Scotland of Asthal: My Lords, I agree with the factors raised by the noble Baroness in relation to the way in which Saddam Hussein's regime has, historically, spent its money. I also know that there is a very active debate as to how sanctions could be reviewed. At present, the sanctions will remain as they are. However, I can certainly reassure the House that those discussions will continue. I daresay those issues will be considered by all of us to ascertain how we can better manage the situation.
Lord Rea: My Lords, when replying to the debate on the humble Address at col. 350 of Hansard of 12th December 2000, my noble friend Lady Symons of Vernham Dean, in answer to a specific point that I made in my speech, said that,
"we support the efforts by the World Health Organisation to work with the Iraqis on a proper study"—
of the apparent epidemic of leukaemia, other cancers and birth defects that are, perhaps, due to the use of depleted uranium in southern Iraq. Can my noble friend report any progress on organising this important, overdue study?
Baroness Scotland of Asthal: My Lords, we understand that the World Health Organisation is
1532
considering a report into the health situation throughout Iraq. We should encourage any initiative to tackle the lack of detailed information on the subject. Only then can any particular health problems be addressed. We therefore encourage Iraq to cooperate with the WHO on the issue. There is no credible research data to support allegations that the use of depleted uranium-based ammunition is to blame for the upsurge in cancers throughout the Iraqi population.

Young Offenders' Institution, Brinsford
3.10 p.m.
Lord Quirkasked Her Majesty's Government:
What is their response to the recent report by the Chief Inspector of Prisons on H M Young Offenders' Institution, Brinsford.
The Parliamentary Under-Secretary of State, Home Office (Lord Bassam of Brighton): My Lords, in accordance with the protocol agreed between Ministers and the Chief Inspector, the Prison Service will produce an action plan addressing the report's recommendations within 30 working days of its publication.
Lord Quirk: My Lords, I am grateful to the Minister for that degree of reassurance. But, of course, only three weeks after finding Brinsford "quite disgraceful" the Chief Inspector had to look for even more dire epithets for Birmingham Prison. So would the Minister join with me in congratulating the Chief Inspector, Sir David Ramsbotham, on so resolutely exposing bad practice wherever he finds it, for example the fact that getting on for two-thirds of the 500 youngsters in Brinsford get no education or training at all? Does he perhaps connect this with the equally startling fact that the per capita spend on education and training at Brinsford is less than one-third of that at YOI Werrington which is only half an hour's drive in the same county?
Lord Bassam of Brighton: My Lords, of course we take great note of the inspector's reports which are most valuable. They provide a pathway to improving the quality of regimes in the prison estate. Obviously Brinsford must improve. Having met the governor of Brinsford today, I am most heartened by the progress that has been made since the inspector's report of last summer. While last year there were 17 hours of purposeful activity per prisoner per week, there are now 25.6 hours. While there were criticisms of juveniles and young offenders being in mixed living units, there is now no mixing of juveniles and young offenders. While last year at the time of the visit 65 attended education per day, there are now 140 attending education per day. While last year the auditor criticised education provision, the audit in February of this year stated that educational provision was acceptable. There were problems at the time of the inspection. We have a vigorous and active governor in

1533
place. He is addressing the many issues raised in the 154 recommendations of the inspector's report. We expect, and are seeing, some improvements.
Lord Elton: My Lords, is it not the case that not so long ago, in order to reassure everyone about the state of the youth estate in the Prison Service, there was appointed a head of the Young Offenders' Group? In the foreword to the report we now discover that that influential person has no executive authority whatever and does not even report to the Director General of the Prison Service. Similarly, today the Minister has asked us to be reassured by the prospect of an action plan. But is the noble Lord aware that the contents of that action plan will reflect in some detail what has been produced in action plans following similar inquiries for Feltharn, Glen Parva, Werrington and Portland? There really is need for a central figure in the system with authority and responsibility to discharge our duties under human rights conventions, the United Nations convention on the child and the provisions of the European Treaty to defend our children in what is becoming a generally abusive system.
Lord Bassam of Brighton: My Lords, I congratulate the noble Lord on his considerable support for our system. I also congratulate the noble Lord on taking—
Noble Lords: Oh!
Lord Bassam of Brighton: My Lords, the noble Lord has a record in regard to the prison estate and in particular the youth offender estate. Of course we recognise that there are problems. The reports to which the noble Lord referred bear good testament to that. We inherited a pretty poor level of investment—
Noble Lords: Oh!
Lord Bassam of Brighton: My Lords, that happens to be the case. When we came into government there had been significant under-investment in the educational and training side of the prison regimes. We have had to put that right. I am delighted to tell your Lordships' House that record numbers of qualifications are now being attained in our prison estate and, of course, within the youth offender estate. Those matters needed to be addressed. Over the past year there has been a 10 per cent increase in the number of teaching hours delivered. I think that we should celebrate and be proud of that. Noble Lords opposite who shake their heads ought to be ashamed of some of their records during their time in office.
The Earl of Listowel: My Lords, is the Minister aware that nearly 50 per cent of the children in YOIs are either still in local authority care or have come out of local authority care? Will he ensure that the new provisions under the Children (Leaving Care) Act will apply to those children and that they will receive all the new benefits that are now being made available to other children leaving care?
Lord Bassam of Brighton: My Lords, the Youth Justice Board has done an outstandingly good job and has begun to raise standards for juvenile offenders. Juvenile offenders are beginning to receive record levels of education and training. That is most important. Of course, we must be very mindful of the standards of care in the local authority sector and ensure that they are matched, perhaps exceeded, in the juvenile offender sector.
Lord Avebury: My Lords, is the Minister aware that his self-satisfied response to the recitation by the noble Lord, Lord Elton, of the five successive severely adverse reports by the Chief Inspector is deeply offensive to your Lordships? Will the noble Lord say which of the 23 recommendations made by the Chief Inspector in the thematic review of young offenders' institutions of October 1997 have been implemented and whether or not in particular a chief inspector has been appointed to monitor the treatment of children throughout the youth justice system which is so necessary?
Lord Bassam of Brighton: My Lords, I do not dispute the necessity of ensuring that standards within our estate are raised. I should like to have had advance notice of the noble Lord's second question, but I am certainly more than happy to give it detailed consideration. As regards the noble Lord's first point, I am not self-satisfied about conditions in the prison estate, whether those concern juvenile offenders or young offenders. We know that there is much more to do. That is why we raised the level of investment as a result of the spending review that was undertaken last year. There is more to do and more to get on with. What we should try to do is build on the strengths that are apparently there.
Lord Elton: My Lords, will the noble Lord answer my original question? When will we have an individual in the Prison Service with executive authority reporting directly to the Director General?
Lord Bassam of Brighton: My Lords, I shall write to the noble Lord on that precise point.

Football Disorder Report
3.17 p.m.
Lord Faulkner of Worcesterasked Her Majesty's Government:
How they intend to ensure that. the recommendations contained in the report of the working group on football disorder are implemented.
Lord Bassam of Brighton: My Lords, the report of the working group on football disorder identifies the key agencies in respect of each of the 54 recommendations. The Home Office will monitor progress and will convene meetings with all agencies concerned on a regular basis. We also intend to hold regional seminars involving all the key players—if that is not a pun—including the fans.
Lord Faulkner of Worcester: My Lords, in thanking my noble friend for that reply, may I as a veteran of numerous inquiries, task forces and working groups looking at football disorder over the years pay tribute to my noble friend and his officials in the Home Office for the leadership they gave, the expeditious way in which this inquiry was conducted and the fact that it managed to come to an agreed set of conclusions in under six months? Does my noble friend agree with me that two of the most important recommendations are, first, that the Football Association has agreed to disband the existing England Members Club and intends to relaunch it with the exclusion of people who have records of violence or racist activity? That is a significant step forward in dealing with the problems of the England team travelling overseas. Secondly, will he confirm that it is the Government's intention that the involvement of supporters will be maintained in the implementation of the remaining recommendations?
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for his kind words about my stewardship of the working group. As regards the recommendations, the agreement of the Football Association to take apart the England Members Club and reconstitute it with much improved standards of membership is a significant improvement and recommendation which we should all welcome. The England Members Club needs to reflect much more broadly our wider society. It ought to be more multiracial and to reflect the broad range of interests that now support English soccer. As to consultation with supporters' organisations, that was, and will continue to be, a key feature of the implementation of the report.
Lord McNally: My Lords, will the Minister tell us what has happened to the idea of an American style soccer commissioner to drive through reforms in the game? Will he also take this opportunity to disassociate himself from the absolutely barmy idea of the Minister of Sport to bring back terraces to football grounds, which would be a recipe for further hooliganism?
Lord Bassam of Brighton: My Lords, I understand the nature of the controversy over terracing. I believe that the situation that we have developed in our football grounds over the past decade or so, with an increasingly larger number of all-seater stadia, is greatly to be welcomed and has made a major
1536
contribution to the reduction of hooliganism and violence in our football grounds. Reflecting on the statistics, it appears that this year the number of arrests has fallen, as it has over the past decade or so, and that is to be welcomed.
With regard to the idea of an American style commissioner, although I am not sure that that is how I would describe it, I believe that there would be some merit in that approach. Nevertheless, that is not necessarily a matter for me; it is a matter for wider debate in the sport itself.
Lord Woolmer of Leeds: My Lords, does the Minister recognise the warm welcome that will be given to this report throughout the football industry by supporters, clubs and football organisations for the thoughtful and long-term view that it takes of the problems? Meanwhile, will the Minister tell the House how many orders to date have been made against individuals under the Football Disorder Act? Secondly, will he assure the House that all necessary arrangements will be in place for the three away international games that England has in the World Cup during the course of this year?
Lord Bassam of Brighton: My Lords, I am again grateful for the noble Lord's support for the report. I hope that the report will be widely welcomed by supporters' organisations. We certainly intend to work very closely with them.
I do not have precise figures for the number of orders made under the legislation that we put in place last year. However, I understand that approximately 40 such banning orders are in place. The police believe that they have played an important part in curbing the attendance of those intent on hooliganism at away matches involving English clubs in European competitions and, of course, the England side itself. We believe that the legislation has had a salutary effect and will continue to do so. It will be kept under review as per the requirements of the sunset clauses.
With regard to the policing of future international matches that take place abroad, we are in close contact with the countries against whom we shall be playing. I recently visited Germany to look at the arrangements that are likely to be in place for the England v Germany match in September. As a product of that visit, we shall no doubt make a number of suggestions which I believe will necessarily improve the level of security for that match.
Lord Cope of Berkeley: My Lords, I understand that a Written Answer was recently provided on the number of orders. With regard to the matter of terracing, was the Minister or the Minister of Sport expressing the Government's view?
Lord Bassam of Brighton: My Lords, I was expressing my own view, which also happens to be the view of the Government.

Learning Disabilities: White Paper
3.24 p.m.
Lord Rixasked Her Majesty's Government:
What are the new initiatives in the White Paper Valuing People: a new strategy for learning disability for the 21st century (Cm 5086), and what extra funds are available to underpin it at local level.
The Parliamentary Under-Secretary of State, Department: of Health (Lord Hunt of Kings Heath): My Lords, the new strategy for learning disability for the 21st century sets out proposals for improving the life chances of people with learning disabilities. A new learning disability development fund of up to £50 million per year is being set up to support the proposals in the White Paper for adults. There will also be an implementation support fund of £2.3 million per year for three years from April 2001 to provide central support for key aspects of the new strategy.
Lord Rix: My Lords, I thank the Minister for that helpful reply. I also thank the Government for a most helpful and far-reaching White Paper. I commend it to your Lordships' House as ideal bedside reading!
Perhaps I may ask the Minister to turn to page 125 of the White Paper. Sub-objective 4.1 refers to proposed performance indicators in regard to short-term breaks. Will the Minister confirm that if the proposed performance indicator indicates a shortfall, as I am sure it will, steps will be taken to make good that particular shortfall?
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord, Lord Rix, for that question. I am sure that the House would wish to acknowledge his contribution to this field over many years. In many ways, I feel that this White Paper represents the culmination of that dedication.
With regard to the question of performance indicators, if we are to make a success of the White Paper, it is very important that targets are set and that a performance management framework is in place to ensure their implementation. We shall ensure that that happens.
As far as concerns resources, it is worth bearing in mind that, between health and local government, approximately £3 billion is spent on the provision of services for people with learning disabilities. Part of the answer to the problem is to ensure that those resources are used effectively. In addition, I believe that the development fund that we have announced will greatly help in encouraging local statutory agencies to develop the kind of services that the noble Lord has in mind.
Lord Renton: My Lords, in accepting what the noble Lord, Lord Rix, has said, I ask the Government to bear in mind that many children with learning difficulties who go to mainstream schools are unhappy, some are bullied, and their presence sometimes interferes with the education of normal
1538
children. Will the Government therefore ensure that the needs of those who require special education are met, whenever possible, by their attendance at schools with special educational needs facilities?
Lord Hunt of Kings Heath: My Lords, that is a little outside my area. However, I certainly agree that paramount to any decision about education are the needs of individual children and the wishes of their parents. The Special Educational Needs and Disability Bill makes changes to the existing law to strengthen the right of children with special educational needs to be educated in mainstream schools. But I can tell the noble Lord that, although the proportion of pupils in special schools fell from 1.3 per cent in 1991 to 1.2 per cent in 1995, it has remained constant in each of the past six years. I can assure the noble Lord that the Bill does not make it more difficult for parents whose children have statements of SEN to gain a special school place.
Lord Ashley of Stoke: My Lords, I am very impressed by this thoughtful, sensitive and wide-ranging White Paper. It reflects great credit on the Government. I should like to add my congratulations to my noble friend Lord Rix and to Mencap for the work that they have done over the years. But would my noble friend agree that special educational needs services are ultimately delivered by local authorities, some of which are good, some of which are appalling? Although the White Paper states that an inspection will take place in 2001–02, will my noble friend assure the House that regular monitoring will take place to ensure that those services are delivered to the people who need them?
Lord Hunt of Kings Heath: My Lords, I agree with my noble friend that the record of statutory agencies is at the moment patchy. There are some very good services, some excellent committee people, and some services that are not so good.
I believe that the most important building block in the development of this policy is the proposal to develop what are called learning disability partnership boards at local level. The aim is to bring together statutory and voluntary organisations to give the necessary impetus to implement the effective provision of services. That will be backed up by our performance management arrangements in the health service and the performance assessment arrangements in social services to ensure that it happens properly.
Lord Clement-Jones: My Lords, does the Minister recognise some of the concern that has been caused to people with Asberger's and their carers by the way in which learning disability is defined in the White Paper? Many people with Asberger's get their support from learning disability services. Can he guarantee that they will continue to be able to get their support from learning disability services until there are specialist support services for them?
Lord Hunt of Kings Heath: My Lords, it is important that people with Asberger's get the right help and

1539
support. The noble Lord is right that they are not covered by the definition used in the White Paper. It covers those with autism who also have a learning disability, but not those with a higher level autistic spectrum disorder. The noble Lord will be glad to know that we have commissioned a report from Cambridge University on the issues surrounding Asberger's syndrome. We shall consider its recommendations and I shall write to the noble Lord when the outcome is known.

Health and Social Care Bill
3.31 p.m.
Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Hunt of Kings Heath.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE DEPUTY CHAIRMAN OF COMMITTEES (Lord Boston of Faversham) in the Chair.]
Clause 24 [Remuneration of general medical practitioners]:
The Deputy Chairman of Committees: In calling Amendment No. 161, I point out to the Committee that if it is agreed to I cannot call Amendment No. 162.
Earl Howe Earl Howe moved Amendment No. 161:
Page 18, line 16, leave out from "services)," to end of line 18 and insert "in subsection (4), for the words "not, except in special circumstances," there is substituted "have regard to the quality and outcome of the services provided and shall not ordinarily""
The noble Earl said: The amendment is grouped with Amendment No. 162. The amendments are necessary to ensure that the general medical services payment system appropriately rewards quality and service outcomes. Clause 24 ends the requirement that the majority of a GP's remuneration should be linked to the number of patients on his list. At present there is a provision that ordinarily GPs will be paid for the number of patients on their list. The clause removes that provision and changes the criteria on which they are paid to the quality and outcome of the services that they provide.
It may be of help to the Committee to know that the British Medical Association's General Practitioners Committee supports the move away from the majority of GP remuneration being capitation based. That move weakens the dependency on list size. The emphasis of the amendment is on GPs being paid for their work rather than being paid a fixed monthly salary. Clearly, their workload varies with the number of patients on their list. It is appropriate that the
1540
amount that doctors are paid should continue to reflect their workload as well as the quality of the services that they deliver. I beg to move.
Lord Hunt of Kings Heath: I understand and sympathise with the thrust of the noble Earl's comments. The Committee will know from my remarks during earlier Committee days that we are working with the profession and its representatives to produce a revised national GP contract. We want to reflect the emphasis on quality and improved outcomes, which form a key feature of the locally agreed personal medical services contracts. Our aim is to secure greater convergence between the two contractual frameworks, which will build on the best of both approaches.
There is the prospect of significant progress on the way in which GPs work for the NHS. Initial discussions have begun with the BMA to scope the work. Those discussions have been constructive and there has been an encouraging start in addressing a major challenge for both parties.
Clause 24 contributes modestly to that task by removing an unnecessary statutory impediment to progress. That makes me reluctant to accept the amendments, which would impose constraints, specifically by providing that the remuneration of GMS GPs should be linked to quality and outcomes of service and should not consist wholly or mainly of a fixed salary. While that is in line with the aim in the NHS Plan to link GPs' remuneration more closely to improved quality and outcomes—I very much agree with the noble Earl on that—my worry is that using legislation would create a constraint that might be unhelpful in discussions and negotiations. We want to work with GPs and their representatives to revise the national contract. That is the best approach.
Amendment No. 161 would also require that if a fixed salary was paid, it should be referenced to the number of patients. Amendment No. 162 would ordinarily prevent wholly or mainly fixed salary payments. It is true that no GPs in the GMS are on a fixed salary and we have no plans to introduce such a category, but we do not want to rule out that possibility for all time. We are concerned about the constraints that the amendment would put in place.
I hope that the noble Earl recognises that we strongly agree with the thrust of what he said.
Earl Howe: I entirely accept the Minister's point. The BMA's attitude to the general direction in which the Government are moving is based on the belief that it is helpful to make GPs' contracts more dependent on quality by making it easier to reduce list size. That is also fairer to GPs who necessarily have a low list size, such as those in rural areas. The Minister has given a useful answer and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 162 not moved.]
Clause 24 agreed to.
Clauses 25 and 26 agreed to.
Clause 27 [Medical, dental, ophthalmic and pharmaceutical etc. lists]:
Earl Howe Earl Howe moved Amendment No. 163:
Page 24, line 5, at end insert—
"(2BC) Regulations made by virtue of subsection (2BA) shall not have effect unless the Secretary of State has consulted any person appearing to him appropriate to consult as representing the profession subject to the regulation.""
The noble Earl said: In moving the amendment, I shall speak also to Amendment No. 164. The amendments were suggested to me by the Royal Pharmaceutical Society. As the Committee will know, among the many responsibilities of the RPS is the maintenance of the register of pharmaceutical chemists for Great Britain. I understand that the society supports the intention of the proposals in the Bill to enhance scrutiny of the profession.
I understand from my discussions with the society that it is concerned to ensure that any lists established by health authorities are transparent and practical. It is therefore of critical importance that criteria, particularly for exclusion from such lists, should be developed in partnership with the relevant professional regulatory body or bodies.
I have been in touch recently with the RPS. It was surprised to hear that, according to health Minister Mr Denham, the list of criteria to be considered before determining unsuitability—and therefore exclusion from a list—may include such matters as the impact on the National Health Service of a practitioner's action. That sounds somewhat open-ended and unclear. That leads me to ask whether the clause sufficiently differentiates between practitioners who operate single-handed and those who practise through companies. I am sure that the Government have every intention of consulting all the professional bodies concerned, but the amendment would make such consultation obligatory. Such a safeguard seems entirely appropriate and I would be a little disappointed if the Government were inclined to resist the suggestion.
I further understand that the society is concerned that the criteria, which will be listed in the statutory instrument, may not be exhaustive, again, as the Minister, Mr Denham, said, in order to allow health authorities to apply other criteria that are relevant to each case.
By allowing local discretion, which may have some arguments in its favour, the very real possibility will arise that local variations in eligibility criteria for practitioner lists will develop; for example, a pharmacist could be eligible for employment in one health authority but not in another. I wonder whether the Government want such a situation to develop, not least because it militates against the development of clear and consistent national standards. My amendment to Clause 28 would prevent such variability, and I should be interested to hear what the Minister has to say about it.
Perhaps I may add a quick comment on the Government's statement made in Committee in another place that there will be an independent appeal
1542
process. I believe that that is absolutely essential. However, I believe that it will also be important to ensure that any such appeal system is consistent with the existing professional regulatory framework. I hope that the Minister will be able to reassure me that that is so. I beg to move.
Lord Hunt of Kings Heath: I certainly take the point that consultation with the appropriate groups would normally be expected to take place. I can assure the noble Earl that we shall consult as necessary. I do not believe that it is necessary to set that out on the face of the Bill, but I can assure him that, so far as concerns the Department of Health, consultation is the name of the game. With regard to many of the matters that we are discussing in the Bill, it is essential to implement ownership among all the people involved.
I also understand the point that the noble Earl raises in relation to variability between different health authorities. I understand why his amendment requires that the imposition of conditions by health authorities—for example, when conditionally including a practitioner in a list—must be carried out with a view to preventing local variability in criteria for inclusion in the list.
I want to make it clear that it is the responsibility of health authorities to make decisions conditionally to include a practitioner in a list. It is absolutely right that that responsibility is placed at health authority level. I can assure the noble Earl that the department will issue guidance to all health authorities in order to facilitate consistency in their decision-making. Again, I very much accept that point. The FHS Appeals Authority will also have a role in ensuring consistency of decisions between health authorities.
As with all the issues that we have discussed so far, clearly a tension exists between the aims of devolving responsibility and ensuring consistency. Both are important. Sometimes the noble Earl, Lord Howe, wishes us to decentralise; perhaps more than occasionally he wishes us to centralise. A problem arises when we become over-centralist and over-prescriptive. I hope that the Committee will consider that we probably have the balance right in relation to this matter, particularly in view of the safeguard that we shall give guidance to health authorities and in view of the fact that the FHSAA, through its judgments over the months and years, will itself clearly ensure consistency.
Earl Howe: The Minister must have his little jibe. I take the point. Nevertheless, he has given a helpful answer, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 agreed to.
Clause 28 [Conditional inclusion in medical, dental, ophthalmic and pharmaceutical lists]:
[Amendment No. 164 not moved.]
3.45 p.m.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 165:
Page 24, line 36, at end insert—
"( ) If regulations provide for a practitioner's removal from the list for breach of condition—

(a) the regulations may provide that he may not withdraw from the list while the Health Authority are investigating whether there are grounds for exercising their power to remove him, or after the Health Authority have decided to remove him but before they have given effect to that decision; and

(b) the regulations must include provision—

(i) requiring the practitioner to be given notice of any allegation against him,

(ii) giving him the opportunity of putting his case at a hearing before the Health Authority make any decision as to his removal from the list, and

(iii) requiring him to be given notice of the Health Authority's decision and the reasons for it and of his right of appeal under subsection (4)."

The noble Lord said: In moving Amendment No. 165, I shall speak also to Amendments Nos. 166, 184, 204 and 210. Through these amendments we are seeking to be explicit in ensuring a consistent approach across the administration of the main, supplementary and services lists maintained by the health authority.
Paragraph (a) of Amendment No. 165 relates to limiting the circumstances under which a person can withdraw from the health authority main lists while he is under investigation by that authority. That ensures that the same limitations apply to any person whose continued presence on a list is subject to the completion of a health authority investigation and the implementation of any subsequent decision, whatever the reasons for that investigation and whatever the list. Similar provisions are made in relation to the supplementary, main and services lists respectively.
At paragraph (b), the amendment sets out certain mandatory processes that must be followed by the health authority in reaching a decision to remove a person from its list for breach of a condition imposed on that person's inclusion in the list. Again, we are ensuring consistency on the face of the Bill rather than merely in regulations by spelling out the same mandatory processes that must be followed in relation to those decisions as are already prescribed for removal, suspension and conditional inclusion decisions in relation to the supplementary, main and services lists.
Amendment No. 166 is technical and ensures that the appeal provisions in new subsection 43ZA(4) are accurately cross-referenced to subsection 43ZA(1), which sets out the range of decisions available to the health authority.
Amendments Nos. 184, 204 and 210 relate to certain mandatory processes that must be followed by the health authority in reaching decisions to suspend, remove or conditionally include a person on its supplementary or services lists. Again, by spelling out the same mandatory processes that must be followed in relation to these lists as are already prescribed for
1544
the main lists at Clauses 28 and 32, we are placing a consistency of approach on the face of the Bill rather than simply in the regulations. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 166:
Page 24, line 37, leave out "do so provide" and insert "provide as mentioned in subsection (1)".
On Question, amendment agreed to.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 167:
Page 24, line 42, at end insert
"(ca) on any review of an earlier such decision of theirs,".
The noble Lord said: In moving Amendment No. 167, I shall speak also to Amendments Nos. 168 and 169. This group of government amendments concerns Clause 28. This clause further modernises the management of the primary care list system by providing a new power for health authorities conditionally to accept a practitioner on its medical, dental, ophthalmic, pharmaceutical or dispensing doctor lists. That will be in similar circumstances to those in Clause 32, which allow the health authority contingently to remove a person from a list.
This new power will apply only in fraud and efficiency cases. It does not extend to suitability cases on the basis that an individual is either suitable or unsuitable for inclusion on a health authority list.
In some circumstances, a health authority may conclude that the risk posed by a practitioner is not so great that his application to the list should be refused. The person's clinical practice may not be in question, but it would be inappropriate to allow him to practise without additional restrictions or closer monitoring by the health authority.
In such a case, a health authority will be able to impose conditions on that person to ensure that the identified risks of prejudice to the efficiency of the service or to the prevention of further fraud are eliminated. If a practitioner subsequently fails to meet such conditions, a health authority will be able to vary them, impose new ones or remove the person from the list.
The amendments are all aimed at delivering a consistent approach to the administration of the three lists. Our aim is that, so far as the different contractual positions allow, the lists should operate in a consistent manner.
Amendment No. 167 corrects an oversight in the provisions for appeals connected with conditional inclusion in the main health authority list. It introduces at new Section 43ZA(4) a right of appeal against the decision of the health authority following a review of the conditions imposed upon a practitioner.
Amendment No. 168 makes explicit on the face of the Bill that a decision to remove a practitioner for breaching a condition imposed on his inclusion in the health authority list cannot be implemented until, the

1545
practitioner having appealed against that decision, the FHSAA reaches a determination in respect of that appeal.
Amendment No. 169 deals with the sharing of information about conditional inclusion decisions. It is vital to the operation of those new list systems, and to the associated health authority powers to admit, conditionally admit, remove, contingently remove or suspend, that information on such decisions is shared. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 168 and 169:
Page 25, line 2, at end insert ", and must so provide in relation to a decision referred to in subsection (4)(d)".
Page 25, line 2, at end insert—
"( ) Regulations under this section may provide for the disclosure by a Health Authority, to prescribed persons or persons of prescribed descriptions, of information of a prescribed description about persons whose inclusion in the lists referred to in subsection (3) is subject to conditions imposed under this section, and about the removal of such persons from such lists for breach of condition."
On Question, amendments agreed to.
Clause 28, as amended, agreed to.
Clause 29 [Dental corporations]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No.170:
Page 25, line 12, after "practitioner" insert "who".
The noble Lord said: This is a technical amendment. It simply corrects a typographical error. I beg to move.
On Question, amendment agreed to.
Clause 29, as amended, agreed to.
Clause 30 [Declaration of financial interests, gifts, etc.]:
The Deputy Chairman of Committees: I point out to the Committee that, if Amendment No. 171 is agreed to, I cannot call Amendment No. 172.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 171:
Page 25, line 43, leave out from "about" to end of line and insert—

"(a) financial interests;

(b) gifts above a prescribed value; and

(c) other benefits received."

The noble Lord said: It may be helpful if I speak to Amendment No. 171 and allow the noble Lord, Lord Astor of Hever, to speak to opposition Amendment No. 172. After that, I could respond to that amendment.
I begin with a few general remarks. This group of amendments concerns Clause 30. The provisions in that clause seek to apply more consistent rules across the NHS on the declaration of financial matters and in doing so will create a system in which financial benefits or potential financial benefits that are available to a practitioner are handled in an open and honest way. We are attempting to apply consistent standards of
1546
conduct right across the NHS. Such standards should apply to a hospital doctor as much to a general practitioner and to a pharmacist as much to a dentist.
The guidance that we published recently, entitled Commercial Sponsorship—Ethical Standards for the NHS, requires, among other things, that gifts and other forms of sponsorship that are valued at more than £25 should be declared. Under that provision, for example, it is clear that gifts from pharmaceutical companies must be declared. I understand that we have the support of the BMA in that regard. It said:
"the vast majority of GPs would be more than willing to comply with the code of conduct".
The guidance complements the existing guidance that is issued to the NHS, which is entitled, Standards of Business for NHS Staff. That document addressed in particular what can be the difficult issue of receiving gifts from patients and it makes it clear that NHS staff should decline gifts from patients unless those gifts are of low intrinsic value.
Our intention is to bring the contractor professions into the same general regime as that which applies to the rest of NHS. They will be required to declare sponsorship, such as gifts from pharmaceutical companies, and they will be required to declare ownership of a pharmacy or a nursing home. Given that fundamental drive towards a consistent but fair scheme, it is clearly inconsistent when we have a situation where a doctor in a hospital has to refuse gifts from patients or where a GP has to declare a gift from a drug representative, but if we do not address the question of GPs receiving gifts from their patients, there would be no requirement for them to declare a gift from a patient.
We recognise the powerful and special doctor-patient relationship that exists in primary care. It is a force for good but there can be misunderstandings and difficulties. There should be no problem about patients providing tokens of gratitude to a GP but we need transparent procedures to prevent that from being abused. For that reason, we concluded that it would not be appropriate to ignore, within those new procedures, the declaration of gifts from patients to general practitioners and therefore for completeness we have included such a provision in the clause.
My dilemma in speaking to Amendment No. 171 is that it is in a sense a response to opposition Amendment No. 172. Perhaps it would be best if the noble Lord, Lord Astor of Hever, spoke to Amendment No. 172 and, if it would be helpful, I could respond to his comments. I beg to move.
Lord Astor of Hever: I am grateful to the Minister for explaining the amendment. To speed things along, I shall ask him three quick questions. I also want to make it clear that we agree with his comments on transparency, as long as that system is not too bureaucratic—that is very important. What are the Government's intentions in relation to the recording procedure and the level of gift that has to be declared? Is it £125? What are their intentions in relation to the level of bequests that have to be declared? Does the

1547
Minister intend that the identity of the donor should be revealed to the health authority? If so, what steps does the Minister intend should be taken in order to seek the consent of patients before disclosure takes place? Some patients may not wish such information to be conveyed to third parties.
Lord Hunt of Kings Heath: I accept the spirit of the noble Lord's amendment. Our legal advice is that the amendment is ambiguous about whether the financial interests mentioned in Clause 30 are also, as well as being gifts, to be subject to the phrase,
"above a specified value".
In order to give effect to the noble Lord's amendment, we have tabled four amendments—Amendments Nos. 171, 177, 179 and 180—to achieve what he intended and to extend the provision to the other three practitioner professions.
Opposition Amendment No. 176 repeats the question that was raised by the noble Lord about the figure that will be agreed. The suggestion is that it should be £140, in order to be consistent with the ministerial code. We are not going to go down that route because we believe that it is better for doctors to be treated in a manner that is consistent with that which applies to other NHS employees.
The guidance to which I referred in relation to commercial sponsorship provides that all gifts over £25 must be declared and that below that level, if gifts from a similar source aggregate to a value of more than £100 in a year, they should be declared. We are also looking at existing NHS guidance in relation to patient gifts. It is well known that in that context the figure of £25 has been mentioned in discussions with the BMA in recent months. However, the figure has not been finalised so I cannot give a definitive response to the noble Lord.
I understand the noble Lord's point on reporting and bureaucracy. We want the system to be as unbureaucratic as possible. It is not my understanding that that information would be published in the public domain, but a report would be submitted to the health authority. A balance is needed in that context. I understand that no one wants to inhibit the giving of small gifts as a token of appreciation. Equally, we have to ensure that the proper procedures are in place and that they are consistent.
I understand that the question of bequests has been raised. The Bill's provisions are currently wide enough to allow the regulations to deal with that issue. We assume that the level of bequests should be the same as that for gifts.
On Question, amendment agreed to.
[Amendments Nos. 172 and 173 not moved.]
Earl Howe Earl Howe moved Amendment No. 174:
Page 26, line 3, at end insert "or personal medical services"
The noble Earl said: This is a small, probing amendment. Proposed new subsection (5B) requires the Secretary of State to consult the profession before
1548
finalising the regulations, but it omits to mention personal medical services doctors. I do not understand that, given that the purpose of the clause is to require all doctors working in general practice to declare financial interests and gifts. My amendment merely seeks to probe that point. I beg to move.
4 p.m.
Lord Hunt of Kings Heath: The part of the 1977 Act to which the amendment relates deals specifically and only with the declaration of financial interests and gifts by general medical services practitioners. That is why clause 30 provides for General Practice Committee consultation rights with respect to declarations about financial interests and gifts. We have every intention of mirroring for personal medical services and personal dental services the regulations on financial interests and gifts, as they apply to general medical services.
A PMS implementation group has recently been established, which represents all the professions involved in PMS. The GPC has membership of this group.
Earl Howe: I am most grateful to the noble Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 175 and 176 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 177:
Page 26. line 7, leave out from "about" to end of line and insert—

"(a) financial interests;

(b) gifts above a prescribed value; and

(c) other benefits received.

On Question, amendment agreed to.
[Amendment No. 178 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 179 and 180:
Page 26, line 15, leave out from "about" to end of line and insert—

"(a) financial interests;

(b) gifts above a prescribed value; and

(c) other benefits received."

Page 26, line 22, leave out from "about" to ", and" in line 23 and insert—

"(i) financial interests;

(ii) gifts above a prescribed value; and

(iii) other benefits received.""

On Question, amendments agreed to.
Clause 30, as amended, agreed to.
Clause 31 [Supplementary lists]:
Earl Howe Earl Howe moved Amendment No. 181:
Page 26, line 35, after "services," insert "personal medical services,"
The noble Earl said: Clause 31 seeks to make regulations for the publication of lists of professionals who can assist in the provision of various aspects of community health services. Subsection (1) lists the services concerned. This point is related to the point I made about gifts.
My amendment would clarify that "personal medical services" are either general medical services or personal medical services, as the medical skills and experience of the practitioners is the same. Patients should be assured of exactly the same protection, whatever administrative arrangement their doctor has signed up to. I beg to move.
Lord Hunt of Kings Heath: I am grateful to the noble Earl, Lord Howe. His amendment is well-intentioned, but unnecessary. We have made it clear that supplementary lists are needed to ensure that all practitioners in the family health service professions are included on lists, so that they can be properly regulated. This is important because existing health authority lists apply only to those principal practitioners approved to provide and perform their respective services—general medical services, in other words. Practitioners who assist these GP principals are therefore included in the supplementary list.
The approach in personal medical services is different. All doctors who work in PMS are regarded as PMS performers, so, consequently, one list is sufficient for all practitioners who work in and perform PMS.
In the context of other health care professionals, such as nurses, who assist in the provision of PMS, we believe that 'there are adequate mechanisms in place to regulate the performance of such persons, in addition to their own regulatory arrangements. The Secretary of State has to approve a PMS scheme and significant variations to the PMS contract. In addition, the commissioner, whether dealing with a health authority or a primary care trust, has a role in overseeing performance in the overall contract negotiation and performance management of a PMS scheme.
In the last resort, the Secretary of State has the right to terminate a PMS scheme. We intend to put in place similar approval and contractual arrangements and provisions for permanent schemes.
Earl Howe: I thank the Minister for his answer and beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe Earl Howe moved Amendment No. 182:
Page 27. line 31, at end insert—
"( ) Where a person employs a relevant practitioner who is included in the relevant supplementary list, that person may be confident of the suitability of the practitioner without making further enquiry.
( ) Exclusion from one Health Authority supplementary list does not automatically imply exclusion from all Health Authorities' supplementary lists.
( ) Under exceptional circumstances a practitioner may be allowed to practise whilst his application is being processed."
The noble Earl said: I shall speak to Amendment No. 182 as briefly as I can. This part of proposed new Clause 43D sets out provisions that may be included in the regulations on supplementary lists.
I shall speak to each subsection of my amendment in turn. The first is best illustrated by way of an example. Let us suppose that a GP needs to employ a locum so that he can attend court or have a holiday. At present, locums may be recommended by colleagues or perhaps found through a locum agency. It is then the practitioner's responsibility to satisfy himself that the locum is suitably registered, qualified, indemnified and experienced. If the locum is subject to a complaint while he is employed by the GP, the practitioner will he liable if the locum is found to be unsuitable.
The purpose of a supplementary list system is to ensure that practitioners assisting in general medical services are assessed as suitable to provide patient care. The responsibility of assessing and maintaining that suitability is transferred from the practitioner to the health authority. The amendment would clarify that the person employing a practitioner who is included in the supplementary list can be confident of the employee's suitability without making further inquiries. If the locum proves to be unsuitable, responsibility for mistakes would rest with the health authority.
The second paragraph of my amendment refers to supplementary lists, which are to be held and published by health authorities. Each health authority will rightly have local discretion when deciding who to include, or exclude from the list. They will doubtless share their information about applicants—indeed, that would seem to be one of the main purposes of such lists. It is easy to imagine that exclusion from one health authority's supplementary list would lead to national exclusion. The amendment would provide health authorities with discretion, in perhaps rare circumstances, to consider an applicant who may not be suitable elsewhere.
I turn now to the third part of my amendment. The supplementary list system will protect patients from unsuitable practitioners. Nevertheless, one can imagine exceptional circumstances when it may deny patients adequate care because there is no one available on the list. In some parts of the country, it is difficult to recruit healthcare staff. There are simply not enough people with the right qualifications available. The checks required to assess a practitioner's suitability must be rigorous, and they therefore take time to complete. During a major flu epidemic, for example, more practitioners may be needed to cover sickness and to cope with the extra workload. Why prevent perfectly capable practitioners from working in a time of need, simply because they are not on the relevant list? I beg to move.
Lord Hunt of Kings Heath: I am grateful to the noble Earl, Lord Howe. He has raised some practical issues, which it is important to clarify. It is accepted practice that when engaging a deputy or an assistant, the principal practitioner is responsible for ensuring that the person engaged is suitably experienced and

1551
qualified to undertake the tasks for which he is engaged. In applying to join a health authority supplementary list, a person's suitability and qualifications will be tested against a number of criteria. As the Committee would expect, those are factual issues such as the person's registration with the appropriate professional body, a criminal record check and a check on necessary qualifications. But I must stress that it is not a check on clinical performance or whether the person will be a good addition to the practice team. In the end, it will be for the principal practitioner to test those matters.
Not only is the test limited to factual issues, they are issues which are tested once on application. As a person moves between geographical locations, he may remain on the list for a number of years. So reliance on tests carried out on admission, even if they were widened to take account of clinical performance, might become unreliable.
I believe that the supplementary lists will ease some of the burdens of employment but they cannot take away all the responsibilities which rest with a practitioner engaging in the system.
We very much share the noble Earl's aim in relation to the second proposed subsection but we believe that the amendment is unnecessary. A decision by any health authority applies only to lists maintained by that health authority, whether it be a principal, supplementary or services list. Such a decision does not prevent an application to another health authority. We should expect the second health authority to consider the circumstances of the original removal in reaching its decision. But the second authority would be free to reach its own decision. So a national disqualification—that is, one which applies to all health authorities—can be applied only by the FHSAA. I believe that that meets the noble Earl's concern.
The third proposed subsection is very much a practical issue. I am sure that the noble Earl is right to say that many of those registered on a supplementary list will move from position to position across health authority boundaries—the point the noble Earl made. It would not be in anyone's interest to be unable to take up a position for which he was otherwise suitable because of some bureaucratic delay in the NHS or elsewhere. We recognise that and want to make the process as straightforward as possible. To work as an assistant in one GMS, a doctor will have to register on only one health authority list. That will qualify him to work across health authority boundaries in England. We believe that that better addresses the needs of a person who needs to move quickly to fill a position. However, it ensures that we continue to protect the public by ensuring that a person is properly registered on the supplementary list before he begins to treat patients.
We recognise also that some of the health authority checks before admitting a person to the list rely on third parties. For example, if a person declares an overseas regulatory body to the health authority but through no fault of that individual, the health
1552
authority has difficulty in obtaining confirmation, we shall seek to provide provisions which allow the person to be placed on the list while the confirmation is being actively sought. The individual would, however, still need to be on a supplementary list to provide family health services and we intend that the regulations will provide for that.
4.15 p.m.
Earl Howe: I am grateful to the Minister for that helpful reply, particularly as regards the second and third parts of my amendment. His answer on the first part took me rather by surprise. What he said was extremely interesting and certainly expanded my understanding of what is intended here. I shall read very carefully what he said and perhaps return to this matter at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 183:
Page 27, line 40, at end insert—
"( ) The imposition of such conditions must be with a view to—

(a) preventing any prejudice to the efficiency of the services to which the supplementary list relates; or

(b) preventing any acts or omissions of the type described in section 49F(3)(a) below."

The noble Lord said: This is another set of amendments which concerns consistency in the administration by health authorities of their main, supplementary and service lists. It should mean that health authorities will have a robust system in relation to conditional inclusion to protect the interests of patients and of the NHS.
It is important that each health authority administers each of its lists in a similar way to ensure that there are no loopholes. In that way, patients will be assured that their interests are being safeguarded. Clause 28 provides for conditional inclusion in the main lists. This clause also contains express provisions at subsection 43ZA(2) limiting the circumstances in which those provisions can be used to considerations, as I said in an earlier debate, which involve fraud or matters which are prejudicial to the efficiency of the service.
Amendment Nos. 183, 203 and 209 make the same express provision in relation to the supplementary and service lists. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 184:
Page 27, line 43, at end insert—
"( ) If the regulations provide under subsection (3)(e) or (4) that a Health Authority may suspend or remove a person from a supplementary list, they must include provision—

(a) requiring him to be given notice of any allegation against him;

(b) giving him the opportunity of putting his case at a hearing before the Health Authority make any decision as to his suspension or removal: and

1553

(c) requiring him to be given notice of the Health Authority's decision and the reasons for it and of any right of appeal under subsection (6) or (7)."

On Question, amendment agreed to.
Earl Howe Earl Howe moved Amendment No. 185:
Page 28, line 28, at end insert—
"(10) Before making regulations under this section, the Secretary of State must consult such bodies as he may recognise as representing persons who, in his opinion, are likely to be included in supplementary lists.""
The noble Earl said: Clause 31 seeks to make regulations for the publication of lists of professionals who can assist in the provision of community health services.
While the clause details the regulations for supplementary lists, it makes no specific mention of which professionals are to be included. Perhaps I may raise one specific example which is that of practice nurses. It is now universally accepted that we do not have enough GPs in the country to satisfy the demands of the NHS Plan, a deficit made more apparent by the publication of the national service framework for coronary heart disease.
A sensible solution would be for doctors to delegate responsibility for chronic disease management to practice nurses through a protocol. To my mind, that is a perfect example of,
"assisting in the provision of general medical services".
Unfortunately, there is no accepted definition of a practice nurse nor is there a recognised qualification, although that has never prevented a large number of excellent nurses from working efficiently in general practice. The post of nurse practitioner is often quoted but there, too, there is no definition.
In this particular example, if the Secretary of State consulted the Royal College of Nursing, then he could save the health authorities considerable time and, dare I say, raise still further his stature in community services by helping to clarify exactly what is meant by practice nursing and who should be qualified to undertake it. I beg to move.
Lord Hunt of Kings Heath: I am happy to pay tribute to the role of practice nurses. It has been very pleasing to see how their professionalism has developed. Perhaps the noble Earl will clarify for me that his amendment deals with whether nurses can be placed on these lists.
Earl Howe: That was by way of an example. The purpose of the amendment is to require the Secretary of State to consult the relevant professional representative body, the problem being that the clause makes no specific mention of which professionals will be included. I was really probing the Government as to whether, for example, practice nurses might be included in the regulations.
Lord Hunt of Kings Heath: I am grateful to the noble Earl. The position is that practice nurses do come within the ambit of this clause but at the moment, we have no proposals to list nurses or nurse practitioners.
1554
As regards the specific issue of consultation, the noble Earl will know that I am very reluctant to be drawn to lists or to be too specific. But I assure the noble Earl that we should be committed to very detailed consultation with the appropriate bodies. I have made that clear throughout the passage of the Bill.
Earl Howe: I am grateful for that explanation and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31, as amended, agreed to.
Clause 32 [Suspension and disqualification of practitioners]:
Earl Howe Earl Howe moved Amendment No. 186:
Page 28, line 45, at end insert—
"( ) a supplementary list, or
( ) a services list,"
The noble Earl said: The clause seeking to establish supplementary lists and the clause seeking to establish services lists make specific mention of disqualification but states that those grounds may not be necessarily those stated under the clause. I do not understand why not. If new regulations for suspension and disqualification of practitioners are required, surely patients deserve the protection of all practitioners being treated equally. The practitioners, too, deserve that clarity. The amendment adds to the list those practitioners named on lists created under the Bill. In doing so, it seeks to ensure that all practitioners working in the community are subject to the same disqualification conditions. I beg to move.
Lord Hunt of Kings Heath: I hope that I can reassure the noble Earl. The problem arises because we are seeking to amend the 1977 Act and on occasion the different lists appear to be treated in a different way. The words in parenthesis "but need not" are only included in the subsection in a technical capacity to amplify the word "may" which precedes them. The words are necessary to emphasise the fact that it may not be possible to duplicate exactly for supplementary and services lists every aspect of the removal and suspension regime that applies to main contractors under Clause 32. That is due to the fact that there are different contractual arrangements inherent in the various lists and that certain parts are not applicable. For example, Section 49H will not apply to persons on the supplementary list who will all be individuals.
As the Bill already makes provision for the removal and suspension regime in Clause 32 to apply to doctors on supplementary and services lists, I hope that the noble Earl will feel that the position is covered.
Earl Howe: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe Earl Howe moved Amendment No. 187:
Page 29, line 19, at end insert—
"( ) In sections 29B, 36, 39, 42 and 43 the expression "grounds of unsuitability" means, in relation to each such person, grounds as would enable the Health Authority, or on appeal the FHSAA,

1555
to be satisfied that it is necessary for the protection of members of the public, is otherwise in the public interest, or is in the interest of such person, that such person is unsuitable for inclusion in the respective list, and elsewhere in this Act the word "unsuitability" shall be construed accordingly."
The noble Earl said: During the Commons Committee stage on 25th January, the Minister, Mr Denham, undertook to introduce an amendment on Report setting out the circumstances in which a health authority may suspend a practitioner. An amendment to Clause 33 was introduced. However, I thought that it was the aim of the Government to define the term "unsuitability" on the face of the Bill. They do not appear to have done so.
The wording of the amendment reflects that in new Section 41A of the Medical Act 1983, which governs the work of the GMC's Interim Orders Committee: for the protection of members of the public, in the public interest or in the interest of the GP deemed to be unsuitable. Such a definition of "unsuitability" would help to ensure that health authorities do not remove or suspend a GP or refuse to include a GP on the medial list for spurious reasons. I would be grateful if the Minister would clarify the Government's position and explain why they are not willing to be as specific with the definition as I had understood they intended to be. I beg to move.
Lord Hunt of Kings Heath: The Government's view remains as it was in the other place; that is, that "unsuitability" is properly capable of a wide interpretation and should be left so. We believe that there are precedents in other legislation—for example, in employment rights—and that any definition set out on the face of the legislation might constrain the consideration of health authorities inappropriately. The approach that we favour, and which we shall seek to adopt, is to set out in regulations the criteria which health authorities must consider, without preventing them from applying other criteria where the particular case warrants it.
I know that the BMA's GPC has been pressing for a definition of "unsuitability" on the face of the Bill. I am not unsympathetic to the thrust behind that. However, we believe that this is the wrong approach. Amendment No. 187 draws on wording from the order last year—the Medical Act 1983 (Amendment) Order 2000—which established the GMC's Interim Orders Committee with the power to make interim suspension orders and the circumstances in which a medical practitioner may be suspended and not disqualified. The definition which the amendment borrows defines the circumstances in which the GMC committee may suspend a doctor, not disqualify.
The substantive point I want to make is to distinguish carefully between the grounds for removal and those for suspension. Grounds for removal need to be broad enough to capture all the potential risks to patients or the NHS that might arise. The grounds for suspension need to be drawn more narrowly to protect the practitioner from inappropriate action by the health authority—at suspension, no case against him
1556
or her has been proven—but to allow the health authority to act quickly where it considers that there is a serious and immediate risk to patients or to the NHS.
In the context of suspension, the drafting of Amendment No. 187 is helpful in assisting to define the circumstances in which suspension may be appropriate. The drafting captures both the notion of risk to the patient and the wider risk to the NHS or the public good. The noble Earl is right to say that in Committee in the other place we promised to bring forward on Report an amendment based on the wording of a similar opposition amendment. That would set out the circumstances in which a health authority may suspend a practitioner. We made that amendment on Report. It appears at lines 32 to 35 of page 28, or as new Section 49F(1) of the 1977 Act as inserted by Clause 32.
I hope that I have answered the points raised. I believe that, in general, "unsuitability" is capable of a wide interpretation. But that relates to a system in which there are appeals to the FHSAA. I believe that there are sufficient safeguards alongside the advice and guidance we shall give in relation to the criteria to be issued to health authorities.
Earl Howe: I am not entirely satisfied with that answer. It seems to me that there are two degrees of unsuitability. There is unsuitability because somebody is dangerous, either to himself or to patients, and unsuitability because the person is not up to the standard that the health authority might like. I believe that the issues need to be addressed separately, whether in the context of suspension or disqualification. My amendment would cover the situation on page 29, line 17 of the Bill, for example, which as I read it is not covered in the amendment tabled in another place on Report.
I do not want to detain the Committee on a matter of this kind. I shall read carefully what the Minister said and reserve the right to come back to this at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 188:
Page 31, line 35. leave out from beginning to end of line 40 and insert—
"(9) The Secretary of State may make regulations providing for payments to practitioners who are suspended.
(10) Those regulations may include provision for the amount of the payments. or the method of calculating the amount, to be determined by the Secretary of State or by another person appointed for the purpose by the Secretary of State."
The noble Lord said: Amendment No. 188 deals with payments to suspended practitioners under Clause 32, to mirror the wording in similar provisions in Clauses 31 and 32 relating to supplementary and services lists. Amendments Nos. 189, 190, 196, 197 and 200 are minor, technical and of a clarificatory nature. They are necessary to ensure that the provisions for suspension and removal are consistent and coherent.
Amendment No. 189 clarifies that suspension of a practitioner has effect until its revocation by the health authority or the FHSAA. Amendment No. 190 extends the health authority decisions which may not be subject to review to include continued suspension pending an appeal against removal. Amendment No. 196 is a minor technical amendment necessary to substitute the reference to "practitioners" in Section 49R with "persons". Use of the term "persons" ensures that non-practitioners, such as corporate bodies, are also covered by the provisions in these sections.
Amendment No. 197 clarifies that national disqualification by the FHSAA prevents any health authority including that person in any of the lists from which he or she has been disqualified. Amendment No. 200 extends the circumstances in which practitioners may not withdraw from a list to persons awaiting removal after breaking conditions of their contingent removal. That closes a loophole.
Amendments Nos. 198 and 199 are more substantive. They both concern the time limit before a practitioner can request a review of the FHSAA's decision nationally to disqualify him or her from health authority lists. Clause 32 currently provides that, except in prescribed circumstances, a person may not request a review of FHSAA's national disqualification decision before the end of certain time limits. That is two years from the date on which the national disqualification was imposed or one year from the date of the last decision.
These amendments ensure that, in prescribed circumstances, the right to request a review will be either less than two years or one year—for example, where a relevant decision of a court or a regulatory body is changed or is overturned—or greater than those periods.
Amendments Nos. 198 and 199 provide for the right to request a review to arise either earlier or later than the periods specified in the Bill. That provision is along the same lines as that operated by the General Medical Council. In summary, doctors removed by the GMC may not apply for reinstatement for five years from the date of disqualification or for 12 months from the date of the last application.
The Bill adopts the principle of the GMC approach but specifies different time limits to recognise the different circumstances of GMC and FHSAA cases. The FHSAA, like health authorities, may remove a practitioner on grounds of fraud or inefficiency as well as their unsuitability. In some such cases a five-year prohibition on application for review may be excessive and the Bill recognises that.
Amendments Nos. 198 and 199 will permit a review of a national disqualification imposed by the FHSAA to be requested after either a longer or shorter period than that specified in the Bill in prescribed circumstances.
In essence, the amendments provide flexibility to ensure that practitioners who are considered suitable to work in the NHS are given the opportunity to do so
1558
as soon as possible, at the same time as providing better safeguards for the public in the most serious cases. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments 189 and 190:
Page 32, line 6, leave out "or" and insert "under subsection (5) or (6) or, if later,"
Page 32, line 26, after "FHSAA" insert ", or a suspension imposed under section 49J above"
On Question, amendments agreed to.
4.30 p.m.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 191:
Page 33, line 5, after "49G(3)" insert "or under subsection (5)(b) of this section"
The noble Lord said: In moving this amendment I shall speak also to Amendments Nos. 192 and 193. A practitioner has a right of appeal to the FHSAA against a health authority decision to remove or contingently move them from a health authority list. In determining such an appeal the authority may uphold the health authority decision, impose different conditions or overturn the decision.
These amendments deal with minor and technical amendments to the appeals procedure under the suspension and removal regime. Section 49M of the 1977 Act in Clause 32 of the Bill provides that the FHSAA may decide to remove a person contingently following an appeal against a health authority decision. The clause does not currently provide for the removal of that person if they fail to comply with the contingent removal conditions imposed by the FHSAA.
Amendments Nos. 192 and 193 therefore provide for a health authority to remove that person from a list if they breach the conditions of their contingent removal. Amendment No. 191 provides an appeal to the authority against that health authority action. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 192 and 193:
Page 33, line 17, after "contingently," insert—
"(a)"
Page 33, line 20, at end insert "and
(b) the Health Authority may remove him from their list if they determine that he has failed to comply with a condition."
On Question, amendments agreed to.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 194:
Page 33, line 36, leave out from "lists" to "prepared" in line 37.
The noble Lord said: Clause 32 includes provision for the FHSAA to remove a practitioner from all health authority lists. That is known as national

1559
disqualification. That could be principal lists, supplementary lists, services lists or any combination of the three. That will include any practitioner—and in the case of dental lists, corporate bodies—with whom the health authority has arranged to provide general or personal medical or dental services or general ophthalmic or pharmaceutical services in their area.
Amendments Nos. 194 and 195 deal with minor technical amendments which are necessary to remove references to individual practitioners within health authority lists. Clause 29 enables health authorities to make arrangements with dental corporate bodies to provide general dental services as well, with individual dental practitioners. In doing so a dental corporate body may be included in a health authority list. But it is inaccurate to refer to lists of individuals. Amendments Nos. 201 and 202 substitute the reference to "practitioners" in Section 49(3) of the Act with "persons". The use of that term ensures that non-practitioners such as corporate bodies are also covered by the provisions in the section. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 195 to 202:
Page 33, line 39, leave out "of individuals of the practitioner's description"
Page 34, line 11, after "(1)" insert "(a) to (c)"
Page 34, line 18, leave out "referred to in subsection (1)" and insert "from which he has been disqualified from inclusion"
Page 34, line 24, leave out "Except in prescribed circumstances" and insert "Subject to subsection (9)"
Page 34, line 29, at end insert—
"(9) The Secretary of State may provide in regulations for subsection (8) to have effect in prescribed circumstances as if the reference there to "two years" or "one year" were a reference to a different period specified in the regulations."
Page 34, line 42, after "49F" insert "or 49G,"
Page 35, line 20, leave out "corresponding to a practitioner"
Page 35, line 21, leave out "practitioner" and insert "person"
On Question, amendments agreed to.
Clause 32, as amended, agreed to.
Clause 33 [PMS and PDS lists]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 203 and 204:
Page 36, line 49, at end insert—
"( ) The imposition of such conditions must be with a view to—

(a) preventing any prejudice to the efficiency of the services to which the services list relates; or

(b) preventing any acts or omissions of the type described in section 49F(3)(a) below."

Page 37, line 11, at end insert—
"( ) If the regulations provide under subsection (3)(e) or (4) that a Health Authority may suspend or remove a person from a services list, they must include provision—

(a) requiring him to be given notice of any allegation against him;

(b) giving him the opportunity of putting his case at a hearing before the Health Authority make any decision as to his suspension or removal; and

1560

(c) requiring him to be given notice of the Health Authority's decision and the reasons for it and of any right of appeal under subsection (7) or (8)."

On Question, amendments agreed to.
[Amendment No. 205 not moved.]
Earl Howe Earl Howe moved Amendment No. 206:
Page 37, line 23, at end insert—
"( ) In this section "perform" includes "provide"."
The noble Earl said: Clause 33 refers to health authorities preparing lists of medical practitioners who perform personal medical services (PMS). However, my suggestion to the Committee is that the term "perform" is too narrow. That is a point raised by the BMA, which believes that there is a genuine distinction between providing personal medical services and performing them. The amendment ensures that both providers and performers are covered in this section of the Act. The National Health Service (Primary Care) Act 1997 makes that distinction. The use of the word "provide" is consistent throughout Part I of the Act where reference is made to a person with whom a pilot scheme agreement may be made.
The distinction between a provider and a performer can be seen clearly in Section 11(1). Under the 1997 Act a provider is defined as a PMS contract holder and a performer is a medical practitioner who performs PMS work and who may or may not be the contract holder. I hope that the Minister will accept the amendment or at the very least agree to reflect carefully on it. I beg to move.
Lord Hunt of Kings Heath: I have given consideration to what I agree is a well-intentioned amendment to extend the services list to include also providers of PMS and PDS as well as performers. The provisions of the current clause prevent that because subsection (1) of Section 28DA limits the persons to be included in the services list to medical and dental practitioners. Providers of PMS and PDS might be included by being on a medical or a supplementary list. However, it is inappropriate for providers, which include organisations such as NHS trusts and primary care trusts, to be included in such lists. For that reason I consider the amendment unnecessary.
There are adequate mechanisms in place to regulate the performance of the providers. I believe that I went through them previously. The Secretary of State has to approve a pilot scheme and significant variations of the PMS contract. Similarly, the Secretary of State has the ability to vary a term of a contract and the commissioner has a role in the overall contract negotiations and performance management functions. In the final resort the Secretary of State has the right to terminate a pilot scheme.
Earl Howe: I am grateful for that answer. It is a fairly technical point and I would not want to press it. No doubt the BMA will find the Minister's comments helpful. I shall take its advice and, if necessary, return to the matter at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rea Lord Rea moved Amendment No. 207:
Page 37, line 23, at end insert—
"( ) After section 6(1) of the National Health Service (Primary Care) Act 1997 (making of pilot schemes) there shall be inserted—
"(1A) The Secretary of State shall, in making directions applicable throughout England regarding the implementation of proposals for plot schemes, consult such organisations as he may recognise as representing persons with whom arrangements for the provision of personal medical or dental services may be made.""
The noble Lord said: Amendment No. 207 concerns the terms and conditions of service of doctors providing personal medical services, rather than those contracted to provide general medical services. Clause 33 concerns those doctors who provide PMS— personal medical services. Practitioners providing PMS are classified under a different category from GPs who provide general medical services, although they do the same work: some individuals may work part-time in both categories.
The British Medical Association therefore feels that matters relating to conditions of employment with the health service—remuneration and so on—should be negotiated with the same body as GMS practitioners. That is the General Practitioners Committee of the British Medical Association. By an agreed terminology, the Secretary of State should consult,
"such organisations as he may recognise as representing persons with whom arrangements for the provision of personal medical or dental services may be made".
That means the BMA's General Practitioners Committee. It is a formula that is understood between the BMA and the Government.
The negotiations to achieve this uniform status for both categories of doctors providing general practitioner services are in progress between the department and the British Medical Association. So far these negotiations have been inconclusive.
Perhaps my noble friend can outline the reasons why the BMA General Practitioners Committee cannot negotiate a settlement with Ministers so that its members who have chosen the PMS option have their conditions negotiated by the same body as other GPs. Even if my noble friend cannot accept the amendment, his words will be extremely helpful in taking the negotiations forward. I beg to move.
Lord Clement-Jones: I rise to break my vow of silence and to support the amendment of the noble Lord, Lord Rea. The Minister in the Commons Committee stage said that the reason there could not be the same kind of consultation with the GPC over PMS was that, because of the voluntary nature of the contract,
"it would not be right for us to agree a framework in which the general practitioners committee nationally could determine the contract that someone could enter into at local level through his formal negotiating rights".—[Official Report, Commons, Standing Committee E, 25/1/01; col. 191.]
It has been put to me—I am sure that the noble Lord, Lord Rea, knows the position—that this is a rather misleading portrayal of the situation. The national
1562
framework of PMS contracts is set by nationally determined implementation directions and a core contractual framework. Therefore, there is a strong national context. It would be perfectly right and feasible for the General Practitioners Committee to be consulted. So the questionmarks remain despite the Commons Committee stage. I look forward to hearing what the Minister has to say on the matter
4.45 p.m.
Lord Hunt of Kings Heath: I found my right honourable friend's arguments wholly persuasive. I recognise the issue. I know that the GPC is exercised about the matter.
It is important to remember that the key element of PMS and PDS schemes are their scope and flexibility to negotiate individual local contracts tailored specifically to meet local needs. On a local level the appropriate way for that to be done is through the relevant medical or dental committees. Indeed, government amendments to the Health Act 1999 ensured that LMCs and LDCs could be recognised as representing doctors in PMS and dentists in PDS who so wished. I cite that as a movement to a local level of representation in line with many of the provisions of the Bill, which sees a devolution of power from the centre to the locality. The PMS or PDS contract is therefore individually tailored between the commissioner and the PMS or PDS provider.
Furthermore, there is the standard national contract between the Secretary of State with all GMS GPs and general dental practitioners. That is concerned with the remuneration and provision of general medical services and general dental services. It is an inherently different concept from PMS and PDS contracts. That is why the emphasis must be on local development and negotiation. The consultation process for those matters needs to be more flexible and wider. For example, key stakeholders in PMS arrangements are not exclusively general practitioners. They can include a range of primary care professionals and organisations such as primary care trusts, NHS trusts and nurses.
We have established an implementation group for personal medical services to replace the present national consultative group. That group will be the key forum for consulting and advising on arrangements for PMS. The knowledge and experience of its members will be drawn on to provide advice and better inform PMS developments. The GPC has membership of the group.
That is the most appropriate approach to consulting on the overall development of PMS. It is not through a duty on the Secretary of State to consult a single stakeholder group over a particular aspect of PMS. The BMA is an organisation with influence and the ability to make its views known. We have very well established consultation procedures with the medical and dental professions. There is no intention to weaken those arrangements in any way.

1563
It is not right to go down the route of the GPC for this particular development of LMS and PDS in relation to dentists.
Lord Clement-Jones: Perhaps I may ask the Minister a question. Many of the new developments will be taking place through PMS. Is that not really just a rather crude attempt to marginalise the GPC in the process?
Lord Hunt of Kings Heath: I cannot see any reason why we should want to marginalise the GPC. It is an important body which represents a large number of general practitioners. It is worth making the point that its core responsibility is to cover pay and terms and conditions. PMS goes much wider than that and covers the quality of service and so on. A PMS core contract, which the noble Lord mentioned, sets out the minimum requirements as to quality. I believe that our approach is the right one. There is certainly no slight intended towards the GPC.
Lord Rea: I do not think that the British Medical Association will be terribly pleased with my noble friend's answer. Although the type of contract that PMS doctors have throughout the country will differ, there is a basic level of remuneration and terms and conditions of service which cover them all. As circumstances will differ, there can be local variations. But it is very important for a national body to continue to be able to negotiate with the Government for PMS practitioners as a whole.
Lord Hunt of Kings Heath: I am sorry if I have to disappoint the BMA, which I hold in the highest respect. However, just occasionally it is one's duty to disappoint it. All I can do is to reiterate my previous remarks. We need to reflect on the fact that we are considering here a very much more flexible approach at the local level. For that reason, the arrangements for discussions at the national level need to reflect the differences encompassed within PMS. Furthermore, it should be recognised that, through this approach, the role of the local medical committee will assume more importance because it will have the capacity to discuss PMS schemes locally with the local health authority. Surely that is the right approach; namely, to push those discussions down to the local level.
Lord Rea: I do not think that we shall reach agreement on this. However, my noble friend's words will prove extremely useful when carrying this discussion further, either once the Bill has been passed or, possibly, at a later stage in our deliberations. However, in order to speed matters along, I shall withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 208 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 209 and 210:
Page 38. line 38, at end insert—
1564
"( ) The imposition of such conditions must be with a view to—

(a) preventing any prejudice to the efficiency of the services to which the services list relates; or

(b) preventing any acts or omissions of the type described in section 49F(3)(a) below of the 1977 Act."

Page 38, line 49, at end insert—
"( ) If the regulations provide under subsection (3)(e) or (4) that a Health Authority may suspend or remove a person from a services list, they must include provision—

(a) requiring him to be given notice of any allegation against him;

(b) giving him the opportunity of putting his case at a hearing before the Health Authority make any decision as to his suspension or removal; and

(c) requiring him to be given notice of the Health Authority's decision and the reasons for it and of any right of appeal under subsection (7) or (8)."

On Question, amendments agreed to.
[Amendments Nos. 211 to 213 not moved.]
Clause 33, as amended, agreed to.
Clause 34 [The Family Health Services Appeal Authority]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 214:
Page 39, line 37, leave out "facilities and persons" and insert "the services of persons employed by a Special Health Authority and"
The noble Lord said: This important clause provides contractors with an independent body to whom they can appeal against health authority decisions. We have encountered it before in earlier amendments. It reconstitutes the Family Health Service Appeals Authority, which is currently a special health authority, into an independent appeals body. The members of this reconstituted authority will be appointed by the Lord Chancellor. Membership will include people with a lay background, those with legal expertise, and members with relevant professional expertise. As well as performing its existing functions, the reconstituted authority will have adjudicative powers to hear appeals from contractors removed by health authorities. The FHSAA will come under the supervision of the Council on Tribunals.
Amendments Nos. 214, 215 and 216 deal with the provision of administrative staff and premises to the authority. Amendment No. 216 allows the Secretary of State to make the staff and facilities of a special health authority or NHS trust available to the FHSAA, even though he does not employ them. Amendments Nos. 214 and 215 make technical corrections to Section 49S(7), which imposes a duty on the Secretary of State to consult the staff affected.
In order to protect the existing staff of the authority, they will be transferred to an SHA or NHS trust and arrangements will be made for that body to make them available to the reconstituted FHSAA. Not only will this allow them to retain their Whitley terms of service and entitlement to participate in the NHS pension scheme, but also to retain their expertise in handling appeals. That will be invaluable to the newly appointed president and members.
Amendment No. 217 provides for the Lord Chancellor to be responsible for also determining the terms of their appointment. Amendment No. 218 is consequential and deletes the reference which allows the Lord Chancellor to set the terms of appointment for the members only. Amendment No. 219 is also consequential. It provides for the Lord Chancellor to determine the qualifications which members, other than the president and any deputy president, must have in order to be eligible for membership of the FHSAA.
Amendment No. 223 is a technical amendment which allows time limits on appeals to the existing FHSAA to continue to apply when the determination of those appeals is transferred to the reconstituted authority. Amendment No. 224 provides for regulations to be made providing for a minimum period to elapse before an application or further application can be made for a condition to be varied, replaced or revoked. I beg to move.
On Question, amendment agreed to.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 215 to 219:
Page 39. line 38, leave out "to facilities and persons" and insert "in relation to the services of officers of Special Health Authorities to be"
Page 39, line 39, at end insert—
"( ) For the purposes of subsection (6)—

(a) the Secretary of State may give directions to an NHS trust requiring it to make facilities or the services of persons available as mentioned there; but

(b) subsections (1) and (2) of section 27 above apply in relation to the services of such persons as they apply in relation to the services of officers to be made available by virtue of section 26 above by a Health Authority, Special Health Authority or Primary Care Trust."

Page 40, line 16, at end insert "on terms to be determined by him"
Page 40, line 19, leave out "The terms of appointment of the other members, and"
Page 40, line 20, leave out "they" and insert "the other members"
On Question, amendments agreed to.
Earl Howe Earl Howe moved Amendment No. 220:
Page 40, line 32, leave out from "services" to end of line 34 and insert—
"(aa) medical practitioner performing personal medical services under section 28C arrangements;"
The noble Earl said: As introduced in the other place, paragraph 6(a) of Schedule 9A, which deals with the constitution of the FHSAA, read that the members must include at least one,
"medical practitioner providing general medical services".
An amendment was tabled in Committee that GPs providing personal medical services should also be represented on the new appeals authority. That was accepted by the Minister. However, when tabled at the remaining stages in the Commons, the government amendment made the situation worse. I believe strongly that the two categories of GPs—namely, those providing general medical services and those
1566
providing personal medical services—should both have representation on the appeals authority. The 'way that the paragraph now reads, it will be either one or the other category. We could end up with a situation where a GP providing personal medical services is represented, while a GP providing general medical services—that is, someone who would be representing the majority of GPs—is not represented. I believe that there is an urgent need to correct this anomaly. I beg to move.
Lord Clement-Jones: I should like to speak briefly to Amendments Nos. 221 and 222 in this grouping. Paragraph 6 of Schedule 9A does not specify the precise intention so far as concerns lay representation Amendment No. 221 proposes that that representation should be equivalent to at least 50 per cent of the total membership of the FHSAA. I do not know why the Government have chosen such a terrible acronym; it is very difficult to pronounce. In our view, the right level of lay representation would be a t least 50 per cent. I shall be interested to learn the Minister's view on that.
As regards the annual report of the FHSAA, the Bill currently specifies that the body is entitled to publish only some of its cases. We, along with others, would prefer the FHSAA to publish all its case reports in an anonymous form. Amendment No. 222 is designed to achieve that.
Lord Hunt of Kings Heath: I appreciate the aims of each of the amendments in this group, certainly so far as concerns Amendment No. 220. I understand clearly what the noble Earl seeks to achieve here. However, I want to make the point that the FHSAA will not be a representative body. What we are trying to achieve is to ensure that its members and panels have the expertise and experience relevant to the profession of the person who is making the appeal. I think that it is right that we should refer to PMS and GMS general practitioners alongside each other, but I do not believe that, ultimately, it matters one jot whether medical practitioners serving on the authority or the panels are GMS or PMS doctors. The fact is that they will be doctors with good experience of medical practice.
I can assure the noble Earl that we shall want to ensure that there is a good balance of professional members of the authority, including a mix of both GMS and PMS GPs. However, we are reluctant to go down the path of specifying each and every potential variation of primary healthcare worker.
I am sympathetic to the noble Lord's intention in tabling Amendment No. 221. The problem is that each additional separate category of professional member would require a corresponding increase in lay members. I believe that if we were to accept the amendment it would cause practical difficulties for my noble and learned friend the Lord Chancellor. In practice, even counting legal lay members as lay members, we expect that a majority of the authority's members will need to be professional. That is because the members represent the pool from which panels will be drawn to hear individual cases.

1567
There are four categories of professions within the purview of the authority. Because of that, it seems inevitable that the pool of authority members from whom panels will be drawn will have to include a majority of professionals. But the point is that the authority will not be professionally dominated, because professional membership of each panel will be limited to one.
Amendment No. 222 relates to the requirements in paragraphs 12 and 13 of new Schedule 9A to publish decisions on national disqualification or removal or contingent removal from a health authority list and such other decisions as may be prescribed. I should have thought that that covered the point raised by the noble Lord. I believe that it is an appropriate way for the authority to report its decisions as part of its report on its activities over the year, which will be set out in its annual report. That is provided for in paragraph 19. Sub-paragraph (1) in particular provides for the Secretary of State to specify the topics to be covered in the report. I can confirm that we intend to require the details specified in the noble Lord's amendment to be among the matters on which the authority will report. We simply believe that it is more appropriate to leave such matters to directions rather than place them on the face of the Bill.
Lord Clement-Jones: Perhaps I may reply briefly to the Minister's helpful statement on Amendment No. 222. I thank him for a very useful response. As regards Amendment No. 221, we should hate to cause difficulties for the noble and learned Lord the Lord Chancellor—even though they are only mild difficulties.
As I understand the Minister, he is saying that although he cannot quite comply with the requirements set out in the amendment for lay representation of 50 per cent or over on the authority, the panel will have an overwhelming proportion of lay members. Am I correct?
Lord Hunt of Kings Heath: I refer the noble Lord to paragraph 10 on page 41 of the Bill, which relates to panels which hear appeals or national disqualifications. The panel will be split into three: one lawyer, one professional and one lay member.
Lord Clement-Jones: I thank the Minister. I am somewhat horrified, speaking as a lawyer, that the FHSAA will be stacked with legal members, and that the panels will also have a very high legal preponderance. I dare say that is the way of the world and one has to accept it. However, I urge the Minister to seek to provide the maximum lay representation both on the authority and on the panels.
Earl Howe: I must say that that was one of the Minister's less convincing answers, however emollient he contrived to sound in delivering it. The FHSAA may not be a completely representative body; however, I do not think that what he said accords with the undertaking given in another place. Although this
1568
is a point of detail, it is a point of principle too, because it concerns a miniterial undertaking. I should like to test the opinion of the Committee.
5.4 p.m.
On Question, Whether the said amendment (No. 220) shall be agreed to?
Their Lordships divided: Contents, 79, Not-Contents, 104

Division No. 2

CONTENTS

Anelay of St Johns, B.

McColl of Dulwich, L.

Astor of Hever, L.

Mancroft, L.

Biffen, L.

Marlesford, L.

Blaker. L.

Monro of Langholm, L.

Blatch, B.

Mowbray and Stourton, L.

Boardman, L.

Moynihan, L.

Brabazon of Tara, L.

Murton of Lindisfarne, L.

Burnham, L. [Teller]

Naseby, L.

Byford, B.

Noakes, B.

Caithness, E.

Norton of Louth, L.

Campbell of Alloway, L.

O'Cathain, B.

Colwyn, L.

Onslow, E.

Cope of Berkeley. L.

Park of Monmouth, B.

Cranborne, V.

Perry of Southwark, B.

Crickhowell, L.

Prior, L.

Cumberlege, B.

Rawlings, B.

Dixon-Smith, L.

Reay, L.

Elliott of Morpeth, L.

Rees, L.

Elton, L.

Renton, L.

Flather, B.

Roberts of Conwy, L.

Gardner of Parkes, B.

Selsdon, L.

Geddes, L.

Shaw of Northstead, L.

Glentoran, L.

Skelmersdale, L.

Hanham, B.

Strathclyde, L.

Hayhoe. L.

Swinfen, L.

Henley, L. [Teller]

Taylor of Warwick, L.

Higgins, L.

Tebbit, L.

Hodgson of Astley Abbotts, L.

Thomas of Gwydir, L.

Hooper, B.

Trefgarne, L.

Howe, E.

Trumpington, B.

Jenkin of Roding, L.

Tugendhat, L.

Kingsland, L.

Vivian, L.

Laing of Dunphail, L.

Walton of Detchant, L.

Lyell, L.

Young, B.

NOT-CONTENTS

Acton, L

Currie of Marylebone, L.

Ahmed. L.

David, B.

Alli, L.

Davies of Coity, L.

Amos, B.

Davies of Oldham, L.

Andrews, B.

Desai, L.

Archer of Sandwell, L.

Dormand of Easington, L.

Ashton of Upholland, B.

Dubs, L.

Bach, L.

Eatwell, L.

Bassam of Brighton, L.

Elder, L.

Berkeley, L.

Erroll, E.

Billingham, B.

Evans of Watford, L.

Borrie, L.

Farrington of Ribbleton, B.

Brooke of Alverthorpe, L.

Faulkner of Worcester, L.

Brookman, L.

Filkin, L.

Brooks of Tremorfa, L.

Gale, B.

Burlison, L.

Gibson of Market Rasen, B.

Carter. L. [Teller]

Gilbert, L.

Castle of Blackburn, B.

Goldsmith, L.

Christopher, L.

Grabiner, L.

Clarke of Hampstead, L.

Graham of Edmonton, L.

Clinton-Davis, L.

Grenfell, L.

Colville of Culross, V.

Hardy of Wath.L.

1574

Haskel, L.

Mishcon, L.

Healey, L.

Molloy, L.

Hilton of Eggardon, B.

Morris of Manchester, L.

Hollis of Heigham, B.

Northfield, L.

Howells of St. Davids, B.

Paul, L.

Howie of Troon, L.

Prys-Davies, L.

Hughes of Woodside, L.

Puttnam, L.

Hunt of Chesterton, L.

Ramsay of Cartvale, B.

Hunt of Kings Heath, L.

Rea, L.

Irvine of Lairg, L. (Lord Chancellor)

Richard, L.

Rix, L.

Janner of Braunstone, L.

Sawyer, L.

Jay of Paddington, B. (Lord Privy Seal)

Scotland of Asthal.B.

Shepherd, L.

Jeger, B.

Simon, V.

Jenkins of Putney, L.

Smith of Leigh, L.

Lea of Crondall, L.

Symons of Vernham Dean, B

Levy, L.

Tordoff, L.

Lipsey, L.

Turnberg, L.

Longford, E.

Turner of Camden, B.

Macdonald of Tradeston, L

Warner, L.

McIntosh of Haringey, L. [Teller].

Warwick of Undercliffe, B.

Weatherill, L.

MacKenzie of Culkein, L.

Whitaker.B.

Mackenzie of Framwellgate, L.

Whitty, L.

Mallalieu, B.

Wilkins, B

Masham of Ilton, B.

Williams of Elvel, L.

Massey of Darwen, B.

Williams of Mostyn, L.

Milner of Leeds, L.

Woolmer of Leeds, L.

On Question, amendments agreed to.

Resolved in the negative, and amendment disagreed to accordingly.
5.15 p.m.
[Amendments Nos. 221 and 222 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 223 and 224:
Page 42, line 29, after "in" insert "or by virtue of"
Page 42, line 30, at end insert—
"( ) for a period which must elapse before an application, or a further application, may be made under section 49M(5) (a)above:".
On Question, amendments agreed to.
Clause 34, as amended, agreed to.
[Amendment No. 225 not moved.]
Clause 35 [Pilot schemes]:
Earl Howe Earl Howe moved Amendment No. 226:
Page 44, line 26, leave out "(other than practitioner dispensing services)".
The noble Earl said: In moving the amendment, I speak also to Amendments Nos. 227 and 227AA, which follow it. Clause 35 deals generally with local pharmaceutical services pilot schemes. Clause 35(8) seeks to describe the terms "pharmaceutical services" and "local pharmaceutical services".
The amendment seeks to clarify that dispensing doctors' administrative arrangements for prescription dispensing may also be included in the consideration
1570
of local pharmaceutical services. Local pharmaceutical services pilots are an experiment to investigate more efficient contractual arrangements for dispensing prescriptions. There will be an opportunity to diversify beyond pure dispensing. Health authorities have a duty to make arrangements for prescriptions to be dispensed. In rural areas a retail pharmacy business tends to be unprofitable, so the duty to dispense prescriptions falls on the GP's surgery. In fact all GPs can provide personally administered items such as injectables to patients.
There are approximately 4,300 dispensing doctors in the United Kingdom, serving some 3.5 million patients from around 1,100 mainly rural practices. Dispensing doctors make profits from their dispensing in a slightly different way from pharmacies. These profits are essential in ensuring the provision of GPs in rural areas. I believe that dispensing doctors and their patients should be allowed the same choice of contractual arrangements. It would be a shame if sensible co-operation between dispensing doctors and their neighbouring pharmacies were specifically prohibited.
This amendment would allow for that co-operation in providing local pharmaceutical services. Excluding dispensing doctors from local pharmaceutical services pilots may cause unfair competition in the rural pharmacy market, with the resulting loss of much-needed medical services to the rural community. It could also result in the closure of small independent pharmacies which are so valued for the personal service that they provide. As I understand them, local pharmaceutical services pilot schemes are not intended to open up the market for existing business. If that is the unintended result, then dispensing doctors should be allowed to compete.
On Amendment No. 227AA, in Committee in another place the Government introduced an amendment to Schedule 2, which is now paragraph 5(1). This means that proposals for a pilot scheme must, quite rightly, include an assessment by the health authority of the likely effect of the pilot on existing services.
My suggested amendment—suggested to me in fact by the BMA—takes the process a little further. I believe that the pilot should not be given approval if it prejudices existing arrangements, be they in respect of an existing community pharmacy or a GP dispensing arrangement. I beg to move.
Lord Hunt of Kings Heath: These clauses are very important. They will allow us to use community pharmacists in a more effective way than we have done in the past. I have always believed that they have been an under-used profession. In order to help us to do that, we need to look closely at improving the current contractual framework for community pharmacy.
At present we have a national framework which provides insufficient incentives for good quality and service performance. We are committed to reforming that national framework, but we also want a more flexible alternative. We want to build on what I think

1571
has been a really successful programme in the personal dental service and the personal medical service. The intention of local pharmaceutical service pilots is to allow local authorities to agree innovative local contracts for pharmacy services tailored to specific local needs.
Participation in those schemes will be voluntary and discretionary. We hope that there will be very exciting proposals from pharmacies not only supplying medicines but managing them, working with local GPs to make sure patients receive the right medicines and the help they need to make the best use out of the medicines which is a big problem at the moment. There are many examples of local schemes involving pharmacists in providing enhanced services. Local pharmaceutical services will help us to develop those services.
I do not agree with the noble Earl, Lord Howe, in terms of the amendment and the effect it would have to allow dispensing doctors' services to fall within the scope of local pharmaceutical service pilot schemes. The development of LPS does not in any way signal a change in our approach to dispensing by doctors. As a general rule, it is best for patients to have access to the skill and expertise of both GPs and pharmacists. It has long been recognised that in some rural areas community pharmacists are unlikely to be viable. Dispensing doctors' services provide an important service in such areas, and we know that that is highly valued by patients.
I can assure the noble Earl that the introduction of LPS and the decision to keep dispensing doctors' services separate are not an indication that the Government take a negative view towards dispensing doctors. The point is that dispensing doctors who wish to take part in an innovative local contract can already do so through personal medical services. There are already a number of dispensing practices involved in the PMS pilot. PMS is clearly based on family doctor services and LPS is largely about community pharmacy services. We think that it would create a muddle to allow dispensing doctors services to be provided through PMS and LPS.
In terms of the general relationship between community pharmacists and rural dispensing doctors, agreement has been reached between the PSNC and the General Practitioners Committee about the regulations governing rural dispensing; this was announced only last week. I believe that it will go a very long way to getting rid of some of the disturbing disputes between doctors and pharmacists about dispensing rights in rural areas. I believe that in that spirit it would be wrong to include dispensing doctors within LPS schemes but right to acknowledge that they can take part in PMS schemes.
I turn to Amendment No. 227A. Under the existing national contract health authorities are obliged to consider applications from people wishing to provide pharmaceutical services in their area. In practice, providing those applications satisfy certain tests health authorities have no choice but to grant them. Essentially, this current system is reactive. Local
1572
pharmaceutical services is a two-way process. We want something much more pro-active. On the one hand, existing contractors and other prospective pilot scheme participants will come forward with ideas they want to discuss with health authorities. At the same time health authorities will be looking for opportunities of their own, stimulating places and situations where an LPS pilot scheme may be the best way to expand and improve local services.
I believe that it will be wasteful if health authorities work out possible LPS pilot schemes and at the same time have to deal with applications to open pharmacies in the same place under national arrangements. It would put unreasonable pressure on the health authority and its prospective partners. My real concern is that it could open the way for blocking applications from people who have no interest in better services. For that reason we want health authorities to be able to designate places as being ones in which LPS is temporarily to have priority. Once they have made the designation they will be able to defer applications under national arrangements. It will give health authorities and their prospective partners in the LPS pilot schemes time to develop proposals and establish schemes which offer the greater benefit to prospective participants and patients.
The effect of the amendment by the noble Earl will be to prevent health authorities deferring applications and rendering much of the clause purposeless. I believe that it would present a significant stumbling block to the development of the LPS. A pharmacist or a company keen to open a new pharmacy in an area which currently lacks a proper service would think twice about proposing an LPS pilot scheme if they knew that their discussions with the health authority would always be under threat from an application from someone else under the national arrangements. I hope that I have answered that point for the noble Earl.
Earl Howe: The Minister's reply to Amendment No. 227AA gives me pause for thought. I will consider what the Minister has said.
I am far from happy with his reply to my other two amendments. The main point I sought to make was that under the situation envisaged there could be unfair competition. I do not see that there is any reason to create a differential between those two types of practitioner—GPs on GMS and GPs who have signed up for PMS. It seems perverse that the opportunity is going to be made available to one group of GPs and not the vast majority. It will be possible in an LPS scheme to provide additional services such as diagnostic testing and investigative procedures. A GP may wish to apply to provide these services, and it is important that the patient's care is properly coordinated and integrated.
The Minister said that the opportunity to take part in pilot schemes already exists within personal medical services and it would create a muddle to include them in local pharmaceutical services as well. I do not think that is true. I believe that GPs who wish to remain in

1573
general medical service schemes should have the same opportunity. I should like to take the opinion of the Committee.
5.28 p.m.
On Question, Whether the said amendment (No. 226) shall be agreed to?
Their Lordships divided: Contents, 68; Not-Con tents, 99.
5.37 p.m.
[Amendment No. 227 not moved.]
Clause 35 agreed to.
Clause 36 [Making pilot schemes]:
[Amendment No. 227A A not moved.]
Clause 36 agreed to.
Schedule 2 agreed to.
Clause 37 [Designation of priority neighbourhoods or premises]:
[Amendment No. 227A not moved.]
Clause 37 agreed to.
Clause 38 [Reviews of pilot schemes]:
Earl Howe Earl Howe moved Amendment No. 228:
Page 45, line 21, at end insert "and
(c) any provider of pharmaceutical services locally,'"
The noble Earl said: Clause 38 sets out conditions for the review of "each pilot scheme" established for local pharmaceutical services. Such a review is necessary to ensure that the pilot scheme is achieving its objectives. The results of all reviews of pilot schemes will, presumably, be collated in a way that ensures that permanent arrangements for local pharmaceutical services will follow.
Clause 38(3) seeks to describe the persons who must be consulted when reviewing the pilot scheme. The intention behind the amendment is to give an opportunity for those persons providing pharmaceutical services locally to contribute to the review. Local pharmaceutical services pilots are an experiment to simplify contractual arrangements for dispensing medicines. However, what they should not

1575
do—indeed, are not intended to do—is to provide a mechanism for predatory chemists to take over existing business. Small, local pharmaceutical businesses are already being taken over by larger companies in a fiercely competitive market. The local chemist, or dispensing doctor, may be less able to take part in a pilot scheme, but he provides a valued local service and should be allowed to comment if he sees his business being unfairly taken away. I beg to move.
Lord Hunt of Kings Heath: The noble Earl referred to predatory chemists. The whole approach that we have taken in the pharmacy strategy is to draw a careful balance. There is no doubt that the community pharmacy environment is highly competitive and very much reflects the intensely commercial environment for retail trade generally.
It would have been possible for the Government to have opted for a wholesale deregulation and, for instance, to have removed control of entry rules completely to allow for ever more competition. However, we decided not to do that. We decided to adopt a middle way which recognises the important network of community pharmacies that we have but also, through mechanisms such as local pharmacy services, develops some incentives to help focus attention on improving quality.
No one can say that every current community pharmacist will thrive and prosper in the future. But what we can say is that those who are up to the challenge of providing higher quality services will be in the best position to ensure their future prosperity. The noble Earl said he thought that LPS might not relate to very small community pharmacies. I see no reason why that should be the case. I assure him that we shall look for imaginative proposals from community pharmacies of all sizes. I believe that that is relevant to the question of review. It is important that we have inclusive and thorough reviews. However, I am not convinced that the noble Earl's amendment is the right approach to securing such thoroughness.
The review and evaluation of a pilot scheme will involve seeking the views of people well beyond the scheme itself. That will include other local pharmacies. Having required health authorities to assess the likely effects of pilot schemes on local services before they put them forward for approval in the first place, it naturally follows that our reviewers of schemes will also be interested in what those effects have been in practice. However, I do not believe that putting on the face of primary legislation the detail of who would be involved in those reviews is the best way forward.
I also believe that there is a danger of giving an impression that these reviews concern primarily the health authority and the provider, the LPS, lobbying to keep the scheme going, with, on the other hand, the scheme's commercial competitors arguing for it to cease. Clearly we need to go beyond that to provide rounded reviews which give a much more impartial and sensible summary of the effectiveness of the scheme, its impact and how well the public interest has been served. I hope that the noble Earl will accept that
1576
I recognise the competitive environment in which community pharmacists operate, but we cannot put a ring fence round that. The environment is competitive. LPS is an important way of investing in higher quality services. However, I believe that we have adopted the right balance between leaving the control of entry regulations as they are—apart from some specific areas where we want to see flexibility—and encouraging new investment and innovation.
5.45 p.m.
Earl Howe: I did not in the least mean to suggest that there should be a protectionist flavour to this part of the Bill. The Minister is right to suggest that no one has an automatic right to be in business and it is a competitive world out there. However, he said earlier that consultation was part and parcel of the department's way of proceeding. That was the only suggestion behind the amendment. Nevertheless I take comfort from what he said about wishing to conduct rounded reviews. I am sure that what he said will be reassuring in that context. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 38 agreed to.
Clauses 39 to 47 agreed to.
Schedule 3 [LPS Schemes]:
Baroness Northover Baroness Northover moved Amendment No. 228A:
Page 82, line 6, at end insert—
"( ) The regulations shall provide for setting service standards, imposing conditions (including conditions as to qualifications, training and experience) to be satisfied by persons providing LP services, and for National Health Service redress mechanisms to be available in relation to the provision of LP services."
The noble Baroness said: In moving Amendment No. 228A, I wish to speak also to Amendment No. 229A and to the section more generally in the interests of time. We welcome much that we see here, especially the extension of prescribing rights. We hope that there will be flexibility in the way that that is implemented in terms of any lists to be used. However, we are concerned to ensure that in any new arrangements high standards will apply and that there is full professional accountability.
Where pilots are concerned, we are anxious to see the same standards apply that we see elsewhere in the National Health Service, for example as regards the rights of patients to redress should things go wrong. In addition, where online services are concerned, it is vital that information on patients is secure and that a high standard of service is offered. How is that system to be policed? I beg to move.
Lord Hunt of Kings Heath: We shall certainly expect contracts for local pharmaceutical services to include service standards. We shall also expect them to reflect specific local needs and circumstances, but also national priorities and standards.
On training, qualifications and expertise, we shall expect local contracts to make clear what is expected of the people taking part. Similarly, on what the

1577
amendment calls "redress mechanisms", we intend that local pharmaceutical services will fall within the ambit of NHS complaints mechanisms. Where I disagree with the noble Baroness is on the question of how much detail should be included on the face of the Bill. In this schedule we are dealing with the substantive arrangements for LPS, which will follow the pilot stage, if—as I am confident it will—piloting shows that the continuation of LPS is in the best interests of the National Health Service. It will be at least two years—and it could be more—before those powers are used. By then we shall have learned much more from pilot schemes. For that reason we have made the regulation-making powers in the schedule deliberately wide. I believe that that is the best approach.
Amendment No. 229A concerns the provision of pharmaceutical services by remote means. Clause 50 provides substantive new powers. In particular, subsection (4) confers an explicit reserve power to require providers' mail order or e-pharmacy services to be accredited for that purpose. Some of the other changes are rather more technical. For example, subsection (6) would allow local pharmaceutical committees to continue to represent pharmacists based in their area, even if they provide services to people in another area.
I believe that subsection (3), to which the noble Baroness's amendment relates, falls into the latter category of essentially technical changes. Its effect is to allow us to exempt from control of entry rules those who intend to supply services exclusively by remote means. I stress that they would not have to show that their service was necessary or desirable to secure adequate pharmaceutical services in the neighbourhood in question, which is part of the criteria in relation to control of entry. I stress that it does not mean that such providers will have an advantage over other pharmacies. Their business will not be dependent on the local population. People would always be able to find a location where their application would be granted. They would merely have to find somewhere where there was no local pharmacy. Because they are not primarily serving the local population, we think that it is rather odd to judge their application by reference to the needs of the population. The general thrust of control of entry rules is to limit the number of pharmacies serving any given neighbourhood. That concept is obviously not relevant to services being provided mainly by remote means.. That is why we have taken a power to exempt from the rules, if that seems appropriate.
I should add that that new power applies only to people who provide all their services by remote means. Furthermore, in an attempt to avoid that system becoming a way of evading control of entry rules, we are taking an explicit power by which we would require health authorities to make the grant of such applications subject to conditions; and I emphasise that the health authorities would be responsible for overseeing that. One condition for a health authority may be to ensure that the service did not subsequently change to a more traditional service in which patients
1578
would visit the premises. We want to make sure that this would not be a back-door way of evading the control of entry rules.
Baroness Northover: I am very reassured by what the Minister has said on Amendment No. 228A. Although Amendment No. 229A is more specific than the issue that I addressed, I hope that the system of which the Minister speaks in terms of health authorities does work satisfactorily. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 3 agreed to.
Clause 48 [Corresponding provision and application of enactments]:
[Amendment No. 229 not moved.]
Clause 48 agreed to.
Clause 49 agreed to.
Clause 50 [Remote provision of pharmaceutical, etc. services.]
[Amendment No. 229A not moved.]
On Question, whether Clause 50 shall stand part of the Bill?
Earl Howe: I trust that the Committee will forgive me if I initiate a very short debate on Clause 50. In doing so, I make it clear at the outset that I harbour no desire whatever to frustrate its very positive proposals.
My concern arises because I believe that the concept of remote dispensing raises a number of fundamental issues relating to patient care. If one asks a pharmacist what his role is in dispensing a prescription, he will always say that it is primarily a checking role. He would include in that definition the role of making sure that patients understood how to take their medicine, the purpose of it, and the instructions relating to the dosage.
During that process, a pharmacist occasionally will discover a doctor's prescribing error. Doctors' errors of that sort are rare; I do not want to suggest otherwise. These days computer systems in GPs' surgeries are very sophisticated. At the time of prescribing, the computer checks the compatibility of the medicine with the patient's medical condition and any other medicines being prescribed. Despite that, however, a computer will never provide a pharmacist's full service.
My concern—a nagging worry more than anything else—is that when remote dispensing gets under way, it will turn into a van-delivery service, perhaps run by a large national pharmacy chain, with electronic transfer of prescriptions. We need to look carefully at what we shall gain and what we shall lose by that sort of streamlining. We will obviously gain convenience and speed. What we may lose will emerge only over time—perhaps the livelihood of the local chemist, or even that of the local dispensing doctor, and the sort of face-to-face professional advice that a pharmacist is able to give. In that regard, there is a risk, however small, to patient safety. Beyond a certain point, that

1579
would be an unacceptable price to pay for progress. I would welcome any comments that the Minister has to make.
Baroness Northover: I should very much like to associate these Benches with the concerns expressed by the noble Earl, Lord Howe.
Lord Hunt of Kings Heath: I understand the concerns, which are well expressed. Although I do not believe that mail order or on-line pharmacies will suddenly sweep away traditional community pharmacy services, they can provide a useful service and an extra option for some people. Ideally, the choice should be made by patients themselves. Equally, I accept that the public must be assured that mail order and on-line pharmacies meet the same legal and professional standards as any other pharmacy. Legally, that means that all pharmacy and prescription-only medicines must be supplied only from registered retail pharmacy premises. Those premises are regularly inspected by the Royal Pharmaceutical Society of Great Britain, which I have always found to be a particularly rigorous regulating authority.
In addition, pharmacy and prescription-only medicines may be supplied only by or under the supervision of a registered pharmacist. For prescription-only medicines, there must also be a prescription. A breach of any of those conditions would amount to a criminal offence. On-line pharmacies must also meet the standards expected of the profession as a whole, as well as the particular standards set by the Royal Pharmaceutical Society in relation to Internet-based services.
Given those standards, the Government's view is that if legal and ethical safeguards are met, there is no reason at all why on-line pharmacies should not be safe and provide patients with new choices when obtaining their medicines. However, we have made it clear that if additional safeguards prove to be necessary, or if providers of on-line services cannot demonstrate their own quality and security of service, we shall work with the professions and patient groups to introduce further controls. We have not taken any decision as to whether such further controls will be needed. We shall have to assess that in the light of our experience, following discussion with patient and professional groups.
In conclusion, we believe that on-line pharmacy services would be useful to a number of people, but we accept that we must ensure that they are provided professionally and safely.
Earl Howe: I thank the Minister for that very fair reply. I particularly endorse the sentiments expressed at the end of his reply. This is obviously an experiment which needs to be kept under review. From what the Minister has said, I am confident that the department will do that. I also share his view that the Royal Pharmaceutical Society will play its part in ensuring that the experiment works as well as we all hope.
Clause 50 agreed to.
Clause 51 agreed to.
Clause 68 [Extension o f prescribing rights]:
Lord Astor of Hever Lord Astor of Hever moved Amendment No. 230:
Page 71, line 17, at end insert—
"(9) Before making any order under this section, the Secretary of State shall, after a period of three months beginning with the publication of the draft—

(a) consult persons appearing to him appropriate to consult as representing the professions listed in subsection (3)(1A)(a) to (h), and

(b) publish a report detailing the results of such consultations and advice given by the relevant Committee of the Medicines Control Agency,

and may lay the draft as published, or with any modifications he considers appropriate, before both Houses of Parliament."
The noble Lord said: This amendment is designed to reassure those organisations which, as a consequence of this Bill, will be provided with prescribing rights. There is no doubt that the extension of prescribing rights to a wide range of health professionals will free up medical practitioners' time, allowing them to deal with other cases and reduce costs in the NHS; and we very much welcome that.
However, some of the relevant health professionals are concerned that the measures, when introduced, may not be appropriate for their specific organisation. Clause 68 only enables legislation. We understand that the Government will not introduce any secondary legislation until an advisory group has been set up under the remit of the Medicines Control Agency.
Before that committee is set up, the importance of reporting and proper consultation with all the health professionals affected, including ensuring that they are fairly represented on the committee, cannot be overstated. I beg to move.
Lord Clement-Jones: The noble Lord has tabled an interesting amendment, particularly in view of the fact that some quite important decisions will have to be made under Clause 68, which we very strongly support. It has long been awaited and represents a very positive move forward. But questions are raised by the professions in this context, and I suspect that consultation will be more than usually important in relation to who will retain clinical responsibility; the independence of prescribing rights; whether those rights are dependent on an existing prescriber or are truly independent; and appropriate safeguards. Strong professional views will be expressed during the process. The noble Lord, Lord Astor of Hever, has raised an important issue in that respect.
6 p.m.
Lord Walton of Detchant: On the face of it, the amendment is very reasonable. I would welcome the opportunity for professionals such as osteopaths, chiropractors, chiropodists, podiatrists and others to be able to prescribe under appropriate circumstances. However, as the noble Lord, Lord Clement-Jones, said, the question of ultimate clinical responsibility is important, as is the definition of the range of drugs

1581
that can be prescribed by such individuals. For that reason, the amendment would be a useful addition to the clause and it should be generally welcomed.
Lord Hunt of Kings Heath: I am grateful for the general welcome that has been given to Clause 68. I am sure that Members of the Committee all recognise the work of the noble Baroness, Lady Cumberlege, in developing nurse prescribing some years ago. We are building on that remarkable development.
The amendment is linked to the Government's plans to enable Ministers by order to grant prescribing rights to additional groups of health professionals and to designate new categories of prescriber and the conditions that may be applied to their prescribing. I understand the sentiments that underlie the amendment, but there is already a legal requirement under Section 129(6) of the Medicines Act 1968 to consult organisations that are representative of interests likely to be substantially affected by an order under the Act. In practice, the department and the Medicines Control Agency already consult widely with professional bodies, pharmaceutical organisations, patient groups and NHS organisations. Consultation letters are also routinely published on the Department of Health and MCA websites.
I understand the purpose of the amendment, but I feel that the arrangements that are already in place will be sufficient for consultation. I also have one concern about the amendment, because it would appear to require a three-month standstill period before consultation. I suspect that that would result in an overly long period between the preparation of the draft order and the making of the order.
More generally, my experience is that all the professions and public interest groups involved take an intense interest in extending prescribing rights. There will be no problem in ensuring that we get the views of all the relevant professions.
Lord Clement-Jones: Will the issues that the noble Lord, Lord Walton, and I have raised be the subject of consultation under the duties that the Minister has mentioned?
Lord Hunt of Kings Heath: I expect the consultation to be wide and to encompass a number of issues along the lines that have been raised in the Chamber tonight.
Lord Astor of Hever: I am grateful to the Minister for his response to the amendment and I am comforted by it. We have been contacted by a number of professional organisations. The Minister's point about the legal requirement and the availability of information on the Internet will give them some comfort. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 68 agreed to.
Clause 52 [Care Trusts where voluntary partnership arrangements]:
The Deputy Chairman of Committees (Lord Geddes): Before I call Amendment No. 231, I advise the
1582
Committee that if it is agreed to, I shall be unable to call Amendments Nos. 232 to 236 because of preemption.
Baroness Barker Baroness Barker moved. Amendment No. 231:
Page 53, line 22, leave out subsection (1) and insert—
"(1) Where

(a) one or more Primary Care Trusts, NHS trusts or local authorities are, or are to be, party to any existing or proposed delegation arrangements, and

(b) the relevant authority is of the opinion that the establishment of a new body would be likely to promote the proper integration of prescribed health-related functions of a local authority in conjunction with prescribed NHS functions of a Primary Care Trust or NHS trust (in accordance with the arrangements),

the relevant authority may establish a Care Trust."
The noble Baroness said: We now move on to one of the most fascinating aspects of our consideration in Committee—the rather curious beasts called care trusts. Much has been said about them in the NHS Plan. Everybody welcomes the principle behind them, which is that there should be much closer co-operation between health and social services, but nobody knows exactly what they are going to do or how they are going to do it.
When I read the report of the debates in another place, I was struck by the fact that it did not become apparent even to some seasoned Members until half way through the Standing Committee stage that the care trusts would be built on primary care trusts. Many issues need to be brought out in our discussions today. The amendment, together with Amendments Nos. 232 and 234, starts that process.
The Explanatory Notes say that care trusts will be partnerships between local authorities and the NTIS. The purpose of the amendments is to establish whether it would be possible for a local authority rather than an NHS body to become a care trust. The thrust of most of the rest of the Bill appears to be that only NHS bodies can do so.
A number of very good partnerships have been developed under Section 31 of the Health Act 1999, featuring voluntary arrangements with pooled budgets, lead commissioning and integrated delivery, particularly on developing services for learning disabilities. The amendments would extend the opportunities for that work. A number of local authorities have developed very high standards of practice for dealing with social care. It would seem wrong not to enable such arrangements to go forward under the new designation of care trusts. I should like to hear the Minister's comments on that interesting proposal. I beg to move.
Lord Hunt of Kings Heath: I thank the noble Baroness for her remarks about partnership arrangements. I agree that they have been very successful. I was interested that she mentioned learning disabilities, because that issue is apposite to the White Paper that we published on Tuesday and some good partnership arrangements are being developed around the country. Care trusts are all

1583
about building on that success and ensuring that when arrangements are not so successful, we have avenues to ensure that partnerships get off the ground. I am sure that we shall deal with that later in our debates on care trusts.
The trusts are about partnership and ensuring that it happens in the context of an NHS body. The clauses have been written so that we can make that possible for NHS trusts and primary care trusts, although the new organisations will have a new name—care trusts—to demonstrate their integration. They are mainly about voluntary agreements made locally. They will be set up through those means and, where necessary, dissolved by local agreement.
The aim is to develop new organisations without proliferation, building on what we already have. Most importantly, they build on joint working and flexibility. The department has been notified of more than 40 schemes, with £300 million allocated to them. I believe that that provides a sense of the impact that it is already having.
We want to continue to encourage the use of partnership agreements. We accept that the lead will be taken by different agencies—both local authorities and NHS bodies—in different parts of the country. Care trusts are not the only route that we envisage for the development of the scheme in the future. They are but one option. That is why I have reservations about the amendments that have been put forward tonight. Amendment No. 231 would also require that we establish entirely new and additional stand-alone organisations into which services would be delegated from NHS bodies and local authorities.
We have made it clear that the key building block for care trusts will be NHS bodies formed out of NHS trusts and primary care trusts. However, where appropriate NHS bodies can delegate more services to local authorities using existing Health Act flexibilities, we shall be entirely happy and shall wish to see that take place. Therefore, care trusts do not provide the only route, and it is not the case that the only route down which one can go is an NHS-type body. We are also anxious to encourage local authority leadership through existing partnership arrangements.
I turn to Amendments Nos. 232 and 234. So far as concerns local government, the governance arrangements are already in place with the statutory responsibility of the local authority. The problem is that, if the Health Act partnership arrangement is led from an NHS body, it cannot alter its governance to take account of the additional services. Therefore, appointments from local government cannot be made in the way that we would wish.
The Bill enables us to provide proper governance for partnership arrangements where the NHS is the lead body. In relation to local government, where, as I said, we are anxious to encourage more partnership schemes led by local government, a similar issue concerning governance arrangements does not arise.
1584
That is why we are following this route and why I do not believe that the amendments suggested by the noble Baroness are necessary.
Lord Clement-Jones: Perhaps I may ask the Minister a quick question. Personally, I was heartened by the points that he made in relation to the lead that will be taken by different agencies and the fact that care trusts are not the only route. However, in that case, why follow the compulsion route in Clause 53?
Lord Hunt of Kings Heath: Compulsion does not apply only to care trusts; it applies to the whole partnership arrangement. The compulsion, as the noble Lord rather graphically describes it, in Clause 53 is for the—I am sure, rare—occurrences where it is apparent that partnership is simply not taking place and where, as a result, poor quality services are being provided. In certain circumstances, the Secretary of State will wish to have the opportunity to direct partnership act arrangements. However, they do not have to be trusts.
Lord Clement-Jones: I thank the Minister for that reply, which was helpful. However, the other question which arises is: will not care trusts inevitably be the model on which the delivery of services ultimately is based? In a sense, the use of the mechanism will become a pattern. I understand that the Minister says that, by definition, because of the way in which the department conceives of the scheme, they are NHS-founded bodies because they are based on primary care trusts.
However, would it not be better to conceive of something that effectively was the essence of partnership? One could give that label to partnership and that, therefore, could give rise to a care trust through a joint initiative. Thus, there would be joint governance. It seems that the department is missing a trick by defining care trusts as, in a sense, the sole NHS creature and by then bringing on board local government services. That does not seem to be in the spirit of partnership, which otherwise it could have been.
6.15 p.m.
Lord Hunt of Kings Heath: I believe that two points arise here. First, by making it clear that there are different options and that care trusts are not the only option to be used, I believe that we are showing that we are not seeking to force a particular path on to local government. Secondly—I do not know whether I can tempt my noble friend to join in on this point—it is clear that a number of local authorities are attracted by the care trust mechanism. However, at the end of the day, it is a voluntary mechanism and the arrangements will need to be worked out locally. If local authorities do not consider that it is appropriate, they do not have to go down that route.
Baroness Barker: I did not find the Minister's argument terribly convincing. I still do not see why these have to be primarily NHS bodies and why their

1585
governance must be within the NHS. The Minister said that care trusts are not the only option. In approximately five years' time, I shall look again at that statement in the light of what takes place. I shall be very surprised if other arrangements are still in existence.
The Minister makes a good point in relation to local authorities being attracted by the proposal. I believe that they are attracted by the potential for getting their hands near resources which currently are limited to the NHS. I am not so sure that they are attracted by the Government's arrangements. I understand that the Government—
Lord Smith of Leigh: Resources are always attractive to local authorities. However, essentially local authorities are attracted by achieving the best for the service users. We all want to see the delivery of proper, joined-up services, and that is what will attract local authorities.
Baroness Barker: I accept the noble Lord's point. However, I remain unconvinced about governance arrangements where there is a clear potential for the NHS to be a pre-eminent partner. Therefore, with some reluctance, I beg leave to withdraw my amendment, but I thank the Minister for his answer.
Amendment, by leave, withdrawn.
[Amendment No. 232 not moved.]
Baroness Barker Baroness Barker moved Amendment No. 233:
Page 53, line 25, after "authority" insert ", after consultation with other expert health and social services bodies,".
The noble Baroness said: I spoke earlier about the degree of anticipation in relation to care trusts. I believe that the number of amendments in this grouping, and the questions that lie behind them, reflects much of the anxiety about the proposals from the Government in relation to care trusts.
The emphasis of this group of amendments concerns consultation—that is, consultation not only with local authorities but also with users and those who are likely to be service users. At present, the extent to which proposals to initiate care trusts will be subject to widespread consultation is not clear. I hesitate to say this but, given the background to this matter, where some NHS bodies do not have a great track history on consultation, particularly with voluntary groups, I believe that it is necessary to be specific about the method of consultation and about those who have the right to be involved.
I take the Minister back to the creation and reorganisation of certain NHS trusts in the past. Some did not demonstrate a great deal of involvement with those who ultimately would be users. That is the gist of the amendments. I invite Members of the Committee to go further than I have done in probing the
1586
Minister's intention about the degree of consultation and involvement of all parts of the community that will take place. I beg to move.
Lord Hunt of Kings Heath: I take it that this group of amendments has been ungrouped.
Earl Howe: I do apologise. I shall speak to those amendments in the group that appear in my name; that is, Amendments Nos. 237, 241 and 249. They are designed to achieve much the same result as those to which the noble Baroness has just spoken. I agree with her; it is disappointing that there is so little provision for consultation in the Bill and particularly disappointing that such provisions have been omitted from the clause.
One hardly needs to spell out the reasons why consultation before setting up care trusts is so important. The main and most obvious reason is that care trusts, whenever and wherever they are proposed, represent uncharted territory for participants. Parties will be in no doubt that by coming together they face formidable adjustments not simply in terms of the shift in statutory responsibilities but also logistically in terms of staff, money and information systems. There will also be adjustments in the union of two very different cultures. Those involved have to be confident that such adjustments are manageable. Everyone needs to be certain that there are clear-cut advantages in moving to care trust status.
The provisions have significant implications for local government in particular. Although Ministers speak in terms of a delegation of responsibilities, many believe that the transfer of a key set of local government functions involves a dilution of accountability to local people. Local people must feel empowered both through the ballot box and day to day as service users.
There is uncertainty surrounding the Government's arrangements for care trusts, which we shall debate later. It is not clear to me how a change in the control of a local authority will translate into a change in direction at care trust level, should such a change be sought. We debated the fragmentation of the role of CHCs when we discussed earlier amendments. I hope that the new arrangements for patient empowerment recognise the need to have clear pathways for service users who wish to make a complaint. That requires a mechanism with a public profile that does not shunt such service users from pillar to post as they try to find the responsible department.
Perhaps I should also speak briefly to those amendments of mine that relate to Clause 53 and which are in this group of amendments. As the noble Baroness said, Clause 53 will enable the Secretary of State to force a care trust into existence against the wishes of either of the parties to it. That concept immediately raises questions about the workability of such a care trust. It is hard to envisage on the one hand a partnership, which has connotations of good will and voluntary co-operation, and, on the other, an

1587
arrangement that is forced on the parties from the outside. There is something inherently contradictory about that.
One point on which we may all agree is that whatever is or is not done by the Secretary of State in this context, the aim must always be the good of the patient. Care trusts are all about delivering effective and efficient services. I go so far with the Government as to say that if it is necessary to ruffle a few feathers in the process of moving to a better delivery of service, so be it. However, if the aim is the good of the patient, it follows that patients should have the opportunity to sign up to the arrangements that Clause 53 will put in place. That is why it is essential, as Amendments Nos. 254, 257 and 258 make clear, that whichever patients' organisations are in existence when these provisions come into force, those organisations should be consulted on the proposed use of the Secretary of State's powers of direction. The Secretary of State may judge that there has been a failure to deliver adequate services locally and, on that basis, decide to force a local authority to surrender its functions to him. That would be an extremely serious matter on which patients' representative bodies should have a right to comment.
Lord Clement-Jones: I want briefly to back up the comments of my noble friend Lady Barker and the noble Earl, Lord Howe, on this group of amendments. I also want to discuss Amendment No. 233.
On the proposals relating to care trusts, I am most concerned about the provisions involving compulsion in Clause 53. That raises the issue of "failing". I cannot see a definition of that word, which is highly subjective. The intention of Amendment No. 233 is to introduce a rather less subjective provision; it involves consultation with other expert health and social services bodies. One could choose from a range of bodies in this context, including CHI, the Social Services Inspectorate, NICE and the Audit Commission. I am sure that other noble Lords could propose other bodies. All of those bodies have at least one thing in common; namely, that they would have reported on and reviewed whether a body was not performing as it should, and they would have made a clear statement to that effect. That would give some assurance that the powers would not be used arbitrarily. I am not a fan of the clause, but if it is going to operate, it needs such a safeguard.
Baroness Cumberlege: I inform the Minister that Mrs Archibald would be very pleased with the clauses—she would be delighted that there was a care trust in the offing.
All of us should agree that it is right for health and social care to be brought closer together. To digress for a moment, I chaired the Brighton health authority for five years, where we ran hospitals and community services. We were probably acting illegally—I do not think that there were any provisions at that time that enabled us to do so. We devolved our budgets to the patch teams of social workers and to the
1588
neighbourhood nursing team in a given area. It was magical—the results were absolutely amazing. We delegated revenue budgets and capital assets. The first thing that the group did was to bulldoze a residential home that was long out of date and contained 64 beds that smelt to high heaven. In its place, we built a nursing home and some housing association sheltered housing. The impact was amazing and its effect on Brighton General Hospital was incredible, in that very few people were admitted—they were contained in the local community instead. I am a strong advocate of such an approach.
I went back about 10 years after I had left Brighton and found that the whole scheme had folded and that the system had gone backwards and towards what it had been previously. I sought to find out why that had happened. The scheme folded because the champions had left and budgets had been tightly squeezed. That contains some lessons for us in this context.
I am in favour of the proposed approach but some difficult issues have to be teased out to get social services, local authorities, health authorities and NHS trusts to work together. There is a rumour in the health service—the Minister may not be aware of this—that the Government are already setting targets and that they have decided on the number of care trusts that they want by next year. The rumour is that they want at least one.
I have done much work on current developments in joint services. I have studied three areas in this country and I am enormously impressed by what is going on without care trusts and through other mechanisms, as Members of the Committee have mentioned. A plea that comes to me from the service is, "Please do not make us run before we can walk". We must assess whether we have a shared philosophy and clear principles about what we should achieve. We have to ensure that the outcomes are clear, achievable and agreed. The governance, about which I have serious reservations, needs to be clear and efficient. The finance needs to be set in a framework that is agreed by everybody. Local government is nervous that the money that is set aside for care trusts will be siphoned off to acute services. We are already seeing that happening with primary care trusts and patient care groups.
An important issue involves charges. There are free services in the NHS and charges in social services. There must be an opportunity for organisational development and training, and we must iron out, or at least understand, some of the cultural differences that exist. We are considering two organisations with different histories, different accountabilities and different cultures. Neither is right or wrong; they both have strengths. Bringing them together is a huge challenge. There need to be robust relationships, based on trust. I am sure that the Minister will know the area in the West Midlands, to which I am referring, where huge strides are being made. The schemes have been built over 10 years and there is enormous trust between both bodies. It is interesting that those who pioneered

1589
them are still there 10 years later. That is quite unusual, especially in the health service, where people gyrate round at an alarming rate.
However willing the spirit, the mechanisms are complicated. It is essential that they are worked through with clarity. I have been reading Care Trusts—emerging framework, which was produced by the Department. Interestingly, paragraph 3 states:
"The policy is being developed as the detailed issues emerge and are considered."
I am surprised at that and find it worrying. The Government must decide their basic policy before those involved in the field can respond. Of course, it is right that the people concerned should be involved in the details about mechanisms, and so on, but it behoves the Government to decide their policy before asking Parliament to agree to legislation. It is policy being made on the hoof, which is worrying.
Paragraph 7 of the document states:
"Care trusts can only succeed where partners are fully committed to, and can influence the direction of the new organisation."
I agree with that, which is why I am so concerned about the power being given to the Secretary of State. I have listened to the Minister, who says that there can be other mechanisms besides the care trusts. Surely we have learnt that when a scheme is voluntary, it is much more likely to succeed. I know that the present Government had reservations about GP fundholding, but it was a voluntary scheme, which had great strengths. PMS pilots, which were also introduced by the previous Government, have proved to be a success. People are building on that voluntary scheme. I do not understand how the Secretary of State can think that by forcing two bodies together and forcing a shotgun marriage to take place that will work.
The report continues:
"Care trusts will be a partnership between the NHS and the local council".
On governance, it states:
"The Government is considering how the board can best be constituted given the different streams of accountability … Care trusts will also need to be accountable to the users of their services, and will have representation from the Patients' Forums and the Patients' Advisory and Liaison services."
It continues:
"Links with user groups, citizen's panels etc will need to be made".
Local authority scrutiny committees will also be involved.
I wonder how that board will look—it will comprise councillors, NHS people, and so on. I am afraid that it will be not a board, but a conference. So many people will be chattering away, without decisions being made. There needs to be much more clarity about that issue. I can see the scrutiny committees being mischief makers if, for example, there are one or two disaffected councillors who think that their budgets are being eroded.
I agree with the principle, but I do not think that the Government have thought through the issue. It behoves them to set out their policy clearly before bringing it to Parliament.
6.30 p.m.
Lord Clement-Jones: I take this opportunity to inform the Minister, so that he does not have to rifle through his notes, that I was speaking earlier to Amendment No. 253, which appears in a later grouping.
Lord Hunt of Kings Heath: It is clear that we would have enjoyed a general debate about care trusts before going on to the specific amendments. I know that some of the substantive points that have been made will come up in later amendments.
I shall respond to some of the key points, especially those raised by the noble Baroness, Lady Cumberlege. I assure her that Mrs Archibald has been very much in the minds of the Department of Health since our debate on Monday. If she were living in Brighton, she could enjoy some of the services that have been developed there. As the noble Baroness knows, Brighton was the forerunner of patient advocacy and liaison services, and it deserves congratulation on having the courage to pioneer it. I agree with the noble Baroness that success in the health and social care field is dependent on having champions who have the guts and leadership to stick with it and change things.
Rumours in the health service are generally to be avoided. I agree that the policy will not work unless there is enthusiastic ownership by the health services and local government. Surely that is the answer to concerns about targets. Unless both partners are willing to go into it, it will not happen.
We shall come to issues of governance and accountability. They are important, but the parties interested in evolving into care trusts must understand the rules of the game at the start, so that arguments can be sorted out in the beginning, rather than being confronted during the process. On cultural differences, I have always accepted that the nursing and medical model and the social care model have not always coexisted effectively.
Like the noble Baroness, I am really encouraged by what has happened in the past few years on the partnership between health and local government. There have been enormous improvements. I always quote the example of our winter planning this winter. I do not believe that we would have withstood the pressures on the health service unless we had the wholehearted support of local government and social services. I am optimistic that there has been a. sea change in attitudes, which will come through in care trusts, enabling us to deal with cultural differences.
I am not sure that I agree with the noble Baroness on the need to set out the rules at the beginning. At the development stage, we need to be open to ideas, and we need to be informed by health and local authorities, so that we get it as right as we possibly can.
On the issue of the amendments before the Committee, I was disappointed by the remarks of the noble Baroness, Lady Barker, when she referred to the record on NHS consultation, particularly in relation to voluntary organisations. The NHS Confederation once produced a very good book on NHS voluntary

1591
organisation relationships which I would commend to her because, again, I believe that we need to encourage the NHS to work much more closely with voluntary organisations. One way to do that is through Clause 11, which imposes a new duty on the NHS to involve and consult patients and their representatives.
I am absolutely certain that in care trusts, with their patients' forums and representation from voluntary organisations, unlike with community health councils, there will be people from voluntary organisations who are able to have access to the leadership of that care trust. I am sure that that will be an enormous enhancement of that dialogue.
I want to assure the Committee that we shall set out consultation arrangements in regulations and directions so that all stakeholders will be able to take an active part in developing proposals for voluntary and, indeed, direct care trusts. I will come back to that when we debate it later.
Like a number of other amendments which have been tabled in relation to consultation, I never think that it is helpful to set out on the face of the Bill those organisations which must be consulted. We know that when those organisations are listed, others are bound to be missed off. It is important for me to make it absolutely clear that there will be full consultation. We propose that through the regulations under Clause 52(7) and (8) and Clause 53(7), which deal with conditions which must be satisfied before an application can be made, we shall ensure that that guarantees effective consultation.
Perhaps I may comment on the wording of some of the amendments. They have tended to focus on patients. Obviously patients' views are important but we need to go wider than that. We need to embrace professionals, employees and other private and healthcare providers.
I hope that I have assured the Committee that consultation will be an integral part of the process by which care trusts are created.
Lord Clement-Jones: Was the Minister speaking in the context of both Clauses 52 and 53?
Lord Hunt of Kings Heath: The noble Lord is constantly charging on to Clause 53 before we reach it. Obviously arrangements would be different under the directed model because there might be a need to act more quickly than in relation to arrangements under a voluntary trust. But we should not want to establish directed trusts at the expense of proper consultation.
Baroness Barker: I, too, am in something of a dilemma. I believe that we should have had a general and wide-ranging debate on care trusts. I signal my intention to raise more general questions once we have debated Clause 52. I take the point raised by the noble Baroness, Lady Cumberlege, that not only is it difficult to see what the Government's policy is but it is also very difficult to question that policy. Some of us came
1592
prepared this evening to listen to explanations from the Minister and to ask him a series of questions thereafter.
However, I take the point that the Minister made about consultation. It is quite clear that consultation and standards of consultation vary. The process of consultation has become significantly devalued in the minds of users, particularly since it first became prevalent following the passage of the National Health Service and Community Care Act. There is a real need to restore the confidence of users in consultation. That is probably the motivation behind some of the amendments which have been tabled this evening.
However, I take the Minister at his word that regulations will cover those matters. I believe that eventually we shall have a parliamentary Session which deals with nothing but regulations and there will be no Bills whatever. We shall be kept very busy just discussing regulations for about seven months. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 234 to 236 not moved.]
The Deputy Chairman of Committees: I must advise the Committee that if Amendment No. 237 is agreed to, I cannot call Amendment No. 238 because of preemption.
[Amendment No. 237 not moved.]
[Amendment No. 238 not moved.]
6.45 p.m.
Lord Smith of Leigh Lord Smith of Leigh moved Amendment No. 239:
Page 53, line 32, at end insert—
"( ) Regulations issued about governance arrangements for Care Trusts shall reflect their partnership nature, as between health bodies and local authorities."
The noble Lord said: In moving this amendment, I must remind the Committee of my interest as leader of a local council. I should like to say how much I agree with what the noble Baroness, Lady Cumberlege, said about the difficulties of setting up care trusts.
However, I believe that there is a principle here, which is that patients should come first. The service should be designed to meet the interests of patients rather than the interests of the organisations. We understand the difference in culture between local authorities and health authorities, but we need to go over that, and that is what care trusts need to do.
Care trusts are bound by their nature to be complex beasts. They need to reflect local circumstances and, indeed, local needs. They may involve primary care trusts, singly or severally, acute hospital trusts as well as local authorities. The degree of involvement may vary according to the nature of the service going into the care trust. So if it is a care trust which deals largely with services for the elderly, it would be a somewhat different configuration from that which deals with people with mental health problems, and so on.
Therefore, the arrangements need a certain amount of flexibility, and in this case I believe that the Government are right not to try to put on the face of

1593
the Bill the detail of the arrangements because there will be different solutions to meet those particular circumstances. In other words, I believe that we can be too prescriptive. I understand and share some of the concerns raised by the later amendments, in particular Amendment No. 247. However, I do not think that we should, for example, stipulate that 50 per cent of the appointments must be local authority members. That may not be appropriate if a particular service was not provided in that way in the past.
As regards governance, we were somewhat reassured by what the Minister said on Second Reading when he referred to a partnership of equals, but there remains a considerable amount of anxiety about governance in the local authority world. The Minister has received letters from the ADSS, the LGA and Unison, to name just a few. Those concerns are not just about status within the new arrangements but they are concerns about confidence and trust, as the noble Baroness, Lady Cumberlege, said, and the effectiveness of those new care trusts.
If there are to be real partnerships, there needs to be confidence on the part of all the players involved. Each of the bodies has ongoing accountability for the services which it starts to have responsibility for. Local authorities will have to have confidence in the quality and availability of the social care element going into the care trust. There is accountability to the Department of Health and, as the noble Baroness mentioned, to local service users. We need to be accountable downwards as well as upwards. That is very important.
As the noble Baroness also mentioned, we need to be concerned about the relative priority given to social care against more acute medical care, which may get priority.
Securing confidence needs to be done at two levels. The first is at board level. We need to make sure that local authority appointments to the board enjoy the confidence of the local authorities which they represent. They need to have the right both to appoint and then, for whatever reason, to change too. That is important at board level.
At operational level, there needs to be an equal contribution from professionals on both sides. I need to remind the Committee that the benefits of local authority involvement means that it is not just social services which are coming on board, although that will clearly be the main element; but there is wider access to local authority services. Those may be housing, leisure services and, if we believe in lifelong learning, it may be education too. The local authority needs to be able to manage the arrangements by which these wider services are brought in. However, perhaps I may remind my noble friend that the key issue is having the confidence of all sides to enter the partnership. I believe that such a partnership can deliver the objectives which I share with the Government. It can deliver the best quality services for patients and service users. If we are to have this partnership of equals, we
1594
need to be careful about the governance arrangements and ensure that partners feel that they are fully part of it. I beg to move.
Baroness Masham of Ilton: Can the Minister give an assurance that bringing in care trusts will not be an inroad for means-testing people who need services? Some people are suspicious because, at present, social services use means tests while health services are free. Will patients be worse off?
Baroness Barker: I should like to speak to Amendments Nos. 245, 246, and 247 in this group. I echo most of what has been said about the reasons behind the amendments. I do not believe that this is a question of status. Those who have been involved before in some of the joint working arrangements with health have a real and genuine concern that these partnerships should be partnerships of equals. That is a matter to which we need to pay particular attention.
The noble Baroness, Lady Cumberlege, talked about two different cultures coming together. However, I think that this issue involves more than that. There are two different approaches to working; two different bodies of knowledge, history and legislation are coming together. Last year I had the pleasure of working with a PCG to discuss its clinical governance arrangements for vulnerable older people. Those of us who were not from the health service spent two-and-a-half hours trying to explain to doctors that not all older people are patients; that they would not want to be called patients, and would not be overjoyed at the prospect of being put on an "at risk" register. That was a wonderful evocation of how we came from different experiences and almost spoke a different language.
I want to concentrate on some of the questions which follow from the comments of the noble Lord about social services being part of the new arrangements. As I have said, so far, legislation has been very different. We need to be concerned that care trusts will work to social services legislation, which governs a great deal of what happens to vulnerable people. I refer to matters such as the Gloucestershire case, the Sefton cases and so on. Perhaps I may ask the Minister what measures will be put in place to ensure that care trusts not only follow that but follow the guidance from case law as it develops for social services.
An interesting question is this: how will care trusts link with other services, such as those for disabled children and adults under 16? Older people do not live in isolation; they have families with whom they are in touch. How is it envisaged that the expertise of social service departments in holistic assessments, not only of users but of carers, will work their way into the care trusts? Perhaps that is more important than the governance arrangements. However, I understand the fear on the part of local government, particularly those

1595
which have not had good experiences of working with the NHS before, of how things will work out in practice.
Earl Howe: I should like to speak briefly to Amendment No. 245. The noble Lord, Lord Smith, and the noble Baroness, Lady Barker, got to the heart of a matter which continues to generate a deal of concern and uncertainty, both in local government and the NHS. I find that the same questions are being asked everywhere: to whom will care trusts be accountable; through what precise mechanisms; who will control care trusts; will each one be different in this sense or will the regulations safeguard each party from being railroaded by the other? There is a fear that however much a care trust may be the result of a voluntary arrangement, and despite the Minister's assurances at Second Reading, there is scope further down the track for a hostile take-over.
In the department's recently published document, Care Trusts—emerging framework, referred to by my noble friend Lady Cumberlege a few moments ago, the extent of the work still to be done on the question of governance is all too painfully apparent. The document states:
"A governance framework is being developed".
It goes on,
"The Government is considering how the board can best be constituted".
Those sentences do not exactly suggest a clear sense of direction. If the Minister is in a position to enlighten us now on the detail of the Government's arrangements, the structure of the board, its balance and functions, that would be welcome.
Like my noble friend Lady Cumberlege, I feel positive about the principle of care trusts but there are sceptics out there—not just for the reasons to which my noble friend referred but because many people wonder what extra benefits care trusts can achieve on top of what can already be done under the Health Act flexibilities.
Perhaps I may conclude by asking the Minister a question. Clauses 52(3) and 53(5) read together suggest that a care trust may also take on health-related local authority functions outside the area covered by the PCT or NHS trust which has been redesignated a care trust. Indeed, those subsections would seem to imply that a care trust designated from a PCT or NHS trust in the area of one local authority might be able to take on the health-related local authority functions of part or the whole of an adjacent local authority area. It is difficult to square that prospect with notions of local accountability for local services or the policy intention to enhance collaborative working. It would do the exact opposite. I wonder whether the Minister could comment.
Baroness Barker: Perhaps I may ask a question on the point made by the noble Earl, Lord Howe. Let us suppose that a patient is under a GP who is within a care trust area which has been agreed between the
1596
NHS body and a local authority. Let us also suppose that the patient lives in a different local authority— some PCTs cover more than one local authority area— which is not yet part of a care trust but which uses pooled budget arrangements with its own PCT. Will that person receive social care from the care trust or the local authority where he or she lives, which is out of the pooled budget area? My question concerns non-coterminous boundaries.
Lord Hunt of Kings Heath: Perhaps I may say to the noble Baroness, Lady Masham, that this is not a way of extending the means test or, indeed, of cost shift between the two parties to any care trust arrangement. We may discuss this in more detail on a later amendment.
I refer to the comments of my noble friend Lord Smith. I know that in Wigan there is a strong partnership between the NHS and local government. I believe that they are keen to take forward the concept of care trusts. That is encouraging in terms of what we are likely to achieve in future. I accept the points raised by the noble Baroness, Lady Barker. Asking two cultures to work together will not always be easy. We know that the medical model and the social care model can be different. However, we also know that there is much to be gained if this can be pulled together. If we can teach doctors to regard people as individuals and not just patients, that surely is an example. I am sure that the NHS can help to teach people in social services about some of the advantages of the way the NHS works.
The great beauty of care trusts is trying to ensure that everything is pulled together. As regards social services legislation, the care trust will have responsibilities delegated to it by the local authority. As regards performance assessment the social services inspectorate will be as involved in those services as it would be if the services were run directly by the local authority. As regards performance assessment, the social services inspectorate will be as involved in those services as though they were run directly by the local authority.
7 p.m.
Baroness Barker: Will the performance indicators used be those of the NHS or the LGA or will there be pew joint performance indicators?
Lord Hunt of Kings Heath: Some of the detail of performance management has still to be sorted out. I would consider that common sense indicates that if one is talking NHS services, one may use its performance indicators. If they are services which can be directly identified with the social services, its performance framework would be applicable. I do not believe that we should become too hung up on that. Equally, in performance management generally, we need to make sure that care trusts are not affected by too many different approaches to performance management. Given that the Department of Health is responsible for both health and social services, it should not be beyond the bounds of possibility for us to ensure that we achieve that.

1597
I take u p the issue of boundaries which the noble Earl, Lord Howe, raised. There is no doubt that flexibility will be required to cope with different populations covered by local authorities and the NHS. For instance, care trusts may have responsibility for local authority health-related functions only for some sections of the population. We will need some flexibility in the arrangements in order to make sure that the public do not hit some kind of bureaucratic barrier which prevents them from receiving the services they need.
The noble Earl raised the issue of the department developing its policy in these areas. Given that it is a very new concept which involves different statutory organisations, there is a great deal of benefit in working through the policies in co-operation with and with co-ordination with the NHS and local government. That is what we are seeking to do.
As regards governance, we are working with the LGA to ensure that the regulations demonstrate the proper concerns that all the functions which care trusts take on are reflected in the governance arrangements. I can assure the noble Earl that we are not looking for a one-size-fits-all for care trusts. We do not want to be tied into a situation where the numbers of people for health and local government are fixed. That may look like equality but I doubt whether it would meet the needs of individual care trusts. We are looking for a framework in which local partners can agree and propose a locally-negotiated agreement, with the number of executive and non-executive officers being determined within the context of that framework.
So again taking a leaf from the noble Earl's book, we do not want to be prescriptive. We believe that it is about local ownership and negotiation. It very much fits into the voluntary nature of the great majority of the care trusts. We want it to be a partnership of equals, and that is why it is best to leave those matters to he discussed locally as far as we can.
The governance of the care trusts is very important. We want to make sure that the members of the board feel the full spirit of the corporate body. For that reason it makes sense for all non-executive members to go through a similar process of appointment. In that regard, because they are NHS bodies, that will be for the NHS appointments commission. We recognise that local authority members have already been through a selection process of their own, if I may call the ballot box that. So we shall be keen to ensure that the NHS appointments commission does at least the minimum of checks for probity.
We also have to bear in mind that as regards the chair, the Secretary of State must carry out that function in the same way as for all other NHS bodies, through the independent appointments commission, set up expressly to ensure independence. There is a problem that if the local authority is involved in that process we will effectively lose the independence we have sought to develop with the introduction of that commission on 1st April this year.
I agree with Members of the Committee that it is clear that we need a transparent and robust process. I hope that I have answered the points which have been
1598
raised. I emphasise in particular that we are keen to have local agreement within whatever kind of framework we set as regards governance arrangements.
Lord Smith of Leigh: I thank the Minister for his response. I welcome the flexibility which he said would be part of the package. He has told us about a partnership of equals. I accept that the independent appointments commission would want to see who the local authority appoints. But for political reasons or the fact the local authority members were not carrying out their duties in terms of being accountable to that authority, there would need to be some ability for the local authority to determine whether a member continues in that role, subject to the appointments commission.
Lord Hunt of Kings Heath: I understand the point that the noble Lord is making. I shall give it consideration.
Lord Smith of Leigh: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 240 to 249 not moved].
Clause 52 agreed to.
Clause 53 [Care Trusts where directed partnership arrangements]:
Earl Howe Earl Howe moved Amendment No. 250:
Page 55, line 27, leave out "adequately" and insert "to a significant extent"
The noble Earl said: In this amendment I come back to the territory that we covered when considering Clause 20. Clause 53 sets out the circumstances in which the Secretary of State or the Welsh Assembly may use powers of direction to bring about the formation of a care trust. One of the prior conditions of doing that would be that the relevant authority has to be of the opinion that an NHS trust, a PCT or a local authority is not exercising any of its functions adequately. We need a little more substance here. As the clause reads, it could mean that if a local authority failed to exercise any of its health-related social services functions or any other of its functions adequately, the Secretary of State could take the situation in hand and impose a care trust structure. The threshold of failure is not specified. Taking it to an extreme, it could result from a difficulty over a single aspect of an individual service.
The scope for a Secretary of State to impose his will on a local authority or on a NHS trust on the basis of a judgment that he appears not to have to justify seems extraordinarily wide. It cannot be right for the Secretary of State not to allow the failing body every opportunity to put its house in order. There should be a requirement for him to make representations in a conciliatory fashion before invoking his Clause 53 powers. As my amendment states, it should be a sine qua non of invoking the powers that the body was failing in its performance to a significant extent and not in a trivial sense. I very much associate myself with

1599
Amendment No. 253 tabled by the Liberal Democrat Benches. I wish I had added my name to it. I am sure that it would help the Committee if the Minister explained the circumstances in which these powers might be used. Furthermore, I hope that the noble Lord can confirm that their use is likely to be rare.
I am sorry to come back to the same theme, but it is very important for all concerned that the whole process is transparent. The reasons for an intervention should be put in the public domain. The local authority should be given a chance to respond. The Secretary of State's opinion really should be based on an independently prepared statement or report—by whom and by what means is the process triggered of assessing and deciding upon failed performance? How transparent would that all be? I beg to move.
Baroness Barker: This is an important clause. We know the disruption which can take place where a health service comes under major scrutiny. Previously in Committee the noble Baroness, Lady Cumberlege, talked about the Bedford case.
When the care trusts include social care services the potential disruption to vulnerable people will be immense. Members of the Committee on these Benches have tabled amendments to try to make sure that these measures are taken in consultation with local people. If these powers were invoked, someone would have to step in on an interim basis and provide services while matters were sorted out. For those reasons these powers should be used extremely sparingly. That is the main motivation for our amendments.
7.15 p.m.
Lord Hunt of Kings Heath: The background to the clause and the concept of a direct care trust goes back to a theme that is running throughout our debates, which is the responsibility of the Secretary of State to ensure high consistency of service. We know that the history of the NHS and social services is one of extremely patchy provision where we can identify the highest possible quality of service being provided alongside neighbouring authorities providing very poor quality services. We have no reason to apologise for trying as hard as we possibly can to iron out some of these inconsistencies. I am absolutely convinced that our approach is the right one.
I have already talked about earned autonomy— incentivising organisations to do their best. Care trusts are an example of earned autonomy. Those good effective organisations which really want to make partnerships work will probably go down the care trust route as voluntary care trusts.
The other side of the coin is that we must be prepared to intervene where it is clear that organisations are not performing satisfactorily. I see the directed care trusts being part of the philosophical approach.
What do we mean by the word "inadequate"? If one says that a person or organisation is inadequate that is a fairly serious allegation. Inadequate means that
1600
services are failing. Failure will normally be identified through the mechanisms that are in place— inspections, reviews and joint reviews, as well as the robust performance assessment process in local government and the performance management process in the NHS. We have in place agreements about when an inspection or a review has identified weaknesses in services.
Once a review of the inspection report has been confirmed, action plans are agreed and appropriate monitoring processes are put in place which can measure whether improvements are being made. If they are not, in the case of social services, a direction can be made which identifies the statutory duties to be met. Although in the NHS the triggering mechanisms may be different, the response —the production of recovery plans—is similar.
We are not using the word "inadequate" lightly. It is perfectly possible to be exercising services to a significant extent, but doing so poorly. In these circumstances we would not be able to address failure, which is an unacceptable situation.
Noble Lords are once again challenging me to describe in graphic detail where and when we might intervene. The reality is that we can all think of cases where local agencies have failed effectively to provide services which could be provided much better under one management or through one pooled budget. We know of examples where there is just poor coordination between acute, community and social service departments: for example, where an NHS body fails to provide adequate services to a client group such as older people, which then has a very difficult impact on social services authorities. One could have a situation where an NHS trust provides poor quality and inappropriate services to people with learning disabilities. There are well-documented cases of local authorities which are definitely failing where there has had to be intervention.
I want to assure noble Lords that the power in the clause will not be used lightly or frequently. However, it gives us an opportunity to act when other methods are not appropriate. This is a power of last resort, to be used where delegating a function to another body would make a positive change and allow the staff and the services to start again on a new lease of life.
The hallmark of care trusts is flexibility. I believe that the ability for the Secretary of State to direct in those cases where it is clear that partnership arrangements either will not be set up or are not working is one tool in our general armoury of improving services. But it will be used sparingly. The overall thrust of care trusts is to encourage a voluntary coming together by health and local governments.
Baroness Masham of Ilton: Perhaps I may ask the Minister who will actually do the inspections? Also, one of the problems of social services and health services working together is the problem of finding convenient times to have joint meetings.
Lord Hunt of Kings Heath: I know that in the mythology of health and social care, organizing

1601
meetings involving GPs and social workers has sometimes proved to be difficult. We need to work at that real problem.
In relation to inspections, it is fairly clear that one has inspections through the National Health Service in our performance management regime, the Commission for Health Improvement, and so on. In local government one has the Social Services Inspectorate and all its mechanisms. Clearly in a care trust one is talking about services provided both under the NHS and social service legislation. Therefore, one needs a co-ordinated approach to perform assessment and inspection.
The challenge, which I accept, is for us to ensure that that is a co-ordinated approach rather than the duplication of effort. Clearly we must avoid that.
Lord Smith of Leigh: I share the view of my noble friend that it will be unacceptable for either party to fail. Some clients may not have a second chance if they are let down by these services. For that reason, a directed care trust may be the solution.
I take the important point made by the noble Baroness, Lady Cumberlege, during her remarks. If one of the parties is not performing well, there will be an interregnum before the directed care trust can be established. During that time, services will remain inadequate. The Committee needs to be reassured that adequate support mechanisms, whether they are for a local authority or a health authority which is failing, will be in place. Thus, when the directed care trust is then set up, it will be in a position to meet the needs of service users.
Lord Hunt of Kings Heath: My noble friend has made a fair point. I agree that one cannot simply come along and say, "That one has got to become a directed care trust". Clearly, proper processes of decision-making must be followed, which would involve, in all cases bar those in which a dire situation had developed, adequate levels of consultation. Of course I accept that in the circumstances of what might be described as a shotgun marriage, it would be necessary to ensure that adequate support was made available for the staff who would have to make the new care trust operate.
Earl Howe: I welcome the Minister's assurance that this power will not be used lightly and that it is to be regarded as a power of last resort. I am interested in his interpretation of the word "adequately". He felt that the word "inadequate" meant something serious and I am glad he feels that it does carries that meaning. However, I am not sure that in everyone's eyes "inadequate" suggests a considerable degree of seriousness. Nevertheless, the noble Lord's point was reassuring, at least in part.
My difficulty here is that I do not believe that we have moved much further forward in our understanding of how these powers might be used in practice. I realise that it is difficult for the Minister simply to conjure up hypothetical examples, but it
1602
would have been helpful if the Committee had been offered a more graphic understanding of what this will involve.
Lord Hunt of Kings Heath: I am grateful to the noble Earl for giving way. It is always difficult to cite the "what ifs?". Where I would envisage this power being utilised is where there is clear evidence that a service is inadequate—I confirm that I believe that that word suggests a serious matter—and that, despite intervention and help, things are not getting any better; namely, that the nature of the difficulties make it clear that one of the problems in the service provision stems from the fact that the agencies, at the local level, are simply not working well together. In those circumstances, based on the kind of reporting mechanisms we have established, the clear failure of local leadership to be able to provide remedies would indicate the kind of conditions where one might wish to direct a care trust approach.
Earl Howe: I am grateful to the noble Lord for his helpful intervention. There are formidable problems involved in the whole idea of bringing people together who may be reluctant partners. Indeed, I shall raise this again when, with the permission of the Committee, we have a general debate on clause stand part. Nevertheless, doubtless the Department of Health and the Secretary of State will approach such an operation with their eyes open and so one hopes for the best. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 251 to 255 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 256:
Page 56, line 13, at end insert "within that"
The noble Lord said: This is a technical amendment which clarifies that a care trust can provide social services across a local authority area or to any part of the area covered by a local authority. I beg to move.
[Amendments Nos. 257 and 258 not moved.]
On Question, Whether Clause 53, as amended, shall stand part of the Bill?
Baroness Barker: It is evident from our debates on the amendments to this clause that there are a great many misgivings about the circumstances in which a directed care trust may be formed. I shall refer back to some of the questions put by the noble Baroness, Lady Cumberlege, on Clause 20. Exactly what are the conditions under which the Secretary of State would make an intervention? I believe that it is important for those who will try to make a success of care trusts to have a clear understanding of that right from the beginning.
Despite the reassurances given by the Minister today, a great deal of the detail of exactly how care trusts are going to work is still missing and it is extremely difficult to form a complete picture. How

1603
will the relationship between health and social services work? The Minister was not pleased when I put a number of detailed questions to him, but I shall ask him one more, because it illustrates some of the potential problems that may arise in both non-directed and directed care trusts.
Under the delegated powers, care trusts will exercise social services functions. One obvious example of the functions which they may take over is that of setting discretionary charges for home care services. I assume that a care trust would collect those charges. Will the calculation of care charges of this kind come under the remit of the care trust or would it remain with the local authority? What accountancy procedures will be put in place? Who will monitor these matters so as to ensure that NHS services are not simply redefined as social care services in order to attract charges? Those issues will come up under this direction.
I believe that insufficient thought has gone into exactly what the Secretary of State will need to deal with under these new powers. I made a point in our earlier deliberations which I believe is equally relevant here: the extent to which social services and health can work together is still of concern because it is not clear. Furthermore, the extent to which they can work together as the result of a direction coming down from above is in even greater doubt.
At this stage, it might be appropriate to paraphrase Woody Allen. He said that the lion and the lamb can lie down together, but the lamb would be well advised to stay awake. I believe that, unless and until we are given a great deal more detail on these proposals, in particular as regards how the directed care trusts are to work, we shall continue to see, not paranoia, but a genuine fear on the part of local authorities about what could be a good working relationship.
Earl Howe: There is perhaps only one point to make about Clause 53 and the noble Baroness, Lady Barker, has made it very well; namely, the idea of partnership imposed by fiat is inherently contradictory and implausible. This is the point in the Bill where the Government have to confront two irreconcilable instincts: the laudable instinct of wanting to see bridges being built and, to my mind, the far less laudable instinct of wanting to dragoon people all over the place.
My right honourable friend Sir George Young observed in another place that it is difficult to see how a care trust can be, at one and the same time, a reward for good behaviour and a punishment for bad behaviour. However, that is the logic of the Government's position. In Clause 53 they are seeking to deal with a situation in which either a health authority or a local authority, or both, does not wish voluntarily to enter into an arrangement. Furthermore, one or perhaps both parties have been failing to perform their functions adequately. That, to put it mildly, is not an auspicious beginning to a marriage.
1604
But there is more to the issue than that. We are dealing with a power to interfere in a major way with local democracy. Clause 53 essentially provides the power to remove a function of a democratically elected body, take control of part of that body's budget, including money generated from local council tax receipts, and allocate the money elsewhere against the express wishes of the body concerned. If ever there was an example of the Government's tendency towards centralism, I put it to the Minister that this is it.
We hear a great deal from Ministers about encouraging voluntary arrangements in terms of local flexibility, devolved decision-making and so on. But. on the other hand, we hear that there are some matters that are just too important in the Government's eyes to be left to chance, and that these may need to be forced on people. Those are diametrically opposed positions, yet Ministers act as if there were no contradiction at all.
There is perhaps another contradiction lurking here. If a PCT or NHS trust is failing in some way, it is quite a leap of faith to suppose that, by becoming a care trust against its wishes, it will all of a sudden cease to fail. It is interesting to recall that during the passage of the Health Act, which introduced the concept of cooperation between health bodies and local authorities and the pooling of budgets, Ministers assured Parliament that there was no question of such cooperative arrangements being forced on either the NHS or local government by ministerial powers of direction. Yet less than two years later exactly such a power is being proposed.
Setting aside the fact that my confidence in ministerial assurances has experienced something of a jolt as a result of this, it would be helpful to know why in such a short time the Government have undergone such a change of heart. The simple truth is that shotgun marriages rarely prosper. Where there is also a blatant undermining of local democracy we need to be very cautious indeed about such a proposition. Frankly, the case for it has not been made.
7.30 p.m.
Baroness Noakes: I support what my noble friend Lord Howe said about the clause being in direct opposition to the provision in Clause 52 dealing with voluntary care trusts. The Minister spoke of an enthusiastic partnership between health and local government as an essential prerequisite. If it is an essential prerequisite for Clause 52, it seems to me that it is equally a prerequisite for Clause 53.
The NHS has had a great deal of experience of working in different kinds of partnership over a number of years. The Minister gave examples, as did my noble friend Lady Cumberlege. The private sector, too, has considerable experience of working in joint venture and partnership mode. The experience in the private sector is that the majority of partnerships and joint ventures fail. They do so for a number of reasons: lack of a shared vision; lack of leadership at the top; lack of a common philosophy; and, importantly, lack of trust. I do not know whether any studies have been

1605
done into failures in partnerships in the NHS—and there have been failures—but I should be very surprised if the results were any different.
When we come to Clause 53, we find that the Secretary of State or the relevant authority has the ability to take functions and put them into another body without looking at whether commitment, shared philosophy, joint leadership and trust are in place. If these powers are allowed to stand, we are legislating for failure. All our experience in similar situations tells us that such organisations will fail. For that reason, I do not believe that we should support the clause.
Lord Clement-Jones: I support the weight of opinion expressed so far. I shall be brief—I do not want to alienate the East Anglians among us who have gathered together, several of whom are around me.
The Minister used a variety of reassuring words when he described the way in which the powers will be used. He indicated that they will not be used lightly, that they are powers of last resort, that this clause is one tool in the general armoury and it will be used sparingly. He used metaphor on metaphor. But at the end of the day, there is nothing in the clause that gives us any assurance. I am sure that we all believe in the Minister's intentions, but the Bill is designed to last for a considerable period of time. Without the safeguard of a proper definition of "failing" and without some of the steps set out in the amendments in this group, the clause is seriously flawed. It should not remain part of the Bill unless the department can come up with a far more targeted and more exact definition of "failing".
The Minister came up with language to describe when intervention would take place: when a care trust was not delivering to a particular client group, when there was clear evidence, when agencies were not working together, and so on and so forth. He tried to be more specific. Well, let us put that in the primary legislation. That is the way to do it; then, we could have a compulsory provision, although that is not ideal in any circumstances—I agree with the noble Baroness, Lady Cumberlege, that voluntary arrangements work best, whereas, as the noble Earl, Lord Howe, illustrated, compulsory arrangements start off on completely the wrong foot. It may be necessary to have a fallback, but a fallback of this breadth cannot be acceptable.
Lord Hunt of Kings Heath: Let me say immediately that I share the thoughts of all Members of the Committee as to the desirability of a voluntary arrangement. There is no question about that, particularly if we are talking about two separate cultures, as was mentioned in the debate, coming together and dealing sometimes with intrinsically challenging and difficult problems of pulling services together in a dual accountability arrangement. That is indeed challenging.
Clearly, the great majority of care trusts will be voluntary. I accept that, to be successful, they will need to have a shared vision, trust and a real commitment to making the arrangements work. That is why we are giving as much flexibility as possible in the governance
1606
and other arrangements to allow local partners to come together to agree on what they wish to achieve and to commit themselves to making those arrangements work effectively. That is very much part of our "earned autonomy" philosophy and we shall wish to do everything that we can to support those statutory agencies that have decided to go down that path.
The point about the clause that we are debating is that situations arise where not only is there not voluntary agreement or a coming together, but where statutory agencies are simply not working well together, and where the result is a poor quality of service, a lack of co-ordination and too many organisational and cultural barriers, and the public are clearly the losers.
The Government have a number of options open to them to try to deal with those problems. We have a number of areas open to us in relation to social services, based on the assessment that the SSI will have done, performance indicators and the performance assessment framework. In the health service we have a rigorous approach to performance management, where again we can identify poor performance—we discussed the "traffic light" system earlier. It may well be that where there is a real problem, where there is a failure in partnership, one potential possibility is to create a care trust which would enable those services to start afresh and would enable people to come together. I have already said that I believe that the number of cases when that will occur will be rare, but it is important for us to have that option if it seems appropriate.
There is one other point I want to make. This is an even-handed power. It is not simply a question of saying to local government, "We want to take part of your service and put it into a care trust". If we have a problem which seems to be on the health authority's side, then in relation to services which come under the partnership arrangements, this clause can also be used to ensure that a particular service could be led by local government under the partnership arrangements.
So this is very much an even-handed approach, recognising that when there is a problem there is very often a failure on both sides but occasionally it can be on one side. This power will not be used extensively. We hope it will be used rarely but I believe, in the sense of wishing to have the strongest possible co-ordination of services across statutory boundaries, that this clause is an essential part of those arrangements.
Baroness Barker: I will not detain your Lordships very long, because I recognise that there is another debate to come. I simply want to say this. At the beginning of our debate this evening I suggested that the whole notion of care trusts was one over which there are many misgivings because of the lack of detail. One of the biggest of those misgivings is that this represents the take-over of social services by the NHS. I have listened to the discussions throughout the debate, and have to say that I have not been

1607
persuaded. I think that Clause 53 has given rise to many of the concerns that have been raised during our debate.
Lord Hunt of Kings Heath: I thank the noble Baroness for giving way. I really must respond to that. There is no suggestion whatsoever that this is about the taking over by the NHS of a local government service. It is about enhancing co-operation and partnership. That is why I expressly said in relation to Clause 53 that if the direction were used it could be used as much against the NHS to ensure that the service came under a partnership arrangement led by a local authority as it could be about creating a care trust.
Baroness Barker: I hear what the Minister says, but as I said at the beginning of our debate on this matter, I will in time look back on our debate and judge which one of us has proved to have been correct. I will leave it there for the moment.
Clause 53, as amended, agreed to.
Lord Burlison: I beg to move that the House do now resume. In doing so, I suggest that the Committee stage begin again not before 8.45 p.m.
House resumed.

Swine Fever
7.44 p.m.
Viscount Cranbornerose to ask Her Majesty's Government what measures they have taken to relieve the plight of East Anglian pig producers in the light of the recent outbreak of classical swine fever.
The noble Viscount said: My Lords, before beginning this short debate, I should declare a number of interests: first, as President of the British Pig Association, which is concerned primarily with rare breed pigs; and, secondly, as a small-scale breeder and fattener of rare breed pigs and indeed a seller of their products. Perhaps, although it is less directly relevant, I ought also to declare my chairmanship of the Council of the Royal Veterinary College.
I am particularly grateful to those who will be taking part in this short debate and, above all, to the noble Lord, the Captain of the Gentlemen-at-Arms, who will be answering on behalf of the Government. Of course, we are very sorry that the Minister is unable to answer for her department, particularly since I fear I shall have to say one or two disobliging things about it later in my remarks. However, I am consoled by the fact that no one is better qualified than the noble Lord to answer for the Government, because of his unrivalled knowledge and experience of agriculture in general, and of pigs in particular.
It may seem rather odd that I should venture to raise now the matter of an East Anglian classical swine fever outbreak. After all, that outbreak first occurred as
1608
long ago as 8th August last, and today the whole country is in the grip of a much more extensive disaster which one would have expected to occupy our attention. Nevertheless, it seems to me that there are at least two good reasons why I should raise the matter.
The first is the matter of compensation. The House will remember that the Minister announced revised payment arrangements for the pig welfare disposal scheme on the 1st November last. Incidentally, the House will also note that he made that announcement nearly three months after the first outbreak. In the words of a civil servant from the pigs branch of the Ministry:
"The new formula was £12 per pig, plus 55p per kilo liveweight, subject to a cap on total payments per pig of £75 until 30th November, and £67 thereafter."
She went on:
"The payment to the producer will be 80 per cent from the Government, subject to a cap of £50 per pig, with the remainder from the industry."
The Government's part of the scheme, as I understand it, was paid promptly. However, the remainder, up to £25, needed parliamentary approval under the Agriculture Act 1967, and the industry needed to be consulted of course, since the mechanism to be employed was a producer's levy. Such has been the extraordinary haste that the Government have demonstrated over the mechanics of the producer levy that my informants tell me that five months after the announcement and eight months after the initial outbreak not a single penny of the producer levy has yet been paid.
The empressement, if I may use that word, of the Minister of Agriculture and his myrmidons in the face of an appalling crisis overwhelming East Anglian pig producers is, by any standards, in a class of its own. If I may venture to suggest it, this makes the reactions of the bureaucracy of the later Byzantines as rapid as those of Mohammed Ali. But there is at last some action. I understand that the Government have today issued a press release saying that they are now in a position to proceed with a producer levy payment. I hope that that is a tribute to the influence of this House: I would like to believe that it was, but I suppose I must somewhat grudgingly say that it is better late than never.
The second reason for my thinking that it is sensible to raise this matter now is rather more general. The outbreak of classical swine fever may have been confined to East Anglia—not a part of the world that I myself know very well—but it was not there a minor event. I understand that well over 200,000 pigs were killed in containing the attack. Its source appears to have been the illegal imports of meat, which is something that the Agricultural Committee of another place recently confirmed in its sixth report. It is perfectly clear that, in spite of the answer given to me by the noble Lord, Lord Whitty, to a supplementary question following a Statement, there are still thoroughly inadequate import controls in place. I hope that when he replies the noble Lord will address himself to that matter.

1609
By common consent, the Ministry's response to the crisis was muddled. In the words of one Norfolk MP, the Ministry was "slow and chaotic". It looks as though the Ministry did not devote enough resources to the crisis; it changed the staff dealing with it frequently; and order was followed by counter-order. This is a situation in which anyone more military than me could easily predict would result in disorder. I am told that it took on average 27 days to obtain the results of blood tests, and in the real world outside the cloisters of Whitehall your Lordships can imagine the effects such a delay had on farmers since they were unable to trade but needed to trade and keep stock while awaiting the results. Meanwhile as more and more animals accumulated on farms, their suffering became acute as overcrowding became a serious difficulty. To make matters worse it seems certain, from those who observed it, that the standards of slaughter inevitably declined as pressures mounted.
Am I alone in finding that this litany has a familiar ring when it is recited in the context of current events? It is clear that the Ministry deserves the highest censure for its handling of the outbreak of classical swine fever. It is also clear that any team of Ministers worth their salt would have examined the lessons of the outbreak and revised procedures to ensure that any future crisis would be handled better. I should have thought that in normal times that would have been a standard response. In an era of food scares under governments of both complexions—whether it be salmonella, a crisis which brought Mrs Currie her vindaloo, BSE, e-coli and all the rest—the failure to do so defies description. That the Ministry has failed to do anything of the kind is horribly obvious from the slow response, the muddle and lack of resources that seem to have categorised the Government's handling of the current foot and mouth crisis, just as it categorised the handling of the outbreak of classical swine fever.
I am not alone in thinking this. I refer your Lordships to the Sixth Report of the Agriculture Select Committee in another place. At paragraph 8 on page vii it says of the classical swine fever outbreak:
"We believe that specific 'wargames' aimed at controlling classical swine fever should have been carried out following the Dutch outbreak. The absence of such contingency planning shows a failure to learn from experience in other Member States [the Dutch outbreak, in particular] and to apply those lessons for the benefit of our own industry and consumers".
It seems that the Government were unprepared 'for classical swine fever in August 2000 and they were still unprepared for foot and mouth disease in February 2001. They were worse than the Bourbons—the Bourbons at least forgot nothing as well as learning nothing. The Minister and the Ministry for which he was responsible have learnt nothing, but they have forgotten everything as well.
I was strongly marked under the last Government by my experience of the handling of BSE. This is not a party political point. My observation, as a result of some years in government, is that some ministries may be quite good at the day-to-day grind of everyday administration. With one glorious exception—the Ministry of Defence—I do not believe that Whitehall
1610
is any good at handling crises or projects. That failure gets worse when the crises or projects affect more than one government department. What happens is that a senior civil servant—perhaps a Cabinet secretary— talks to the Prime Minister and says:
"Leave the day to day matters lo an official committee and we will report to a Cabinet committee, perhaps chaired by you".
The result is that the civil servants can protect their own backs, and at the same time the recommendations and options presented to ministerial committees can usually allow only one option to be chosen because of the drafting.
When a ticklish problem had to be addressed for which I had been made responsible and which covered more than one department—and there was never anything of this importance—I thought the way to handle it was to have one Cabinet minister responsible and to have a mixed committee of civil servants, politicians, experts and, if necessary, advisers. Apart from anything else, it made the politicians and civil servants behave better when outsiders were present. I should not be surprised that the same trick has been played on the Government in this crisis as well, with the same devastating results for foot and mouth as for classical swine fever—perhaps the noble Lord the Captain of the Gentlemen-at-Arms can satisfy us on that.
The time has come for the Government to take this outbreak and animal health seriously. At last there is some evidence that that is beginning to happen. Yet again, it seems to have happened far too late and the disease has been let out of its bag more than it should have been. Agriculture is in a bad state already. I fear that it will never forgive the Government for their incompetence in the handling of both outbreaks.
Lord Phillips of Sudbury: My Lords, I should like to clarify the statement that the noble Viscount, Lord Cranborne, has made about today's press release. Can he tell us whether that was for the payment of £50 a pig which was promised or anything beyond that?
Viscount Cranborne: My Lords, I am sure that the noble Lord who answers the debate will confirm this. I have only heard verbal reports. I have not seen a press release. I am told that there was never much problem about the payment of £50; it was the up-to £25 as a result of the reduced levy that was not paid. Perhaps as a result of this debate—because one likes to flatter oneself if one can—the Government will be shamed into doing something about it.
7.56 p.m.
Lord Phillips of Sudbury: My Lords, no doubt the Captain of the Gentlemen-at-Arms will tell us about that when he sums up. If it be the case that the top-up figure over £50 is now being met by the Government and not by the industry itself that would be a major advance.
I should like to thank the noble Viscount, Lord Cranborne, for putting down this Question. It is an important debate, even though the crisis of the classical swine fever outbreak is, thank goodness, under control.

1611
The fever broke out last August on the farm of BQP Ltd at Iken, an ancient village on a coastal headland in Suffolk. BQP Ltd is now owned by Dalehead Foods, of which I was a non-executive director for over a dozen years until 18 months ago. They are now the biggest producers of pigs in the country, to add to their pre-eminence as abattoir operators, pork butchers and packers.
The tragic crisis of foot and mouth disease has overshadowed the consequences of classical swine fever. This Question requires us to concentrate on that fever and the plight of East Anglian pig producers. I suggest that we and the Government should also have a care for those whose businesses are intimately and irrevocably connected with pig production, such as the abattoirs. Currently, they are losing massive sums of money, with their fixed overheads, and with no apparent prospect of compensation or assistance.
We should also concentrate on how to prevent a further outbreak of swine fever, given its devastating effects. The MAFF State Veterinary Service and the Veterinary Laboratories Agency published their preliminary findings after an exhaustive inquiry into the outbreak—which, incidentally, was traced back to a pig producer in Norfolk—in the Veterinary Record of 9th September 2000. They did not find any definite source of the outbreak. They mentioned six hypotheses as to the sourcing of the infection— consumption of infected pig product, exposure to infected pigs, exposure to classical swine fever virus by contaminated vehicles or personnel, exposure to aerosol virus from discharges from effluent, exposure to CSF virus in contaminated biological products and, finally, exposure to the virus in contaminated semen.The idea that the infection might have come from a half-eaten ham sandwich tossed by a passer-by into a pig paddock in Norfolk, to be consumed by a pig which then developed the fever is almost Alice in Wonderland. Yet that is what the vets and the laboratories thought was indeed the most likely source of the infection. I checked yesterday with the government veterinary service, and that is still as far as they have managed to go in that respect. If that is the scenario, it makes the prevention of future outbreaks impossible.
Yet the fact is that the outbreak was here in England, even though the infected meat may conceivably have come from abroad. I am not as certain as the noble Viscount, Lord Cranborne, that it is at all safe to assume that the infected meat in this case was from abroad. Indeed, that is not the impression that I get from the Official Report. It also appears to be the case that other countries, such as the USA and Australia, control outbreaks more effectively, and have stricter controls. Perhaps we can learn something from them.
The pig compensation scheme that went through this House very recently appears to be working well, even if it is bringing financial relief too slowly. If the Minister can confirm in his response to the debate that the Government are now paying the top-up over the £50 rather than the industry finding that through its
1612
own resources by levy, that will be a major change. However, if that is not the case, it will be interesting to know why there should be a discrepancy between the compensation arrangements for foot and mouth and those that apply in this respect. As we all know, there is no industry provision for foot and mouth compensation; it all comes from state sources.
Like other noble Lords, I should be interested to hear from the Minister why the fiercer legal disciplines that restrain pig movements for 21 days, other than movement for slaughter, should not now be contemplated for sheep and cows. I appreciate that that is not strictly germane to this issue, but different regimes apply. As I understand it, in the case of foot and mouth, some of the infected sheep travelled to seven markets in 14 days, spreading mayhem as they went.
Another matter for consideration is the sale of pigs at live markets, which currently accounts for only 3 per cent to 4 per cent of the total sales in East Anglia. As I understand it, the national quality standards cannot be met where the pigs have been traded in that way. Surely special attention needs to be given to ascertain whether or not the risks of infection are significantly greater for those animals, and, if so, how that can be addressed without making life more difficult than it already is for the small producers and dealers whom I want to see helped rather than squeezed out yet further. It would also be interesting to compare the robustness of health of small batch pig production with large batch production.
The issue then arises as to how to minimise the appalling waste when fever breaks out. Although now mercifully under complete control, the 180,000 to 190,000 pigs slaughtered in the recent outbreak were all rendered, and put to waste. Given that the meat of such animals is perfectly fit for human consumption provided that the pigs concerned have been through the necessary heat treatment, ought we not now to be building that capacity so that, when the occasion next occurs, the devastation will not be total because the meat of the slaughtered pigs can at least be safely used for human consumption? I realise, of course, that there are difficult issues involved about anticipating that outcome in terms of providing the necessary facilities that are presently absent.
I now turn to the problem of breeding sows, 90 per cent of which, when culled, normally go for export—mostly to Germany. With the export ban, they are now unsaleable, as indeed are a high proportion of pig shoulders, which represent nearly a third of the pig, and over a quarter of which tend to find their way abroad. Can the Minister say whether the Government have any thoughts as to how to assist the industry in coping with those thorny problems? After all, the export market is now a critical component of the viability of the British and East Anglian pig industry. No one has yet mentioned the support fund of over half a million pounds, which, I believe, is languishing unused after the last outbreak of Aujezky's disease 15 to 20 years ago. Might that sum now be used to help the cash flow problems of producers, even on an interest-free loan basis?

1613
Finally, I believe that the industry and the Government need to look more closely at ways of meeting the next outbreak of swine fever, because on the ham sandwich hypothesis it would be foolhardy to think that it will not come. Would it not be better to build up an industry fund during the good years, rather than wait until the disaster has struck? Again, I make that comment subject to what may be said by the Minister in his response. An industry levy could be set at a modest level, which would, none the less, build up over the years to a significant amount that could quickly take at least some of the strain. That would demonstrate a statesmanlike approach by the industry in terms of self-help. It would also encourage maximum government financial assistance to ensure that full and timely compensation is available next time round. I look forward to hearing the Minister's response to those points.
8.5 p.m.
Baroness Scott of Needham Market: My Lords, I am grateful to the noble Viscount, Lord Cranborne, for initiating this debate, and to my noble friend and Suffolk neighbour Lord Phillips of Sudbury. I am looking forward to hearing the comments of the noble Baroness, Lady Byford, who also farms in Suffolk. It is rather on account of that East-Anglian connection that I speak in the debate this evening.
I make no claims to be an expert on the pig industry. However, my home county of Suffolk was at the heart of the outbreak last year, so I have taken a particular interest in its effects on our local economy. As a county councillor in Suffolk, I have a further interest in the sense that the county council is one of the leading agencies in managing the effects of such an outbreak. Indeed, the noble Baroness, Lady Hayman, was quoted in the local press as holding Suffolk up as an exemplar of co-ordinated working. I am afraid to say, however, that the liaison did not seem to work both ways. It took MAFF four days to inform the county council of the first outbreak by which time we had heard about it through local radio programmes. Given the role of the county council as regards trading standards in animal welfare, rights of way issues, and so on, that was a far from satisfactory state of affairs.
As we heard, during the outbreak over a quarter of a million pigs were slaughtered, and many businesses jeopardised as a result. My noble friend Lord Phillips referred to the fact that, in counties like Suffolk, an entire infrastructure is built around the rearing of pigs; for example, feed manufacturers, abattoirs, suppliers of equipment and vets all suffer for some time after the outbreak is controlled. As they suffer loss of viability, that can further affect the viability of other disease-free producers. As if that vicious circle were not enough, the pig industry in East Anglia was already under enormous pressure due to the high pound, the BSE tax, cheap imports and the lack of European aid for pig producers.
The generally accepted view that the outbreak was in all likelihood caused by discarded contaminated pigmeat shows how delicately balanced the viability of our livestock industry can be, with havoc wreaked by
1614
a single random event. But an apparently accidental occurrence should not simply be dismissed as bad luck. I agree with the noble Viscount, Lord Cranborne, that, as a matter of urgency, we should be considering tighter controls of imported pig meat, especially where the exporting country has a high incidence of CSF. There must be a more robust regime of penalties for the illegal importation of pig meat produce.
The fact that last year's outbreak and the other most recent outbreak in 1986 were caused by contaminated pork demonstrates that perhaps we should be working more closely with local authorities and other agencies to see how farms are located in relation to the footpath network, local landfill sites, and so on. There has now been time to look back at last year's outbreak of CSF in a dispassionate way. As we heard, the Agriculture Select Committee in another place severely criticised the Government for their lack of preparedness for such an outbreak. It believes that lessons should have been learned from the Dutch outbreak. I, too, should like to ask the Minister whether such lessons have been learned, or whether a future inquiry into the current foot and mouth epidemic will make exactly the same points.
The 2000 outbreak in East Anglia was initially difficult to bring under control largely because it occurred in areas of extensive pig production. Although such production is highly desirable in terms of animal welfare, it makes disease control more problematic. It is, therefore, more than a little disingenuous of the Government to have taken the position that such outbreaks should be regarded as a normal business risk. Where other generally desirable outcomes, such as greater public access and higher welfare standards, lead to increased risk of disease, and where the effect of that disease will result in measures that threaten the livelihood of the farmer, it is questionable whether that should be defined as normal business risk. The pig industry has little history of subsidy and has taken on itself the need to comply with higher welfare standards which our consumers demand but often do not want to pay for. But even in an industry with a tradition of independence there is only so much that it can take.
After a good deal of anguish on the part of pig farmers, the Government eventually came up with an acceptable deal under the welfare disposal arrangements in November last. I wonder whether the Minister can outline for us the level of payments due to be made during the current crisis. Anything less than full market value will add further pressure to an industry already on the edge. With restrictions on movements and the ban on exports I hope that the EU exceptional market support measures will also be used to operate a "purchase for destruction" scheme.
It became clear recently that money earmarked for the pig industry development scheme earlier in the year was diverted to welfare payments when the outbreak occurred last year. Is there any prospect of that money being redirected back into the development scheme? Can any surety be offered that the money will not be further redirected, this time towards the victims of the foot and mouth outbreak? I also hope that the

1615
Government are prepared to take on board the criticisms of the Select Committee of another place that the industry restructuring scheme involved processes which were far more lengthy than necessary.
On a similar point, can we perhaps consider an emergency payments regime to assist farmers at this difficult time because normal living expenses do not stop while MAFF does the paperwork? On a more positive note, I should like to think that we can do a great deal more to promote the fact that British pork is produced to a higher quality and with better welfare standards than in many importing countries. There is a clear need for better marketing strategies to make those benefits clear and a regime for better labelling to assist consumers in making those choices. The growth in popularity of farmers' markets demonstrates the benefits of providing goods which have the confidence of the purchaser. In Suffolk we have supported the "Tastes of Anglia" consortium which promotes the high quality Suffolk ham and pork produce.
Suffolk is still at the moment mercifully free from foot and mouth disease. However, in a strange way last year's outbreak was a forerunner and, of course, many of the issues raised are exactly the same. Recent debates have highlighted for us all the price versus quality issues which go to the heart of concern over classical swine fever, BSE, foot and mouth disease and bovine TB. Perhaps it is time to have a proper independent oversight and research into the issues of animal husbandry, perhaps through the Food Standards Agency if it is given adequate resources.
There seems to be a growing consensus that there must be major changes in the way our rural economy works, but this needs to be judged on a rational basis, some distance in time from the heat of the crisis, and in a rounded way which does not seek to treat agriculture separately from the rural economy and the wider issues of public health and confidence.
For East Anglian pig farmers, suffering the second crisis in seven months, the future is not looking good. I hope that perhaps the Minister will be able to offer some crumbs of comfort to this important part of the East Anglian economy.
8.13 p.m.
Baroness Byford: My Lords, I begin by thanking my noble friend Lord Cranborne for bringing forward this important matter this evening. Indeed, in his introduction he used strong words and was critical of the Government's handling not only of the swine fever outbreak but also of the current foot and mouth outbreak. His speech reflected inadequacy on the part of MAFF and muddle, which the noble Baroness, Lady Scott, also mentioned.
I should declare an interest. My husband has a family farm at Acton just outside Lavenham, where, in addition to growing arable crops, we run 120 breeding sows. I know from first hand the problems that have afflicted the pig industry both as regards its cyclical nature and most recently as regards the outbreak of classical swine fever. We were one of the fortunate
1616
ones in that our farm lay only two miles outside the restricted area. We avoided having an infected herd and also falling within the restricted zone.
My noble friend was right to raise this issue. The swine fever outbreak began on 8th August last year and is estimated to have cost the industry some £20 million. Bank borrowings are rising every day. Around 1,200 producers were trapped by movement restrictions in Norfolk, Suffolk and Essex and lost almost £4 million, which also resulted in rising bank borrowings. On 29th August last year the Government introduced the Pig Welfare Disposal Scheme to deal with the potential welfare problems in recognition of the exceptional circumstances affecting our pig producers because of movement restrictions which were necessary to eradicate the outbreak. I understand that by the end of October 134,000 pigs had been offered for the scheme and claims worth some £4.1 million had been submitted. Was that money paid to farmers in full and, if so, by what date were those payments made?
The figures gained from MAFF officials this year show that some 70,000 diseased pigs were culled and a further 190,000—however, I accept the figure of 200,000 that others have mentioned—were culled under the animal welfare disposal scheme. Have these farmers been paid? As others have said, the crisis has seen some 25,000 jobs lost in the pig industry, with job losses likely to rise to 50,000 in the industry as a whole.
Farmers in restricted zones were beginning to experience animal welfare problems. Pigs needed to be fed and as each week went by they had to be retained on the farms in increasingly cramped, overstocked conditions. The Government came forward with financial aid. Originally they offered a mere £35 for pigs weighing over 60 kilos and £10 for smaller pigs. At that stage the industry considered those payments unacceptable. But after lobbying from the pig industry, ourselves and other parties, an increased offer was made of £50 from the Government and a further £15 in the form of a levy from the pig farmers themselves.
The sixth report of the House of Commons Agriculture Select Committee, to which my noble friend referred, states:
"There is a lot of frustration within the pig industry at the lack of tangible results from the Government's announcements of last year. Much had been promised. and welcomed, but comparatively little been delivered … We expect the Minister to ensure that all the money originally allocated to the pig industry is paid out in good time".
Other noble Lords have already mentioned the lengthy and unsatisfactory way in which this matter has been handled. A pig farmer in Suffolk telephoned me about three weeks ago. He said that he was owed some £27,500 and he was still waiting. Presumably he is paying interest on his bank loans. When the Government give him the initial sum of £27,500, will they also pay him interest to cover the loan that he is due to repay the bank?
On 4th September last year my honourable friend James Paice wrote to the Minister and pointed out that the £66 million scheme announced by the Government

1617
at the end of March had still not been put in place and that farmers had not received a penny of the producer levy. And here we are six months later. I hope that the Chief Whip will have the relevant figures when he replies to the debate. We need to know what has been paid out and what is still outstanding.
What progress has been made in identifying the cause of the original infection? That matter has been raised in this House and the other place on many occasions. My noble friends have referred to the ham sandwich theory. Others have suggested that the cause of the outbreak may be due to illegal imports of meat. Others have suggested that it may have been caused by animals that were illegally imported through airports. Some have mentioned pig swill in that regard. But what ever the cause, all of us in this House consider that we need much stronger and stricter formal structures at the port of entry and controls over foreign meats entering our country.
In the past two years some 37,000 tonnes of pig meat have been imported from countries where foot and mouth disease is either in existence or is endemic. The noble Lord will know that our party has consistently asked the Government for closer inspection of imported meat. We have also called for a tightening up of the food labelling system to ensure that meat imported into this country but processed here should not he allowed to be classed as British. I referred to that two years ago when we were taking the Food Standards Agency Bill through the House and cited the pig industry on many occasions. Pig producers were furious that meat coming into our country was being presented as British when it was imported meat but processed here and therefore labelled "British". That is a disgrace.
No sooner had we recovered from the immediate restrictions on swine fever and begun to breathe a sigh of relief than foot and mouth disease hit our country. Again a foreign disease is entering our herds. Although the infection was first discovered in pigs, the spread has been dominated by sheep and cattle. This is another disaster to strike our farmers, who are having to cope with their lowest income for 50 years—an average of just over £5,000 last year. Urgent action is needed.
Since 23rd February slaughter movement from farms not under specific restrictions has been running at 70 to 80 per cent of normal capacity. A steady accumulation of overweight pigs is backing up on farms. I was recently speaking to a big abattoir and processing firm in West Bromwich which, because of the foot and mouth disease restrictions being imposed on it, did not have the ability to take more through the system in a quicker way.
The long distance movement scheme for pigs, from breeding to rearing to finishing, has not yet started. Perhaps the noble Lord will respond to that. I understand that the scheme involves a time-consuming, complicated system of cleaning and disinfecting lorries which will have to be streamlined.
Farms under restriction have not sold a thing since 23rd February this year. Estimated figures of pigs in infected areas are provided by Assured British Pigs,
1618
which embraces about 80 per cent of all pigs. Inflating its figure of 15th March by some 20 per cent yields 55,000 sows and 600,000 growing pigs. As other noble Lords have said, their old sow market has fallen. We normally sell approximately 6,000 per week, of which 90 per cent go for export; that market is closed.
The urgent problem must be solved if our UK herd is not to lose long-term productivity. It is also critical for our breeding companies—our genetic future—to be able to start trading again at least in the UK market. We are really living in very troubled times.
I am left worrying about our farmers. I understand that the Government have this afternoon announced a scheme for our pig farmers. I should be grateful for clarification. My understanding is that it is a foot and mouth welfare scheme, as opposed to a swine fever scheme; the noble Lord is nodding. Therefore—I stand to be corrected—I think we need to talk about two different schemes.
I understand that the offer provided by that scheme is £75 for culled sows and £15 plus 55p per kilo for all other pigs, to a maximum of £70. I also understand that the Government themselves have not undertaken to finance that top-up scheme but that it takes the form of a loan. Perhaps the noble Lord will also clarify that point. The Government's response will indeed be welcome, but many will find that, although a loan will help, they will have to eat into their capital. They were hoping for much more government support.
We have previously suggested that, in these very difficult circumstances in which we find ourselves, there may be a role for the reopening of smaller abattoirs to cope with the back-up problem of animal welfare, where we cannot move enough of our pigs that are in restricted areas at the moment. I should be grateful if the noble Lord would also deal with that matter.
Classical swine fever came from abroad; so has foot and mouth disease. Our British farmers care for their animals. They have set the highest standards. We have some of the finest herds, of which we are all rightly proud. Our farmers care for and take great pride in their stock. The swine fever outbreak, and now the foot and mouth disease outbreak, are destroying not only the animals but those whose lifetime's work is being culled before their eyes.
We look forward to the Minister's response, and I again thank my noble friend for introducing this very important debate today.
8.25 p.m.
Lord Carter: My Lords, in replying to this extremely interesting debate, I declare a former interest. The farming company of which I was a director and shareholder before I entered government had a very substantial pig unit in Hampshire and Wiltshire, not in East Anglia. I hasten to add that my shares are in a UK-based trust and that I have resigned all my directorships.
From my lifetime's working experience in farming, I am well aware of the problems that face the industry. In the time available, I am not sure that I shall be able

1619
to answer all the questions that have been asked, but, as always, I shall ensure that every noble Lord who has spoken receives an answer from me, either in the debate or in writing.
I think I am grateful to the noble Viscount, Lord Cranborne, for raising this issue today, and to the other noble Lords who have spoken in this short but useful debate. As the noble Viscount, in his charming way, said, he had occasion to be disobliging. This has been an important debate. At this time of crisis in the livestock industry, we should not forget that, as has been made clear, the pig producers of East Anglia have previously been here, and not all that long ago.
The classical swine fever outbreak in East Anglia between August and December 2000 may not have had the media impact of the foot and mouth disease crisis; nor did it affect as many farmers, animals or members of the general public. But for those caught up in the outbreak, either directly or as a result of their pigs being subject to movement controls, the shock was just as great, and the consequences equally daunting.
In the course of my speech I shall give a brief summary of the outbreak. I shall set out what the Government did in response to the consequences of the outbreak and what it was asked to do but, for various reasons, could not do. In doing so, I hope to address almost all the points raised, including the foot and mouth disease outbreak, though this debate is about classical swine fever.
The outbreak started on 8th August with a confirmed case of classical swine fever on a holding in Suffolk. Investigations suggested that the original infection was introduced in early June to a breeding unit in Norfolk, which then appears to have spread to pig rearing premises with the movement of infected, weaned pigs. The lateral spread appears to have taken place from one of those to two neighbouring holdings. Others were infected by either the movement of infected pigs or the movement of vehicles or people.
CSF was confirmed on a total of 16 premises during the outbreak: one in Essex, six in Suffolk and nine in Norfolk. Nearly 80,000 pigs, classified as infected or dangerous contacts, were slaughtered. Controls were finally lifted on 29th December 2000. I think it is well known to noble Lords that the Government pay compensation to producers whose herds have contracted CSF or are thought to be dangerous contacts and must be killed. Under Schedule 3 of the Animal Health Act 1981, producers of animals with swine fever are recompensed at 50 per cent of their value preceding infection, and at full market value for healthy animals.
The compensation attempts to address the immediate financial difficulties faced by those who have the disease on their holdings. What it does not do is address the consequential losses of those farmers and the problems faced by farmers who have not had the disease on their holdings but are unable to market their animals because of movement controls. I shall return to that point when I deal with the Pig Welfare Disposal Scheme (PWDS).
1620
I should point out that the consequential loss for those farmers who have had their animals slaughtered is an insurable risk. One farmer I know well has substantial consequential loss cover of £300,000 in the event that his animals have to be slaughtered as a result of an outbreak of disease.
Lord Phillips of Sudbury: My Lords, I thank the Minister for giving way. I believe I am right in saying that not all risks are insurable. My understanding is that neighbour-to-neighbour infection is not an insurable risk.
Lord Carter: My Lords, the NFU has offered foot and mouth insurance and consequential loss insurance for years. I believe that the relationship has to be on the farm where the animals are slaughtered. I am not sure, but I do not think that the farmer next door can have an insurable risk and a consequential loss. I shall investigate that and let the noble Lord know.
The Government sought to address the issues in a number of ways. Under unprecedented measures, payments were made to producers who faced severe animal welfare problems as their animals were caught by movement controls. Noble Lords should pay tribute to the Government for that attempt to meet that new problem in that way. The payments were made under the Pig Welfare Disposal Scheme— PWDS—which opened on 29th August 2000.
Those payments were unique in respect of animal health measures in the UK—nothing like them was available during the 1986 CSF outbreak—and in part they reflect the exceptionally difficult circumstances that the pig industry went through during 1998–99. However, it is fair to point out that before 1998–99, the pig industry had had some years of substantial profit. As we have said all along, the payments were not compensation, but were linked strictly to dealing with animal welfare problems. In all, payments were made on 181,000 pigs. On three occasions my right honourable friend the Minister of Agriculture, Fisheries and Food accepted an industry proposal to change the payment structure of the scheme, backdated to the beginning of the scheme. By agreeing to those changes, the Government showed themselves to be fully prepared to take on board the legitimate concerns of the pig industry.
The noble Baroness, Lady Byford, asked about the cost to the taxpayer of the compensation measures and the welfare scheme. A total of £4.5 million was paid in compensation to pig farmers under the Animal Health Act 1981 for animals slaughtered. The additional spending on veterinary and other staff costs, together with laboratory costs, amounted to around £3.5 million. Payments to producers under the PWDS were £8.8 million, with the cost of transport, slaughter, rendering and supervision adding a further £5.3 million. That gives a grand total of additional MAFF and Intervention Board expenditure on CSF measures in the region of £22 million, with about £13.3 million going direct to farmers.
To ease the welfare situation further, limited movements under licence between holdings in the same ownership and within the infected area were

1621
permitted. A slaughter under licence scheme was devised after MAFF negotiated a derogation from European Community legislation. In the event, that scheme was not used, as controls on movement were lifted progressively after the final confirmed case.
As part of the deal to change the payment structure, the pig industry agreed to make a financial contribution, funded by means of an industry levy, to help those affected by the consequences of disease control measures. Pig industry representatives are to be applauded for taking that longer-term and wider view. The outcome of that agreement is the Pig Industry Development Scheme, which has been approved by Parliament and came into force last week. I wonder whether the noble Viscount remembers PIDA—the Pig Industry Development Authority— which was a levy-funded scheme in the 1960s and 1970s. In agriculture policy, if you stand still long enough, the circle comes round again.
The aim of PIDS is to build up an industry fund to be used to provide advice, services, facilities and financial assistance to British pig producers to assist them in the prevention or limitation of the spread of an outbreak of pig disease. It will be funded by an industry levy of 20p per pig slaughtered.
The agreed first use of the PIDS fund is the top-up payment of the government-funded Pig Welfare Disposal Scheme. Once that commitment has been met, it is for the Board of PIDS to decide how the fund might be used. The order agreed by Parliament permits its use for measures connected with foot and mouth disease.
I listened with interest to the fair criticisms that were made of the Government's response to the outbreak. However, it is fair to point out that I was the opposition agriculture spokesman for 10 years. I remember the BSE outbreak and the Phillips inquiry, which revealed a shattering catalogue of incompetence. I believe that the cost of BSE is likely to be £20 billion.
MAFF took immediate steps to contain and control CSF. Movement restrictions were served on premises where swine fever was suspected because of the high risk of spread.. If swine fever was confirmed, all the pigs were valued and slaughtered and the carcasses destroyed. In addition, in an attempt to halt the spread of the disease, when CSF is confirmed, the current policy is to slaughter all pigs within a 1 km radius of the infected premises unless there are sound reasons not to do so. Pigs on premises within a 3 km radius will not normally be slaughtered as dangerous contacts unless there are sound epidemiological reasons for doing so. If those precautions had not been taken, the disease might have spread further afield and many more pig herds might have been affected.
The State Veterinary Service and the ministry devoted significant resources to eradicating the outbreak. Emergency disease control centres were set up in Bury St Edmunds and London as soon as the disease was confirmed and they operated seven days a week throughout the crisis. More than 500 SVS staff did spells of duty in those centres on secondment from
1622
elsewhere in the country. Additional help was provided by private vets in the area, appointed as temporary local veterinary inspectors for MAFF. Vets were brought in from the Netherlands, Ireland, the USA and elsewhere to help out. Local authority staff were also heavily involved, for example in the enforcement of movement controls. SVS staff made about 5,600 farm visits, investigated more than 240 cases of suspected disease and traced more than 2,300 movements of pigs, vehicles and people.
The problem with the timing of the payment structure of the PWDS was that the only vehicle available to introduce a compulsory levy on pig producers that did not involve primary legislation was an MLC-originated development scheme under the Agriculture Act 1967, as the noble Viscount said. However, the nature of the procedures for introducing a scheme are complex and time-consuming and include a 56-day consultation period, followed by independent arbitration and affirmative procedure statutory instruments in both Houses. The scheme also required clearance from the European Commission as a state aid. The formal consultation period was launched by the MLC on 24th November and ended on 23rd January 2001. After a report from the independent arbiter, the MLC wrote to agriculture Ministers on 26th January recommending that parliamentary approval be sought for the introduction of the scheme. The orders were laid and the scheme came into force on 14th March.
I cannot deal with all the points that were raised, but I shall deal with some of them. I understand that all the payments from MAFF have been made. I shall come back to the point about the industry and the top-up payments under PIDS. The EU, including the UK, imports only from countries that are CSF-free. That is why the question of illegal imports has been raised. Regarding the famous ham sandwich, the SVS will continue to investigate the source of the CSF outbreak. If the import was illegal, a contaminated pork product is a possibility, but noble Lords will appreciate that proof of that will be very hard to find.
We have tightened up the interpretation of the 1996 food labelling regulations in respect of origin marking and new guidelines have been issued, but they cover only legal imports. We have to grapple with the problem of illegal imports.
An announcement has been made today about. the Welfare of Livestock Disposal Scheme. Given the effects of FMD, it is worth pointing out that 85 per cent of the normal throughput of pigs has been achieved through the abattoirs. That is a higher proportion than for other animals. I believe that the figure for cattle is about 50 per cent and that for sheep is only 38 per cent. At least pig producers seem to be able to market 85 per cent of their normal throughput in the abattoirs, although whether the price is satisfactory is another matter.
I can confirm the figures that the noble Baroness gave on the compensation under this scheme. They are £15 per animal plus 55p per kilo up to a maximum of 100 kilos per pig, the average of the batch weight for a lorry load and £75 per head for sales.

1623
The Government are looking at how to help with the payments under PIDS, for example by providing a loan to allow the top-up payments to be made immediately. As I understand it, a grant would be classified as state aid and would not be allowed under EU rules.
There were some measures that the Government could not take or decided were not appropriate in the circumstances of the CSF outbreak. For example, we could not introduce a scheme to compensate producers for business losses. EU state-aid rules specifically exclude government payments of that type. The introduction of exceptional support measures would have required the UK to demonstrate that the disease situation had been directly responsible for severe market distortion. In the event, the market price had followed the normal, seasonal trends throughout the period of the CSF outbreak.
I have had to give my reply extremely quickly and have now gone over my time. I know that we should be finishing the debate. I can assure all noble Lords that I shall write to them about the detailed points that they have raised.
There are always lessons to be learned from any disease outbreak. Noble Lords should remember that the last major outbreak of foot and mouth disease in this country occurred in 1967—that is, 34 years ago. A small outbreak in 1981 was controlled extremely quickly. Therefore, we have had 34 years without a major outbreak of the disease. That indicates that the slaughter policy has worked.
Noble Lords will know how hard the Minister, Nick Brown, and my colleague Lady Hayman have worked in recent days. I appreciate the remarks made at the outset by the noble Viscount. I am here this evening in place of my noble friend and I answered a Starred Question for her on Thursday. I know that your Lordships will understand that she is much better employed dealing with FMD out in the field. I hope that, in her place, I have replied adequately to this debate.
One of the, in a sense, ironic results of the current crisis of FMD is the commitment given by the Minister to instigate, once the crisis is over, as it will be eventually, a thorough examination of the role of farming, the countryside, abattoirs and the food chain. From that, we may well learn things to our advantage.
Baroness Byford: My Lords, before the noble Lord sits down, perhaps I may thank him for standing in for the noble Baroness, Lady Hayman. We quite understand why she is not here. I want to ask him two things. The question of insurance was raised. Some pig farmers do insure against swine fever. However, when the matter is considered again, perhaps he would raise the question of what happens in relation to reinsurance. I believe that some people are experiencing difficulty in obtaining reinsurance cover.
My other comment is that he reflected the sadness that was felt at the lack of competence when BSE broke out. If three outbreaks have occurred and they
1624
are still reflecting incompetence, surely we need to get to grips with what we do and how we do it. However, I thank the noble Lord for the way in which he responded.

Health and Social Care Bill
8.43 p.m.
House again in Committee.
Lord Rix Lord Rix moved Amendment No. 259:
After Clause 53, insert the following new clause—
"PROHIBITION OF NEW CHARGES AS A RESULT OF THE CREATION OF CARE TRUSTS
No new charges shall be created for new or existing services as a result of the creation of Care Trusts.".
The noble Lord said: I am sure that the Minister will have been advised as to the technical as well as the policy problems with my new clause. What can be said in its defence—and that is no mean virtue—is that its purpose is crystal clear. Even I can understand it. It is intended to ensure that the setting up of a care trust does not open the way to charging for existing services which at present are free, and that it does not open the way to creating new services which will then be charged for.
I accept the assurance that introducing care trusts does not of itself remove the distinction between social services for which charges may be made and health services for which charges may not be made. However, we all know that an important aspect of the increase in charging has been the replacement of free services by chargeable services. The Bill, as it stands, does nothing to prevent the continuation of that process. So far as I can see, it would be open to the managers of the new hybrid to designate all new or amended services as social services for charging purposes. That would not be possible with my quite simple amendment.
I believe that we already have more than enough charging. People should not be taxed on essential activities which are forced upon them by disability or by disadvantage. They already, according to their means, pay taxes towards the cost of public services. Those services should be free at the point of receipt. My amendment would go far to slamming the door on this imaginative creation of new burdens for disabled people, even though it would stop short of removing existing charges.
I hope that the Government will see some attraction in removing from the innovation of care trusts— whether the voluntary arrangements or, as we have heard quite often this evening, the shot-gun wedding variety—the stigma of concern about new charges. With that threat out of the way, the new partnership arrangements can be considered on their merits. I beg to move.
Baroness Greengross: I support the amendment. I have grave concerns that people may not always know what is an NHS service and what is a social service. New methods of flexible working are very welcome.

1625
We all agree that they will make sense to most service users but they may mean that staff themselves will not always know whether a particular service that they provide comes under health legislation or social service legislation. Many staff members already find it difficult to make that distinction. Therefore, perhaps inadvertently people will be charged inappropriately. I support the noble Lord, Lord Rix, because I believe that his amendment seeks to avoid that happening.
Baroness Masham of Ilton: I refer to the point that I made previously in relation to the amendment to which the Minister spoke. I am sure that he will give more assurances now.
Lord Clement-Jones: I rise to support the amendment. I believe that it concerns a very important principle. As I recall, I believe that the noble Lord, Lord Rix, tabled a similar amendment when we debated the Care Standards Bill. We received a set of valuable assurances on that occasion. Each time that we deal with a new piece of legislation which takes powers or which changes the structure of the way in which we proceed, it is important that Ministers return to give us those assurances anew.
My motive in rising to speak on this occasion is horror at the recent consultation on fairer charging policies for home care. In relation to that type of issue, it is absolutely vital that, however welcome it may be, the creation of the new structures does not lead people—particularly vulnerable people or those who need a great deal of support—to being charged where they were not charged previously. I believe that that is absolutely crucial. As the Minister knows, we on these Benches would roll back the boundaries a great deal further than the Government are doing. However, let us at least keep those boundaries where they are at the moment.
Lord Hunt of Kings Heath: I fully accept that this is a useful opportunity for me to place on the record the Government's position. As I said earlier this evening, the creation of care trusts should not be seen, as perhaps has been feared, as a way of extending means-testing or cost-shifting between the NHS and local government.
It is clear that care trusts are likely to be established to Commission or provide services, some of which are charged for and some of which are not. The policy on charging or not charging will remain. Where charges are made currently, there will continue to be charges; and where the services are free—most notably, NHS services—that will also remain the case. In addition, where local authorities have discretion to charge, the policy will continue to be the responsibility of the local authority. I believe that that answers the question that was raised earlier by the noble Baroness, Lady Barker. The care trust will carry out the charging policy as appropriate.
I stress that, because a care trust provides some services that are charged for, there is no intention to introduce charges for NHS services. NHS services will remain free at the point of delivery.
1626
I pick up the concerns that were raised by the noble Baroness, Lady Greengross, about the impact of charging on integrated provision—the noble Lord, Lord Rix, also mentioned that. That concern is nothing new. In relation to partnership arrangements, when staff and managers see the benefit of working together to provide better services, they find ways to minimise any difficulties involving charging. The assessment process is key in that regard. I respond to the noble Baroness by saying that I agree that, from the outset, potential users of services need to know clearly that some services may be charged for. They need clear information so that they can make decisions about the care that they want. Equally, staff need to be trained to ensure that they give clear messages and have good written information to leave with the user.
I am aware of the concern that setting up a care trust might enable people to consider cost-shunting. Once again, I make it absolutely clear that that is not the intention and that the assessment process is key to ensuring that there is clarity in determining which services are free and which are not. The frameworks for performance assessment and performance management exist to pick up any problems that Might arise and to enable us to deal with the matter.
Baroness Masham of Ilton: I have one question for the Minister. I have had notification from the Incontinence Society, which is concerned in this context about catheters, incontinence sheets and so on. Will he give an assurance that such matters will come under nursing care?
Lord Hunt of Kings Heath: The assurance I can give is that the development of care trusts will have no impact on that issue. Essentially, care trusts combine local authority services with NHS services. The point is that if one has a charging policy in relation to some social services, that will be brought into the care trust and the charging policy will be determined by the local authority that is entering the voluntary arrangements. If an NHS service is involved, that will be provided mostly free at the point of delivery, apart from the few cases in which the service is not free. The care trust will have no impact on those wider policy issues.
Lord Rix: Would the Minister say whether a name shift could take place? A service might be provided but not charged for; the body might change the title of the service, as it were, and it might possibly slightly change the content of the service, which might be ruled to be a chargeable item. Is that a possibility?
Lord Hunt of Kings Heath: If there was a deliberate attempt to cost-shift by changing the relevant names, one would not wish to support that and the attempt should be picked up in the performance management process. The key in that regard, surely, is that in the initial agreement to become a care trust, health and local authorities will have worked out those issues so that there is a clear statement of policy. Nothing should be undertaken that compromises the fact that

1627
the service, if it is an NHS service, is provided free at the point of delivery. I should expect that to be sorted out by the partners to the agreement on the care trust.
Baroness Noakes: I can quite see how one could deny that it was relatively simple to sort out the charging arrangements—one would bring together two separate organisations and one would distinctly see the different service streams and charging arrangements. If one is trying to create something additional out of a care trust—that must be the aim and involves the idea that the parts are greater than the whole—one would, over time, blur those early distinctions. Early agreement, which I am sure is easy to attain, simply will not hold. The amendment is designed to reflect the fact that early certainties will not obtain after what may be a short period of time. As care trusts progress, I am not sure whether the Government have thought through the implications of mixing those two very different financial streams.
Lord Hunt of Kings Heath: I certainly would not disagree that those arrangements are not without their challenges. We now have good experience of partnership arrangements through the relevant flexibilities. Health authorities and local government are currently facing up to those issues and the evidence is that they have been able to deal with the issue of charges compared with free services in a sensible way.
There is a wider debate in this context about personal care and nursing care, and we shall presently come to it. My view is that there will always be some kind of system of charging for some social care services and I certainly hope that the NHS will always be free at the point of delivery. Given that we have those principles and that we want there to be greater partnership in joint services, we shall just have to work at it to make sure that we manage the matter in the most effective way.
Baroness Cumberlege: I want to take this point a little further. The Minister was absolutely right to say that everyone understands the issues that are involved with pooled budgets. Accountability still goes back to the two parent bodies. However, my noble friend Lady Noakes was arguing that, although that is fine as things are, what will happen when there is a new entity—a new body called a care trust—in relation to which those accountabilities will not be the same? The fact that there is a new entity is the point. I return to the comment that I made earlier; the policies have not been thought through in this regard. I do not refer to rules, although the Minister's previous reply made reference to them. We are talking not about rules but about making policy, and the policy has not been thought through. We believe that those issues will need much more working through before the Bill is enacted.
Lord Hunt of Kings Heath: The care trust is still dually accountable—to the Secretary of State, as are all NHS trusts, and to the local authority, which devolved responsibilities to it. I do not believe that that
1628
arrangement differs from the partnership arrangements. I still believe that it is perfectly possible for the partners, as they enter into a voluntary agreement, to be clear about the policy on charging, to be able to make that known to the staff and to ensure, as the noble Baroness, Lady Greengross, and the noble Lord, Lord Rix, require, that users of the service also understand it. The arrangement is a fact of life in health and social care, and it will be with us, as it has been with us previously. It is not beyond the bounds of possibility that people at local level can make the arrangement work.
Baroness Noakes: We currently have mechanisms that work, such as care trusts, which can, under the current framework, manage to make the differentiations that are necessary to achieve proper accountability. What gains are there in imposing a care trust regime on top of that arrangement, in relation to which we have to accept that there is much blurring of accountabilities? That happened, for example, with the creation of the Care Trust Board. I am at a loss to understand why we need these complex new arrangements if, as has been suggested, the partnership arrangements work perfectly well.
Lord Hunt of Kings Heath: The partnership arrangements have been working well. I said earlier that there are at least 40 such arrangements, with a commitment of about £300 million. Care trusts will give us a new system of governance, allowing the NHS and local government to put forward their own people to sit round the table. That is a powerful way to have quiet leadership in a particular service. It can give impetus to the whole partnership arrangement, and will build on the current success of partnership arrangements.
9 p.m.
Lord Rix: Because of my past career, I am a great believer in belt and braces. It is a pity that the Minister was unable to accept my simple amendment, which would have made the formation of care trusts clear to all at the outset. Having said that, and having listened to the Minister's assurances—and his doubts—I feel that I ought to read what he said and consult my colleagues. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 54 [Further provisions about directions in connection with Care Trusts]:
On Question. Whether Clause 54 shall stand part of the Bill?
Earl Howe: I do not intend to spend long on the clause, but perhaps the Minister can answer a couple of questions. Subsection (2) is not mentioned in the Explanatory Notes. I understand that its purpose is to enable the relevant authority to determine the level of funding to be transferred from the local authority to the care trust for the performance of designated functions. I have already made the observation that by any standards that is serious erosion of local accountability for local authority resource allocation.

1629
Clause 54(2)(e) grants the Secretary of State the power to direct that local authority capital assets are made available to a care trust. That might include office accommodation or other premises, computer equipment, and so on. The effect would be to deprive the local authority of the use of its own capital assets for the purposes that it chooses. Will the Minister clarify whether he is certain that such an expropriation is legally permissible?
Will the Minister also say what will happen if the financial sum that the Secretary of State determines should be transferred from the local authority to the care trust is greater than the sum currently allocated to the activities or functions that are being transferred? In other words, what will happen if the local authority is told that it must transfer more than its social services SSA to the care trust? There would be a direct knock-on effect on the level of funding available for the performance of any social care functions that had not been transferred, and potentially an effect on the entire local authority budget. What safeguards exist to protect a local authority from that situation? What will be the role of the arbitrator in a disputed situation of this kind? Is his decision binding?
The idea of an outside person coming in to decide how much money is to be transferred from a local authority to a central government department—if that is not too stark a way of putting it—is odd. Any light that the Minister can shed would be welcome.
Lord Hunt of Kings Heath: I shall do my best. Under clause 54(2), the Secretary of State will do only what is legally permissible. There are two points to make on the SSA. Clearly, in making such determination, the Secretary of State will take into account the impact that it will have on the local authority as a whole. I am not sure that using the SSA example is quite fair as the noble Earl, Lord Howe, will know that many local authorities spend above their SSA limit. I am not saying that simply because the figure was above the limit it would be necessarily wrong, especially if the authority was spending on social services. Clearly, that would be a matter for the Secretary of State to decide.
Subsection 2(e) will allow premises to be leased or rented, which I do not think will cause problems in relation to the impact on the local authority. We are talking about premises from which services are run. If the services themselves are being transferred, it would make sense to ensure that the premises are covered in the transfer.
The noble Earl, Lord Howe, is right to say that the Secretary of State can determine resources in the absence of agreement, but it is hoped that agreement would be reached. The role of the arbitrator might be helpful, but the extent to which it is binding would depend on what both parties agreed to in going to arbitration.
Earl Howe: I am grateful to the Minister. I thought that the SSA was a formula showing the amount that a local authority ought to be spending in order to deliver services adequately. If the Minister insists on a transfer
1630
larger than the SSA, he will have to work pretty hard to justify it, as it implies that the SSA is not an adequate formula.
Lord Hunt of Kings Heath: I was merely saying that many local authorities spend above their SSA on social services. I should have thought that in arriving at a sensible amount of money to be transferred, one needs to examine the authority's overall spend on social services. That might be above the SSA level, which is why I thought that it was not fair to pitch the point at that level.
Earl Howe: One hopes that even in the case of a directed care trust there would be some scope for negotiation on matters of this kind. But I am grateful to the Minister for what he said. It has been a useful clarification in many respects.
Clause 54 agreed to.
Clause 55 agreed to.
Schedule 4 agreed to.
[Amendment No. 260 not moved.]
Baroness Barker Baroness Barker moved Amendment No. 261:
Before Clause 56, insert the following new clause—
"CARE: DUTY OF SECRETARY OF STATE
(1) Where a person has been assessed by a National Health Service body, or any other body or suitably qualified person acting under delegation or under contract to a National Health Service body, or as part of a multi-disciplinary assessment, as reasonably requiring for health care purposes—

(a) nursing care (including any planning. supervision, or delegation of such care) which—

(i) is planned for a person by a registered nurse after assessing that person's need, and

(ii) is provided, delegated or supervised by a registered nurse,

(b) the use of any medical, surgical or nursing equipment, or personal aid including that provided by or in a residential or nursing home home, or

(c) health care wherever provided, including care provided by or in a residential or nursing home.

(2) Health care includes, the diagnosis, assessment, monitoring and delivery of any care, treatment or therapeutic intervention.
(3) It shall be the duty of the Secretary of State to provide the care or equipment or aid as described in this subsection whether directly or indirectly throughout England and Wales.
(4) For the avoidance of doubt a local authority shall not: be prohibited from providing or arranging services under subsection (1) above, provided they are delivered by the delegated authority of the NHS under the provisions within section 31 of the Health Act 1999 (delegated NHS functions).
(5) In cases where services are provided under subsection (2) above, section 1(2) of the National Health Services Act 1997 (services free of charge) applies.
(6) Nothing in this section affects the provisions of the National Health Services Act 1977."
The noble Baroness said: We now come to the part of the Bill which some of us believe is the absolute heart of the matter; that is, the definition of nursing care. The purpose of the amendment is to establish the responsibility of the NHS for healthcare needs, including nursing, equipment and other healthcare in nursing homes. Many people who have read the Bill have been taken aback not just by the narrow

1631
definition of nursing care but also by Clause 56 and the way it is phrased. It simply requires that local authorities should not purchase nursing care. It does not endow the National Health Service with a duty to provide nursing care. That seems rather strange.
The definition of "nursing care" in this amendment mirrors that provided by the Royal College of Nursing. It is necessary because a great many older people in nursing homes will not, contrary to what was perceived originally, be eligible for what is commonly thought to be nursing care. The definition of nursing care which we have had so far is not the one put forward by the Royal Commission on Long Term Care and it is not, I suggest to the Committee, the definition which most of us would draw up if we were to try to define nursing care.
It is extremely important that within the context of this debate we define what is and what is not nursing care. So far the Government have said that nursing care is what a registered nurse does. That is not sufficient because what nurses do is changing. Over the past few years there has been—and there is envisaged within the NHS Plan—a great degree of change and a great degree of "skilling-up" of nurses. That means that most of the nursing care which is carried out in nursing homes will not be carried out by registered nurses. It is far more likely to be carried out by care assistants. Therefore, it is important this evening that we draw up a definition of nursing care which is understandable and inclusive.
I suggest that we need to define nursing care this evening because if we do not do so, I suspect that nursing care will be defined in this House but not by us; it will be defined by the Law Lords at a different time. In the Coughlan case, where the care needs were felt to be wrongly judged, and not to come within the ambit of either the NHS or social services, a legal decision was sought, and I believe that that will happen again.
I believe that the Minister's reassurances which he sought to give to the noble Lord, Lord Rix, about NHS services being delivered free need to be backed up by a proper definition of nursing care. We have put behind us for the moment governance and structures and we are now getting down to talking about what those people will do and what their responsibilities are. But there are those of us who still fear that if those new structures are not accompanied by a wider definition of nursing care, we shall begin to see the part privatisation of the NHS.
I want to speak for a few moments about equipment. The amendment deals with that. As the Committee will know from many of the discussions we have had in the past, particularly on Audit Commission reports, provision of nursing and medical equipment is extremely important. At the moment, there is a duty in residential care homes for specialist medical or nursing equipment to be provided; but often it is not. Quite often older people pay for equipment, some of which is very expensive, when, were they in any other setting—at home or in a hospital—they would have received it free of charge.
The noble Baroness, Lady Masham, talked about incontinence pads. I support her in her arguments about that. It is not unusual for older people in nursing homes to be paying for incontinence pads. Those are not luxury items; they need them as part of their everyday lives. In addition, it is not unheard of for people to have to pay for expensive items of equipment, such as pressure beds, which they would not have to do elsewhere.
Amendment No. 261 and the one put forward on behalf of the Royal College of Nursing, which we shall debate shortly, do that which all the Ministers who have wriggled around this question of the definition of nursing care for several months also do. They have said, "Who better can define what is nursing care than a nurse?" Who better to define it in terms of poverty than nurses in the form of the RCN? That being the case, I believe that noble Lords should have no problem in accepting the amendment. I beg to move.
Lord Rix: When I tabled Amendment No. 262 I had not envisaged two substantial discussions on the same issue in Committee and the rather lengthy Amendment No. 261 being grouped ahead of mine. For the second time, the Liberal Democrats opposite have beaten me to the starting post. In the circumstances I shall be brief because the twice told tale—boiling old potatoes—tends to lack an audience, even though at the moment it can only be described as thin.
My amendment addresses the issue quite simply that, in dealing with complex high-dependency needs, in some places a nurse or other health professional will be tackling the need, whereas elsewhere somebody else will be doing it. My argument is for common ground across the country and in all individual cases in all settings in assessing health needs and meeting those needs free of charge. Lesser availability of hands-on health professionals in one area should not mean that people in that area get possibly both a poorer service and a dearer service.
My amendment addresses all three of the desirable elements on which I believe we are agreed: quality, financial equity and getting away from the postcode lottery. Not even Manchester United can manage three goals simultaneously.
9.15 p.m.
Lord Archer of Sandwell: The noble Lord, Lord Rix, has many virtues which I cannot emulate. On this occasion it is the conciseness with which he stated his case. Included in this group of amendments are my Amendments Nos. 263 and 266. I make no complaint of their inclusion in the group. I certainly do not wish to imply any opposition on my part to the other amendments in the group. But in the interests of clarity, I begin by pointing out that my amendments address a much narrower point. I repeat the declaration of interest which I made at Second Reading.
I am privileged to be President of Methodist Homes for the Aged. One of our activities concerns the care and treatment of dementia patients. It is not by any

1633
means our only activity, but it is a field in which we have acquired some knowledge and expertise. We have dementia sufferers in a number of our residential homes. At Second Reading I referred my noble friend the Minister to the report of the Audit Commission published last year entitled Forget Me Not. A section was devoted to Methodist homes, particularly to the residential home at Mayfields in the Wirral, which is devoted specifically to the care of dementia patients. I do not know whether my noble friend was able to include that in his reading list. From my recollections of being in office, one's reading of anything but briefs, press reports and official documents goes into suspended animation. I see from the expression on my noble friend's face that he has not succeeded in reading it. I do not in any way complain about that.
The Commission stated:
"Staff training and support are fundamental to the regime of the home in which relearning and maintaining living skills is emphasised at all times".
I attempted to deploy the argument for the amendments at Second Reading. Subsequently, my noble friend generously spent some time discussing them with me. I can state the point at issue relatively briefly, although, as I have said, I cannot hope to emulate the noble Lord, Lord Rix.
Clause 56 relieves local authorities of the obligation to pay for nursing care. The reason, as I understand it, is that in future the cost will he provided by the health service, and that is very much to be welcomed. It is not intended that social care should be provided from that source. As I said at Second Reading, I recognise the disagreement between those who support the distinction and those who believe that no such distinction should or can be made. I see that the noble Earl, Lord Howe, has tabled an amendment on that point at a later stage. I am not addressing that dispute. For the purpose of this argument I assume that the distinction will be made, although I wish the noble Baroness well.
The distinction spelled out in the Bill is between nursing care provided by a registered nurse, which includes planned, supervised or delegated care by a registered nurse, and care which is not nursing care, which is that provided either by someone who is not a registered nurse or by someone who is, but it does not need to be provided by a registered nurse.
The implication appears to be that services within the definition in Clause 56, which will no longer be provided by local authorities, will be provided by the health service while other services will not. Unless I have overlooked it, that is not spelled out in the Bill. Therein lies the difficulty, because there are some conditions requiring services which any of us, using English words to mean what they normally mean, would call "treatment for the patient's condition" yet they may not be provided by a registered nurse.
The condition with which I am concerned for this purpose is dementia. At Second Reading the noble Lord, Lord Rix, referred to a number of other conditions of which perhaps the same might be said. I shall not repeat the examples which I gave, but
1634
sometimes a dementia patient will respond not to medication but to someone spending time with them, stimulating conversation, evoking their memories or their interests. That person may not be a registered nurse, but as the Audit Commission pointed out, although the treatment is not being administered by a registered nurse, it is being provided by someone trained and skilled in that form of treatment.
I appreciate that if the treatment consisted of administering medication it would probably be appropriate for that to done by, or under the supervision of, a registered nurse. If the patient were in a hospital or a nursing home, that is likely to be the treatment that would be administered. I appreciate that the type of home does not form part of the distinction in the Bill but it is a factual one: what kind of treatment is likely in fact to be administered where the patient resides. In a residential home the treatment may well be different, but it is frequently more effective. If my noble friend is in any doubt about that I can give him a list of people to whom he could refer.
One consequence of the distinction in the Bill is that the patient or his family may say, "Of course, he or she would be better off in a residential home and the treatment would probably be more effective, but that would cost money. If he or she were in a nursing home the treatment would be free, so we shall opt for the more costly and less effective option because the Government are paying for it". That is the point of my amendments.
My concern is with dementia. I know that there are other conditions which may raise a similar question, but what I am proposing is a formula which would not tie the hands of the Secretary of State but give him power to prescribe the condition or conditions which should be provided for in this way. I am not wedded to that form: what matters is the substance.
Lord Lipsey: I am tempted to begin by saying that the frontal attack on the citadel having failed, here come the Trojan horses. I can quite see the force behind the amendments. The trouble is that most of them take us a very long way towards the suggestion that all personal care should be free. This House considered that in the very first debate at Committee stage of this Bill and it was decisively rejected. Perhaps I may illustrate that as regards the speech made by my noble and learned friend. I very much understand the case he is making. Rougly speaking, from the estimates which I have seen, 37 per cent of those in residential care are suffering from dementia. So if the things they require are free, that is 37 per cent of the cost of free personal care. But it goes beyond that because my noble and learned friend said that there are other conditions that may be alike which should also he free. So the number starts rising and will take a bigger and bigger share of the budget. In consequence, it will chop off the money which is available—
Lord Archer of Sandwell: I am grateful to my noble friend for giving way. Lest we spend time on a misunderstanding, and I am sure it was my fault, I was not suggesting that—as my noble friend said—

1635
"everything that they require should be provided in this way"; I was suggesting that the additional costs of the time that would be spent on this kind of treatment should be provided in this way.
Lord Lipsey: My noble friend will find that that was the bulk of the expenditure being expended. The definition in the Bill of free nursing care is not very lovable. I accept that it has anomalies and some false distorted incentives. I worry very much that what will happen as a result will be that too much will be done by nurses and not enough by people who are equally skilled but who do not require the full list of skills of a registered nurse.
I accept that as a criticism. The trouble is that as one goes through the alternatives—I have done this exercise privately and publicly with other Members of this House and in many forums—nothing else runs that does not end up with the great bulk of the personal care coming under nursing care.
Lord Rix: I thank the noble Lord for giving way. I should like to point out that my amendment does not refer to personal or social care. It says purely and simply that if a person is in receipt of National Health Service care, another person with exactly the same condition should also be in receipt of National Health Service care. Nothing is mentioned in my amendment about personal care whatsoever.
Lord Lipsey: Those receiving national health care gets all their meals free. Is the noble Lord, Lord Rix, suggesting that that should not be charged for?
Lord Rix: I thank the noble Lord for giving way. I am suggesting that, if one is in need of National Health Service care, which includes free meals, and one is such a person in another area, then that should apply, yes.
Lord Lipsey: That is a very helpful clarification from the noble Lord. He is saying that free personal care did not go far enough; that we must have much more than that. That is a perfectly viable point of view. I am not saying that it is not. It is a terribly expensive point of view. It would not leave any money for intermediate care. If the noble Lord had tabled an amendment to that effect, I should have directly liked to address that proposition.
None of the other definitions of nursing care that have been tried comes out any better, in terms of clarity or anything else, than the one in the Government's Bill. I refer again to the speech made by my noble and learned friend Lord Archer. His definition is that a great deal of help is given to people with Alzheimer's disease but not with other conditions. There is the case of Mr Ernie Saunders, who I believe has tucked away a substantial fortune, who is getting his free care so he is jolly rich compared to someone who is just above the £18,000 limit who requires nursing care for a different condition who does not. That is a definition that would fall apart in this House.
1636
One could have a list of conditions. That is an approach that tempted me very much. The trouble is that when one tries to define which conditions should or should not be on the list, and to draw the line at such a place if it does not lead to unaffordable expenditure, that collapses on one. We have all had a go at finding a better definition. No one has found a definition that succeeds in keeping the costs of free nursing under control so that money is available for the improved services—that should be the priority. Secondly, we need a definition that is clearer and more defensible than the definition in the Bill.
I am absolutely certain that if someone came up with such a definition tonight the Minister sitting there would leap to his feet in joy that the hours that have been spent on this matter are needed no longer. We have solved the problem. But with every good will—
Lord Archer of Sandwell: I thank my friend for giving way. At the risk of being tiresome, could I point out that I was not suggesting resting on a definition, but empowering the Secretary of State to look at the particular conditions which he thinks should be treated in this way.
9.30 p.m.
Lord Lipsey: That simply chucks back exactly the same problem. Either he should include the conditions about which my noble friend is worried, in which the cost implications that I am worried about are brought back, or he does not include the conditions my noble friend is worried about, in which case we shall not move any further forward. The Secretary of State will still have to make essentially the same decision; namely, that it is intrinsic in the definition of nursing care being proposed as regards what should be put in and what should be left out.
I have spoken for longer than I had intended. I hope that noble Lords will forgive me, but it has been a little difficult to deploy the case because I have responded to so many interventions. Ultimately, the definition in the Bill, although, as I have said, it is not altogether satisfactory, is less unsatisfactory than anything else. In this whole area we have to consider these: choices, trade-offs and priorities. I am prepared to go along with the choices, trade-offs and priorities that have been incorporated in this Bill.
Baroness Greengross: I rise to support the amendments. I have been one of the Members of this House who has welcomed free nursing care as well as the Government's investment in intermediate care— once we are clear about how that is going to be delivered and how the funding will be arranged— along with the various changes to the charging regime for residential care.
What has just been said by the noble Lord, Lord Lipsey, points to a fundamental difficulty: we do not know how to define nursing care. So many have tried to do so, but it is difficult. Perhaps the Department of Health should have been able to achieve a definition. It has had a long time in which to think about this— since the Leeds case in 1993 and then again since the

1637
Royal Commission reported in 1999. Despite those difficulties, I know one thing: Clause 56 as currently drafted is not adequate. It does not include certain health services that I believe should be included.
Rather than add my own amendments, I should like to know how the Minister is going to respond tonight. That is because various views are held on a reasonably good definition of nursing care; indeed, we have heard them during the course of this debate.
I should like to refer briefly to the Minister's remarks during our debate last Thursday:
"The NHS has a duty to provide healthcare to any member of the public as reasonably required".—[Official Report, 15/3/01; col. 1038]
Incidentally, that is the wording used in Amendment No. 261. If the NHS has assessed a health need, then the residents of care homes or of anywhere else should already receive NHS services directly from the NHS in the same way that anyone would receive services from a GP. a physiotherapist or from other members of the health professions under the responsibility of the NHS.
On previous occasions I have tried to make this important point: the NHS should provide healthcare as reasonably required. I do not understand how this cannot include certain tasks and certain pieces of equipment provided in care homes if it is the responsibility of the NHS to provide them. I refer to items such as dressings for open wounds, the insertion of gastro-nasal tubes and the provision of some of the absolutely essential equipment that has already been referred to. The noble Baroness, Lady Masham, mentioned incontinence pads. Such items are not charged for anywhere else.
However, under the current proposals, equipment and services such as these are not considered to form a part of nursing care. That is fine. However, equipment and services like these do form a part of healthcare. It is iniquitous to deny people this kind of healthcare because people need such equipment and services: they must be made available when and where they are needed.
We have only a short time in which to get this right. Perhaps the way forward would be to accept an amendment to Clause 56 so as to give the Secretary of State powers to widen, amend or clarify the definition of nursing care. Indeed, perhaps we should ignore nursing care altogether and refer only to healthcare, as I have suggested. If such a regulation-making power is not included in the Bill, as I understand it, it will not be easy to change the law until further primary legislation on the NHS is presented to this House. I hope that the Minister will reconsider, even at this late hour.
Lord Lipsey: Perhaps I may make one point to the noble Baroness. As I understand it, all that the Bill does is to say what social services authorities cannot pay for; it does not say what health authorities can pay for. This is a fascinating debate on both sides. But if the Bill goes through as it stands, there will still be room for discussion as to what the health service will pay for.
1638
So time is not quite so short as the noble Baroness thinks. We shall have time to return to these issues after the Bill has completed its passage and to try to get a resolution that is even better than anyone has come up with yet.
Baroness Greengross: I thank the noble Lord. I hope that, between us, we can come up with a window of opportunity before it is too late. If we have a little more time, that is wonderful.
Baroness Richardson of Calow: Perhaps I may make one small point. Assessment is not merely about whether these services are to be paid for but about where they are to be delivered. Perhaps I may give an illustration from my personal experience. My husband is a resident in a Leonard Cheshire home. Under the local authority where he lives it is regarded as proper residential care that when he has an epileptic fit his drugs are administered to him through the rectum. That is regarded as ordinary social care which I could provide for him at home and which is provided for him in the care home. When it was considered earlier last year that he should be transferred for convenience to another authority, that authority judged that he was unsuitable for a residential home because that was nursing care.
There is no clear-cut definition; there are grey areas. It is not just a matter of who pays and where payment is made but of how the wholeness of life is to be lived with dignity. For most of the time, residential care is completely acceptable and right. For those occasions when it is possible to keep my husband in a reasonable situation, it is not necessary for him to have full nursing care. But these matters are fudged somehow in the definition that is already in place.
Lord Rix: Perhaps I may add one rider to my Amendment No 262. My aim is to ensure that equal needs get equal financial treatment. My approach has been to argue that if a care need is accepted as a healthcare need and is addressed by a healthcare professional for one person in one place, all people in all places ought to have the same assessment and ought to enjoy free provision whoever provides that care locally.
I am suggesting equality across the country. If a national health service is used by one patient or one resident, if someone is in another county, town or village, that person should receive the same service, if it is required, under the National Health Service.
Earl Howe: As the noble Baroness, Lady Barker, made clear, this issue is one of the three or four most important in the entire Bill. I must confess at the outset that framing amendments to this clause has been a somewhat rarefied exercise. If one interprets the clause literally, one has to ask what it is doing in the Bill. The noble Lord, Lord Lipsey, drew our attention to this. Why on earth do we need a clause specifying that community care services may no longer provide nursing care. The powers for the NHS to provide nursing care in a community setting are already in

1639
legislation. Indeed, the Explanatory Notes on the clause sound distinctly coy. They refer to the new arrangement as being to,
"strengthen the incentives for the NHS to ensure effective rehabilitation after acute illness".
They go on to confirm what I have just said; namely, that,
"the NHS in pursuance of its powers and duties under the 1977 Act will provide or arrange nursing care … free of charge".
As an opener to these amendments, I must say that I am baffled as to the legal necessity for this clause as a means of fulfilling the promise made by the Government in response to the Royal Commission on Long Term Care. "Strengthening the incentives" of the NHS to do what it is already empowered to do is very odd language to justify the insertion of this kind of legal provision. I do not understand why, for example, the Secretary of State could not simply have used his powers of direction to require health authorities to pay for certain types of care. If he did so, I doubt whether he would find too many local authorities queuing up to pay for the care instead.
What is the answer? I hope the Minister will explain. I am sure that there is an answer. But the only answer that begins to make sense to me—and it may not suit the Government to draw attention to this—is that somehow a way had to be found of sounding a legislative fanfare on free nursing care but at the same time to delineate in a very narrow way the boundaries of the NHS's new responsibilities. The definition of what constitutes nursing care in a residential setting has deliberately been made very restrictive. It is restrictive for one reason, and one reason alone: that is funding.
Any attempt by this Committee to widen the definition of nursing care in this context will result in a very significant additional burden on the NHS budget. The Government's agenda—the trick they wanted to pull—has been to appear to accept the recommendation of the Royal Commission on the provision of free nursing care in nursing homes while in reality not doing any such thing.
Of the kind of care that in most people's eyes constitutes nursing care, only a minor part will be funded free by the NHS. It is necessary to expose that agenda if one is to understand why the Government are being so obdurate in resisting any change to the definition upon which they have decided. But in confining the definition of nursing care to "care provided by a registered nurse" I believe that they are laying up trouble.
There are two issues: fairness and practicality. The moment that you start defining nursing in terms of who actually delivers the service you are creating scope for tremendous variations in practice around the country. Registered nurses are a scarce commodity; and in some areas and in some homes their availability to deliver nursing care to all who require it will be more limited than in other areas.
On the other hand, in a residential home in which there is a sufficiency of registered nurses there will be no incentive—indeed there will be a deterrent—for any
1640
such nurse to delegate a task to a healthcare assistant. In normal circumstances, delegation to a healthcare assistant is the natural way of proceeding, not just for everyone's convenience but because it makes sense to use a person's skills to the ceiling of their abililty and their training. But not any more: the moment the nurse does that the patient will have to pay for the care that he or she receives; and that would create impossible pressures on the registered nurses to allocate their time not according to clinical need but according to the financial impact on the residents.
That, by any standards, will be a perverse outcome of this new regime. It occurred to me that there could be a way out of this. Let us consider how in practice the cost of nursing care for each patient will be logged and billed to the relevant health authority. How will the funding actually work?
There are two possibilities. One is that every time a registered nurse carries out a task for Patient X she will log the time taken to do this on a clipboard. That is not a method of billing that holds any attractions— certainly not to me and, I suspect, not to the NHS. It would be bureaucratic in the extreme.
The other possibility is that each patient will be assessed on the extent of his or her daily need for nursing care. Based on that assessment, the health authority would agree to fund a certain number of hours of registered nursing care per week. That approach, to me, makes a lot more sense; but let us consider its consequences. It would result effectively in a lump sum being paid to the nursing home in respect of the time required by the nurse to deliver the assessed level of care.
Who will be concerned and who will check whether the care is delivered by a registered nurse or by a care assistant, with the nurse's approval or under her supervision? In practice, under this model of NHS funding the strict definition of "nursing care" as laid down in the Bill would fall away and become redundant. In practice in the real world it would be overridden. In other words, whoever delivered the care would be funded.
What this does is to transfer the problem of definition from the question of who delivers to what should or should not be counted in an assessment as constituting nursing care. That is the entrée to Amendments Nos. 264 and 267, to which I have added my name. These amendments seek to get away from the question of who delivers and to define nursing care by what it is that is being delivered. The analogy that springs to mind is that a loaf of bread is still a loaf of bread even if it is delivered by the milkman. For me, this approach is much more in tune with the conclusions of the Royal Commission. The Royal Commission defined nursing care as
"care using the skill and knowledge of a nurse".
This is quite different from the definition of nursing based on the qualification of the person delivering it. My approach would optimise the use of available staff and thus deliver efficiency. By contrast, I believe that the Government's definition will be unworkable. It will put nurses in an impossible position in trying to

1641
allocate their time. It will risk unfairness by allowing the same care function to be free on one occasion but not on another, depending whether or not it is carried out by a registered nurse. Effectively, it would place a cap on the amount of nursing care that could be delivered based purely on the availability of registered nurses and with no regard to needs.
One can imagine a winter epidemic when the need for nursing care would rise but many patients would end up paying for their care if registered nurses were in short supply. How is it possible to call that situation anything other than perverse?
The conclusion is clear. We need a definition of nursing care that is workable and one that is equitable. My proposed amendments represent a broadening of the definition so as to be both those things. They would focus on the care given rather than the care giver as the appropriate criterion for determining eligibility for NHS financing. I commend the amendments to the Committee.
9.45 p.m.
Lord Clement-Jones: I shall not repeat the arguments made earlier about personal care. I want to address the issue of the definition of nursing care under Clause 56 even though, on these Benches, we believe that with a better definition of nursing care the solution would still be second best. At best, the current definition of nursing care is defective and highly artificial. Effectively, it is a legal definition—not nursing care as we know it. In that sense it is highly deceptive. It does not mean that the nursing care delivered in a nursing home will be free in the future under this Bill—far from it. It is a far more restrictive interpretation.
We are helped in interpreting the Government's intentions as regards nursing care by the publication of the department's National Minimum Standards. The crux of the matter is contained not in the Bill but in those standards. I suggest that the Committee considers Standard 3.5 which sets out the way in which assessments are to be carried out:
"The registered nursing input required by service users in homes providing nursing care is determined by NHS registered nurses using a recognised assessment tool, according to Department of Health, guidance".
That is more restrictive than the Bill. It means that the Department of Health will define "nursing care" tightly. It will be assessed by a registered nurse; it will be according to Department of Health guidance; and it will only be that provided by a registered nurse.
That point did not arise in the previous consultations. I suggest that this is very much the cuckoo in the nest; it is a Treasury-inserted guideline. We have certainly heard the authentic voice of the Treasury tonight in the shape of the noble Lord, Lord Lipsey. Perhaps the noble Lord had something to do with that particular insertion.
It is not just anyone assessing what could be defined as "nursing care", this is a registered nurse undertaking the task. How long will that assessment take, how will it work and, indeed, what will the health
1642
service actually agree to pay for? This situation raises all sorts of different issues. I believe that the noble Earl, Lord Howe, teased out extremely well what the future might hold in that respect. For example, what will the future of nursing homes be? They cart no longer provide nursing care from a registered nurse because that will be provided by the NHS, although the exact duty of the health service in those circumstances is not clear. However, they can provide it from a healthcare assistant, and charge accordingly.
But what will distinguish a nursing home from a residential home? Probably nothing. They can both have visiting registered nurses, who will provide the nursing care as assessed by the very tight definition contained in Standard 3.5 of the National Minimum Standards to which I referred. The noble Earl posited various scenarios, but I very much doubt whether the NHS will be handing over lump sums to care homes. I suspect that it will send along community-based nurses to nursing homes, care homes, and so on, who will provide the very restricted level of care that is assessed as being necessary. This is a very deceptive clause: it does not deliver what most people believe it delivers. I believe that this will rebound on the Government. Indeed, they will find some very angry people on their doorstep when they find out what the Government are actually providing versus the propaganda to date.
Baroness Cumberlege: I support my noble friend and his amendments; and, indeed, the remarks made by the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Masham. It is important for us to try to define what nursing care is. There is a distinction here between "nurses" and "nursing". I shall not give another Second Reading speech; I shall stick most firmly to the purpose behind Amendment No. 267. However, before I continue, I should like to thank the Minister for his kind words about nurse prescribing. I am most grateful to him.
I am not as far down the road on this issue as the noble Lord, Lord Lipsey, who, I suspect, has lived with it for some time. However, in trying to define "nursing care", I asked the RCN if it could draw up a six-case study for me. I shall not go into those studies in detail., but they were most interesting to read. One could see quite clearly where the nursing input was, and where the registered nurse was required to delegate and supervise the work of the healthcare assistant. It seemed to me that it was the healthcare assistant receiving that support who could provide the service, not someone who was just an untrained lay person. I believe that there is a real hierarchy in the work that nurses undertake.
I met Christine Hancock today and asked her for a definition. In a quite philosophical way she said that she felt that "nursing" could be described as "invisible mending". In a way, that is the great difficulty. It is not like medicine or surgery where one has a cut and a thrust; similarly, it is not like very strong therapeutic drugs where one gets an immediate reaction. It is something very holistic. That is why it is so difficult to get hold of and to define. I agree with other noble Lords who have said that to have a list of tasks is a

1643
snare and a delusion; and that one should not go in that direction. We tried it years ago, and we know that that fails. So we return to the assessment given by nurses, which is so important.
The amendment that we have put forward is quite clear. It shows exactly what the role of the registered nurse is and the sort of care that needs to be provided. I agree strongly with the noble Baroness, Lady Barker, who said it is much better that we define the matter here in Parliament rather than have the Law Lords attempt it. There is a wealth of experience and expertise in this Chamber that might not be reflected in a decision taken by three Law Lords.
I want to pick up the inverse incentives that the noble Lord, Lord Lipsey, mentioned. They are very real. We are very short of nurses. We are trawling the world to try to attract nurses to this country. To build in an inverse incentive is a very rash thing to do, especially at this time.
My last point concerns fairness, which the Committee has addressed. I reflect on what is happening in the community services now. These issues were addressed in the community care Act. Community nurses have sorted out what happens as regards care assistants. It has been quite easy for them because healthcare assistants are provided free to those living at home. That is an extraordinary situation in that people who are less dependent are being looked after at home and receive free nursing care and free healthcare assistance. Yet when those people go into residential care they have to pay for healthcare assistants. If they are cared for by a registered nurse, a better qualified person, that is free, but if they are looked after by someone who is perhaps less expert and less qualified they have to pay for that. That seems to me quite extraordinary.
I believe that the amendments should be accepted. I think that at the very minimum the Government should undertake to fund all the nursing care identified by a patient's nursing assessment as being necessary for that patient irrespective of whether that care is delivered by a registered nurse or by a healthcare assistant.
Baroness Masham of Ilton: I just cannot see how nursing care and social care can be divided. Scotland has recognised that, but then the Scots would; they have a lot of common sense. The noble Baroness, Lady Richardson of Calow, has given a good example of how complicated this matter is. Why have care assistants been left out of the Bill when everyone knows that they carry out a large percentage of nursing these days? I say to the noble Lord, Lord Lipsey, that surely decisions should be made on the basis of need, whatever conditions apply. Unless the Committee can get this message over to the Government there will be a monumental muddle on the ground. The Royal College of Nursing understands that, so I hope that the Minister will.
10 p.m.
Lord Hunt of Kings Heath: I am glad to respond to the debate. I certainly agree that these are difficult issues in relation to definitions. No one can wave a magic wand and come up with a definition that finds universal approval. Like my noble friend Lord Lipsey I believe that we have come up with just about the only workable definition, which I shall seek to identify.
I also believe that despite the anxieties and concerns that have been expressed—I listened closely to the noble Earl, Lord Howe—we are making a real advance by ending the anomaly that only people in nursing homes can be charged for the care they receive from a registered nurse which would be free through the NHS in any other setting. It is worth saying that we calculate that the measure will help about 35,000 people at any one time who currently have to pay for their nursing care and who could save up to about £5,000 a year during their stay in a nursing home. I believe that that is a real advance.
As the noble Earl, Lord Howe, suggested, the clause as currently drafted sets out the care which local authorities will not in future be able to provide. It does not define the care which the NHS will arrange as that is already provided for in the NHS Act 1997 which imposes on the Secretary of State a duty to provide health services including nursing.
It may be helpful if I explain how we envisage that this will work. We shall set out in directions how the NHS would fulfil its duty in respect of nursing home residents. We shall ensure that the same approach to assessing the need for registered nurse input to a person's care in a nursing home is used throughout the NHS in England. So the assessment is clearly key to ensuring that the correct levels of nursing care are provided.
The Royal Commission has been quoted in aid. It discussed the possibility that the creation of free care would increase demand. It stated that assessment of need must control use and, therefore, cost. Our intention is to provide NHS nurses with guidance and training in the assessment process. That will define the registered nurse input into that care package. The intention is that, wherever they live in England, individuals with similar nursing needs will receive similar levels of care from a registered nurse.
Once the assessment had been made, the NHS would arrange for the registered nurse input to be provided in the nursing home. The NHS would ensure that the nursing home where the person was living could supply the registered nurse input, if needed. If that person had a specialist nursing need, such as stoma care, the NHS may arrange for that to be provided by visiting specialist NHS nurses.
The NHS and social services would contract with the nursing home for a certain level of service. Residents responsible for paying their own fees would pay such fees as would take account of the NHS's financial contribution to that care. There is no intention to charge residents based on time sheets or

1645
other bureaucratic processes. The intention is that the NHS, through the contract with the nursing home, would monitor the nursing care received.
Alongside that, the National Care Standards Commission would ensure that the home had adequately qualified staff at correct levels to deliver individual care plans. Reassessment would take place three months after placement in the home, and then not less than annually, except—I am pressed on this matter, as I was in our debate a week ago— that reassessment would be needed much sooner if there had been serious illness or changes in circumstances; and those triggers for reassessment would be outlined in the guidance to the NHS.
Our proposals for the NHS to take responsibility for the provision of care by registered nurses in nursing homes would bring the NHS provision of care in nursing homes into line with the care received by people in residential care homes. The provision of care would be consistent, irrespective of the setting in which they happened to reside.
I believe that some of the amendments would seek to bring bathing, dressing and other daily care routines within the sort of nursing care that local councils cannot provide, with the assumption that they would then become the responsibility of the NHS. But the NHS would not necessarily be able to pick up that responsibility, particularly if it applied to long-term care provided in residential homes and people's own homes. Although the NHS can, and does, provide services ancillary to those of the NHS when there is a need for a high level of help or nursing care, it is not obliged to provide such support services in settings where there is no need for high levels of NHS care.
As my noble friend Lord Lipsey suggested, in one way or another, many of the amendments that we are considering seek to broaden the definition of nursing care. However that is achieved, it seems to me that the distinction between nursing and personal care then becomes blurred, making it much more difficult to draw a line between the care provided by a nurse and that provided by other support workers. The fact is that once that was done, it would add considerably to the costs that we have already committed to improving other people's services.
I hesitate to mention costs, but I do not believe that any of the noble Lords who have moved amendments gave an estimate of the additional cost of their proposals. That takes us back to our Second Reading debate. The Government have decided that, alongside our decision on the definition of a registered nurse, we want to commit the additional resources that we are spending to intermediate care, because we think that that is where the money would be best spent. Any of the amendments in this group would put up the cost, which would beg the question of where the resources would come from.
This is a genuine debate about priorities. The Government have decided where their priorities should be. Everyone brings well considered views to the table. There is a difference between us in principle, but those who are suggesting different definitions owe
1646
it to us to accept that they would be likely to cause extra costs and that they are then obliged to say what impact that would have on other priorities.
Amendments Nos. 261, 264 and 267 would all include within the definition of nursing care all the care planned by the registered nurse, regardless of who provides it. Our definition of nursing care is much closer to that provided by the NHS in residential homes. It is not clear from the amendments what such care would cover. Inevitably, it might cover issues such as washing, dressing and toileting. If those functions were included—which, because of the drafting of the Bill, councils could not provide for some people because of the nursing assessment, even though they were still expected to provide them for others in the same circumstances—we would run into problems. Some noble Lords have suggested that our definition will be difficult to operate, but I believe that it is the only definition that will be capable of practical implementation. However worthy the other definitions may be, they would run into many more problems.
The inclusion of healthcare would also extend the definition. The NHS already has a duty to provide healthcare to any member of the public as is reasonably required. Residents of care homes should already receive NHS services direct from the NHS in the same way as any one of us would receive services from our GP, physiotherapist or dentist if we needed them. I see some noble Lords shaking their heads. The fact that that principle is being breached in some parts of the country does not prove the case for more legislation. My department must ensure that the NHS fulfils its responsibility for those services. I accept that we have to face up to that challenge.
Clause 56 does not prevent local authorities exercising the functions of NHS bodies under the partnership arrangements under Section 31 of the Health Act 1999. In those arrangements, there may be a pooled fund for the exercise of certain functions by a local authority on behalf of the NHS body, including the provision of community care. In such cases, we expect local councils and their NHS partners to use that flexibility to ensure that placements in nursing homes are handled in the most effective way possible.
The aim of Amendment No. 262 is to make any community care that is available to other people without charge available to all at NHS expense. That would mean all community care services being provided by the NHS on the same basis as hospital services are currently provided. Following on from the debate between the noble Lord, Lord Rix, and my noble friend Lord Lipsey, I believe that in the end that would lead to the NHS providing board and lodging for those in nursing and residential care. The implications of that are even wider than those in relation to personal care.
Amendments Nos. 263 and 266 suggest that free personal care should be made available to some groups of people but not to others. Such a proposal is based, for example, on the level of need, the diagnosis of particular conditions or the setting in which care is to be delivered.I

1647
understand why my noble and learned friend makes that proposal. However, again, I believe that it would bring with it large problems. It would create perverse incentives, and there would be an all-or-nothing assessment of need under which the individual received everything or nothing. There would be a huge cliff-edge, and that would place enormous pressure on the assessment process, with challenges to diagnosis or professional judgment.
I also believe that it ignores the fact that people with a condition may suffer from it in a very serious or a very mild way. However, because a person has the condition, he will be eligible for the free provision. Surely an assessment should be based on need rather than on a particular condition.
I turn to Amendments Nos. 265, 268 and 269. I repeat that the NHS has a duty to provide healthcare to any member of the public as is reasonably required. If the NHS has assessed a health need, residents of care homes should already receive NHS services direct from the NHS in the same way that any of us would receive services from a GP, a physiotherapist or any other member of the health professions under the responsibility of the NHS.
In conclusion, I recognise that this is a genuine debate and that genuine concern exists as to how the definition will operate. I have examined the issue time and time again. I believe that, finally, the definition that we have is the only one that is workable unless, in the end, we return to our previous debate and make personal care free. The Government have decided not to do that. We believe that the priorities are to regularise the position in relation to care provided by registered nurses and to invest in intermediate care, where I am sure that we shall bring about a great deal of improvement in the lot of many people.
Baroness Barker: I begin by thanking all Members of the Committee who have contributed to what the Minister rightly called a very important debate. Many genuinely held points of view have been put forward. I do not intend to speak for long because we have a great deal of work yet to do. However, I wish to raise a few points.
First, I refer to a point made by the noble and learned Lord, Lord Archer of Sandwell. I preface my remarks by saying that I have the utmost regard for the organisation that he represents. I have supported Methodist Homes for the Aged all my life. Within the field of ageing, it is noted rightly as one of the outstanding providers of services for older people. On this occasion, I believe that the noble and learned Lord's argument is wrong, and I support the Minister in not going down that road.
There are many different reasons why older people can end up in the same position. I believe that one of the defining principles of Methodist Homes for the Aged is:
"From each according to his means; unto each according to his needs".
1648
I say to the noble Lord, Lord Lipsey, that I rather wish that the Treasury had taken that as its approach to the matter.
Lord Archer of Sandwell: I am most grateful to the noble Baroness. It is not a Marxist organisation.
Baroness Barker: It definitely is not. However, it is one of the best organisations at meeting the needs of frail and vulnerable older people in this country.
I believe that the noble and learned Lord's argument is wrong because there is a myriad of reasons why older people can end up with the same need. I understand entirely his point about dementia, but those who suffer strokes, falls, chronic arthritis or the effects of MS can end up with exactly the same needs as someone with dementia. That is the problem.
The noble Lord, Lord Lipsey, talked about costs. The Government's costings, which the Minister trotted out again today, are arbitrary—the £5,000 figure is arbitrary. When we get to the heart of the debate, we shall make it clear that some of the Government's figures do not help us to sort out the problem.
I fundamentally disagree with the Minister's statement that his definition of care is more realistic than those of the rest of us. The definition in the amendment—the planning of care by nurses but the carrying out of that care by care assistants—is the reality for most older people in residential homes. The Minister is simply wrong.
The lack of clarity on nursing care is the point at which the whole of the edifice of the health and social care system that the Government are building will start to fall. Everyone needs to know where they stand. Those Members of the Committee who have tried to sort out care for older relatives or friends know that, when a traumatic incident happens to people in old age that makes them need care, the first thing that one needs to know is what their needs are, what is available and what they have to pay for. The Government's definition of nursing care will not make it easier to do that than is currently the case. I say to the noble Lord, Lord Lipsey, that without the definition of nursing care, even those who want to purchase such care privately will have problems with the proposal.
We have had a good debate and there are extensive concerns in this regard. On another occasion we should have tested the opinion of the Committee but we shall not do so tonight. I urge the Government to go away and to think again about their very mean-spirited definition of nursing care. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 56 [Exclusion of nursing care from community care services]:
[Amendments Nos. 262 to 264 not moved.]
10.15 p.m.
Baroness Masham of Ilton Baroness Masham of Ilton moved Amendment No. 265:
Page 58, line 24, at end insert "or health care by a person who is registered by any board established under the Professions Supplementary to Medicine Act 1960".
The noble Baroness said: I move this amendment, which appears in the name of the noble Lord, Lord Morris of Manchester, in the hope that I can obtain reassurance from the Minister. The Clerk tells me that it is in order for me to do so.
The noble Lord, Lord Morris of Manchester, would like to have included the professions supplementary to medicine— that is, physiotherapy, occupational therapy, speech therapy and chiropody—in the Bill. That is very important. On Monday, I believe, the Minister gave some very hopeful signals that that might be done. I thought that it was worth bringing the matter up tonight because an election may be called and anything could happen to the Bill. I look forward to the Minister giving an assurance on this important matter. I beg to move.
Lord Hunt of Kings Heath: The assurance that the noble Baroness, Lady Masham, seeks is that the services of professions allied to medicine will be available to people in homes. They will be available after assessment, as they are in any other part of the health service. An assessment of need will be made and services will depend on the categorisation of that need. That does not mean that services will be available for every resident; it will depend on the assessment process.
Baroness Masham of Ilton: Would it not be simpler to write that into the Bill, to clarify the muddle that there will be in this matter?
Lord Hunt of Kings Heath: The problem is with the architecture of the Bill. The clause says that nursing can no longer be provided by the local authority, but the words "professions allied to medicine" would restrict what a local authority could do for people who were not in a health setting. I would not recommend that route.
Baroness Masham of Ilton: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 266 to 269 not moved.]
Earl Howe Earl Howe moved Amendment No. 270:
Page 58, line 31, at end insert—
"( ) Before bringing this section into force the Secretary of State shall consult such bodies and organisations as he shall consider appropriate with a view to determining the funding and other arrangements necessary to implement it."
The noble Earl said: While the focus of our debate on this clause has not unnaturally been concentrated on the definition of the terms used and the separation of nursing from personal care, we must address another issue of real concern. Local authorities are worried about how the provision can be implemented without massively increased bureaucracy for nursing home providers, health authorities and local authorities. The implementation date of October 2001 is seen as wholly unrealistic. The logistical aspects of what is proposed are huge and there is real concern that if the transfer of functions proceeds on the basis
1650
outlined by the Government, the total amount spent on providing pre-nursing care will increase. The amount of nursing care that it will purchase will decrease.
Amendment No. 270 proposes that, before anything further happens, the Government must get round the table with local and health authorities, as well as the Royal College of Nursing, representative organisations for nursing home providers, and so on, to discuss how the proposals will be funded and implemented.
There are all sorts of unanswered questions. How will the cost of the nursing care element in the nursing home be calculated? Will it be on an actual or notional basis? If we are to avoid postcode lotteries, will national criteria be applied? Who will bear the additional transactional costs that are bound to arise? If local authorities no longer Commission nursing home care, how will they ensure best value for hotel and personal care costs in nursing homes, for which they remain liable? How transparent will the process be for the transfer of funding from local authorities to health authorities? What transitional arrangements are needed?
These are only some of the issues causing concern. I hope that the Minister will recognise that there is considerable worry and disquiet among local and health authorities, which are operating in a vacuum in terms of the information at their disposal. They must have information if they are to plan properly. I hope that the Minister will reassure the Committee that the Government will look carefully at the implementation date that has been set. If necessary, I hope that they will put it back a little to ensure that the process of transfer does not end in chaos. I beg to move.
Lord Hunt of Kings Heath: We certainly do not want anything to stop the smooth introduction of this new policy, nor do we want any delay. It would be a great disappointment to many people if we were unable to introduce it by October 2001. Perhaps I can reassure the noble Earl, Lord Howe, that, although he will not be surprised when I say that I am not keen on a statutory requirement for consultation being in the Bill, we are committed to discussing with key stakeholder groups how best to implement the policy. It is in all our interests to ensure that this runs smoothly. Therefore, in the belief that I have expressed on many occasions during our debates that in order to ensure success, you need ownership, we shall consult widely on the implementation of this policy.
Earl Howe: All I can say is that time is of the essence. I accept the Minister's bona fides in this and his assurance that the Government have that in mind but there really is not long now before this all has to roll out. I say again to him that there are some worried local authorities out there. But I thank him for what he said and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe Earl Howe moved Amendment No. 271:
Page 58, line 31, at end insert—
"( ) The relevant authority shall make regulations requiring that any persons receiving any services which are not considered nursing care, as determined by this section, shall receive detailed information on the costs of the provision of the personal care and accommodation prior to any agreement for the provision of community care services being made."
The noble Earl said: This amendment would ensure that all patients are given clear information as to the costs of personal care and accommodation before they enter a nursing home. It should be made clear exactly how much of the charges relate to personal care and how much to accommodation costs.
In its current form, there is nothing on the face of the Bill that helps elderly people to identify how much long-term care is likely to cost them. For many, if not most, people, that is a critical piece of information. Different patients require different levels of nursing care. That implies that there will be different charges for each patient, depending on the level of nursing and personal care which they will need. Of course, a patient's care needs will change throughout a stay in a residential home. Clear details of the costs of personal care would enable people and their families to prepare for possible future expenditure. It will also ensure minimal confusion when bills are presented to elderly people or their families. I beg to move.
Lord Hunt of Kings Heath: I wholeheartedly agree with the noble Earl, Lord Howe, but my understanding is that that information should already be provided. The current guidance about assessment of resources under the National Assistance (Assessment of Resources) Regulations 1992, with which I am sure we are all familiar, entitled The Charging for Residential Accommodation Guide makes it clear that anyone entering residential care must receive detailed information on the funding of the placement and the contribution he may be required to make before agreeing to any placement being made. I hope that that answers the important point which is being made here.
Baroness Masham of Ilton: What happens if, after a few months, someone finds that he cannot pay? What happens to him then?
Lord Hunt of Kings Heath: I am not sure about after two months, but there clearly are circumstances in which people's resources run down and in some cases, those people have faced eviction. Assuming that people have run down to the capital limit, when the means test kicks in, it would then be a matter for the local authority, in conjunction with the person involved, to decide what to do. But I certainly agree with the noble Baroness's implication that that may leave people in a very difficult situation.
Earl Howe: I am grateful to the Minister for his response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 56 agreed to.
Clause 57 [Preserved rights: transfer to local authorities of responsibilities as to accommodation]:
Baroness Barker Baroness Barker moved Amendment No. 272:
Page 59, line 5, leave out "on the appointed day" and insert "from 1st October 2001"
The noble Baroness said: This amendment deals with the issue of preserved rights. If ever there was a misnomer in the field of social care, it is the words "preserved rights". Those provisions relate to people in residential care before 1993 and enable local authorities having to take on responsibility for about 0.25 million people who were then funded by the Department of Social Security. They were supposed to reassure them that there would be no change for them. But in many cases, the income support did not meet ceiling levels of the home and many older people caught in that trap have been forced into penury. The reason for the proposal to move the date to October 2001 is, therefore, to help a group of people who are often in dire hardship as a result of having to try to meet the difference in cost—either by themselves or their relatives or by recourse to charities—of where they live and their income.
One of the purposes of the amendment is to seek reassurance from the Minister that when social service departments take on a case, just because a person is in a home that is more expensive than the level of fees which a local authority would normally pay, that should not be a reason for moving that person.
We are talking of older people who in many cases are well into their eighties and nineties and in one case which was recently alluded to on Radio 4's "You and Yours" 102 years-old. A lady of 102 was threatened with eviction. At that time and in that case there was a statement from the Minister's department that:
"Councils already have powers to help people of working age who are struggling to pay their fees. We accept that possible eviction is a problem for some older people, particularly those in nursing homes whom councils cannot normally help. We are planning to change the regulations shortly to remove some of the present restrictions that prevent councils from helping".
To the best of my knowledge, that has not been forthcoming.
Another reason for moving the amendment is to seek reassurance that local authorities will receive adequate funding, not just for the costs of homes but also for the cost of extra assessment and extra care management.
The Minister will not be surprised at my asking what happened to regulations which were promised at the end of last year and still have not appeared. They were supposed to be forthcoming within a few months to help older people until April 2002. I can only assume that the Minister's department has been working so hard on the national service framework that it has not been able to get those out to us.
The amendment deals with the unhappy situation of a number of elderly people who are in dire need. I therefore hope that the Minister will look favourably upon it. I beg to move.
Lord Hunt of Kings Heath: The noble Baroness has put the case well. I understand the difficulties and

1653
pressures on this group of people. I also want to assure her that the intention is that they should stay in their existing homes.
We are working closely with colleagues in the Department of Social Security and with the local authority associations o ensure a smooth transition to the new system. I also understand the need for urgency. Local authorities and benefit offices need as much time as is reasonably possible to plan their management of the change if it is to be introduced effectively. In addition, people affected need to be given time to prepare for the change.
The Department of Social Security is planning to write to the people concerned to notify them of the reasons for the change t o their benefit payments and to explain the local authority's involvement in and responsibility for their future care needs. That obviously requires a great deal of planning and preparation. It can start only after the passage of the Bill. That is why we felt that April 2002 was the best date to start the scheme.
Given that what we propose will involve a reassessment of and changes to the income support payments which people with preserved rights currently receive, it also makes sense to introduce the change at the same time as other planned changes are made to the benefit. As the noble Baroness will know, the annual increase in all income support rates takes place every April.
As regards the regulations, perhaps I may say to the noble Baroness that we are working on them; I cannot give her a date.
Baroness Barker: I am very glad that the Minister did not give a date because I am not sure that I would have been able to keep to it. We are talking not just about the cost of implementing the abolition of preserved rights, but also its associated costs. The Minister and Members of the Committee will know about the consequences when very elderly people are moved from their long-established homes. There are well-documented cases where such transition has taken place quickly without any help, support or advocacy. The result has been a very much higher death rate than anticipated among these elderly people. Therefore, will the cost of additional matters such as advocacy be included in the provisions?
Lord Hunt of Kings Heath: I thought I had said that the intention was for people to remain in their homes. I well recognise the issue that she raised. It is something which the National Health Service has found when it has moved residents who have been at one address for a very long time. The mortality rate is extremely high. We clearly have to avoid that.
Baroness Barker: I am very happy to accept the Minister's assurances. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe Earl Howe moved Amendment No. 273:
1654
Page 60, line 9, at end insert—
"( ) Before bringing this section into force the Secretary of State shall consult such bodies and organisations as he may consider to represent the relevant interests of local government as to—

(a) the methodology to be used for calculating the amounts required to fund the arrangements provided for in this section;

(b) the methodology to be used for calculating a fair and equitable distribution of such funding amongst local authorities: and

(c) the means whereby such funding is to be transferred."

The noble Earl said: The contentious issues surrounding preserved rights are not to any great extent about policy, they are about implementation. En a nutshell, unless the level of funding transfer reflects the actual costs and not just the current level of social security funding involved, then local authorities with large numbers of preserved rights residents will be unable to implement the policy without incurring very serious financial difficulties. The Minister will be aware that the actual costs for local authorities include not just the funding to be paid to home owners as fees, but additional costs associated with care management, financial assessment, contracting, invoice processing and income collection.
The DSS has estimated that in 45 per cent of preserved rights cases there is a shortfall between the fees charged by care home owners and the weekly benefit income of residents. That has arisen because over the years benefit increases have failed to keep pace with the actual costs faced by care home providers.
The fear among local authorities that are likely to be the worst affected, such as Kent, East and West Sussex, Devon and Lancashire, is that the funding transfer from social security will involve only the transfer of current expenditure. These sums are due to be increased in April, but unfortunately there is little comfort in the level of increase as it is only 1.8 per cent. which is well below inflation. But if that happens, then the shortfall in fees currently met by social security would have to be met instead by local authorities from their own resources, including council tax receipts.
On the worst case premise, Kent County Council has calculated that, with an estimated 4,000 preserved rights residents, the additional annual cost to its budget would be of the order of £8 million to £10 million. That is a huge sum of money to find. What is needed is some reassurance to local authorities such as Kent. I am looking for a categorical assurance, if the Minister can give it, that these clauses, irrespective of the overt policy intention which is perfectly sound, are not going to be used as a means of transferring an unfunded cost pressure from central government funding to local authorities and their tax payers. That is why my Amendment No. 273 specifies that before anything happens under the provisions of this clause, there has to be consultation, not just about the money itself, but about the methodology to be used in calculating what local authorities need, how to determine a fair allocation between local authorities, and how in practice the money will be transferred,

1655
whether by SSA or by special or specific grant. The Association of Directors of Social Services, the LGA and CIPFA need to be involved here.
I should be grateful if the Minister would take this opportunity to confirm that the funding transfer to local government will reflect actual costs of care provision; that the additional care management and other costs that I mentioned will be reflected transparently in the financial settlement for local government; and that the Government will give thought to setting up some kind of mechanism to compensate those relatively few local authorities who will find their administrative workloads increased dramatically as a result of this change of policy. I beg to move.
Lord Hunt of Kings Heath: I am not sure I can answer all the questions raised by the noble Earl. I agree that it is important that local authorities are given as much information as possible and are properly consulted about the changes.
The noble Earl mentioned concerns of local authorities. We have been working very closely with colleagues in the Department of Social Security and the local authority associations to ensure a smooth transition. I accept that local authorities are particularly keen to ensure that the amount of money allocated to them for their new responsibilities is both sufficient and is calculated fairly and equitably.
So far as concerns the money, the money the DSS would have spent on people with preserved rights is to be given to local councils. That amounts to £528 million in 2002–03 and a projected £474 million in 2003–04. This money will be paid to councils with the money being transferred in respect of changes to the residential allowance within the new promoting independence grant of £862 million in 2002–03 and £873 million in 2003–04.
Conditions will be attached. They will be announced shortly. They will enable us to ensure that this money is spent in the right way. Brief details of this decision have already been notified to local authorities in a circular issued on 27th November of last year.
There is the question of how the money is allocated to individual authorities and what conditions will be linked to its use. Our intention is to consult with the local authority associations about this change over the next few weeks and months. As part of those discussions we shall also seek their views about the statutory guidance we plan to issue later in the year and about how authorities should carry out their new responsibilities.
To sum up, we want to ensure that the local authorities have the resources they need. We also want to ensure that the allocation is seen to be fair and equitable. I hope that answers the main points that the noble Earl raised.
Earl Howe: I thank the Minister for his reply. If I am honest, I cannot discern from his answer whether he has covered every point that I raised. He said that he
1656
was not able to cover every point. The main point was whether local authorities will find themselves suddenly with an unfunded liability. I think he said that that was not the Government's intention. If I am right in having understood him in that way then that is reassuring. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rix Lord Rix moved Amendment No. 274:
Page 60, line 25, at end insert—
"(11) Nothing in this section shall authorise any movement of a person other than in that person's interests and with that person's consent."
The noble Lord said: In rising to move Amendment No. 274, I realise that it has echoes of its immediate predecessors. Charity being the chief of virtues, I hope that I shall not be accused of lack of charity in suggesting that the presentation of the benefits of abolishing preserved rights for people in residential care has been a little one-sided.
For people under pension age, the possession of preserved rights has never stopped local authorities topping up where the social security funding falls short in meeting the Bill. It is people over pension age who have been disadvantaged by rules which mean broadly that, if you have preserved rights, the local authority cannot top up. So for the person under pension age with a learning disability, preserved rights have meant greater personal financial bargaining power without loss of other rights and less likelihood that the local authority will want to move them.
Given the age at which people with learning disabilities tend to leave the family home, many people do not particularly want to move again. The change that the Government propose to make can be an unmixed as opposed to a mixed blessing if the Government, by legislation, regulation or direction, ensure that nobody will be moved from their present home unless it is in their interests and with their consent or, if they cannot consent, with the consent of their independent advocate.
Nobody should be put under pressure to move. I add that condition because vulnerable people are indeed vulnerable to pressure, many of them having spent most of their adult lives being subject to choices made by other people. The choice directive, which concerns choosing where you live if you move, is applied to those who move following the loss of their preserved rights.
There is another aspect to all this where I am less confident of seeking government reassurances. The transfer of preserved rights funding to local authorities is, as I understand it—if I understand it at all—to be accompanied by a top up from the Government to allow some catching up where the preserved rights of older people have fallen behind the costs of their residential care. However, the concern is whether, over time, annual local settlements will be adequate to sustain good quality provision. What none of us wants is an increasing gap between local authority responsibilities and the ability of local authorities to discharge those responsibilities. I look forward to such reassurances as the Minister can give. I beg to move.
10.45 p.m.
Lord Hunt of Kings Heath: I understand the point made by the noble Lord, Lord Rix, which we have already debated to a certain extent. I am very conscious that people with preserved rights have been in residential or nursing accommodation since before April 1993. Many will have lived in the same home for all that time and, as I have said, clearly it would be utterly traumatic for those people to have to move.
The Government accept that. We gave a commitment in the NHS Plan that the abolition of preserved rights would not disadvantage anyone. To fulfil that commitment, after consulting interested parties, we intend to issue statutory guidance to local authorities—I stress that this will be statutory guidance—to make it clear that no one must be removed from their existing care home under the new arrangements against their will unless there is a compelling reason why that should be so. I should also like to stress that the guidance will make it clear that no pressure must be put on people to move.
The kind of situation which would be regarded as a compelling reason might be a circumstance where the current home closes or in which it cannot meet the person's assessed needs. I hope that, given those assurances, the noble Lord will feel that this matter is being handled in an acceptable way.
Lord Rix: I am most grateful to the Minister for that response. I am delighted that he was able to say that statutory guidance will be given covering all the points which I raised. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 57 agreed to.
Clauses 58 and 59 agreed to.
Lord Rix Lord Rix moved Amendment No. 275:
After Clause 59, insert the following new clause—
"MANDATORY DISREGARD OF PROPERTY IN CERTAIN CIRCUMSTANCE
(1) The Secretary of State shall, by regulations subject to approval by both Houses of Parliament, make provision requiring local authorities to disregard the value of an individual's property when that property is occupied in whole or in part, as his home, by a person or persons as prescribed.
(2) [Regulations under this section may, in particular, make provision prescribing the categories of person, and the conditions to be satisfied by a prescribed person, in relation to a mandatory disregard."
The noble Lord said: The reality of community care is, as we all know, that most people are cared for not by the community, not by the state or the local authority, not by their wider family, but by one family carer. This makes it particularly objectionable that when the parting of the ways comes, and the person cared for has to move into residential care, the family carer may lose his or her home.
Those whose favourite bedside reading is LAC(99)9—Charges for Residential Accommodation Guide—and its regular flow of amendments, will be familiar with the detail of which carers are or are not
1658
protected in possession of the home they have shared with the person they have cared for. In support of this amendment, I need only say that not all are protected by legal rights; and that while local authorities have discretion to protect others, that is a much more fragile safeguard.
Age Concern has highlighted cases where the carer is left high and dry, and a whole range of voluntary bodies which are united in support of this amendment have similar experiences to relate. From my own experience, I can point to a grand-daughter who devoted herself to looking after her grandmother for some 10 years until the old lady's needs got beyond her capacity, and who then faced the prospect of becoming homeless. Her grandmother died before the house they shared had to be sold to pay the bills—but the chance of death is not an adequate substitute for the guarantee of justice.
The amendment is worded cautiously, because I recognise the need for safeguards. It is conceivable that in protecting the relative who has lived with and cared for the elderly or disabled person for half a lifetime, protection might also be given to the absent relative who moves in the day the elderly or disabled person moves out. The possibility of abuse is not justification for inaction. It is justification for caution.
I want to conclude this short statement of the case with a worst case scenario. The argument cart seem to be one for rewarding the carer for past caring responsibilities by protecting his or her home at the point when those responsibilities cease. It is, of course, not like that. The carer normally carries on caring— not just by regular visiting but commonly by actual, physical caring in the new setting. To say to that carer, "We want, immediately or in due course, to take away your home in order to pay for the care you are helping us to provide", seems to me—as I hope it does to all Members of the Committee, including the Minister— simply untenable. I beg to move.
Baroness Barker: I support the case set out by the noble Lord, Lord Rix. The mandatory disregard for property does not cover a number of people, particularly carers and same sex partners. I am particularly concerned about same sex partners, because they are people who in other respects have difficulty in making legal arrangements to safeguard their property when their relationships are not recognised.
In Standing Committee in another place, it was agreed that a genuine issue is at stake. The Minister in the other place said that the Government would reflect further on it. The Minister went on to say:
"A procedure already exists to issue regulations about who should be disregarded for these purposes, and regulations offer the most appropriate means of dealing with the problem".
It would be helpful if the Minister in this place would give an undertaking that regulations will be amended to ensure that property is disregarded so that members of the resident's family or former carers—the people

1659
who will be picking up the personal care which the noble Lord, Lord Lipsey, does not wish to have paid for by other means—are not penalised twice over.
Lord Hunt of Kings Heath: Under current legislation, when deciding how much a person is liable to pay towards the cost of their residential care the council will look at how much capital the person has. The limit for a person with over £16,000 in capital is to be raised to £18,500 from 9th April: above that, persons will be required to pay the full cost of their accommodation. The council will look at all forms of capital, including the former home, when deciding how much capital the person has. However, as the noble Baroness has suggested, regulations made under Sections 22 and 26 of the National Assistance Act 1948 require councils to disregard the value of a resident's property where it continues to be occupied by the resident's spouse or partner or another relative who is 60 or over, or another relative who is incapacitated, or where a child who is dependent on the resident continues to live in the property.
Importantly, councils also have the discretion to disregard property where it continues to be occupied by a third party not covered by the mandatory disregards. Many local authorities make use of this discretion, and we have given this a great deal of consideration since the discussion in another place. I have also had the benefit of a meeting with the noble Lord, Lord Rix, to discuss this further.
We have decided to look to future guidance and remind councils on how they should be interpreting the liable relatives rule with respect to carers, including those where the cared for person enters respite care. This guidance will remind councils of the purpose and place of the liable relatives rule while at the same time encouraging them to use common sense and discretion where appropriate.
For instance, it will remind them of current guidance under the Carers and Disabled Children Act, which asked councils not to charge carers for services received by those for whom they care. As has been suggested, this must make sense. For example, it would serve little purpose if carers are asked to contribute to care cost when they are already making significant sacrifices to care for their partner and when some in that situation might see little point in carrying on caring. The pathway we have chosen is to issue more guidance to local authorities in this area.
Lord Rix: With that assurance, which I am delighted to hear, and seeing that guidance will be strengthened in regard to the liable relatives rules, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Baroness Greengross Baroness Greengross moved Amendment No. 276:
After Clause 59, insert the following new clause—
"DUTY TO DISREGARD FINANCIAL RESOURCES IN MAKING ASSESSMENT DECISIONS
(1) The National Health Service and Community Care Act 1990 (c. 19) shall be amended as follows.
1660
(2) After section 47(1) (assessment of needs for community care services) there shall be inserted—
"(1A) In deciding whether or not to carry out an assessment under subsection (1) above a local authority shall disregard any financial resources available to the person."
(3) After section 47(3) there shall be inserted—
"(3A) Where a local authority has decided to carry out an assessment the authority shall give reasonable notice in writing that an assessment is to be carried out.
(3B) Within 14 days of completing their assessment the authority shall notify the person in writing of the outcome, including details of—

(a) any needs that have been identified as a result of the assessment that require the provision of any community care services;

(b) any community care services that the person will receive;

(c) the statutory agency which is responsible for ensuring that such services are provided;

(d) a summary of the charging structure that will apply for provision of such services by the authority;

(e) the date on which services will commence;

(f) in so far as the authority does not accept that needs identified by the person and the authority (or both) as requiring the provision of community care services call for the provision of such services, the authority shall inform the person of the reasons for this decision;

(g) the right to request a review of the decision and of the time within which such a request must be made."

(4) In section 47(4) leave out the words "subsection (7) below" and insert "subsections (1A), (3A) and (3B) above and (7) below".
(5) The Secretary of State may issue directions requiring that assessments shall commence and be completed within prescribed periods.".""
The noble Baroness said: This amendment would ensure that persons who have sufficient resources to purchase their own long-term care are not, because of that, denied the benefit of a skilled assessment of need. We know that there is a likely potential for service users to be left with inadequate information about which services are the responsibility of which statutory body, to which agency they complain and for which of their services they are paying. We have heard about this during the course of our debate. Current practice in carrying out assessments and complete care plans, I am afraid, is often woefully inadequate, to the extent that service users are often unaware that they have been assessed.
Delays in assessment and in the subsequent provision of services due to the involvement of more than one statutory agency are also a concern. This is a multi-purpose amendment about the whole process of assessment. People encounter a great many problems, and we want to have on the face of the legislation some provision which could address these problems. I beg to move.
Lord Lipsey: My noble friend Lord Morris is desolated that he cannot be here because of an important medical engagement. However, whatever view we take about whether richer people should contribute to their care, he believes that they should not be denied assessment. Assessment is a signpost that tells you what you need, however that is to be paid for.

1661
I have some sympathy with this view. The more one considers this area the more one realises that the difficulties do not concern finance, but assessment, and finding out where the services are available, at their many points. I quite see that this is as difficult for better-off people as it is for less well-off people. I hope that the Minister will at least accept the spirit of this amendment, and give us some comfort.
Lord Hunt of Kings Heath: I thank noble Lords for those comments, which are very important. Let me say immediately that I thoroughly agree that the person's financial situation should not be taken into account during the assessment of their needs—the very point my noble friend Lord Lipsey raised.
I am aware that in some areas the practice has developed that as soon as it is discovered a person has care and attention available to them, including resources, council staff will not commence or may terminate assessments of need. Irrespective of the value of a person's resources, the care and attention that is otherwise available to them, there is no question that councils have a duty to commence or complete assessments of need. We were aware of this problem, and two or three years ago we reminded councils of the legal position. We said in Circular LAC 98/19 that in our view the law does not allow authorities to refuse to undertake an assessment of care needs on the grounds of a person's financial resources.
The amendment does not alter the current legal position. I can assure the noble Baroness, Lady Greengross, that we shall continue to hammer home this important message whenever appropriate. Clause 60 of the Bill, through regulations, will remove the person's main property from the consideration of whether someone shall have care and attention available to them.
The noble Baroness's amendment suggests a range of improvements to the way in which assessments are carried out. Generally, these proposed changes are about practice and will probably be better dealt with in guidance than in legislation. It is proposed that a local authority should give reasonable notice in writing that assessment is to be carried out. Surely, that is common sense. If a care professional is scheduled to discuss with a person their needs and problems it is good practice to inform them of this in writing. Current practice guidance on assessment and the Government's charter for long term care cover those points.
With regard to results of assessment being notified to prospective service users within 14 days, I understand that many users are notified much earlier than that. There is some danger in stating 14 days because, in the perverse way these matters sometimes operate, that might become the norm and make the situation worse. I believe that current guidance covers this issue and reminds councils that assessment processes should be timely, and services following assessment provided without delay.
The final part of the proposed new clause provides for the Secretary of State to issue a requirement that assessment should commence and be completed within
1662
prescribed time scales. This is another important element of practice. While I appreciate the sentiment behind the proposal, it could be difficult to put into effect. For some reasons assessments can be completed quickly; others may take considerably longer. While I agree that the assessment should not drag on, I would be worried about prescribing time limits in direction or regulation.
In conclusion, matters raised in this amendment focus on good practice and, as such, are best dealt with by guidance. I hope the noble Baroness will recognise that I am very sympathetic to the general point she makes.
11 p.m.
Baroness Greengross: My Lords, I thank the Minister for those reassuring points. I am not sure that everything will be achieved through guidance. That is why we have raised some of these problems. I accept the sympathy offered. I am sure that the noble Lord, Lord Morris, would feel the same way. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Greengross Baroness Greengross moved Amendment No. 277:
After Clause 59, insert the following new clause—
"LIABILITY OF RELATIVES
(1) The National Assistance Act 1948 shall be amended as follows.
(2) Sections 42 (liability to maintain wife, husband or children) and 43 (recovery of cost of assistance from persons liable for maintenance) shall cease to have effect.
(3) In section 48(3) (duty of councils to provide temporary protection for property of persons admitted to hospital etc) omit the words "or from any person who for the purposes of this Act is liable to maintain him".
(4) In section 51(1) (failure to maintain) omit the words "or any person whom he is liable to maintain for the purposes of this Act".
(5) In section 56(1) (legal proceedings) omit the words "other than a sum due under an order made under section 43 of this Act".
(6) In Schedule 6 (transitional provisions) omit paragraph 19.
(7) The Public Health (Control of Diseases) Act 1984 shall be amended as follows.
(8) In section 46(5) (burial and cremation) omit the words "or from any person who for the purposes of the National Assistance Act 1948 was liable to maintain the deceased person immediately before his death".
(9) The Local Authority Social Services Act 1970 shall be amended as follows.
(10) In Schedule 1 (enactments conferring functions assigned to social services committees) for the words "Sections 43 to 45 in column 1" substitute "Section 45"."
The noble Baroness said: This amendment is designed to ensure that relatives do not have to pay, and do not have to be pursued so that they pay, for the care of their spouse who goes into residential care. I have to say that I was bitterly disappointed at having to table the amendment. Having said in the other place that the proposal had merit, I had hoped that the Government would table such an amendment. Now that all the consequential amendments have been covered, I trust that the Government will be able to accept the proposed new clause in this place
However, if the amendment is not acceptable, I hope that the Minister will be able to tell me exactly why the Government are no longer supporting it. It was said in the other place that any repercussions and any policy of other government departments would need to be considered. I do not know why the Department of Health has changed its mind, nor, indeed, where the problem lies. Could the Minister please explain the position to me?
Perhaps the Minister should consider the fact that all I am asking for is that local authorities should be debarred from asking spouses to contribute towards the cost of care. Research undertaken by Age Concern has shown that this applies to a very small number of people. However, it is a matter that causes them a tremendous amount of anxiety. It is true that only a few authorities pursue spouses and that only a few individuals are being penalised, but those concerned go through a terrible time of anxiety.
Moreover, it does not fit in with the Government's statements regarding not charging carers. Spouses have often performed the role of carer for years, thus saving the state huge amounts of money. Even when they reluctantly have to give up caring at home, many want to take an active part in the care of their spouse in the care home, thereby incurring much cost to themselves in terms of visiting.
I should like to make it quite clear to the Minister that I am only asking the Department of Health to change its rules, which would entail very negligible cost. Nevertheless, it would have a huge effect in relieving the anxiety of many people. I know that there are similar rules in relation to social security, but these cover all types of separation and, importantly, the maintenance of children. We have no expectation of there being any effect on those rules. I beg to move.
Lord Rix: I rise to support my noble friend Lady Greengross, and I shall do so briefly. Where charges fall to be made, it is obviously necessary to inquire into the shared resources to determine what the person who must meet the charge should pay. However, it cannot be satisfactory that the expectations of funding by relatives and partners should vary from place to place. Indeed, it cannot be right that the pressures on relatives to top up and make good service deficiencies should vary from place to place. We need greater clarity; and we need to dispel the fear that a relative's own resources will be depleted by domiciliary and residential charges, just as they are very often depleted by caring responsibilities.
I am also anxious to block, if we can, the moral pressure problem. This arises when someone who has no legal obligation to maintain is faced by an unacceptably poor quality of service for their nearest and dearest, with the offer to pull it up half-way to decency if he or she—the family member—would like
1664
to pay the bill. I hope that the Bill's standards provisions will help in that respect, while my noble friend's proposal addresses the legal position.
Lord Hunt of Kings Heath: As we heard, the amendment would stop councils seeking further contributions to care costs for residential care from spouses, in addition to the costs that residents are fairly assessed to pay under the means test. Again, I fully understand the intentions behind the amendment. I am aware of the difficulties caused by the operation of the liable relatives rule as far as concerns residential care and the distress that can be caused to residents and their husbands or wives at what is already a very difficult time. I am also aware of correspondence from Age Concern England which has highlighted that not all care managers are as aware of the liable relatives rule as they ought to be and that there have been some examples of such managers bringing considerable pressure to bear on spouses to make a contribution. It has been reported that fishing expeditions have been undertaken into spouses' financial affairs, causing considerable distress.
Moreover, it is clear that the liable relatives rule is applied patchily over the country. Some councils do not seem eager to apply it, while other councils, although in a minority, seem to be very enthusiastic about it. In another place my right honourable friend the Health Minister said that he would look carefully at the operation of the liable relatives rule and the link to similar rules that apply to other government departments. We have explored all the issues thoroughly and there are a number of difficulties in proceeding along the lines proposed by the amendment. In the first place, I believe that there would be significant implications for public spending as the liable relatives rule has a read-across to wider social security issues. At the end of the day I am not sure it is possible simply to put a barrier round this particular application of the liable relatives rule.
Secondly, it is appropriate that councils are enabled, where it is appropriate, to seek contributions to care costs where the resident has relatively meagre resources while the partner at home is well off. In these instances, residents should look not only to the state for support but also to their partners. To do otherwise would be inappropriate and would place an unfair burden on taxpayers. Thirdly, as I have said, many councils apply current guidance and common sense and do not seek liable relative contributions from spouses in all cases.
Having carefully considered this matter and the arguments that we have heard tonight, I believe that the best course of action would be to remind councils of current guidance rather than to repeal this fundamental rule. When cared for people enter respite care I would expect councils fully to consider all of the issues before considering what contribution to care costs, if any, to seek from spouses who are substantial and regular carers. I realise that my response will be

1665
disappointing to the noble Baroness but I am committed to ensuring that we reissue current guidance and remind councils of their responsibilities.
Baroness Greengross: I am rather saddened by the Minister's response. I shall return to the matter. Meanwhile. with great reluctance and given the time of night, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 60 [Disregarding of resources when determining need for residential accommodation]:
Baroness Greengross Baroness Greengross moved Amendment No. 278:
Page 61, line 44. after "person" insert "a local authority shall only consider care and attention to be otherwise available if it is satisfied that—

(a) the person is both willing and able to make his own arrangements, or

(b) a representative acting on that person's behalf is both willing and able to make the arrangements for that person,

and"
The noble Baroness said: This amendment is designed to ensure that all people assessed as being in need of care and attention and who want the security of social services arranging their residential or nursing home care should not he denied access to this service.
The current provisions discriminate against people who have over £16.000, as even when they are assessed as needing residential care they are left to make their own arrangements with care homes. Many would prefer to have the security of a social services contract—these people by definition are frail and often very elderly. That would also mean that they would be under the care management of social services, which would oversee their care and would review it to check that it was still appropriate. We must remember that people's care needs change; sometimes they need less care. They do not always need more care.
There is clear guidance on those who lack the mental capacity to make their own arrangements and those people will come under social services, but that leaves frail older people who find it difficult to negotiate with home owners faced with doing so, often on their own. Even if they have relatives negotiating on their behalf, it would still leave them with no one fully qualified to oversee their care. I beg to move.
Lord Hunt of Kings Heath: I consider that the essential elements of this matter are fully covered by existing legislation and departmental guidance. First, the legislation places an obligation on councils to make arrangements for people assessed to be in need of care who lack the means to finance their admission or lack the capacity to make their own arrangements. That is clearly right and proper; councils must target the most vulnerable residents for support. Secondly, as I said earlier, the departmental guidance reiterates that existing law provides that councils may not, on the grounds of a person's financial resources, refuse to undertake an assessment of care needs for anyone. That is the position under Section 47 of the National Health Service and Community Care Act 1990. In that sense, the position is covered.
1666
I turn to consider other elements of the amendment. In my opinion, it would be wasteful of councils' scarce resources to ask them to become involved in making arrangements for admission to residential care of all residents, irrespective of their real need for support. I believe that it may distract councils from priority work, and some residents may regard it as a rather intrusive measure on the part of councils into their affairs. In that sense, councils should be able to consider what alternative provision people have available to them.
However, with regard to the question of the responsibility of councils, I repeat that it is quite clear that they may not, on the grounds of financial resources, refuse to undertake an assessment of anyone's care needs.
Baroness Greengross: I thank the Minister for that reassurance. I think that it depends on how the local authority feels. There may be a need for a tightening of the controls at a later stage, and I hope that that will be kept under review. Meanwhile, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Howe Earl Howe moved Amendment No. 279:
Page 62, line 4, leave out lines 4 to 6.
The noble Earl said: Clause 60 provides for the Secretary of State to review the amount by which a person's resources can be disregarded by local authorities in determining whether he or she is eligible for support when in residential accommodation. The Explanatory Notes makes it clear that this clause will enable the link with the capital limit of £16,000 to be broken so that more people are able to take up the offer of a charge on their own home to pay for accommodation. As I understand it, it would also facilitate the three-month disregard of someone's property after a stay in hospital. For many people, that very valuable breathing space will be needed to assess whether the residential care in question is to be permanent or long term.
The NHS Plan states that the three-month assessment will,
"keep open the possibility of returning home after a period of support and rehabilitation, should people be able and wish to do so"
That gives rise to an apparent difficulty, in relation to which I should be grateful for the Minister's clarification. If that section of the NHS Plan is to he interpreted to mean that the first three months in a residential setting are a temporary stay, according to current guidelines, the test for that should be completely different. The guidelines state that residents regarded as temporary are unable to claim income support until their capital falls below £8,000— not £16,000, as for permanent residents. Does that mean that, for practical purposes, the capital limits for temporary and permanent stays are to become the same?
I should be glad if the Minister would clarify a further point. What is meant by the word "resources" in this clause? Does it cover both property and capital?
It seems to me that the power given to the Secretary of State to make regulations determining the meaning of "resources" would enable him to discriminate between resources in terms of property and resources in terms of other capital. Many people have chosen not to buy a house, but to rent accommodation, and hold all their capital in stock market investments. Would such a person find that all his capital was being taken into account in the means test from the outset? That would seem unfair. A fairer position would be to set the disregard at a certain level of capital or all of a person's capital. I beg to move.
Lord Hunt of Kings Heath: Under Section 47 of the NHS and Community Care Act 1990, councils have an obligation to assess a person's need in respect of services that they have a power to provide to that person. The law currently provides that, if a person has a need for residential accommodation and care and attention is not otherwise available, the council shall provide it. The ability of the person to provide for themselves is a relevant factor to take into account in determining whether to provide residential accommodation. Resources, particularly a person's home, may be taken into account.
The clause paves the way for the introduction of our deferred payment scheme, as it enables regulations to be made requiring councils to disregard certain resources when determining whether they have care and attention otherwise available to them. We intend to specify in such regulations a person's main or only home.
Subsection (2A) says that certain resources, which we will specify in regulations to be a person's main home, shall be disregarded from the consideration of whether someone has care and attention available to them. Subsection (2B) says that the council shall calculate the person's resources in accordance with regulations. The amendment would delete that paragraph. That would enable a council to assess a person's resources as it saw fit. In particular, it would mean that a council could take into account resources disregarded by the means test to deny a person residential accommodation under Section 21. In other words, it could result in fewer rather than more people being entitled to Part 3 accommodation. The amendment would not help those people who would rather take out a deferred payment arrangement with their council than sell their home on admission to residential care.
Those who may be able to return home should be admitted on a temporary basis. The three-month disregard applies to people who are admitted on a permanent basis.
Earl Howe: I thank the Minister for that reply. This was meant to be a probing amendment. I appreciate the effect of removing subsection (2A). That was not my intention. I merely wanted to tease out some of the factual background to the proposals. I am still in a little doubt about how much capital is taken into account for residents regarded as temporary. If the
1668
Minister has any further information on that, perhaps he would care to write to me, as the amendment was prompted by an outside party. In view of the hour, I shall leave it there. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 60 agreed to.
Earl Howe Earl Howe moved Amendment No. 280:
After Clause 60, insert the following new clause—
"Carers and local authorities
( ) Where it is considered that a person receiving community care services is to be rehabilitated to receive treatment in his own home by a carer, the carer shall be deemed to have asked the local authority for assessment according to section 1 of the Carers and Disabled Children Act 2000.
( ) For the purposes of this section, the provider of the community care services shall have a duty to inform the carer of his right to an assessment under the Carers and Disabled Children Act 2000.
( ) For the purposes of this section "carer" shall have the meaning given in section 1 of the Carers and Disabled Children Act 2000."
The noble Earl said: Before the noble Baroness, Lady Greengross, berates me, I realise that the amendment is flawed, but I shall speak to it because it contains an important point.
The amendment would ensure that the needs of a person's carer were considered before an elderly patient was returned home. I do not think that there is any disagreement with the general proposition that as far as possible people should be enabled and encouraged to stay in their own homes while they rehabilitate. However, moving home has implications for carers. It would be perverse to reduce the burden on the NHS by increasing rehabilitation if that simply resulted in the burden of continuing care falling on the unpaid carers, who could not cope with it. An explicit duty should be placed on health services to consider the effect on carers. That is the purpose of the amendment.
I believe that the noble Baroness, Lady Greengross, will say that carers should not be forced to undergo an assessment if they do not wish it. Certainly I had not intended that carers' wishes should be overridden in that sense. My main concern is that every carer should have the right to an assessment and should have that right communicated to them at what will be a particularly demanding time for them.
We should remember what emerged from the research carried out by the Carers National Association some three years ago. It was found that one in four carers felt that the person whom they cared for had not been discharged from hospital at the right time. In 80 per cent of those cases, the carer felt that the patient had been discharged too soon. In addition, in order to reinforce that point, one in four people discharged from hospital were readmitted within two months.
I hope that the Minister will be sympathetic to the thrust of the amendment. I beg to move.
Baroness Greengross: I support the amendment in the spirit in which it was moved by the noble Earl. I

1669
believe that we have received some clarification on it. I understand that the noble Earl does not mean that being deemed to have asked for an assessment will lead to a carer who does not wish to be assessed having to be assessed. I take that point.
I am also delighted that during the course of this debate the needs of carers have, for the first time, been spoken of in this way. I am sure that if the noble Baroness, Lady Pitkeathley, were here, she would echo the points raised about the needs of carers. We all look forward to seeing her back in this House very soon. I support the amendment.
Lord Hunt of Kings Heath: First, I thank the noble Baroness for her kind remarks in relation to my noble friend Lady Pitkeathley. I echo that we very much look forward to her return to our midst. I hope that carers will become involved in the new accountability and public involvement arrangements for the health service and, in particular, that they will become members of patients' forums.
The Government agree fully with the sense of the amendment moved by the noble Earl, Lord Howe. It may be worth informing the Committee that the Carers and Disabled Children Act 2000 comes into force on 1st April 2001. Guidance in relation to the Act issued under Section 7(1) of the Local Authority Social Services Act 1970 was published by my department on 1st March this year. That section states that local authorities must,
"in the exercise of their social services functions … act under the [Section 7(1)] guidance of the Secretary of State",
which, as we know, is statutory guidance.
The Government's aim is to ensure that all carers are aware of their right to an assessment under the provision of the Carers and Disabled Children Act. That has been achieved by instructing those who carry out assessments of people with carers to inform the carer of his right to ask for an assessment. In order to ensure that the carer has been made aware of that right, the assessor should also give him a copy of a new leaflet, How to Get Help in Looking After Someone: A Carer's Guide to a Carer's Assessment. That leaflet was drawn up in partnership with the Carers National Association and 1 million leaflets have been made available to local councils, social services and all other outlets.
Therefore, I hope that we are meeting the spirit of the noble Earl's suggestion in that carers will be notified of their right to an assessment. I hope that that will be helpful to them.
Earl Howe: That is a very helpful reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 281:
After Clause 60, insert the following new clause—
"CESSATION OF PAYMENTS WHEN DETERMINING NEED FOR RESIDENTIAL ACCOMMODATION
In section 21 of the Act 1948 (duties of local authorities to provide accommodation) there shall be inserted"—
1670
(9) Where a person—

(a) has previously made his own arrangements for receipt of care and attention in a residential care or nursing home,

(b) has requested an assessment under section 47 of the National Health Service and Community Care Act 1990, inter alia, with a view to obtaining community care services, including accommodation provided under section 21(1), and

(c) the authority has assessed that person as being in need of such care and attention under section 21(1),

any liability of that person to make any payments under existing arrangements, or alternative arrangements which may be made, shall cease either at the date that the request for the assessment is notified to the local authority, or if later at the date at which the person becomes financially eligible for assistance (under regulations made for the purposes of section 22), and liability shall pass to the local authority to fund that care and attention from that date.
(10) Regulations may provide for criteria as to whether the existing arrangements continue.
(11) The Authority may in respect of any payment made by them in pursuance of subsection (9) above, recover from that person such an amount in accordance with regulations made for the purposes of section 22.
(12) A person will be entitled to recover any monies paid in excess of the amount for which he is liable in accordance with the regulations made for the purposes of section 22 from the date at which the local authority became liable under subsection (9).""
The noble Lord said: This amendment is designed principally to address the problem of delay in assessment. The new clause aims to ensure that residents who have placed themselves in a home but who have reached the capital limit, which from April this year will be £18,500, are able to access the funding that they require at that point from local authorities. Such residents often face long delays in obtaining funding from local authorities. I have come across examples, which I shall not go into at this time of night, from both NACAB and Age Concern which illustrate that this is a serious problem. It would be conditional on their assessment confirming that such accommodation is needed.
The amendment is worded in such a way that if a person applied to a local authority and there were delays in the local authority's carrying out the assessment, it would be responsible for the fees as soon as the person reached the capital limit. It also contains provisions to refund the resident any expenses that he or she may have incurred outwith the means test.
The amendment is designed to assess the serious issue of delay. The Minister for Health in another place addressed that point to some degree during the Bill's Committee stage when he said that he thought that the guidance was adequate and that legal rights were adequate. Having considered what was said in another place, the guidance does not seem to be adequate because many local authorities appear to have delays and considerable problems are caused. People in residential homes find that their capital resources are reduced to below the capital limit, which is totally unfair.
If the Government do not agree to alter the primary legislation in the way that the amendment proposes, it appears that at the very least the guidance should be strengthened. I beg to move.
11.30 p.m.
Lord Hunt of Kings Heath: The problem lies not with the guidance but with that number of local authorities that do not ensure that the guidance is implemented. I assure the noble Lord that when the department is notified that a local authority has not done the right thing, we have acted quickly to remind it of its responsibilities. If someone has been asked to contribute to the cost of residential care outside the means test, it is the department's view that there is a clear liability and responsibility on the local authority to put that right.
When councils delay providing due financial support and the resident loses out financially, he or she has recourse through the local authority complaints procedure, the local government ombudsman and, ultimately, the courts. The law is clear on that.
We have issued statutory guidance that leaves no room for doubt. In view of what has been said in another place and in Committee tonight, I agree that we have to stamp out bad practice. The Government will therefore again remind councils of their statutory duties at the earliest opportunity.
Lord Clement-Jones: I thank the Minister for that very positive reply, which was precisely what the amendment was designed to elicit. Reference to stamping out bad practice is exactly what is needed. I thank the Minister and look forward to the issuing of those reminders to local authorities. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 61 [Funding by resident etc. of more expensive accommodation]:
[Amendment No. 282 not moved.]
On Question, Whether Clause 61 shall stand part of the Bill?
Baroness Barker: This clause is welcome in one sense in that it will enable people who wish to enter residential accommodation that is more expensive than a local authority is prepared to pay to do so. However, I am worried about the lack of safeguards for those who use their own resources to do so. Having listened to the Minister's comments, I am also still concerned about the effect that the clause may have on the economy of the care home sector. In other debates, the noble Earl, Lord Howe, has discussed the great difficulties in that sector. One consideration in this context relates to people who use their resources to fund the additional cost of their care. When their money or their means have run down to the point at which they return to the local authority level, will the care home reduce the costs as they otherwise would have done?
I believe that much of this Bill is good but there are some areas that bear further examination. Is work being undertaken by the department concerning what constitutes realistic fee levels for residential and nursing care homes to ensure that they are reasonable? What safeguards are there to ensure that this provision does not force up the price of homes for those who are
1672
self-funding or who make their own contracts? What safeguards are there to ensure that local authorities comply with the choice of accommodation and that the fee levels quoted by local authorities reflect the cost of residential and nursing accommodation that is available in an area? We need to ensure that residents are not routinely expected to top up the costs of local authority accommodation.
Lord Hunt of Kings Heath: The noble Baroness, Lady Barker, raises a number of issues which go rather wide in terms of the viability of the care home sector. I assure her that we are aware of many of those issues and we are in regular discussion with the representatives of those homes to ensure that the arrangements are introduced smoothly.
Subjects include areas of local capacity problems. We are instructing health authorities to work in conjunction with local authorities and providers on the NHS Plan to determine in each locality the number of beds that are likely to be needed in the future. We are also—this is apposite to the comments of the noble Baroness—working to develop a new concordat with the care home sector, to improve Commissioning of long-term care and to maintain capacity and stability in the sector. That will go a long way to ensure that people get the right care at the right time and covers some of the issues that we need to examine.
We are listening to the concerns of care home owners, and we are considering the ways in which we can address the issues raised by the noble Baroness.
Baroness Barker: I thank the Minister for that answer.
Clause 61 agreed to.
Clause 62 [Power for local authorities to take charges on land instead of contributions]:
Baroness Barker Baroness Barker moved Amendment No. 283:
Page 62, line 40, leave out "an" and insert "a written"
The noble Baroness said: I shall not delay the Committee. Nowhere in the Bill does it say that a "deferred payment agreement" must be written. This may seem like a trivial matter, but we are talking about people who may be mentally frail and whose relatives are assisting them to decide to part with their home, which is perhaps the biggest decision that they will have to make at the end of their lives. As a matter of good practice, I believe that such things should be written down. It should be a legal requirement. I beg to move.
Lord Hunt of Kings Heath: I can reassure the noble Baroness that statutory guidance will be issued by the Department of Health to assist councils to implement the deferred payment scheme from October. It will make it clear that written documentation is crucial for the scheme to work effectively. Written agreements will enable residents and councils to confirm the obligations that they have entered into. Moreover, residents will have to grant a legal charge over their land for deferred payment to be arranged. This will have to be in writing like any mortgage. The

1673
department expects councils to work to the guidance that we intend to issue regarding the documentation involved in taking a charge on property.
Baroness Barker: With that assurance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 284:
Page 62. line 45, after first "on" insert "the day after"
The noble Lord said: The effect of this amendment is to ensure that the debt accrued by a person taking advantage of a deferred payment agreement becomes repayable on the date after the date on which the exempt period ends. I beg to move.
Baroness Barker Baroness Barker moved Amendment No. 285:
Page 63. line 8, leave out "56" and insert "114"
The noble Baroness said: In the original Bill which was before another place, the period of grace, if one can call it that, was 28 days—28 days to complete the sale of the house. The department recognised that that was not possible and in another place it agreed to extend that to two months.
According to the National Association of Estate Agents, the average time in 2000 to complete the sale of a house is three months. That is in a time of economic prosperity and for 50 per cent of people, the timetable is closer to six months. Therefore, the Government are asking many people to do something which is not possible.
The second point to be made is that people will be arranging the sale of houses of people who have died. For most people, that will inevitably mean that they are dealing with estates and wills. When I was involved recently in sorting out the affairs of a relative who had died, I consulted a friend who was a solicitor and asked what was the normal time in which to expect those matters to be dealt with. She said that when she was in law school she was told as a trainee solicitor that it is impossible to settle a will within three months. The average time taken to settle a will is about nine months. And if a period of three years has elapsed and the will is not settled, then he should begin to be worried.
I believe that with a time of two months, the Government are asking people, at a time of bereavement, to do something which most of them simply cannot do. Therefore, my proposal is that we should extend the period to four months. That is still asking of most people something which they cannot do. In fact, I believe that six months would be more realistic. I sincerely hope that the Minister will take that point on board. I beg to move.
Lord Lipsey: I wish to speak to Amendment No. 286. A gremlin has crept up because this amendment was supposed to be ungrouped from Amendment No. 285 and, of course, I could move it in its rightful place but the thought of my own side, or indeed anyone in
1674
this Chamber, finding that at this time of night, I had added an extra grouping, is too much even for my broad back to bear.
This is a part of the Bill for which I am extremely grateful to the Minister. I claim some pride of authorship of it because the proposition that no old person should, in future. be forced to sell his house during his life time to pay for his care was one which was made by the minority of members of the Royal Commission. For some reason that still escapes me, it was not adopted by the majority. Although they wrote the most wonderful chapters on caring for the elderly, they apparently thought that that was a satisfactory thing to be going on in our society. I am glad that the Government have gone with the minority on this and I hope that Members of the Committee who, on other matters favour the majority, will agree with that.
I have heard the figure mentioned of 40,000 homes sold per year. That is for the birds, because I have looked at the original research. But that is not the point. The real point is the fear of elderly people, when they go into residential nursing care, that if they get better, they will not be able to go home because their home has been sold. This Bill lifts this fear.
However, as drafted, it does not lift a second fear; that is, if the carer or close relative is in the house, what happens if the elderly person dies or has to go in a home? In that case, will the carer or close relative be evicted from that home so that it can be sold to pay for the elderly person's care? I do not think there are that many cases where that has happened. Most local authorities would almost certainly prevent that from happening, but the fear hangs over many older people. The amendment is a chance to lift that fear.
My noble friend the Minister is a good and kind man. He knows that I have supported him throughout the Bill in resisting anything that incurs a single penny of extra penny of expenditure. I am the only person in this House who thinks that the definition of nursing care is, if anything, too wide rather than too narrow. Surely, after that he cannot deny me this extremely cheap measure which will lift the curse of fear from many elderly people.
Lord Hunt of Kings Heath: Put not thy trust in the Front Bench. Perhaps I may deal first with Amendment No. 285, which seeks to extend the exempt period before payment is due and interest may be charged to 114 days.
I believe that the current provisions of Clause 6(2)(2) are already advantageous to users and their families or heirs. In addition to the deferred payment scheme being interest free for the duration of the resident's stay in residential care, delaying the payment of interest 56 days makes the arrangements an even more attractive option for those who do not wish to sell their homes on entering residential care to meet their care fees.
However, there is a balance. For the deferred payment scheme to work well and to be widely offered, it needs to be fair and attractive to all parties concerned. I believe that the current period of 56 days

1675
is fair to both families and local authorities. In normal circumstances I would argue that it gives time for probate to be completed and for decisions to be made about how to deal with the property without placing undue financial strain on council resources.
The noble Baroness must accept that if we extend the exempt period to 114 days we may well upset the balance and make the scheme too one-sided in terms of advantages, making it then difficult for councils to feel able to offer deferred payment agreements. There is always a balance. The longer that families and heirs have to pay the sums owed to councils, the more difficult it is for councils to offer deferred payments to other people about to enter residential care. I am the first to acknowledge the sterling support of my noble friend Lord Lipsey in these arduous debates on personal care, nursing care and, indeed, the definition of nursing care. His reward will be in Heaven, not in your Lordships' House.
Amendment No. 286 covers a number of situations including instances when a property subject to a deferred payment arrangement is the home of a third party. The basics of the charging system for residential care, as it relates to the deferred payment scheme, applies only to people with property the value of which is above the upper capital limit of the means test for residential accommodation.
Where property owned by residents continues to be occupied by certain third parties, its value is already disregarded from the means test. A point I made earlier is that regulations under the National Assistance Act require councils to disregard the value of a resident's property where it continues to be occupied by a resident's spouse or partner, another relative who is 60 or over, another relative who is incapacitated or when a child who is dependent on the resident continues to live in the property.
Councils also have discretion to disregard property where it continues to be occupied by a third party not covered by the mandatory disregards. The Department of Health already provides guidance to councils on the application of mandatory and discretionary property disregards. It reminds councils of their discretionary powers. Many councils exercise their discretion in that area and disregard property where it is occupied by a former carer who does not fall under the mandatory disregard.
The amendment would give councils the discretion to extend the exempt period of a deferred payment arrangement to allow former carers or other relatives of the resident to remain living in the property or to allow them time to make other arrangements. The amendment also appears to assume that, were councils not to have that discretion, such carers and relatives would either have to find the funds to pay the debt, including any interest that accrues, or find alternative accommodation.
As I have described, the value of a resident's property which continues to be occupied by a carer or a close relative of the resident, will be disregarded in most cases under the existing mandatory or
1676
discretionary property disregards. Where the value of a resident's property is disregarded, there will be no need for the resident to enter into a deferred payment agreement secured on the disregarded property. On that basis one hopes that the scenario which the amendment addresses is very unlikely to occur.
Baroness Barker: If the noble Lord, Lord Lipsey, cannot get any blood out of this particular stone, what hope is there for the rest of us? I am very disappointed at the Minister's answer. What the department is expecting of a great many people is impossible for them to fulfil. That is unfair. Taken together, some of the unsatisfactory answers that we have had this evening begin to make this package of measures seem thoroughly unacceptable on these Benches. I reluctantly withdraw my amendment at this stage.
Amendment, by leave, withdrawn.
Lord Lipsey Lord Lipsey had given notice of his intention to move Amendment No. 286:
Page 63, line 11, at end insert ", or
(c) at the discretion of the authority, on such later date as it may deem appropriate in order to protect a carer or close relative of the resident from homelessness.
(4A) The Secretary of State shall provide guidance to local authorities as to how they should exercise their discretion under subsection (4)."
The noble Lord said: I am also greatly disappointed. I do not find the Minister's answers very satisfactory. I do not believe that discretion will stop old people experiencing fear. If there are so few cases, why is he so reluctant to put them on the face of the Bill and stop it? I therefore reserve the right to return to this matter at Report stage if my right honourable friend the Prime Minister makes such a thing possible.
[Amendment No. 286 not moved.]
On Question, Whether Clause 62, as amended, shall stand part of the Bill?
Baroness Barker: In view of some of the unsatisfactory and disappointing answers that we have had, there are one or two questions about deferred payments that I have to ask. I point out to the Committee that similar arrangements are already in place which enable local authorities to collect debts under the Health and Social Services and Social Security Adjudications Act 1983 which, for the benefit of the Committee, but mostly of myself, I shall henceforth refer to as HASSASSA.
Are the deferred payment agreements only for those who do not wish to sell their property in their lifetime? If people do not mind selling their property and making contributions towards the cost of care, will they be able to use the deferred payment agreement rather than having a charge placed on their property under HASSASSA? Are the Government taking steps to ensure that any independent financial adviser would be competent to offer detailed individual advice to someone who was thinking of making deferred payment and that he would have knowledge about the charging, how benefits might be affected and the other options available? There are issues such as insurance

1677
on empty property and the oversight of property. It is an enormous change to the way in which older people will have to manage their property. Will the local authorities also meet the associated costs of legal charges? Those are some of the many questions which are opened up by this clause. At this stage I shall not press the matter any further.
Lord Hunt of Kings Heath: I hope that the noble Baroness will not mind if I duck a couple of her questions and write to her about the specific details. The point she raised about financial advisers is important. Certainly one would wish that people in that situation had proper independent advice.
We need to do everything to ensure that that occurs. If independent financial advisers are going to become involved, it will be important for us to make sure that they are appraised of the issues. I may take that issue back and have a look to make sure that we are covered.
I have suddenly received inspiration in the nick of time on the questions raised by the noble Baroness. On the HASSASSA questions, it is deferred payments only for those who do not want to sell their home and open to anyone who wants to take up a deferred payment. If the home is sold then the resident will need to pay.
Clause 62, as amended, agreed to.
Clause 63 agreed to.
Baroness Barker Baroness Barker moved Amendment No. 287:
After Clause 63. insert the following new clause—
"CROSS-BORDER ASSESSMENTS
Where a person has been assessed by one local authority and moves to a residential or nursing home in another local authority area, the authority which made the assessment, and as a result of which a duty to provide accommodation under section 21 of the National Assistance Act 1948 has arisen, shall agree such payments which are at least equivalent to those which are normally made in the authority to which the person has moved for the type of accommodation in which that person resides or will be residing."
The noble Baroness said: The title which has been placed upon the amendment in the Marshalled List of "Cross-border assessments" is wrong. The amendment is not about that matter. It is not about vast numbers of people who will be retiring to Scotland, given the fact that the Scots have seen fit to ignore the advice of the noble Lord, Lord Lipsey, on personal care. It seeks to address inter-authority payments within England. It is about people who want to move to a different local authority and have problems if they move to an authority which pays a higher fee level than their own. That happens quite often. Older people want to move to be nearer to their families.
Local authority practice is often to pay only the level of fees they 'would pay if a person moved into a home in their own area, rather than the fees that the local authority agrees to pay in the new area. That often means that there is a shortfall which the resident's family have to make up. That can be a huge difference, particularly if people move from the North to the South of England.
In effect it can mean that an older person may not be able to move to be near his or her family because of the differences in local market prices in care homes. The issue potentially raises some human rights issues about respect for family and home life if a person cannot move because of local authority policies.
Lord Hunt of Kings Heath: Under existing legislation once a person with assessed care needs is ordinarily resident in a local authority area, that authority has an obligation to provide for any residential accommodation needs that he or she has. These needs may have to be met by placing the person in a home in another local authority. The authority responsible for the person cannot point to a standard rate for a care home place and say that they will not apply above that if the needs of the person require it. So where a person moves from one local authority area to another, the responsible local authority must provide the person with accommodation that meets his or her needs and pay the appropriate cost.
The authority is free to negotiate the fee it will pay to the care home provider to meet those needs. I do not believe that there is an issue here with the current legislation.
Baroness Barker: The move to another part of the country to be near relatives is often regarded as a preference rather than a need, and many older people find that the differences are not made up. I take it from the Minister's reply that we shall be as lucky on this amendment as we have been all night. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 64 and 65 agreed to.
Lord Rix Lord Rix had given notice of his intention to move Amendment No. 288:
After Clause 65, insert the following new clause—
"REQUIREMENT TO REPORT ON PROGRESS WITH COMMUNITY CARE
(1) Section 11 of the Disabled Persons (Services, Consultation and Representation) Act 1986 shall be amended as follows.
(2) In subsection (1) leave out all words after "Parliament" and insert "separate reports incorporating—

(a) such information as the Secretary of State considers appropriate on the development of health and social care in the community and elsewhere for people experiencing mental health problems, including information about the views of people with mental health problems and their families on such developments; and

(b) such information as the Secretary of State considers appropriate on the development of health and social care in the community and elsewhere for people with learning disabilities, including information about the views of people with learning disabilities and their families on such developments.

(1A) The Secretary of State shall as far as possible include in these reports such information as he considers appropriate about developments in other services for people respectively with mental health problems and people with learning disabilities, such as financial, employment, education, housing and leisure services.""
The noble Lord said: I beg leave to withdraw Amendment No. 288 and to move in its place Amendment No. 316C and to speak to its

1679
consequential amendment, Amendment No. 319D. I do this for a good reason. I have found my original amendment transformed by legal hands.
Lord McIntosh of Haringey: I hope that the noble Lord will forgive me. If he is not moving Amendment No. 288, he will need to move Amendment No. 316C in its place in the Marshalled List.
Lord Rix: With due respect, the amendment is in its place in the Marshalled List.
Lord McIntosh of Haringey: It may be in the same grouping as Amendment No. 288, but if the noble Lord is not going to move Amendment No. 288, then he will need to move Amendment No. 316C when we come to the appropriate place in the Marshalled List.
[Amendment No. 288 not moved.]
Clause 66 agreed to.
Clause 67 [Control of patient information]:
Midnight
Earl Howe Earl Howe moved Amendment No. 289:
Page 67, line 11, leave out subsections (1) and (2).
The noble Earl said: I beg to move Amendment No. 289. In doing so I shall speak also to Amendments Nos. 290, 291, 293, 293A, 294, 298, 299A, 300A, 301, 302, 302B, 302D, 305ZA, 305ZB and 308. Clause 67 of the Bill, more than any other clause in any other Bill that I have ever dealt with, has incurred the alarm, anger and condemnation of virtually the entire medical community, from doctors, medical charities, the pharmaceutical industry and the press.
The clause provides the Secretary of State with two sweeping new powers: a power to regulate the use of any kind of health information by third parties, even anonymised data; and a power to collect personal health information, even when the patients themselves object. These are such huge matters that it is difficult to deal with them adequately in the space of a few minutes. However, I shall attempt to address each in turn.
As many noble Lords will know, there are companies that specialise in collecting and analysing anonymised medical data on behalf of pharmaceutical companies. At the moment, an established agreement between the medical profession and the health data companies allows those companies to collect certain kinds of statistical data, provided that neither doctors nor patients can be identified in the statistics without their consent. In a recent case involving one such company, Source Informatics, the Appeal Court rejected an attempt by the Department of Health to depict this statistical data collection as a breach of patient privacy. That argument was as disingenuous as it was ridiculous. However, the Government are now seeking to overturn the court's judgment by means of legislation.
Many people have expressed serious concern that the effect of this legislation will be, among other things, to prevent and, indeed, to criminalise any
1680
independent investigation of NHS performance. Many others fear that it will seriously damage the UK's ability to conduct medical research. The Government say that this is not their intention at all. They have tabled amendments which seek to narrow the scope of this clause in an attempt to meet the criticisms that have been made. Those amendments will not do and I shall return to them in a moment.
The second new power would enable the Secretary of State to compel doctors and hospitals to hand over patients' medical records even if the patients object. At present, there are powers to do this only in relation to notifiable diseases such as tuberculosis, where there is a clear public interest in preventing the spread of infection. No one argues with the need for those powers, nor is there in general much dispute about the work of cancer and other disease registries, whose legality was questioned last year under the provisions of the Data Protection Act. The data collected by cancer registries is of direct benefit to medical research.
However, the proposed powers are not limited to cancer or, indeed, to medical research. They would permit the government of the day to demand whatever data are of interest to them—and not just for research but under that well-worn rubric of the public interest. Nowhere in this clause is there any mention at all of that essential prerequisite: informed patient consent.
This new power is not about protecting patients' rights, it is about expediency. As such—I know that this is strong language but it is true—it represents nothing less than the sovietisation of medicine. Clause 67 will ride roughshod over patient's rights in order to make life a little easier for Ministers.
But it does not stop there. There are other costs. Doctors will no longer be able to guarantee confidentiality to their patients. What will that do? It will do one very obvious thing: it will erode patient confidence; and in the process it will erode public confidence in medical research.
Recent events in the NHS at Bristol and Alder Hey, and other cases, have already served to dent public confidence in the medical profession. The last thing we should be doing is to damage that foundation stone of medical ethics, the unbreakable bond of trust between doctor and patient.
The powers sought by Ministers are far, far too wide. They are outrageously wide. The Delegated Powers and Deregulation Committee of this House, in its criticisms of subsections (1) and (2) described the power as "over wide". Quite rightly, the committee did not comment on issues of policy, although it noted with regret the complete lack of consultation on the proposals before the Bill was presented to Parliament.
Since the report was published, the Government have tabled amendments to try to address the committee's criticisms. The amendments to subsection (1) restrict the powers to data,
"obtained or generated in the course of the provision of the health service",
and processed for,
"the purposes of. or in connection with, marketing or other promotional activities which he considers to be contrary to the economic or financial interests of the health service".
I urge Members of the Committee to read those words. What do they mean? What would a court of law take them to mean? They are incredibly imprecise and vague. The vagueness in the meaning of such words as "marketing" and,
"obtained or generated in the course of the provision of the health service",
is dangerous. The Secretary of State would be left with huge scope for subjective decision-making on almost as broad a basis as he would have under the clause as first drafted.
One very simple point appears to have been overlooked by Ministers. The commercial use of NHS data and the availability of that data to those conducting medical research are inseparable. You cannot divide off the commercial bit from the rest, because commercial data are used to carry out research.
Why are the Government seeking to take this power? They assert that the use of anonymised patient data is likely to lead to increased costs in the NHS, in particular in the drugs bill. The Government have not produced a shred of evidence to support these assertions. The argument simply has not been made. Indeed, the Monopolies and Mergers Commission has demonstrated convincingly that the flow of information to doctors actually reduces prices. Pharmaceutical promotion emphasises the benefits of using cheaper alternatives to the ones that have been used in the past. That is the effect of a competitive market-place. Anonymised patient data highlight inappropriate prescribing as well as drawing attention to new or improved medicines. Both of these are in the interests of patients.
Ministers have offered assurances that they will not use these powers to their full potential extent. I am willing to accept those assurances in good faith. But the Minister knows that this will not do. Once the powers have been granted by Parliament, no such assurances will bind a future government. The fact is that there is no basis for Parliament to grant such wide powers as these in the first place.
In view of the time, I have not spoken individually to my amendments but I have covered their theme and their purpose. When I first looked at this clause, I thought that it was unamendable. With regard to anonymised patient data, that is still essentially my view. The Government should abandon subsections (1) and (2) altogether. However, there may be a way of amending the clause acceptably in relation to identifiable patient data. I have an open mind about this. If there is, it will involve writing on the face of the Bill many more safeguards than are currently in place. In this connection, I shall listen with interest to the noble Baroness, Lady Northover, when she speaks to her Amendment No. 305B.
In the final analysis, this clause is truly astonishing. It offends against everything that Ministers have ever said about a patient-centred health service. It is
1682
directly contrary to the principles of patient confidentiality. If it comes to a choice between the clause as it stands and striking the clause out, I should have no hesitation in choosing the latter course. beg to move.
Lord Walton of Detchant: May I say that I totally agree with the views expressed by the noble Earl, Lord Howe. I totally agree with him when he says that the medical profession in its entirety and the entire pharmaceutical industry are deeply and bitterly opposed to Clause 67.
In commenting upon the issues relating to anonymised data prescribing I must declare an interest as I am a neuro-science adviser to a pharmaceutical company. Nevertheless, I must make the point that I have not been briefed by that company but have received a great deal of information from many other pharmaceutical companies and from the Association of the British Pharmaceutical Industry.
If this clause, unamended, were to go through it would restrict the use of anonymised data from the NHS in clinical trials. It would inhibit epidemiological research or pharmocovigilance based on UK data; it would inhibit the collection of data required for submission to regulatory authorities in relation to both EU and UK law; and it would introduce new restrictions on data generated from pharmacy transactions or anonymised data where these are aggregated at a level greater than individual physician prescribing. The industry has long used such aggregated data above the individual prescriber level without harm to the interests of the NHS. Also, as the noble Earl said, the Monopolies and Mergers Commission has come to the conclusion, quite contrary to the view of the department, that the use of such data and the implementation of the consequences of such data would in fact reduce costs for prescribing in the NHS and would render this very much more efficient.
I greatly appreciate the courtesy of the Minister in arranging for some of us to meet him to discuss these clauses. I am grateful for that, and I fully appreciate how, in Amendment No. 295, he has attempted to address some of the greater concerns that have been expressed. However, as the noble Earl said, this simply does not go far enough. My particular departments are engaged in a wide range of activities, which of course include investigating marketing needs, but also the development of new medicines.
The term "marketing" is so broad in meaning that all the commercial databases covering NHS activities remain under threat. These databases are very expensive to develop and maintain. The removal of commercial funding would close them down so that they would no longer be available for non-commercial uses. I believe that this particular part of Clause 67 is unamendable, as the noble Earl said.
Turning to the issues of patient confidentiality, I agree entirely with those who have said that confidentiality between doctor and patient is the cornerstone of medical practice. Yet Parliament,

1683
under the medical Act, has charged the General Medical Council with the responsibility of giving advice to the medical profession on issues of confidentiality. There are of course exceptions, which the GMC has for many years accepted, relating to the breaching of confidentiality. Thus, under the Police and Criminal Evidence Act it is perfectly appropriate for a doctor to breach confidentiality in order to assist the police in the investigation of a grave or very serious crime.
It is also perfectly appropriate when a patient with epilepsy proposes to continue driving, against medical advice, for a doctor to report that individual to the licensing authority. There are therefore exceptions. At the present time, the General Medical Council, in relation to databases which are used for disease registries—in the field of cancer, for instance—have said that doctors are not required to obtain signed consent before data are passed to such registries. However, the GMC proposes from December 2001 to make it mandatory upon all doctors who wish to pass such information to disease registries to seek written informed consent. It is in this situation that there is a serious conflict of opinion within the medical profession. Those involved in cancer research and many other fields of medicine are much opposed to those potential requirements of the GMC. I believe, for that reason, that to implement Clause 67 as it stands at present would inhibit further discussions between individuals involved in cancer research and other disease registers, on the one hand, and the GMC on the other. I believe that in the fullness of time this difference of opinion could be resolved, but to give these unfettered powers to the Secretary of State would, effectively, give him the power to override the advice of the General Medical Council to the detriment of patient confidentiality.
I have agonised over what might be done in relation to this clause. After studying it carefully, I can see no alternative but to ask the Minister and the Government to think again and to withdraw this clause for further detailed consultation with the industry and the profession.
12.15 a.m.
Baroness Northover: I speak to Amendments Nos. 298A, 302C, 304A, 305, 315A and 316A which stand in my name and to the other amendments in this group.
Clause 67 has generated enormous controversy. There are three strands. First, there is the problem of the wide powers taken here by the Secretary of State. They are powers so wide that the Delegated Powers and Deregulation Committee has pronounced upon this. The second and third areas of contention are the use to which anonymised data can be put and the issue of confidential patient information.
There are several features of the controversies that need not have been as they are. The Secretary of State did not have to seek such wide powers. The complex issues addressed here did not have to be sprung upon people with little or no consultation. The departments
1684
did not have to put together anonymised and confidential data in the one clause; however, this is where we are.
I take the matter of anonymised data first. Like other noble Lords, I have received many submissions from those who will be affected by this section of the clause. I have met many delegations and I appreciate their desire to inform as fully as possible. Pharmacists have the right to sell anonymised data to companies who then sell it to the pharmaceutical industry and others who use it as a tool in their marketing strategy or in research. It is very clear that the NHS is unable to supply accurate, up-to-date information to those who need this for research purposes. It is clear that preventing such researchers from using this material in anonymous form, so that the patient could never be identified, would be a very retrograde step.
The Government sought to prevent the sale of anonymised data to the industry but lost the Source Informatics case on appeal, largely, it seems to me, because they were arguing that the patient's confidentiality was at risk, which it clearly was not. However, one of the judges stated that if the Department of Health,
"continued to view such schemes as operating against the public interest, then they must take further powers in this already heavily regulated area to control or limit their effect".
They seem to be doing so. The report of the Monopolies and Mergers Commission in 1999 argued that the merger of two companies who dealt in this information produced a damaging monopolistic effect and this could drive up costs for the drug companies and, they deduced, the NHS. In that report, I note that whereas the Government spends £5 million a year on providing prescribers with information about medicines through such measures as the Drugs and Therapeutic Bulletin and, more recently, the Prodigy Scheme which gives prescribing support to GPs, the industry in 1997 spent around £270 million in promoting its products, mainly to prescribers. They had 6,000 sales representatives or about one for every five to six GPs.
Therefore, I have some sympathy with the Government in seeking to avoid the pharmaceutical industry being able to target such resources on GPs, using their knowledge of their prescribing habits. There is something of a David and Goliath situation here. However, my concern is that by blocking the pharmaceutical industry from its so-called "micro-marketing" the pharmacists will not collect the information to the detriment of the research community.
The clause has been narrowed down in a way that I welcome. As I see it, it will still allow the collection of data on a regional level, at a level that the industry could use to lobby the Government and the public about the poor up-take of useful medicines. However, I remain concerned at the clause's potential scope and impact. It is difficult to justify how it might be in the public interest to restrain pharmacists from communicating anonymous information to the companies that collect such information. My preference would be for the Prodigy scheme to be, as

1685
they say, "rolled out", so that doctors take that as their main source of information. Thus our Amendment No. 298A emphasises that any action—such as contemplated here—must be "in the public interest".
I turn now to the other can of worms in this clause; namely, confidential patient information. Here we have to balance the rights of the individual and the needs of society. The immediate problem over this also seems to have emerged from the Source Informatics case, after which the GMC advised doctors that they were in danger of breaking the law if they passed information about named patients, even to such organisations as the cancer registries. They were advised that if they did so without the informed consent of the patients they must be prepared to defend their actions in a court of law. Not surprisingly, that had an immediate effect. Although the GMC then offered a moratorium in its expectations of doctors in this respect, there has been a significant decrease in the amount of information going to the disease registries.
I have with me evidence from Dr Wendy Atkin from St Mark's Hospital, who is running trials for bowel screening programmes for the Department of Health. She had hoped soon to be able to introduce screening into the wider population to catch this disease when it is completely curable, given the fact that at present it kills 20,000 people a year at present. Dr Atkin has told me that the information is simply no longer complete enough for her to judge the effectiveness of the trials.
Yet, within law, it seems that the problem can be resolved. For example, the European Convention on Human Rights guarantees a patient's right to the protection of confidential information and personal privacy, but that is not an absolute right. As my noble friend Lord Lester of Herne Hill put it in advice to the GMC,
"the public interest test for lawfully interfering with a patient's right to protection of confidential information and of personal privacy … is whether there is a pressing social need and whether the interference is proportionate to the purpose".
It is clear that the disease registries, the Public Health Laboratory Service, and so on, can all fairly claim to be acting in the public interest. So, again, I have sympathy with the Government in putting forward proposals that will once again enable the free flow of information in the public interest, while at the same time protecting patient confidentiality where possible.
But, once again, too much power is in the hands of the Secretary of State. Let us suppose that we had a Secretary of State for whom it was not a high priority in the interests of society to allow such data to be collected, or who wished to hide, say, the collection of information that was embarrassing to the Government. Patient groups have expressed serious reservations about what they see as a power that might be abused.
We have therefore put down an amendment from the BMA which was tabled in Committee in another place and which has since been improved in the light of the discussions there. It seeks to define more precisely what we should seek to do. This amendment is loosely based on the existing United States federal statute which establishes cancer registries.
1686
The purpose of Amendments Nos. 302C and 304A is to make explicit in the Bill the intention of the Secretary of State here; that is, to make provision for disease registries and medical research and to provide a basis for the regulation of the use of patient information for these purposes.
Lord Turnberg: On Second Reading I said that I found this clause difficult to understand. I think that I understand it better now, but I do not think that I find it any easier. Certainly an enormous amount of heat and anxiety has been generated. The noble Earl, Lord Howe, and the noble Lord, Lord Walton, have expressed some of those anxieties well. However, as regards the assertion that the vast majority of the medical profession are completely against the measure, I doubt whether that is absolutely true. That is certainly not true of the Royal College of Paediatrics and Child Health. It does not seem to be true of the Royal College of Physicians. It is not true of the Academy of Medical Sciences. It is not true of the clinical professors of medicine. I do not even think that it is true of all members of the General Medical Council. I do not think that they have had an opportunity to study it properly yet.
We have discussed two types of patient data: that which is identifiable to given patients and that which is not. They are not terribly well distinguished in the clause. Data to which names cannot possibly be attached are used, and will continue to be used, for research and public health purposes. They do not come under the Data Protection Act or, I believe, under the GMC guidelines.
While the common law allows the use of non-identifiable data, there is the prospect, I suppose, that the GMC could theoretically interpret that differently. Certainly research ethics committees could easily become confused and interpret the clause to mean that even anonymised data should not be used for research purposes. I should like to see that matter not necessarily on the face of the Bill but at least clearly affirmed in regulations or guidance so that that confusion is removed.
As regards data from patients who are identifiable and from whom consent has not been obtained—that is a particular concern—that is now constrained and after the end of October this year will be very much further constrained so that it will not be feasible. The Data Protection Registrar and the GMC will at that time make the use of such data absolutely impossible unless, of course, the second part of the clause is enacted which would allow the use of such data without informed consent in very defined circumstances for very specific purposes with certain safeguards. Of course, everyone believes that consent should be obtained in every instance wherever that is possible. That is absolutely vital; it is the baseline from which everyone begins. But it may not always be possible. Under those circumstances it is helpful to have a measure such as Clause 67.
Even though it is rather late I should like to enlarge for a moment or two on the occasions when it may be necessary and, indeed, essential for us to bypass the

1687
measure I have mentioned—for example in the case of so-called "secondary research"; that is, not research done directly on patients but on data derived from patients at some time in the past, or from samples derived from patients at some time in the past where those patients have died or have moved or are untraceable. Without this clause one would not be able to do any of that kind of research.
There are many examples. Let me give a few: first, the Gulf War syndrome. To establish whether soldiers who had been to the Gulf had an increased incidence of cancers of various types, one would need to determine the rate of cancer in those Gulf War veterans and compare it with the incidence in a comparable group of soldiers of a similar age who had not been to the Gulf. It turns out, incidentally, that the incidence of cancer is more or less the same, but it would not be possible to know that without being able to look back at people who could not possibly have given their consent when they developed cancer.
Similarly, the Public Health Laboratory Service would not have been able to conduct the study into the relationship between autism and the measles, mumps and rubella vaccination. It did find that there was no relationship between the two; that one does not seem to be causal of the other. Therefore, we would not have been able to determine that without the opportunity to look back at data on MMR and autism.
The determination of the relationship between a rare occurrence of a disease and immunisation—a question that constantly arises—depends on one's ability to look back. Patients could not have given consent about their disease when they got it because at that time the idea that it might be related to immunisation had not even been thought of. If you want to know the relationship between cancer and environmental factors, or the source of an e-coli 0157 or Legionella outbreak, you must use named patient data.
Professor David Barker in Southampton undertook a marvellous research programme into the relationship between the level of nutrition of an unborn child in the womb and diseases that may be acquired in later life. He demonstrated, for example, that the birth weight of an individual may, 50 or 60 years later, determine that person's incidence of high blood pressure, diabetes, heart attack, and the like; and it was dependent on obtaining data about named patients, where consent at birth could not possibly have been given. How poor we would be without that type of research which could not be done.
I, too, have struggled to find a mechanism that might achieve those laudable aims. Unlike the noble Lord, Lord Walton, I have not been able to come up with anything better than legislation of the type envisaged by this clause. I know that giving the Secretary of State powers of this kind is likely to send shivers up and down the spines of many people, but I believe that the proposed controls are pretty stringent as they stand and as promised.
1688
My fear is not that they will have the potential to betray patients' confidences but that they are so draconian that the mechanism itself will inhibit the very research that the clause is intended to allow. It involves advice from an expert committee and a three-month public consultation, and it then has to pass through both Houses of Parliament. We could not need more to protect patients' confidentiality, especially as they cannot possibly be harmed by the sort of things to which I have referred, and only they and the public can gain.
I hope that the Minister will be able to reassure us that the mechanisms involved will be carefully considered, not only from the point of view of the patients but also from the point of view of the public good.
Baroness Cumberlege: I support my noble friend and speak to the amendments standing in my name, which cover both issues in this clause. I was very interested to hear what was said by the noble Lord, Lord Turnberg, and the noble Lord, Lord Walton of Detchant. From the Minister's point of view, there can be nothing more ghastly than being caught between two warring professors, two noble Lords who have different views.
This issue was first brought to my attention when I read a letter in The Times of 7th February—before the Bill went to the other place—expressing grave concerns about this clause. It was signed by Donald Irvine, President of the General Medical Council, Ian Bogle, Chairman of the Council of British Medical Association, Robert Boyd, Chairman of the UK Council of Heads of Medical Schools, Denis Pereira Gray, Chairman of the Academy of Medical Royal Colleges, and James Johnson, Chairman of the Joint Consultants Committee. I know each of those individuals. They are not men of straw. They have each held huge responsibility in the medical profession, leading very important parts of it. Many of them are erudite academics and researchers in their own right. They have expressed great concern about the clause.
Going back to the comments of the noble Lord, Lord Walton of Detchant, we are greatly concerned that the clause will fundamentally change the trust and confidence that patients have with their doctors. I understood the comments of the noble Lord, Lord Turnberg, about secondary research, but is he saying that on certain occasions consent is not required? What about the Alder Hey case? That has caused great distress and concern among parents about the spare parts of their children. Everybody agrees that those issues should be addressed and that consent should be required.
My main concern relates to people with HIV and AIDS. I am a vice-chair of the All-Party AIDS Group. In this country we have 43,834 people with HIV and AIDS. That is a lot of people. Very recently, the all-party group held a series of hearings with people with HIV and AIDS. One of the things that came across strongly—and quite surprisingly—was how much discrimination is still alive and well. We heard of a Durham store manager who had been sacked by Aldi because the company had discovered that he had HIV.

1689
Another speaker at the group told us how her daughter had had to leave her school and later her work because her mother's HIV status was disclosed.
There are lots of cases like that. HIV and AIDS are not notifiable diseases. We are encouraging sufferers to get access to testing and treatment in the name of public health. I wonder what they will feel knowing that their confidence is in any way broken they may well lose their job or their mortgage. They are frequently discriminated against and they very often lose their housing. There are huge dangers in the clause. Like my noble friend, I should like it to be struck out of the Bill.
One reason why there was so much anger when the clause was produced is that there was no forewarning of it. The provisions were not in the NHS Plan. They were suddenly sprung on all of us with no consultation. People were deeply concerned that there were hidden motives.
I have heard a lot of good evidence from the pharmaceutical industry—individual companies as well as the ABPI. I shall not go into that tonight, because the noble Lord, Lord Walton, has dealt with the issue eloquently and thoroughly. However, I find it odd that the Government are seeking to increase the regulation imposed on that industry. It is a successful industry that we should be proud of. The Government are being schizophrenic. They say that they want to encourage it and keep it in this country—we know that many companies are going abroad for their production as well as for the development of their products—yet they are trying to regulate it further. The Prime Minister's competitiveness task force is looking at the issue and will report in a few weeks. It would be right to wait for that report.
Finally, I want to say a little about the House of Lords Select Committee on Delegated Powers and Deregulation. Many reports have come before the House, but I have never read one which has been so damning and which has taken apart to such an extent what is being proposed in this clause. The report goes through the lack of consultation on the draft regulations, the extraordinary claims that are made for regulation, the width of the powers, the affirmative resolution procedure, and the extent of the representations that were made.
I believe that Ministers should be quite ashamed to read a report such as that on proposed legislation. Certainly there has never been one so damning. I believe that a huge amount of evidence is coming forward from all quarters that the Government should take away this clause and think again.
Baroness Gibson of Market Rasen: I do not have the expertise of some Members of the Committee who have spoken in the debate. However, I want to put forward the concerns that have been presented to me. At this point, I declare my interest as a former health and safety Commissioner. The Health and Safety Executive has presented to me its concerns in the event that the clause is removed from the Bill.
1690
In my work as a health and safety Commissioner I tried to ensure that, when studies of workers' health were carried out, the proposed research was explained in detail to workers' representatives and their approval obtained for such studies. However, I recognise that in some situations informed consent cannot be obtained and that the importance of the consent principle in such cases may be outweighed by the public good.
Many occupational research studies do not involve direct contact with the subjects. Instead, they carry out long-term follow-up of the health of groups of workers through death records and cancer records collected routinely by the Office for National Statistics and the NHS. In such studies, it is impracticable for the HSE to contact all former workers in order to obtain their consent. However, for the results to be valid, they must be included.
Perhaps I may give a few examples of research which is necessary in order to gain knowledge to protect the health of workers and the public, and which is either impossible or impracticable if informed consent is mandatory. I shall start with the subject of asbestos, which has formed an extremely important part of the HSE's work over recent years. Going back over almost 30 years, the HSE has the details of 80,000 workers who have been affected by asbestosis. It is impossible to contact so many people in order to explain the purpose of the research study. Even if it were possible, the restriction of the study to those who write back giving their consent will probably so bias the results as to make them invalid.
Other studies of occupational health risks in which it has not been possible to obtain consent include the Health and Safety Executive's study of causes of death and cancer in the semi-conductor industry, where the workforce has serious concerns about possible health risks. The HSE has the full support and agreement of the workforce representatives, but contacting former workers is impracticable.
Similar studies have shown that workers have been exposed to vinyl chloride monomer—an industrial chemical, widely used in making plastics, that may cause cancer—and many other hazardous chemicals. Some years ago the HSE undertook a large study— noble Lords may have read it—of childhood cancers in the area of the Sellafield nuclear plant. That study would not have been undertaken if consent had been required from all the subjects or their parents to access their medical information.
It is not only the HSE that has been in touch with me. Members of the Committee have said that a number of organisations oppose Clause 67. The Association of Medical Research Charities, which consists of more than 100 charities and which includes some prominent cancer charities, including the Breakthrough Breast Cancer, the Breast Cancer Campaign, Action Cancer and Cancer Research Campaign, is totally in favour of Clause 67 and is most concerned that it may be tampered with or removed from the Bill. I shall quote what it said in this context. It said:

1691
"Clause 67 will allow the use of some data for public benefit in restricted circumstances and under strict control. Without legislation, some types of research will no longer be possible … Applications for approval for the use of data about patients will be examined by an expert committee set up by the Secretary of State and be subject to a period of public consultation. If accepted they would then require affirmative resolution in both Houses of Parliament. Only research for which it has not been possible to ensure complete anonymity or for which it has proved impossible or completely impracticable to obtain patients' informed consent trill be considered for approval … AMRC believes that fully informed consent by patients is essential for research that directly involves them. Even where research is done some time later on data or specimens obtained from named patients, consent should be sought. But sometimes this is not possible, for example, in retrospective studies, where patients have died or are no longer traceable … It is in circumstances such as these, where it is impossible or impracticable to obtain consent, that permission could be sought under this Clause".
Those people do not write lightly and they are of importance. I understand the reasoning that motivates those who oppose the clause or contend parts of it, but my experience of HSE research makes it clear that such opposition is somewhat misguided and could cause profound harm to research.
12.45 a.m.
Lord Rea: Although my amendment, Amendment No. 302A, relates to Clause 67(3), I begin by discussing subsections (1) and (2). I support the spirit of the Government's general intention in this regard. The pharmaceutical industry says that use of "anonymised" prescribing data can, among other things, result in cheaper prescribing. As a former general practitioner, I can think of no case in which a pharmaceutical company, other than a generic company, came to me with a preparation that was cheaper. The argument could be that the more expensive and more effective drugs that companies were selling me saved money overall by reducing hospital admissions, referrals, investigations and so on. However, it is not for the pharmaceutical industry to tell us about that; that is for independent, university or research charities to consider. Work by the pharmaceutical industry is, I am afraid, almost certain to represent its side of the case.
Amendment No. 302A includes the words, "valued consent". That is an extremely important concept which should be added to the Bill. It would allow such highly important consent to be overridden only when it was "not reasonably practicable" to obtain it. My noble friend Lord Turnberg and other Members of the Committee described cases in which it was not possible to find patients because they had gone abroad or died. Patients might refuse to co-operate in a case in which it was absolutely essential for the research to go on because the disease being studied was so important.
I hope that the Minister will consider the amendment. The Secretary of State can currently override such considerations as he considers necessary or expedient. That gives him far too much leeway. I want that decision to be removed from the Secretary of State even further than the amendment proposes. It should be removed to a statutory independent body or Commission whose nature should be specified in the
1692
Bill. I refer to an independent Commission such as that in Denmark, which meets that very purpose. That provision could be specified in subsection (9). I should like the body to be more tightly defined than it is in subsection (9) which refers to,
"such bodies appearing to him"—
the Secretary of State—
"to represent the interests of those likely to be affected"—
patients, I presume. That gives the Secretary of State too much leeway. The membership of such a body should be written into the Bill, and it should consist of a lay or non-scientific majority, so that patients can have confidence and trust in it, as in the Danish model. It impressed the Science and Technology Sub-Committee, which has been examining the handling of human genetic databases. I hope that my noble friend will consider my amendment sympathetically.
Baroness Masham of Ilton: I shall say only a few words. It seems from the amount of information that has been circulated that there is great concern about Clause 67. It remains unacceptable and there is a strong feeling that lack of clarity underlines the importance of ensuring that adequate safeguards over the sweeping powers awarded to the Secretary of State should be on the face of the Bill. There should be nothing to discourage research into complicated diseases or the development of useful drugs, which patients need, as long as it is anonymised information.
I mention a few conditions, such as motor neurone disease, Parkinson's disease, multiple sclerosis, diabetes, HIV/AIDS, CJD, epilepsy and MRSA. The list could go for a long time. We need effective drugs.
With disasters such as happened at Alder Hey, we need to be sensitive towards patients and their relatives. Whenever possible, patients or their next of kin should be asked permission. Confidentiality is of utmost importance when clinical research is being undertaken. What is wrong with making anonymised information available for research if it will help patients in the long run? The development of drugs takes a long time and is expensive.
If we do not ensure that the clause is acceptable to all who are interested in it, we shall be criticised. The country looks to us to improve legislation and the clause needs to be improved.
Baroness Massey of Darwen: Perhaps I may comment briefly on the issue of confidentiality. It is important. I am sorry that we are having to debate such important issues at this time of night. In discussing confidentiality, I want to comment specifically on the doctor-patient relationship in the case of young people. The Minister knows of my concerns in this matter, and I am grateful to him for responding sympathetically. I want to register my concerns about young people and confidentiality.
If there is any doubt in young people's minds that confidentiality will be breached, they will not seek help and advice. Messages about confidentiality—or lack of it—may be interpreted as being threatening to individual rights. That is particularly true in the area

1693
of reproductive health, for example. We have good evidence that if young people are worried about confidentiality. they will not trust professionals and will be afraid to seek advice and help. Teenage pregnancy rates, for example, may rise. I seek reassurance from the Minister that those concerns will be addressed in this clause.
Lord Winston: I too am extremely nervous about the issues which the noble Earl, Lord Howe, and the noble Lord. Lord Walton, have already raised.
We must recognise that this Government have shown huge concern for research governance and for improving the quality of patient involvement in research. But I remain very worried that research may be threatened by this clause as it currently stands. I accept that there are precedents for information being given to the Secretary of State. I am reminded of the Abortion Act, for example, where information has been sent for the past 30 years to the Secretary of State, as far as I know without harm to patients. Indeed, that has happened with regard to the Human Fertilisation and Embryology Act 1990. Nevertheless, there is a great deal of strong feeling in the medical community at large and concern about this matter which I hope will be addressed by the Minister this evening.
Lord Hunt of Kings Heath: This has been an extremely interesting debate. It is clear from the different views expressed from all sides of the Committee that the issues which we are debating are not at all easy of resolution. I believe that the balanced approach which the Government have taken and which is embraced within this clause provides us with the best possible way of meeting some of the real concerns which exist.
I should say to the noble Earl, Lord Howe, that it is essential for this clause to be accepted and enacted into law.
Clause 67 has two parts. The first provides the Secretary of State with a power to restrict in limited circumstances how patient information may be used. The second part provides him with a power to require patient information to be used, again, in limited and, where the information is confidential to patients, tightly controlled circumstances.
The first group of amendments relates to both parts of Clause 67. It may be helpful to set out some of the background to the clause. I shall then turn to the government amendments in this group. I shall write to Members of the Committee on the specific points raised in their amendments, as, at this time of the night, it is important to focus on the key principles which we are debating.
Both parts of Clause 67 have their opponents. There has been much debate and concern expressed. That is entirely understandable. We are dealing with fundamental concerns and issues about commercial interest, privacy and patient confidentiality. But I believe that some of the concerns have been misplaced.
Perhaps I may first cover the second part of the clause because that is clearly very much of the public interest. Subsection (3) provides for the Secretary of
1694
State to make regulation to require the flow of information in prescribed circumstances. That will allow us to achieve two aims: first, that patients will receive more information about their own clinical care, delivering the commitment in the NHS Plan; and secondly, to safeguard the continued operation of essential services that currently rely on patient identifiable information.
That point is crucially important. Those services are already in existence, carrying out work that benefits us all. The clause does not signal any change at all in the Government's view on the importance of patient consent. That is key to today's debate and I should like to put the Government's position on the record at this stage.
Informed consent is crucial to the Government's view of how a modern NHS should work. We simply cannot move to a patient-centred service if patients are not informed and consenting participants in the services that they receive. We know only too well that that is not the way in which the NHS operates at the moment. Much of what the NHS does in the NHS relies on implied consent. In some cases, that is appropriate; for example, sharing information within a hospital to ensure that a patient receives appropriate care. But in other cases, the definition of implied consent is pushed much too far. We are determined to address that. It is not small task and the culture of the NHS will have to change radically as we move away from what I can only describe as comfortable habits into practice based on real consent.
The professions have recognised the need to change the way we approach consent. The GMC guidance issued last year made clear its view that informed consent is the only secure legal and ethical basis for disclosing patient confidential information. It, too. recognises the scale of the culture and systems change necessary to deliver it, and has signalled that it will not seek to enforce its guidance until October this year. The Information Commissioner has also drawn attention to the need to improve the way that the NHS seeks consent for the use of patient information. We have made a commitment to her that we shall do just that.
This is a huge task. We will need to identify where information is used, where it is appropriate to rely on implied consent and where we need to do more to feel confident that we have a patient's informed consent. In many circumstances, traditional practice will have to change, either to gain consent or to use anonymised information rather than using confidential information about patients because it has always been done that way.
That will take time, and there will be disruption to NHS services, but the principle is right and we must take action to address it. However, there are certain circumstances where we simply cannot afford a disruption to the flow of information. The cost to individual patients and the public would simply be too high. It is those areas that the Bill seeks to address by allowing patient information to be passed on lawfully without consent in prescribed circumstances.

1695
That is not a step we have taken lightly but one which we believe is essential. The key issue is how far we should go in deciding which information flows should fall within the ambit of these powers. The government proposal is to set out a clear, transparent process where decisions can be reached on the merits of each case, following consultation with those likely to be affected by the regulations laid under these powers. Rigorous safeguards on the use of these powers are built into the process and the Bill. The Information Commissioner has accepted that these safeguards will protect the interests of patients. While we do not feel that it is appropriate to put further safeguards on the face of the Bill, we have assembled a working group with patient and professional representation, including the GMC, the BMA, the Academy of Colleges and the Medical Research Council, to advise on the process by which the power in the second part of this clause should be used.
Perhaps I may say to the noble Baroness, Lady Cumberlege, and my noble friend Lady Gibson that I cannot believe that the instances they raise will be affected by the circumstances in the clause. The safeguards built into the clause are tightly drawn. Perhaps I may say to my noble friend Lady Massey that it is difficult to envisage circumstances where, for instance, the confidentiality owed to teenagers could justifiably be set aside. In any case, there are the tests contained in the Bill and the need for an affirmative resolution after full debate in both Houses. My noble friends Lord Turnberg and Lady Gibson detailed the impact on essential programmes if this clause were not to be adopted.
I turn to the first part of the clause. The need for this part of the clause became apparent as the result of a judicial review brought against the department by Source Informatics. In 1997 both Source and IMS, which at the time were competitors, began collecting information from GPs and pharmacies about doctors' prescribing in order to build up databases. The intention was, as Source Informatics said in its evidence, that the database would primarily be used by pharmaceutical companies to allow them to target more precisely promotions and communications regarding their products.
The department was concerned on two counts: first, that targeted marketing would increase the pressure on GPs to prescribe higher cost medicines unnecessarily; and, secondly, that passing on information about the medicines prescribed to a patient, even though the patient was not identified, would be a breach of confidence. We sent a document to GPs and pharmacies warning of the legal risks and strongly discouraging disclosure on policy grounds.
Although the department's case was initially upheld, the Court of Appeal decided that there was no breach of confidence or indeed breach of the Data Protection Act involved. As the noble Baroness, Lady Northover, commented, the court said that if the department continued to view such schemes as operating against the public interest, it must take further powers. The department did indeed remain
1696
concerned. We had discussions with ABPI and with IMS during which it was clear that, if necessary, we would legislate to prevent the sort of activity which caused us concern. We have been unable to enter into any kind of agreement with IMS and we decided that we should take powers in primary legislation.
We took the view that it was important that nothing should be done without proper consultation. We thought that it was particularly important that, while enabling the Government to deal with activities which were not in the interest of the NHS, we should not inadvertently restrict activities which were innocuous or indeed beneficial. We included in the Bill a broad enabling power to restrict the processisng of information about patients or derived from information about patients, but subject to the important safeguard that before any regulations were made the Secretary of State would have to consult bodies representing the interests of those affected.
I know that the breadth of powers of this clause has caused concern. At Committee stage in another place we responded to the concerns of those who thought that it might be used, for example, to prevent independent scrutiny of the NHS by restricting the power to the use of patient information for commercial purposes.
We have taken note of the concerns expressed by the Delegated Powers and Deregulation Committee. We have taken steps to address these concerns, guided by helpful suggestions from the Select Committee, by putting forward a number of government amendments to the clause. I say to the noble Baroness, Lady Cumberlege, that the second report of the committee on these matters makes it clear that it now welcomes the Government's response to the report and is content with their proposed approach, which fully meets the committee's recommendations.
The ABPI certainly remains unhappy. We believe that the power is a necessary one. We simply do not think it right that information which has been obtained in the course of the provision of NHS services should be used against the economic or financial interests of the NHS. Government Amendments Nos. 292, 293, 295 and 312 take into account the helpful suggestions from the Select Committee and address these concerns.
In conclusion, I believe that the approach taken in Clause 67 is a proper and sensitive one. It is essential in relation to the circumstances described by my noble friend Lord Turnberg and the noble Baroness, Lady Gibson, to secure patient interest in relation to the use of confidential information. I believe that it is absolutely essential that this clause is accepted.
Earl Howe: I thank all noble Lords who have taken part in this very interesting debate, not least those such as the noble Lord, Lord Walton, my noble friend Lady Cumberlege and the noble Lord, Lord Winston, who have supported me, but also others such as the noble Lord, Lord Turnberg, and the noble Baroness, Lady Gibson, who have disagreed with me and done so in a very gracious and measured way.

1697
It may not surprise the Committee to hear that I have not changed my mind that this clause, even as amended as the Government propose, is potentially very damaging.
I still believe that the provisions on anonymised data are misconceived. The point is that without anonymised data it is impossible for pharmaceutical companies to find out who is using what drugs. The better the information, the stronger the downward pressure on prices because of the pressures of the competition. That is the way in which the market works. The industry can help the NHS manage patients better. In the process all kinds of essential information emerges, such as adverse reactions and so on. Therefore, the onus is on the Government to produce evidence to justify subsections (1) and (2). So far, they have not done so.
On the issue of identifiable patient data, the starting point should be that it is wrong for any Secretary of State to take powers to allow access to named patient records by third parties without the patient's knowledge or consent. I welcome very much what the Minister had to say about the primacy of that informed consent. The whole thrust of the clause is in the opposite direction. I look particularly at subsection (4) which would oblige doctors to disclose information even when they and the patient do not wish to.
Any exceptions to that general principle should be allowed only for reasons of overriding public interest. Each exception should be considered individually on a case by case basis with full parliamentary deliberation.
I took particular note of the comments made by my noble friend Lady Cumberlege on the disclosure of confidential data. The consequences when that goes wrong can be devastating, but also, as she alluded to, the erosion of trust that it causes eats away at the general fabric of the relationship between doctor and patient and the way that the public view the medical profession. It will eventually be very damaging to research.
The crucial issue which remains obscure is the force of subsection (8). That is the subsection which says that nothing in the clause can be inconsistent with Clause 29 of the Data Protection Act. I still do not understand to what extent and under what circumstance:3 the requirement for informed consent can be overridden by those powers. My advice is that the informed consent requirement is overridden by the word "expedient". The Minister should turn his attention to that matter between now and Report stage.
The noble Lord, Lord Turnberg, spoke of retrospective studies; studies that looked back to data perhaps involving deceased patients and so on. It would be perfectly possible to phrase a power to cater specifically for cases which look back into the past. However, the point is that the power as expressed in the Bill is objectionable because it can override informed consent going forward. The principle which should guide us here is that consent should be obtained in order to be ethical.
1698
I noted that the Minister felt that this is a transitional power and a temporary arrangement. If that is what he believes it should be, perhaps he would agree to a fully fledged sunset clause instead of the permanent ongoing duty for review as in subsection 6(a).
I worry about the potential for conflict with international commitments. A Council of Europe Recommendation No. R975 on the protection of medical data, to which the UK is a signatory, appears to be at odds with this clause, as does the declaration of Helsinki on ethical principles for medical research involving human subjects. I have read sections which appear to be unequivocal.
I very much regret that the Minister does not see fit to put any extra safeguards on to the face of the Bill. I was hoping that he would agree to that, because I think that it would meet the objections of many people—hut not those of everyone—as regards the disclosure of identifiable patient data. The assurance that has been given in another place and here in Committee on the creation of an advisory committee is welcome as far as it goes, but I feel that this is something that should go on to the face of the Bill if we are to sleep easier in our beds.
I do not believe that it would be appropriate to call a Division at this hour and I shall not do so. If we do reach Report stage of the Bill, then the amendment or the excision of this clause, will be a prime focus for many noble Lords. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
1.15 a.m.
[Amendments Nos. 290 and 291 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 292:
Page 67, line 12, after "prescribed" insert "NHS"
[Amendments Nos. 293, 293A and 294 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 295:
Page 67, line 13, leave out "prescribed commercial purposes" and insert "the purposes of, or in connection with, marketing or other promotional activities which he considers to be contrary to the economic or financial interests of the health service."
Earl Howe Earl Howe moved Amendment No. 296:
Page 67, line 14, leave out "subsection (8)" and insert "subsections (8) and (9)"
The noble Earl said: In moving the amendment, I speak also to Amendments Nos. 303, 306 and 314. These four amendments arise from concerns expressed to me by the Royal Pharmaceutical Society of Great Britain. In brief, they all seek to achieve one thing; namely, to ensure much greater consultation with the relevant professional bodies before the various statutory instruments that will emanate from Clause

1699
67 are tabled. Such precautions are entirely appropriate, given the wide-ranging powers proposed in the clause and the comment that it has generated. It may well be that, in view of the furore over this clause, the Government will agree to the principle of these amendments.
The first two amendments clarify that the existing subsection (9), which ensures consultation before tabling secondary legislation, is applicable to both sets of secondary legislation that will be introduced. The third amendment then seeks to strengthen subsection (9) by incorporating a form of words used in the Health Act 1999 to ensure greater scrutiny by providing a three-month period of time for consultation. Such a period would provide the right balance between proper consultation and the effective implementation of legislation.
The fourth amendment addresses issues of access to and use of anonymised patient data, clarifying the areas where the use of anonymised data can and, indeed, should continue. It also provides a requirement for the Secretary of State to be satisfied that patient data can continue to be used for research, that consultation has taken place, and that such consultation has been reported on. A great deal of information of potential use in public health strategies is captured on community pharmacy patient medication records. The development of medication management as part of NHS modernisation plans will require new approaches to sharing appropriate patient records so that the best possible outcomes can be arrived at within the therapeutic partnership.
It is important for the Government to ensure that the correct balance is struck between protection of patients, concern for record-keeping and data management and the ability of NHS contractors, such as small pharmacists, to control their own business processes. I shall be interested to hear the Minister's comments on these matters. I beg to move.
Lord Hunt of Kings Heath: Consultation is clearly important. The requirement set out in Clause 67(9) is for the Secretary of State to consult,
"such bodies appearing to him to represent the interests of those likely to be affected by the regulations as he considers appropriate".
The subsection applies to all regulations made under this clause.
Amendment No. 296 is identical to Amendment No. 297, but subsection (9) begins with the words,
"Before making any regulations under this section".
I take that to mean that the requirement to consult set out in subsection (9) already applies to regulations made under any subsection of the clause.
Amendment No. 306 requires the Secretary of State to publish draft regulations in advance of consultation, to consult representatives of the professions concerned by the regulations and to lay the regulations before Parliament, amended as necessary three months later.
1700
The intention of the amendment appears to be to establish a three-month deadline for consultation while ensuring that the professions most directly affected are consulted. It would have the effect of removing the wider requirement to consult that is set out in the clause by a narrow requirement that looks only to the professions. As drafted, it also requires regulations to be laid before Parliament, perhaps modified to take account of views expressed regardless of the outcome of consultation. It also attempts to impose a deadline of three months on a process that should be considered and thorough, particularly where confidential patient information is concerned, where there may be a need to question and probe any proposed regulations.
We wish to ensure that all those who may be affected by regulations have an opportunity to voice any concerns, not just important but narrowly defined groups. We are particularly concerned, for example, to hear the concerns of industry organisations in relation to any proposed regulations under subsection (1) and patient organisations in relation to regulations under subsection (3). Although the aim of the amendment may have been to bring a degree of certainty to the consultative process, it does so in a way that could conflict with the consultative and thorough approach we have developed around this clause.
The intention of Amendment No. 314 appears to be to ensure that the use of anonymised information for medical research is not prevented by any regulations made under this clause. Let me say from the outset that that is an objective that I share. But I do not believe that the amendment is the right way to achieve it.
There are two regulation-making powers in the clause: subsection (1) and subsection (3). The government amendment to subsection (1) has been accepted and it will be possible to use the power only in relation to NHS patient information for marketing and other promotional activity which the Secretary of State considers to be contrary to the economic interests of the NHS. In consequence, the power to make regulations under that subsection will be limited in such a way that regulations could not be made that would prevent the use of anonymised information for medical research.
I have no quarrel with the sentiments underlying the amendment, but I do think it unnecessary.
Earl Howe: I am grateful to the Minister for his comments. Pharmacists have two sets of concerns. One is: will the clause prejudice the ability of community pharmacists to run their businesses effectively? If that ability is prejudiced, clearly they feel that there will be a resulting diminution in patient care. The second concern is: will the clause force pharmacists into disclosing patients' specific data against their ethical obligations and without the informed consent of the patients? The Minister has made some reassuring comments on the former issue. I hope that the consultation with the professions will iron out any concerns that remain.

1701
The Royal Pharmaceutical Society is currently preparing a draft framework for the mutual disclosure of information between the society and health authorities, PCGs and PCTs. I believe that that work will inform the discussion that the department will no doubt wish to have with them. I thank the Minister for his reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 297 to 298A not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 299:
Page 67, line 16, after "prescribed" insert "NHS".
[Amendment No. 299A not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 300:
Page 67, line 26, at end insert "NHS"
[Amendments Nos. 300A to 303 not moved.]
Earl Howe Earl Howe moved Amendment No. 304:
Page 67, line 37, at end insert "and the Secretary of State shall not exercise the power to make regulations under this section in a manner which hinders or restricts the ability of a relevant practitioner to use health information for the purpose of providing safe and effective services to patients.
(4) In this section 'relevant practitioner' means—

(a) a pharmacist within the meaning of the Medicines Act 1968; or

(b) an appropriate practitioner within the meaning of Section 58 of that Act."

The noble Earl said: I beg to move Amendment No. 304. Patient medication records are vital to pharmacists in helping patients to use their medicines effectively and restrictions on their use could therefore thwart the Government's medicine management objectives. Restrictions could also impede pharmacists from supporting general practitioners through the provision of advice on the quality and cost-effectiveness of their prescribing. Likewise, regulations regarding the use of patient information could potentially make it harder for the Government to achieve their objectives on the electronic transfer of prescriptions from GP surgeries to pharmacies and the prescription pricing authority.
The Government's pharmacy strategy, Pharmacy in the Future, pledged that by 2004 GPs would be able to send prescriptions electronically to the pharmacist. To quote a Department of Health press release of last December:
"significant benefits for patients are expected, including fewer trips to the GP surgery to collect repeat prescriptions and an end to illegible and incomplete prescriptions".
Without access to anonymised patient information, software developers are likely to find it more difficult to develop this important new technology. I can see that, because the Government are seeking such wide-ranging powers to restrict the use of patient
1702
information, there could potentially be damaging and unforeseen consequences for those involved in the delivery of front-line patient care, and the amendment would help to ensure that the powers exercised by Ministers were more limited and that pharmacy, which is perhaps the best known public-private partnership involved in the delivery of healthcare, was able to continue to work in the interests of patients. I beg to move.
Lord Hunt of Kings Heath: Let me make it clear that the Government have no intention of stopping health professionals, including community pharmacists, from providing safe and effective services. However, there are several points to put on the record here.
First, the amendments which the Government have tabled to restrict the scope of subsection (1), and which have been agreed, should reassure pharmacists that regulations could not be made under that subsection which would affect the provision of unaffected services to patients.
The second point is that regulations under subsection (3) can be made only in the interests of improving patient care or in the public interest. cannot see that it would be in the public interest to undermine the provision of safe and effective services to patients. However, superimposed on that is the issue of the use of identifiable patient information by pharmacists and other health professionals. Pharmacists and other health professionals should surely start from the position that as long as information provided in confidence is held in a form that identifies individual patients, it is confidential and would normally only be disclosed to a third party with the informed consent of the patient concerned.
The only exception to this position is where there is a requirement in law to disclose information or where, in very rare circumstances, the public good from the disclosure outweighs the patient's right to confidentiality. This requirement for consent arises out of common law obligations of confidentiality, but beyond those obligations, which lawyers no doubt would be happy to debate for many days, the Government believe that informed consent is the only basis for sustaining a relationship of trust between patients and health professionals.
As I have said already, we fully recognise that current practice may not live up to that standard. We need to change current practice. Clause 67 provides a lifeline for activity that cannot, for good and demonstrable reasons, make the required changes swiftly. All the bodies that represent pharmacists— and I am aware of the issues they raise—will be welcome to apply for the support provided by Clause 67 if they feel that is justifiable.
Earl Howe: I am sure that pharmacists will find that reply very helpful and I thank the Minister for it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 304A to 305ZB not moved.]
1.30 a.m.
Baroness Northover Baroness Northover moved Amendment No. 305A:
Page 68, line 36, leave out subsection (8) and insert—
"(8) Without prejudice to the operation of provisions made under subsection (4)(c), regulations made under this section may not make provision for, or in connection with, the processing of prescribed patient information—

(a) in a mariner inconsistent with any provision made by, or under, the Data Protection Act 1998 (c. 29); or

(b) in a manner which may inhibit research for medical purposes and the publication and dissemination of the results of such research."

The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 305B, 307 and 321A. I am grateful for the assistance I have received from the King's Fund which is the leading independent think tank on health policy in Britain.
As soon as this Bill was published it was immediately apparent that this clause in particular gave the Secretary of State powers that were too wide. The delegated powers committee recognised that and requested that Clauses 67(1) and 67(2) be subject to the affirmative resolution procedure. Given the wide concerns from all sides, I sought the help of the King's Fund in seeking a way through. The amendment proposed here is supported by many to whom I have spoken in the medical research community as well as the GMC. I trust that the Minister will give very serious thought to the proposals. I know the Minister has promised to set up an advisory committee but he or any successor could just as easily disband it.
The amendment to subsection (8) is designed to allay fears that the wide powers of the Secretary of State to make regulations could be used to inhibit research that was critical of the Government. Subsections (9) to (17) set up an advisory committee as a watchdog for the Secretary of State when making regulations. It extends to the first two sections of this clause in relation to anonymised data and, therefore, could ensure that there is no encroachment here into medical or academic research.
The wording of the provisions related to the committee is based on a streamlined version of the well established Social Security Advisory Committee set up by the Social Security Administration Act of 1992. Having been established by statute, its position is secure. Flexible provision can be made regarding its membership. Its central role is to report on regulations thereby ensuring that the Secretary of State has put in front of him or her authoritative views from people representing the most interested groups. In addition, the process ensures that if the Secretary of State decides against the committee's recommendations that must become public and the Secretary of State must give reasons for his or her actions.
This amendment sets up a statutory advisory committee and takes out of the hands of some unknown future Secretary of State powers that cause
1704
concern on all sides of this debate. Given the weight of support for this amendment across the spectrum, I commend it to your Lordships. I beg to move.
Lord Hunt of Kings Heath: The amendments now to be considered have been grouped together because they have an effect on the whole of Clause 67, not just the first or second parts. Amendment No. 305A seeks to ensure that regulations laid under Clause 67 cannot be made where to do so would inhibit research for medical purposes, and the publication and dissemination of such research. I believe that to be an unnecessary constraint, much as I admire the King's Fund.
The amendments that we have put forward to limit the use of the power provided by subsection (1) leave no scope now for that power to be used to inhibit research or the dissemination of results. Further, the power provided by subsection (3) can only be used for medical purposes that are in the interests of improving patient care, or in the public interest. The actual criteria that will be used to govern the use of that power are likely to be tighter still. We have assembled a working group drawn from patient and professional interests to advise on the matter. But the basic safeguards built into the clause are already substantial and have been approved by the information Commissioner. I should also like to draw the Committee's attention to the requirement for all regulations made under the clause to be laid before both this Chamber and the other place, and approved by resolution.
Amendment No. 305B would require the creation of a new statutory body to provide advice, which it is suggested should be published whenever regulations under Clause 67 are being considered. Amendment No. 321A is consequential to that requirement. The establishment of an expert group is something to which the Government are already committed in respect of the power provided by subsection (3). I am sure that that is a very sensible step to take. However, we remain unconvinced of the need to put the advisory group on a statutory footing.
As we explained at some length during the Bill's progress in another place, the power provided by subsection (3) is intended largely to provide transitional support for important activity until, and not beyond, the time when there is a reasonably practical alternative way of sustaining the activity, whether it be through the gaining of valid consent or through anonymisation or pseudo-anonymisation. The creation of a new body would require further legislation to repeal it in a few years' time when the intention is to move away as quickly as we can from reliance on Clause 67 for all but a few residual activities. We do not consider that that would be a an appropriate way of obtaining the advice that we need.
I know that the noble Earl, Lord Howe, might ask me about the sunset clause. The issue here is that there are clearly uncertainties in terms of the duration of the transitional stage. Many of the issues that depend upon our ability to move from it relate to technology and some of the other difficult areas that must be

1705
confronted. I believe that that makes a sunset clause difficult. However, that does not detract from the general argument that this is to be seen as a transitional phase. For that reason. I do not wish to accept the amendments.
Baroness Northover: I hear what the Minister says. Although I still have some concerns, I am pleased that the noble Lord has accepted the idea that an advisory committee should be established. However, as I said, that could just as easily be disbanded. As these issues are clearly very complex, it seems to me to be extremely important that the Government should build in a process to en sure that they draw upon a wide group of people, and that they should seek a resolution by doing so. Therefore, it is equally important to ensure that such a provision is on the face of the Bill.
If, as the Minister said, this is a transitional process and Clause 67 will be repealed in due course, this provision could be repealed at the same time. Other provisions could then be put in its place. If the Minister is to achieve any consensus on this clause, he should seriously consider my amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 305B to 311 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 312:
Page 68, line 50, at end insert—
"(10A) For the purposes of this section, patient information is "NHS patient information" if that information (or any of the information from which it is derived) was obtained or generated in the course of the provision of the health service."
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 313:
Page 69, line 8, leave out "from the individual in question" and insert "or generated"
[Amendment No. 314 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 315:
Page 69, line 11, at end insert—
""the health service" has the same meaning as in the 1977 Act;"
[Amendment No. 315A not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 316:
Page 69, line 14, leave out from beginning to "that"
[Amendments Nos. 316A and 316B not moved.]
Clause 67, as amended, agreed to.
Lord Rix Lord Rix moved Amendment No. 316C:
After Clause 67, insert the following new clause—
"REPORTS TO PARLIAMENT ON SERVICES FOR DISABLED PEOPLE
(1) Section 11 of the Disabled Persons (Services, Consultation and Representation) Act 1986 (c.33) shall be amended as follows.
(2) Before subsection (1) there shall be inserted—
"(1ZA) In this section, subsection (1ZB) extends to England and Wales only and subsection (1) extends to Scotland only.
(1ZB) The Secretary of State shall annually lay before Parliament—

(a) a report containing such information as he considers appropriate with respect to the development of health and social services for persons with mental illness; and

(b) a report containing such information as he considers appropriate with respect to the development of health and social services for persons with learning disability,

and each of those reports may contain such other information as the Secretary of State considers appropriate."
(3) For subsection (2) there shall be substituted—
"(2) In this section—
"health service hospital" has the same meaning as in the 1978 Act, except that it does not include a State hospital;
"learning disability" means a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning.""
The noble Lord said: In moving Amendment No. 316C, I wish to speak also to the consequential Amendment No. 319D.
I find my original amendment transformed by legal hands:
"There is a lawyer doth shape our ends, rough hew them how we may".
The transformation reflects, as I understand if, sympathy for my objective on the part of the Minister, but rather less sympathy for my drafting.
In the 15 years since the disabled persons Act was enacted, with its requirement for an annual report on what was then called mental handicap and mental illness services, both circumstances and language have changed a great deal. We have also, I hope, become rather better at distinguishing learning disability issues from mental health issues and rather less inclined simply to lump the two things together.
With mental health services already subject to a national service framework, and supported by specific grants, and with learning disability services now the subject of that admirable White Paper referred to this afternoon in the fourth Starred Question, incorporating an implementation programme, this seems a good time to update the present annual reporting requirement. The update I propose includes separating out learning disability and mental health and eliminating the present concentration on the use of hospital beds.
I have chosen to leave the Secretary of State a great deal of discretion as regards what he includes in his report, but I hope that the Minister will be able to assure me, in line with the precedents set by the White Paper, that matters within the ambit of government departments will be included as far as possible. I hope that he will also be able to reassure me, again in line with the White Paper, that the annual report to Parliament will include the perspectives of those at the receiving end. The process of producing the White

1707
Paper has fully involved users and carers. I know that Mencap will be happy to contribute to that perspective each year.
I am sure that only preoccupation with other things, and the rather hidden history of Section 11, have prevented the Government proposing this amendment at an earlier stage. I should say that, while the inspiration of the new clause comes from Mencap, it has been shared with MIND as regards the mental health section, and the proposal for change has its full support.
I also ask the Committee to note the consequential Amendment No. 319D which reflects the role of the Welsh Assembly. I look forward with more than usual optimism to the Minister's response. I beg to move.
Lord Hunt of Kings Heath: I found the noble Lord's drafting quite remarkable and his arguments quite persuasive. I support the amendment.
Clause 68, agreed to.
Clause 69 [Regulations and orders]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 317:
Page 71. line 29, leave out "67(3)" and insert "67"
The noble Lord said: I did my best to accept an amendment by the noble Earl, Lord Howe, and his other colleagues. We agree with the principle of this. We feel that the government amendment has the merit of shortening the Bill rather than lengthening it. I beg to move.
Earl Howe: This is a very gratifying way to end an evening.
[Amendment No. 318 not moved.]
Clause 69, as amended, agreed to.
[Amendment No. 319 not moved.]
Clauses 70 to 74 agreed to.
Clause 75 [Short title, commencement and extent]:
[Amendments Nos. 319A to 319C not moved.]
Lord Rix Lord Rix moved Amendment No. 319D:
Page 74, line 7, after "67" insert ", (Reports to Parliament on services for disabled people) except so far as extending to Wales"
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 320 and 321:
Page 74. line 25, leave out first "and" and insert "to"
Page 74, line 29, at end insert—
"(8A) Subsection (8) does not apply in relation to any amendment or repeal relating to section 115 of the Police Act 1997, and any such amendment or repeal extends to England and Wales only."
Clause 75, as amended, agreed to.
[Amendment No. 321A not moved.]
Schedule 5 [Minor and consequential amendments]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 321B:
Page 86, line 38, leave out sub-paragraph (3) and insert—
"(3) In section 17 (Secretary of State's directions: exercise of functions), for subsection (3) substitute—
"(3) Nothing in any provision made by or under this or any other Act shall be read as affecting the generality of subsection (1) above.""
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 322 to 325:
Page 87, line 2, at end insert—
"( ) In section 29A (medical lists), in subsection (3), for paragraph (b) there shall be substituted—
"(b) he is not disqualified from inclusion in all Health Authorities' medical lists by virtue of a national disqualification imposed on him by the FHSAA."
( ) In section 33 (distribution of general medical services), in subsection (1B), the words from "including, in particular," to the end of the subsection are omitted."
Page 87, line 46. at end insert—
"(bb) after subsection (4) insert—
"(4A) Subsection (4) above applies to directions given under—

(a) paragraph 10(1) of Schedule 5 to this Act,

(b) paragraph 8(3) of Schedule 5A to this Act, or

(c) paragraph 16(5) of Schedule 2 to the National Health Service and Community Care Act 1990,

as well as to directions given in accordance with section 18 above as mentioned in that subsection.""
Page 89, line II, at end insert—
"National Health Service and Community Care Act 1990 (c. 48)
In section 4A of the National Health Service and Community Care Act 1990 (provision of certain services under NHS contracts), in subsection (3), in paragraph (a) of the definition of "ophthalmic services", for "39(a)" substitute "39(1)(a)"."
Page 90, line 23, leave out "In"
Page 90, line 24, after "Act)" insert "shall be amended as follows.
(2) After paragraph 40 insert—
"40A A Patients' Forum established under section 12 of the Health and Social Care Act 2001.
40B A Patients' Council established under section 13 of the Health and Social Care Act 2001."
(3)"
Schedule 5, as amended, agreed to.
Schedule 6 [Repeals]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 326:
Page 92, line 9, column 2, at end insert "In section 33(1B), the words from "including, in particular," to the end of the subsection."
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 326A and 327:
Page 92, line 34, column 2, at beginning insert—
"Section 12(2)."
Page 92, line 36, column 2, leave out "18" and insert "17"
Schedule 6, as amended, agreed to.
Title agreed to.
House resumed: Bill reported with amendments.