Lords Sitting of 18 November 2003

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Rochester.

Prisons: Purposeful Activity
Lord Craig of Radley: My Lords, in the absence of the noble Lord, Lord Quirk, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they propose to take in respect to the briefing published in October by the Prison Reform Trust on the current state of purposeful activity in Her Majesty's prisons.
Lord Bassam of Brighton: My Lords, the Prison Service is well aware of the issues surrounding the involvement of prisoners in purposeful activity within Her Majesty's prisons. The Prison Service is committed to involving as many prisoners as possible in constructive activities as a way of reducing reoffending, improving prisoners' prospects on release and ensuring safe and decent conditions.
Lord Craig of Radley: My Lords, I thank the Minister for that reply. Bearing in mind that the Government's Social Exclusion Unit acknowledges that prisoners given skills training are significantly less likely to reoffend, and that two-thirds of men and women in prison have an educational level below that of primary school children, how does the Minister justify a per capita spend on prisoners that averages far less than half the per capita spend on primary school children?
Lord Bassam of Brighton: My Lords, since this Government came to power in 1997, we have committed more resources to prisoner education. In the current financial year, £97 million will be spent on education and training in prisons; next year, it will rise to £122 million; and the following year., it will rise to £137 million. Within that sum, £12 million per year will be set aside specifically for vocational training.
We recognise the problems; we inherited a very poor education service within the Prison0020Service. Having marshalled and brigaded education within the DfES as operator and provider of education services, we are now beginning to spend significant sums of money on improving the quality of education in the Prison Service.
Lord Pilkington of Oxenford: My Lords, when I was on the Parole Board, the teachers involved in prison education programmes observed academic terms. As
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the Minister will realise, prisoners cannot observe academic terms; there are no holidays. Do the people involved in education programmes still observe academic terms similar to schools?
Lord Bassam of Brighton: My Lords, prisoners are obviously a captive audience. An education service in prisons should be tailored to prisoners' needs. As the noble Lord has observed, prisoners are in prison throughout the year and do not observe academic terms in the same way as everyone else.
Lord Dholakia: My Lords—
Lord Elton: My Lords—
The Lord President of the Council (Baroness Amos): My Lords, perhaps I may suggest that we hear from the Liberal Democrat Benches.
Lord Dholakia: My Lords, how do we monitor purposeful activities in prison? Has the Minister checked the outcome of what happens when prisoners leave prison? Does he accept that more than 60 per cent of people leaving prison reoffend within two years, and that more than 80 per cent of young people reoffend within two years? What are prisons for? Are they serving the purpose of rehabilitation? Does the Minister accept that the high level of the prison population is counterproductive to purposeful activity in prison?
Lord Bassam of Brighton: My Lords, clearly, overcrowding in prisons is an important issue. It is the job of the Government to ensure that good quality resources are set aside so that prisoners have options before them. We want to see an improving education service which ensures that when people are released they have good opportunities for seeking employment and can make much better use of their life chances.
Viscount Tenby: My Lords, what is the target in the Prison Service, in hours, for prisoners to receive education?
Lord Bassam of Brighton: My Lords, I do not have a figure for that target. But it is obviously an important objective to secure education within the Prison Service. I am happy to write to the noble Viscount with details on the numbers of hours spent on educational matters.
Lord Elton: My Lords, when the Minister writes to the noble Viscount, will he also write to my noble friend Lord Pilkington and answer his question about academic terms? When will any government recognise that continually spending more and more money on more and more prisoners in more and more prisons is absolute folly? We must rejig the system so that proper rehabilitative treatment is given and the prison

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population diminishes. The prison population could be reduced by spending money on children when they are at risk so that they do not become criminals.
Lord Bassam of Brighton: My Lords, perhaps the noble Lord has not been following government policy. The Government have a record that is second to none in terms of spending money on providing and improving the quality of services for children and young people. That is generally widely acknowledged. Clearly, the noble Lord has not followed that particular plot. Of course, we would prefer to see a smaller prison population. But if people commit offences, are tried and are convicted, they should properly serve a prison sentence.
The Lord Bishop of Rochester: My Lords, does the Minister regard the activities organised in prisons by the very large number of voluntary groups drawn from the Churches and other faith communities as "purposeful activity"? If so, can he can give an assurance that attention will be paid to the effect of the downward pressure on staff numbers on the opportunities to arrange such activities, in particular during the evenings and at weekends?
Lord Bassam of Brighton: My Lords, of course we recognise the important part played by religious organisations in our prisons. A wide range of activities is provided in most prisons and one might say that they do count as "purposeful activity" in terms of key performance indicators. We recognise, welcome and celebrate the role played by religious activities in our Prison Service.
Baroness Howe of Idlicote: My Lords, can the Minister comment on the fairly incredible increase in the percentage of women imprisoned over the past 10 years? Apparently the increase is 189 per cent.
Lord Bassam of Brighton: My Lords, it is regrettable that there has been an increase in the number of women in prison. My guess is that much of that rise is related to the increased use of drugs by young women in particular. It is my recollection that some 40 per cent of women in prisons have a history of drug misuse and abuse. No doubt that is a contributing factor to their being in prison.
Lord Corbett of Castle Vale: My Lords, can my noble friend confirm that, as prisoner numbers rise, the first thing to go out of the window is purposeful activity, while the second thing to go out of the window is education? That is self-defeating because it means simply that more people will reoffend. Can my noble friend tell me what discussions he is holding with the Prison Service better to deliver both purposeful activity and education in our prisons?
Lord Bassam of Brighton: My Lords, I cannot agree with the two statements made by my noble friend. The most current figures I have indicate that the number of
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hours available per prisoner for purposeful activity is 23.3 hours per week, which is the same as it was in 1997–98. However, far more is being done. I outlined in my earlier responses to this Question the amount of money that the Government are now committing to prisoner education. Roughly speaking, that sum will have more than doubled during the lifetime of this Government. So there is a commitment and we have reorganised the provision of education within the Prison Service. A better quality of education is being delivered and it is beginning to have results, as I am sure my noble friend would appreciate if he visited some of those prisons which now have much improved library and IT facilities, and teaching dedicated to ensuring that prisoners are given the opportunity, when they leave prison, of getting better jobs—as a result of the better education service being provided in our prisons.
Lord Campbell of Alloway: My Lords, does the noble Lord accept that some of us are getting rather tired of hearing about how much money this Government have spent? Some of us are much more interested in seeing the results of that spending.
Lord Bassam of Brighton: My Lords, perhaps the noble Lord would like us to spend less money on education. However, my general impression is that noble Lords support spending on education in prisons and want to see an improved quality of prison education services because that is recognised as a way of ensuring that prisoners do not reoffend.

Electricity Generation: Wind and Nuclear Power
2.46 p.m.
Lord Lea of Crondall Lord Lea of Crondall asked Her Majesty's Government: How many wind turbines of typical current design would be needed to generate the amount of electricity currently generated by Britain's nuclear power stations.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, to replace the 81 terawatt hours generated in 2002 by Britain's nuclear power stations would require in the range of between 10,000 to 15,000 wind turbines, assuming a mix of onshore and offshore, and a load factor of 30 per cent onshore and 35 per cent offshore. The range is dependent on turbine size, where developments are moving rapidly. To supply 7 per cent to 8 per cent of our electricity generation by wind turbines by 2010, which is what is likely to be required to achieve to our renewables target of 10 per cent by 2010, would require in the range of 3,000 to 5,000 turbines, using the same assumptions. There are currently some 14,000 wind turbines in Germany, and 7,000 in Denmark.
Lord Lea of Crondall: My Lords, I thank my noble friend for that helpful response, putting on record what will come as a revelation to many people.

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Many of us welcome the contribution of wind power as a source of carbon-free energy, but we seek confirmation, first, that my noble friend's arithmetic means that even 10,000 wind turbines—or 15,000, if we take the higher number—generating three megawatts each would only just fill the gap being created by running down the nuclear industry. Secondly, does my noble friend agree that, even if we were to meet that rather astonishing figure, it follows that we still need to plan for some new nuclear power stations to replace those being phased out over the next 20 years if we are to make any net addition to the amount of carbon-free electricity?
Lord Sainsbury of Turville: My Lords, the figures that I have already given demonstrate that we would require between 10,000 to 15,000 wind turbines to fill the gap left by nuclear power generation. However, the present target is to secure 10 per cent of our energy from renewable sources by 2010. Beyond that year, there will be other ways of filling the renewables gap. We would expect to see other sources of energy such as energy crops, solar voltaics, wave and tidal power generation gradually come into play. I do not think that one can say that there is an exact correspondence between the number of wind turbines and the reality of the situation which will follow as regards nuclear power.
Earl Attlee: My Lords, last week, the Minister kindly answered my Written Question which asked by what factor—that is, what is the number—will renewable power installations have to be increased in order to meet the Minister's 10 per cent renewables target by 2010. The Minister gave a detailed and interesting response, but he did not actually answer the question. I ask again: what is the factor?
Lord Sainsbury of Turville: My Lords, we have slightly over 1,000 wind turbines in operation and we need to reach a figure of 3,000 to 5,000 turbines by 2010. Where the line is drawn will give the factor of increase. What 1 pointed out in my response to the noble Earl and what I shall point out again is that this is only about half of what has been done in Germany over recent years and about the same level of installation as that achieved in Spain. So it is not impossible to achieve that rate of installation.
Lord Bridges: My Lords, will the Minister write to planning authorities instructing them that there should be a presumption against the construction of wind turbines in national parks and areas of outstanding natural beauty?
Lord Sainsbury of Turville: My Lords, under our planning system we consider these issues on the basis of planning laws and we shall continue to do so. We shall certainly not be changing them.
Lord Ezra: My Lords, in the light of the answers so far given by the Minister in regard to the issue of renewables filling the gap that will be left by the withdrawal of nuclear plants, and in order to meet our environmental objectives, will not the Government now consider further
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incentives to other ways of minimising emissions and applying the principle of the renewables obligation—for example, to combined heat and power (CHP), which is now going through a difficult time, to the recovery and treatment of methane from coal mines and to clean coal technology?
Lord Sainsbury of Turville: My Lords, renewables are not at this point replacing nuclear power stations. We closed only one nuclear power station over this period. They are providing extra capacity which will be put into the system. We shall probably reduce other inefficient forms of energy rather than nuclear, where there is only one nuclear power plant closing down over this period.
Lord Berkeley: My Lords, can my noble friend confirm that the Government will not authorise any new nuclear power stations until a proven method of disposal of radioactive waste—some of which, 1 believe, has a half-life of 1,000 years—has been found?
Lord Sainsbury of Turville: My Lords, we are not at the moment ruling out the long-term nuclear option. No proposals are being brought forward at the moment. Clearly the way in which we treat waste is important—as well as the cost—before we consider any further nuclear power plants.
Baroness Sharples: My Lords, is the noble Lord aware that residents near Cucklington in Somerset are extremely concerned about a proposal for wind turbines of 330 feet, which will dwarf King Alfred's tower and be visible from Stourhead? They do not feel that their concerns are being properly addressed.
Lord Sainsbury of Turville: My Lords, I cannot comment on that situation. It is interesting that, as a whole, people are extremely favourably inclined towards wind turbines. Polling information suggests that people who live near wind turbines are more favourably impressed than people who live in other areas.
Lord Jordan: My Lords—
Baroness Sharp of Guildford: My Lords, does the Minister—
Baroness Amos: My Lords, there will be enough time if we take the questions very quickly. I suggest that we hear first from these Benches and then from the Liberal Democrat Benches.
Lord Jordan: My Lords, does the Minister accept that the Government's present policy of decommissioning nuclear power stations, together with the proposed alternative of Heath Robinson-style wind turbines and so on, means that by 2020 the base energy requirements of this country cannot be guaranteed?
Lord Sainsbury of Turville: My Lords, it is rather unfair to describe these extremely efficient wind turbines

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as "Heath Robinson". They do a perfectly good engineering job. I do not agree that we will not have security of supplies going forward; it is clear from the present figures that we will. If we do not, as I said, we will reconsider the nuclear power programme.
Baroness Sharp of Guildford: My Lords, does the Minister agree that, as the wind does not blow all the time, there will have to be a back-up capacity for any wind turbines that are built?
Lord Sainsbury of Turville: My Lords, clearly there is a question of capacity. The calculations that I have given assume a load factor of 30 per cent onshore and 35 per cent offshore. They are realistic figures. If we take those into account, the variability of supply is not very different from other energy sources.

Cameroon
2.55 p.m.
Lord Thomson of Monifieth Lord Thomson of Monifieth asked Her Majesty's Government:
What progress was made at the Commonwealth meeting on human rights and democracy in the Cameroon Republic on 31st October.
Baroness Crawley: My Lords, the United Kingdom strongly supports the Commonwealth Secretary-General's approach. The 31st October meeting was a useful step forward. The Government of Cameroon set out proposals to improve human rights and strengthen democracy in Cameroon, including new legislation on the National Election Observatory, the National Commission on Human Rights and Freedoms, decentralisation and criminal procedure. The international community welcomes these proposals, presses for their quick implementation and undertakes to provide assistance.
Lord Thomson of Monifieth: My Lords, I thank the Minister for that positive reply. Is she aware that Britain has a special moral responsibility in this situation, especially for the anglophone minority within the Cameroon Republic, as we gave up the United Nations mandate many years ago without adequate safeguards for that anglophone minority? Will she do everything she can to support the initiative of the Commonwealth and the other countries involved to deal with the human rights inadequacies and to bring about an early general election in the Cameroon Republic?
Baroness Crawley: My Lords, I acknowledge the noble Lord's great experience in these matters as a former Minister. Britain does indeed have a special relationship with Cameroon and with the anglophone community there. We are doing everything we can to bring about reforms as speedily as possible. The noble Lord will know that we have made it clear to Cameroon that, as a member of the Commonwealth, it is bound to adhere to the Harare principles. We welcome the positive role
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played by the Commonwealth and the Commonwealth's special envoy. We engage with anglophones on issues of human rights abuses, raising them within the EU and the Commonwealth.
Lord Astor of Hever: My Lords, we on these Benches very much share the concerns of the noble Lord, Lord Thomson. In the light of the latest report by the International Federation of Human Rights that torture, arbitrary arrests and other violations of human rights are being carried out with impunity, will the Government ensure that Cameroon is now monitored by the Commonwealth Ministerial Action Group?
Baroness Crawley: My Lords, as the noble Lord will know, the Commonwealth Ministerial Action Group is closely engaged with Cameroon. We are aware of the great concerns about torture. We have not been slow in raising these concerns with Cameroon and we will continue to do so.
Lord Avebury: My Lords, are the undertakings given by Cameroon to the special meeting on 31st October compatible with the closure yesterday of the independent Christian radio, Veritas, and the impounding of Insight magazine, which had the temerity to refer to historical events surrounding the federation that my noble friend was so instrumental in organising 40 years ago? Does not the noble Baroness consider that the Commonwealth should put its requirements in writing and that there should be a timeline which can be monitored not only by the international community, which will fund the reforms she has mentioned, but also by the people of Cameroon who want to be assured that in October 2004 they will have a fair and free election?
Baroness Crawley: My Lords, we are doing all we can to ensure that fair and free elections take place in late 2004. I thank the noble Lord, Lord Avebury, for the work that he does as chair of the Cameroon Campaign Group. We know of the restrictions on press and media freedom and we are aware of the case raised by the noble Lord. We continue to raise issues of human rights abuses with Cameroon and we will continue to do so.

Airport Capacity
2.59 p.m.
Lord Berkeley Lord Berkeley asked Her Majesty's Government:
Whether their consideration of airport capacity in the south-east includes the option of a new airport in the Thames estuary.
Lord Davies of Oldham: My Lords, my right honourable friend the Secretary of State for Transport has made it clear that he would consider all serious proposals for new airport capacity submitted in response to the consultation paper. A number of proposals that are alternatives to, or variants of,

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options set out in the consultation have been submitted. Those include proposals for new airports in, and around, the Thames estuary area.
Lord Berkeley: My Lords, I am grateful to my noble friend for that Answer. Will he confirm that there are no serious technical problems associated with building an airport in the Thames estuary, as it is quite shallow? Will he also confirm that many fewer people would be affected by noise if the airport were built in that location, although one must accept that more seagulls would be affected?
Lord Davies of Oldham: My Lords, there are advantages with a number of the additional submissions that have been made as a response to the consultation paper. The Secretary of State is in the process of considering those matters on a factual basis, taking into account all issues. The White Paper will be published before the end of the year.
Lord Mowbray and Stourton: My Lords, before I ask my question, I should say that for many years I have been on the board of the Thames Estuary Airport Company. I was grateful to hear the Minister's comments. The company has twice submitted our plans for the area.
I hope that the Prime Minister's meeting with the CBI yesterday may have caught on with the House. He suggested to the CBI the need to find new ways of attracting private finance into transport infrastructure improvements. Our offer to fund privately and build an offshore airport in the Thames estuary, together with the cost of all supporting infrastructure, to a sum in excess of £33 billion, surely provides an excellent opportunity to take up the advice of the Prime Minister. It would be almost folly to ignore private investment on that scale. Is it not essential, therefore, that the proposal should be accepted in principle and included as a valid and possible option in next month's White Paper?
Lord Davies of Oldham: My Lords, as I have said, all serious proposals—that is a serious proposal—in addition to the ones contained in the consultation are subject to evaluation at present. As the House will recognise, the extension of airport capacity is not an easy issue. It involves the interests of a very large number of people, and there are disadvantages attendant on any solution, as well as a very real need to provide additional capacity. I assure the noble Lord that the proposal that he has advocated with strength today is fully under consideration.
Lord Faulkner of Worcester: My Lords, does my noble friend agree that, if the Government were to accept the airline industry's forecasts of the doubling of passenger numbers by 2020 and a trebling by 2030, we would have no chance whatever of meeting our Kyoto targets or reducing greenhouse gas emissions? Would it not be more appropriate for the Government, while they carry out their review of airport capacity, to consider seriously the role that
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long-distance rail services can play in replacing short-haul aircraft, especially now that the first stage of the high-speed Channel Tunnel link is open?
Lord Davies of Oldham: My Lords, undoubtedly, one advantage with rail, as opposed to internal airport capacity for internal flights, is its lower level of pollution. However, my noble friend will recognise that, even if it were believed that the capacity necessary in 2020 or 2030 was exaggerated by the airlines, it is still the case that airline travel, including overseas and internal flights, is increasing by a very significant factor. We must take account of the pressure of demand.
Baroness Thomas of Walliswood: My Lords, is it the Government's intention that the White Paper, which as the Minister said is due by the end of the year, or perhaps even by Christmas, will be their final view, or will it be a consultation paper? Will the Minister accept that, if it is the latter, he will have a lot of extremely worried people coming to him on the subject of Gatwick? The destruction of the surrounding countryside, were another runway to be built there, is almost impossible to imagine unless one has actually been there and seen what would happen.
As for Stansted, are the Government determined to ensure that ground transportation, including rail transportation in particular, will have sufficient capacity to sustain an additional runway there?
Lord Davies of Oldham: My Lords, the noble Baroness seeks to draw me into debate on the White Paper in circumstances in which I am not prepared to be drawn in detail. However, she is right that we cannot conceive of an expansion of Stansted without considering the question of infrastructure and transport. That is true of all the other airport proposals as well. The noble Baroness is also right when she suggests that there are disadvantages to any expansion of Gatwick. The simple fact of the matter is that, with any proposal, there are manifest disadvantages. However, there is also a very real need.
Viscount Ullswater: My Lords, what weight do the Government give, in considering the capacity for future airports, to an airport being able to operate 24 hours a day, as I believe will be done in other countries? We need to keep up with that.
Lord Davies of Oldham: My Lords, if there is one way to upset those who live near airports, it is to suggest that the plague that they suffer from frequent flights during the day should continue at the same level overnight. That is a path down which I would not want to commit the Government at this stage. However, as all noble Lords will recognise, if we do not increase airport capacity, we will not only cause a severe reduction to our economic capacity in this country but disappoint the very large number of people who increasingly use air flights for their holidays abroad. We would certainly affect the capacity of London to be the finance capital of the world.
Baroness Finlay of Llandaff: My Lords, will the Minister confirm that broader considerations have been

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given in the deliberations, to issues such as job creation and the traffic and rail flows, in view of the large number of passengers who currently fly in and out of the London area but do not live in that area and travel significant distances? I refer particularly to those who come from west of Reading.
Lord Davies of Oldham: My Lords, the noble Baroness has a point, in that we may see the build-up of regional airports in order to reduce the use of Heathrow for on-flights by passengers. That puts very considerable pressure on all the south-east airports, and not only Heathrow. However, the noble Baroness will also recognise that the airline industry and the airports are a very significant contributor to the economy and a major form of employment for a large number of our fellow citizens.
Baroness McIntosh of Hudnall: My Lords, does my noble friend agree that merely to refer to the demand for air transportation is only one side of the argument? Historically, the provision of roads on a demand basis only has resulted in a policy that has run out of road— if I may be allowed a small pun. Would it be possible at least that, in thinking about the expansion of airport capacity, the Government might consider that merely meeting demand is not necessarily the way forward?
Lord Davies of Oldham: My Lords, I agree with the noble Baroness: we are not into "predict and provide", or simply making an assessment of the number of airline journeys that might be made and extending airports to meet that capacity. She will recognise from the figures that I have quoted that the potential expansion is so huge that it will need some response, even if it was scaled down very significantly. In some respects it will need to be, because of the necessity of meeting our Kyoto targets for emissions of carbon dioxide, to which reference was made earlier. To meet those requirements, we shall need to restrict some aspects of air travel. However, she must also appreciate that demand is such that to go some way to meet it requires extension to airport capacity, without any doubt.

Policing of State Visit of President Bush
3.10 p.m.
Lord Corbett of Castle Vale Lord Corbett of Castle Vale asked Her Majesty's Government:
What discussions they have held with the Mayor of London and the Metropolitan Police concerning security arrangements for the state visit of the President of the United States.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, given the Home Secretary's responsibility for policing and security issues, he has of course had a number of briefings by senior officers of the Metropolitan Police on the security operation for the state visit. Senior officers
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have also had discussions with other relevant government departments and organisations including the Mayor of London.
Lord Corbett of Castle Vale: My Lords, I thank the Minister for that response. Now that those protesting about a range of American policies have pledged to do so peacefully, is she satisfied that the Metropolitan Police will not impede demonstrators getting their views across to both the president and the public? Is she able to join those of us demonstrating against the illegal duties that the US has put on imported steel, which put at risk jobs both here and in the rest of Europe?
Baroness Scotland of Asthal: My Lords, the answer to my noble friend's first question is, "Yes". We are satisfied that appropriate provision will be made to enable people to protest peacefully if that is their desire. Secondly, I am happy to reiterate that the World Trade Organisation has made clear that the United States steel safeguard measures are inconsistent with the WTO rules and must be lifted. We have urged the US Administration to make it clear that they will comply with the WTO decision. The alternative is that the EU countermeasures—additional tariffs on US goods to a value of 2.4 billion euros—will come into effect as early as 6th December.
Viscount Bridgeman: My Lords, does the Minister agree that despite the stridency of the legitimate protests, the tolerance of which this country can be proud, there exists in the United Kingdom a vast reservoir of people who will wish to welcome with courtesy and good will the head of state of a country with which this country has such close ties?
Baroness Scotland of Asthal: My Lords, I absolutely agree with the noble Lord's statement. The relationship between ourselves and the United States is a very longstanding and deep one and prevails irrespective of the administration in being at any given time.
Lord Avebury: My Lords, did not President Bush himself say that he was delighted to visit a country where people still enjoyed the right to demonstrate? Will the noble Baroness confirm that when they demonstrated previously against the Iraq war, 1.5 million people were on the streets and not a single one was arrested for any offence connected with public order? In the light of those facts, does she not think that it would be useful to vary President Bush's arrangements so that he could have an opportunity to watch the demonstration?
Baroness Scotland of Asthal: My Lords, first, I join in the noble Lord's delight that we can demonstrate. I can certainly agree with his statement regarding the president's own views. I can also say that the president will have adequate opportunity to be delighted in the way that the noble Lord indicates.
Lord Hylton: My Lords, I declare an interest as a council tax payer in London. Can the noble Baroness confirm that the extra cost of policing will not simply be loaded on to Greater London but will be accepted as a national responsibility?
Baroness Scotland of Asthal: My Lords, I can certainly reassure the noble Lord, first, that the Metropolitan Police are well funded for policing major events such as this. If, however, this went substantially over what they can afford, there are mechanisms for forces to be able to apply to the Home Office for a special grant to cover difficult-to-meet costs.
Lord Imbert: My Lords, does the Minister agree that there seems to be a misunderstanding about the role of the Metropolitan Police in restricting some demonstrations and marches? The restrictions are being imposed not because of President Bush's visit— they are not anti- or pro-President Bush—but because of the Sessional Order that ensures that Members of Parliament and Members of your Lordships' House can attend Parliament to carry out the democratic process.
Baroness Scotland of Asthal: My Lords, as a former commissioner the noble Lord has particular experience of this matter. I am certainly delighted to confirm that what he says is, as so often, absolutely correct.
Lord Berkeley: My Lords, is my noble friend aware that a structure which has many similarities to the Field of the Cloth of Gold has been erected in front of Buckingham Palace. Do the two leaders see some significance in that?
Baroness Scotland of Asthal: My Lords, other than saying doubtless it is a thing of beauty, I have no comment to make.

Business
Lord Grocott: My Lords, with permission, I should like to say a word about proceedings later today. This afternoon we should receive the Commons amendments to the Sexual Offences Bill. We will consider those amendments after consideration of Commons amendments to the Extradition Bill, but not earlier than 6.45 p.m. The Commons amendments to the Sexual Offences Bill will be available in the Printed Paper Office from 3.45 p.m. Peers who want to table amendments to the Commons amendments can do so in the Public Bill Office from 3.45 p.m. until 5 p.m. At 6 p.m. a Marshalled List of amendments will be available in the Printed Paper Office. I shall ensure that these events are indicated on the annunciators. If
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there are any complications later in the afternoon I shall do my best to come back to the House to explain them.

Ragwort Control Bill
Read a third time, and passed.

Health and Social Care (Community Health and Standards) Bill
3.16 p.m.
Lord Grocott: My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Health and Social Care (Community Health and Standards) Bill, have consented to place their prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Bill read a third time.
Clause 2 [General duty of regulator]:
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 1:
Leave out Clause 2 and insert the following new Clause—
"General duty of the regulator
THE REGULATOR MUST EXERCISE ITS FUNCTIONS IN A MANNER THAT—

(a) is consistent with the performance by the Secretary of State of the duties under sections 1, 3 and 51 of the National Health Service Act 1977 (c. 49) (duty as to health service and services generally and as to university clinical teaching and research), and

(b) has regard to the impact of an NHS foundation trust on the local health economy."

The noble Lord said: My Lords, I make no apology for raising the matter set out in Amendment No. 1 once again, for the third time, on Third Reading. Very similar amendments containing in particular the last subsection of Amendment No. 1 were tabled both in Committee and on Report.
On Report, the Minister made some headway in his response to the amendment in its previous form which imported concepts of universality of access and the regulator's duties in that respect. However, the Minister really did not address the key issue in that amendment and at the core of the current amendment—the impact of foundation trusts on the local health economy and the regulator's duty to have regard to that. I thought that the noble Lord, Lord Warner, was quite cogent in his response to the noble Earl, Lord Howe, on how the regulator would carry out his duties. If the regulator is to be a genuine regulator, that must be at the core of his duties. One of the key concerns throughout the Bill's passage in another place and in this House has been about the impact of foundation trusts on other aspects of the health service in their locality. That is absolutely at the core of this amendment.
On Report, the Minister addressed the local health economy and prayed in aid a number of arguments. He said that,
"the creation of NHS foundation trusts will support the development of NHS services in local health economies".
That is an assertion. One hopes that will be so but it is not necessarily the case under the Bill as drafted. The Minister continued:
"Foundation trusts will exist to provide and develop healthcare services for NHS patients in a way that is consistent with NHS values".
To support that, one can pray in aid the duty to act in accordance with, or in a way that is consistent with, the Secretary of State's duties currently contained in the Bill. However, it is not absolutely clear that that is the case. The Minister continued:
"Over 95 per cent of their income will continue to come from NHS commissioning".
That is the case, but that does not mean to say that foundation hospitals ipso facto will have to have regard to their local health economies. They may well build up their strengths without regard to other facilities of the NHS in their area. I believe the Minister considered that the following point was the crunch point in his argument. He continued:
"They will be under a statutory duty to work in partnership with other local NHS organisations and social services to deliver integrated packages of care centred around the needs of patients".—[Official Report, 6/11/03; col. 987.]
They have a duty of co-operation—I believe that is the precise phraseology—rather than a duty of partnership. However, that is very much open to interpretation. Foundation hospitals, along with all other facilities in the NHS, will have that duty, but who will police it? There will be no policing available. There will be little recourse to other organisations within a locality affected by the activities of a foundation trust. That is the reason for imposing this matter as a duty on the regulator. That is where it sits most comfortably. To assume that a foundation trust will act in accordance with the NHS Act and its duty of co-operation, particularly in the light of concerns expressed in both Houses and outside Parliament, seems to me a trifle optimistic.
I challenged the Minister regarding the intention that the regulator would have no oversight of the impact of employment contracts. I asked him to repeat what he said in Committee at col. 628 of Hansard of 13th October; namely that:
"They are not issues which should be arbitrated upon by a third party, such as the regulator".—[Official Report, 6/11/03; col. 987.]
I agree with that. I do not see that the regulator has a particular role in arbitrating employment contracts. However, it seems utterly right that the regulator should have regard to the impact of such employment contracts. That is a very different matter. It is not a matter of meddling in industrial relations or employment matters; it is a matter of seeing what impact those employment contracts have on the local health economy. The regulator could then make representations and exercise his powers under the Act relative to foundation trusts.
I very much hoped that between Report and Third Reading the Minister would have had a chance to reflect on the matter because it is absolutely at the core of the Bill. If the Minister were able to be more positive in this area, there would be a great deal more good will towards foundation trusts. It will not have escaped anyone's attention that the BMA recently wrote to the Secretary of State urging him not to introduce foundation trusts.
It is in the Minister's hands to provide considerable reassurance in respect of the regulator's duty. I beg to move.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, during consideration of Part 1 of the Bill both in this House and in another place much of the debate has been about the need to balance the ambitions, and relative strength, of individual organisations against the wider interests of local health economies, the NHS nationally and the particular interests of individual patients. I assure the noble Lord, Lord Clement-Jones, that I have reflected on the debate that we had at earlier stages. I acknowledge that these are very important issues that go to the heart of the way we run the NHS. In that regard I have some sympathy with the points that the noble Lord made. However, it is a major strength of the NHS that following implementation of the Government's reform programme there are clear processes for ensuring that the system works as it should. I wish briefly to discuss these arrangements.
First, we have put responsibility for commissioning where it belongs—with primary care trusts—and we are in the process of introducing national tariffs. We have created strategic health authorities with responsibility for planning and supporting delivery of national policy for the NHS within local health economy areas. We have created duties for NHS organisations to co-operate with each other and to work in partnership with local authorities to develop integrated systems of care. We have developed, and will strengthen through this Bill, national quality standards and national inspectorates across health and social care. We have given patients and local people a greater say through patients forums and the creation of overview and scrutiny committees.
The noble Lord, Lord Clement-Jones, made much of the policing point and asked whether we had "policemen" to enforce proper standards and checks in relation to "aggrandising" NHS foundation trusts. I have tried to illustrate that, just as this Government have put many bobbies on the beat, we have many "policemen"—perhaps we should call them community support officers—in this area of the NHS to provide checks and balances. NHS foundation trusts are not entering a totally unregulated and uncontrolled system.
Those are the mechanisms that will ensure the right balance is achieved. I believe that it would create nothing but confusion and uncertainty to overlay those processes with a statutory requirement on the independent regulator in carrying out his duties to

1861
have regard to the impact of foundation trusts on the local health economy. To do so in addition to his duty with respect to the 1977 Act could well create confusion over how the regulator is to exercise his functions and could extend the regulator's remit into areas that he will not have the knowledge and expertise to determine, and in which the levers he has to take action are limited to one sector only—NHS foundation trusts. He will not have any leverage over other parts of local health economies for the reasons that I have already given.
Such a measure could give the regulator a role in second-guessing the way that NHS organisations fulfil their duty to co-operate with other NHS organisations, and potentially in arbitrating between NHS foundation trusts and other bodies. The effect would be to fetter the freedoms that NHS foundation trusts have to determine locally how best to deliver their NHS obligations and in our view runs counter to the policy of replacing central control with local flexibility and accountability.
NHS foundation trusts will, of course, have to develop and consult on their forward plans taking account of what is going on in the local health economy. That is what the application process and new governance arrangements are designed to achieve. However, this amendment would require NHS foundation trusts to be continually looking over their shoulders and seeking direction from the regulator in a way that would be counter to the policy intention of setting up those trusts. In practice, we believe that it would be likely to stifle rather than promote a culture of innovation. I do not believe that the noble Lord intends that to happen but in our view that would be the effect of this amendment. I hope that when the noble Lord has reflected on my remarks he will feel able to withdraw the amendment.
Lord Clement-Jones: My Lords, I thank the Minister for that reply. That was a splendidly gloomy prognosis for one sentence in the Bill. I shall use it for future occasions. The number of negative verbs— confuse, fetter, second-guess, stifle a culture of innovation—was probably a record in such a short ministerial speech. It was a splendid collection of verbs.
There is a fairly irreconcilable difference. The Minister believes that the amendment would create confusion. On this side of the House, we believe that it would create clarity. It is not intended to fetter. Everything depends on how the phrase would be interpreted, but it would not mean that foundation trusts would need to go back to their nanny to find out what was going on. It is simply a broad, general failsafe mechanism to make sure that foundation trusts operate in a way that is generally congenial to their local health economy. That seems an entirely laudable public policy aim.
1862
I do not believe that all that negativity will occur. It is a matter of opinion and, in those circumstances, I should like to seek the opinion of the House.
3.30 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 153; Not-Contents, 119.

Division No.1

CONTENTS

Addington, L.

Henley, L.

Alexander of Weedon, L.

Higgins, L.

Allenby of Megiddo, V.

Hodgson of Astley Abbotts, L.

Alton of Liverpool, L.

Howe, E.

Anelay of St Johns, B.

Howe of Aberavon. L.

Ashcroft, L.

Howe of Idlicote, B

Astor of Hever, L.

Howell of Guildford, L.

Attlee, E.

Hurd of Westwell, L.

Avebury, L.

Hussey of North Bradley, L.

Barker, B. [Teller]

Jenkin of Roding, L.

Beaumont of Whitley, L.

Kimball, L.

Biffen, L.

Kingsland, L.

Blackwell, L.

Knight of Collingtree, B.

Blatch, B.

Laing of Dunphail, L.

Bowness, L.

Lamont of Lerwick, L.

Bradshaw, L.

Lester of Herne Hill, L.

Bridgeman, V.

Lindsay, E.

Brooke of Sutton Mandeville, L.

Liverpool, E.

Brookeborough, V.

Lyell, L.

Brougham and Vaux, L.

Mackie of Benshie, L.

Buscombe, B.

McNally, L.

Byford, B.

Maddock, B.

Caithness, E.

Mancroft, L.

Campbell of Alloway, L.

Mar and Kellie, E.

Carnegy of Lour, B.

Masham of Ilton, B.

Cavendish of Furness, L.

Mayhew of Twysden, L.

Chadlington, L.

Methuen, L.

Chalker of Wallasey, B.

Michie of Gallanach, B.

Chan, L.

Miller of Chilthorne Dorner, B.

Clement-Jones, L. [Teller]

Miller of Hendon, B

Coe, L.

Molyneaux of Killead, L.

Cope of Berkeley, L.

Monro of Langholm, L.

Craig of Radley, L.

Montagu of Beaulieu, L.

Crickhowell, L.

Montrose, D.

Cuckney, L.

Mowbray and Stourton, L.

Cumberlege, B.

Naseby, L.

Dean of Harptree, L.

Newby, L.

Dholakia, L.

Noakes, B.

Dixon-Smith, L.

Northbourne, L.

Elliott of Morpeth, L.

Northesk.E.

Emerton, B.

Northover, B.

Ezra, L.

O'Cathain, B.

Falkland, V.

Onslow, E.

Ferrers, E.

Park of Monmouth, B.

Finlay of Llandaff, B.

Peel, E.

Flather, B.

Pilkington of Oxenford, L.

Fookes, B.

Plumb, L.

Freeman, L.

Portsmouth, Bp.

Gardner of Parkes, B.

Prior, L.

Garel-Jones, L.

Rawlings, B.

Geraint, L.

Rawlinson of Ewell, L.

Glentoran, L.

Razzall, L.

Goodhart, L.

Reay, L.

Greaves, L.

Redesdale, L.

Hamwee, B.

Rees, L.

Hanham, B.

Rennard, L.

Harris of Richmond, B.

Renton, L.

Hayhoe, L.

Roberts of Conwy, L.

1863

Rodgers of Quarry Bank, L.

Swinfen, L.

Rogan, L.

Tanlaw, L.

Roper, L.

Taverne, L.

Rotherwick, L.

Tebbit, L.

Sandberg, L.

Thomas of Walliswood, B.

Scott of Needham Market, B.

Thomson of Monifieth, L.

Seccombe, B.

Tordoff, L.

Selsdon, L.

Trefgarne, L.

Sharman, L.

Trumpington, B.

Sharp of Guildford, B.

Tugendhat, L.

Ullswater, V.

Sharples, B.

Vinson, L.

Shaw of Northstead, L.

Vivian, L

Shutt of Greetland, L.

Wade of Chorlton, L.

Skelmersdale, L.

Wakeham, L.

Smith of Clifton, L.

Walmsley, B.

Soulsby of Swaffham Prior, L.

Watson of Richmond, L.

Steel of Aikwood, L.

Wigoder, L.

Sutherland of Houndwood, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Grocott,L.[Teller]

Amos, B. (Lord President)

Hannay of Chiswick, L.

Andrews, B.

Harrison, L.

Archer of Sandwell, L.

Haskel, L.

Ashley of Stoke, L.

Haskins, L.

Ashton of Upholland, B.

Hayman, B.

Bach, L.

Hogg of Cumbernauld, L.

Barnett, L.

Hollis of Heigham, B.

Bassam of Brighton, L.

Howells of St. Davids, B.

Berkeley, L.

Hughes of Woodside, L.

Billingham, B.

Hunt of Kings Heath, L.

Borne, L.

Irvine of Lairg, L.

Bragg, L.

Islwyn, L.

Brett, L.

Janner of Braunstone, L.

Brooke of Alverthorpe, L.

Jay of Paddington, B.

Brookman, L.

Jones, L.

Burlison, L.

King of West Bromwich, L.

Campbell-Savours, L.

Kirkhill, L.

Carey of Clifton, L.

Lea of Crondall, L.

Carter, L.

Lewis of Newnham, L.

Chalfont, L.

Lockwood, B.

Christopher, L.

Lofthouse of Pontefract, L.

Clark of Windermere, L.

McIntosh of Hudnall, B.

Clarke of Hampstead, L.

MacKenzie of Culkein, L.

Cohen of Pimlico, B.

Mackenzie of Framwellgate, L.

Colville of Culross, V.

Marsh, L.

Corbett of Castle Vale, L.

Mason of Barnsley, L.

Crawley, B.

Massey of Darwen, B.

Davies of Coity, L.

Mishcon, L.

Davies of Oldham, L. [Teller]

Mitchell, L.

Dean of Thornton-le-Fylde,B.

Morgan, L.

Desai, L.

Morris of Aberavon, L.

Dixon, L.

Nicol, B.

Donoughue, L.

Orme, L.

Dormand of Easington, L.

Patel of Blackburn, L.

Dubs, L.

Paul, L.

Elder, L.

Peston, L.

Evans of Parkside, L.

Plant of Highfield, L.

Evans of Temple Guiting, L.

Prys-Davies, L.

Falconer of Thoroton, L. (Lord

Radice, L.

Chancellor)

Randall of St. Budeaux, L.

Farrington of Ribbleton, B.

Rendell of Babergh, B.

Faulkner of Worcester, L.

Richard, L.

Filkin, L.

Rooker, L.

Gale, B.

Sainsbury of Turville, L.

Gibson of Market Rasen, B.

Scotland of Asthal, B.

Gilbert, L.

Sheldon, L.

Golding, B.

Simon, V.

Goldsmith, L.

Stallard, L.

Gordon of Strathblane, L.

Stone of Blackheath, L.

Goudie, B.

Strange, B.

Gould of Potternewton, B.

Taylor of Blackburn, L.

Graham of Edmonton, L.

Temple-Morris, L.

Gregson, L.

Tenby, V.

1864

Thornton, B.

Wedderburn of Charlton, L.

Tomlinson, L.

Whitaker, B.

Turnberg, L.

Whitty, L.

Turner of Camden, B.

Wilkins, B.

Walton of Detchant, L.

Williams of Elvel, L.

Warner, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
3.41 p.m.
Clause 12 [Prudential borrowing code]:
Baroness Noakes Baroness Noakes moved Amendment No. 2:
Page 6, line 3, at end insert—
"( ) In making the code the regulator shall ensure that the economic effect of all commitments to make payments over periods exceeding one year is taken into account."
The noble Baroness said: My Lords, Amendment No. 2 relates to the borrowing code for foundation trusts under Clause 12. We debated the matter extensively both in Committee and on Report. It is not inaccurate to say that there has been no meeting of minds between the Government Benches and the Conservative and Liberal Democrat Benches.
The Government believe that the borrowing code will somehow solve the problems of the borrowing capacity of foundation trusts. We believe that it is at best harmless and at worst a major distraction. This mystical borrowing code—mystical because no one has ever seen it—is somehow to distil the knowledge and practice of commercial lenders. It is supposed to help the regulator determine limits on total borrowing by any NHS foundation trust. But that is about all we know about it.
On Report, the Minister told us about information that late in the day was made available on the department's website. That information adds almost nothing to our knowledge of the borrowing code. It contains some highly simplistic ratios but no real substance.
We remain highly sceptical about the worth of the borrowing code. It seems to us to be a pseudo-technical device designed to conceal the fact that the emperor has no clothes. We believe that this part of the Bill is ill thought-out and that it will cause problems in practice.
The simple solution would have been to take this silly code out of the Bill, but if the Government are committed to it, it must be absolutely clear that the borrowing code will take account of the economic impact of liabilities which arise from long-term commitments, such as those from the private finance initiative. We have heard the Minister's arguments that PFI obligations will be scored in arriving at free cash flow, but we want the regulator—for it is the regulator who will be lumbered with creating this code—to be in do doubt whatever that the economic impact of PFI liabilities must be taken into account. It is not simply a matter of establishing free cash flow; it is as much about the overhang of liabilities.
I have previously argued that PFI liabilities in the NHS are a serious concern. They are continuing to rise at a rapid rate and we are concerned about the robustness of these deals over time in terms of practicality and value for money. The one thing that is absolutely certain is that PFI deals must be kept fully in mind when determining what borrowing should be permitted for foundation trusts. That is what the amendment seeks to achieve. I beg to move.
Lord Clement-Jones: My Lords, I support the amendment. We on these Benches do not believe that the question has been properly answered. It would be wrong not to have on the face of the Bill a provision of this type, making it clear that PFI was included in the terms of the prudential borrowing limit. The Minister's answers on Report were not fully satisfactory and in those circumstances we fully support the fact that the noble Baroness has brought the amendment back to the House.
Baroness Carnegy of Lour: My Lords, I support the amendment. It is important that foundation hospitals should not become part of the Exchequer's charade in pretending that PFI has nothing to do with real borrowing. The debts incurred by foundation hospitals, and the interest due on those debts, will be no less than any other form of capital borrowing and interest on it. Surely, it should be taken into account and I therefore support the amendment.
Lord Warner: My Lords, on this issue, I feel slightly like someone being asked to keep taking his accountancy exams. It is the Government's view that Amendment No. 2 is unnecessary. As we have already discussed in Committee and on Report, the prudential borrowing limit, which determines an NHS foundation trust's ability to repay debt, must take account of payment commitments which affect the free cash flow of an NHS foundation trust. The checks in the system are not quite as mystical as the noble Baroness suggested.
When we discussed these issues on Report, the noble Baroness raised concerns that the financial ratios which will be used to determine the prudential borrowing code will not take account of balance sheet issues and accumulated liabilities. However, I can reassure her and other noble Lords that we agree that in addition to ensuring that there is enough cash in the business to service debt year on year, total indebtedness is also an important issue. That is why applicants were issued with guidance to model their debt profiles assuming a maximum 10-year debt maturity for the first period of borrowing. The application of the ratios together with this 10-year term limit serve to manage total indebtedness as well as year-on-year serviceability issues. The noble Baroness cannot dismiss those ratios merely as mystical. They are real ratios. She may not agree with them, but they are there as part of the checks on incurring excessive indebtedness.
We also agree that quality of cash flows is an important issue. In this regard, we recommended that the regulator takes into account the quality of the
1866
underlying data provided to support projected numbers—such as references from PCTs—and establishes appropriate rules for ensuring that the way the data are reported is transparent and robust. Work has been going on within the department on developing new reporting requirements to aid the regulator—when appointed—in this regard. We therefore believe that appropriate arrangements are in place and that this is not a mystical exercise. There are proper arrangements for ensuring that debt is bearable and that cash flows are adequate year on year.
Baroness Noakes: My Lords, first, I thank the noble Lord, Lord Clement-Jones, and my noble friend Lady Carnegy for their support. I have not tried to subject the noble Lord to accountancy examinations, but I shall keep my own counsel as to whether I believe that he would pass them with distinction.
I was pleased to hear what the noble Lord said about moving beyond simple free cash flow and taking into account indebtedness and the quality of cash flow. But we have argued from the outset that the Government—led, in particular, by the Chancellor— have been trying to account PFI out of existence. We have argued consistently that we must keep it firmly in view. For that reason, I have been trying to make an amendment of this nature to the Bill. Going forward, it will be extremely important to ensure that, when considering the subject of foundation trusts, the full impact of PFI liabilities is scored alongside more conventionally financed liabilities. I was grateful for what the noble Lord said, but he did not meet that point. We believe that it is important, and I should like to test the opinion of the House.
3.49 p.m.
On Question, Whether the said amendment (No. 2) shall be agreed to?
Their Lordships divided: Contents, 177; Not-Contents, 122.

Division No.2

CONTENTS

Ackner, L.

Brougham and Vaux, L.

Addington, L.

Buscombe, B.

Alexander of Weedon, L.

Byford, B.

Allenby of Megiddo, V.

Caithness, E.

Alton of Liverpool, L.

Campbell of Alloway, L.

Anelay of St Johns, B.

Carnegy of Lour, B.

Ashcroft, L.

Cavendish of Furness, L.

Astor of Hever, L.

Chadlington, L.

Attlee, E.

Chalker of Wallasey, B.

Avebury, L.

Chan, L.

Barker, B.[Teller]

Clement-Jones, L.

Beaumont of Whitley, L.

Coe, L.

Blackwell, L.

Colville of Culross, V.

Blatch, B.

Colwyn, L.

Bledisloe, V.

Cope of Berkeley. L. [Teller]

Bowness, L.

Craig of Radley, L.

Bradshaw, L.

Crickhowell, L.

Bridgeman, V.

Cuckney, L.

Brittan of Spennithorne, L.

Cumberlege, B.

Brooke of Sutton Mandeville, L.

Dahrendorf, L.

Brookeborough, V.

Dean of Harptree, L.

1867

Denham, L.

Newby, L.

Dholakia, L.

Noakes, B.

Dixon-Smith, L.

Northesk, E.

Eden of Winton, L.

Northover, B.

Elliott of Morpeth, L.

O'Cathain, B.

Elton, L.

Onslow, E.

Emerton, B.

Park of Monmouth, B.

Ezra, L.

Peel, E.

Falkland, V.

Peyton of Yeovil, L.

Feldman, L.

Pilkington of Oxenford, L.

Ferrers, E.

Plumb, L.

Finlay of Llandaff, B.

Prior, L.

Flather, B.

Quinton, L.

Fookes, B.

Rawlings, B.

Freeman, L.

Razzall, L.

Gardner of Parkes, B.

Reay, L.

Garel-Jones, L.

Redesdale, L.

Geraint, L.

Rees, L.

Glentoran, L.

Rennard, L.

Goodhart, L.

Renton, L.

Greaves, L.

Roberts of Conwy, L.

Hamwee, B.

Rodgers of Quarry Bank, L.

Hanham, B.

Rogan, L.

Hannay of Chiswick, L.

Roper, L.

Harris of Richmond, B.

Rotherwick, L.

Hayhoe, L.

Saltoun of Abernethy, Ly.

Henley, L

Sandberg, L.

Higgins, L.

Sandwich, E.

Hodgson of Astley Abbotts, L.

Scott of Needham Market, B.

Howe, E.

Seccombe, B.

Howe of Aberavon, L.

Selborne, E.

Howe of Idlicote, B.

Selsdon, L.

Howell of Guildford, L.

Sharman, L.

Hunt of Wirral, L.

Sharp of Guildford, B.

Hurd of Westwell, L.

Sharples, B.

Hussey of North Bradley, L.

Shaw of Northstead L.

Jacobs, L.

Shutt of Greetland, L.

Jenkin of Roding, L.

Skelmersdale, L.

Kimball, L.

Smith of Clifton, L.

Kingsland, L.

Soulsby of Swaffham Prior, L.

Kingsland, L.

Steel of Aikwood, L.

Knight of Collingtree, B.

Stoddart of Swindon, L.

Laing of Dunphail, L.

Swinfen, L.

Lamont of Lerwick, L.

Taverne, L.

Lester of Herne Hill, L.

Tebbit, L.

Lewis of Newnham, L.

Tenby, V.

Lindsay, E.

Thomas of Gresford, L.

Liverpool, E.

Thomas of Swynnerton, L.

Lyell, L.

Thomas of Walliswood, B.

Mackie of Benshie, L.

Thomson of Monifieth, L.

Maclennan of Rogart, L.

Tordoff, L.

McNally, L.

Trefgarne, L.

Maddock, B.

Trumpington, B.

Mancroft, L.

Tugendhat, L.

Mar and Kellie, E.

Ullswater, V.

Marlesford, L.

Vinson, L.

Marsh, L.

Vivian, L.

Masham of Ilton, B.

Waddington, L.

Mayhew of Twysden, L.

Wakeham, L.

Methuen, L.

Wallace of Saltaire, L.

Michie of Gallanach, B.

Walmsley, B.

Miller of Chilthorne Domer, B.

Walton of Detchant, L.

Miller of Hendon, B.

Wamock, B.

Monro of Langholm, L.

Watson of Richmond, L.

Montagu of Beaulieu, L.

Weatherill, L.

Montrose, D.

Wigoder, L.

Mowbray and Stourton, L.

Wilcox, B.

Naseby, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Ashton of Upholland, B.

Amos, B. (Lord President)

Bach, L.

Andrews, B.

Barnett, L.

Archer of Sandwell, L.

Bassam of Brighton, L.

Ashley of Stoke, L.

Berkeley, L.

1868

Bhatia, L.

Islwyn, L.

Billingham, B.

Janner of Braunstone, L.

Blackstone, B.

Jay of Paddington, B.

Borrie, L.

Jeger, B.

Bragg, L.

Jones, L.

Brett, L.

Judd, L.

Brooke of Alverthorpe, L.

King of West Bromwich, L.

Brookman, L.

Kirkhill, L.

Brooks of Tremorfa, L.

Lea of Crondall, L.

Burlison, L.

Lockwood, B.

Campbell-Savours, L.

Lofthouse of Pontefract, L.

Carter, L.

McIntosh of Haringey, L.

Christopher, L.

McIntosh of Hudnall, B.

Clark of Windermere, L.

MacKenzie of Culkein, L.

Clarke of Hampstead, L.

Mackenzie of Framwellgate, L.

Cohen of Pimlico, B.

Mason of Barnsley, L.

Corbett of Castle Vale, L.

Massey of Darwen, B.

Crawley, B.

Mishcon, L.

Davies of Coity, L.

Mitchell, L.

Davies of Oldham, L. [Teller]

Morgan, L.

Dean of Thornton-le-Fylde, B.

Morris of Aberavon, L.

Desai, L.

Nicol, B.

Dixon, L.

Orme, L.

Donoughue, L.

Ouseley

Dormand of Easington, L.

Parekh, L.

Patel of Blackburn, L.

Dubs, L.

Paul, L.

Elder, L.

Peston, L.

Evans of Parkside,L.

Plant of Highfield, L.

Evans of Temple Guiting, L.

Portsmouth, Bp.

Falconer of Thoroton, L (Lord

Prashar, B.

Chancellor)

Prys-Davies, L.

Farrington of Ribbleton, B.

Radice, L.

Faulkner of Worcester, L.

Ramsay of Cartvale, B.

Filkin, L.

Randall of St. Budeaux. L.

Gale, B.

Rendell of Babergh, B.

Gibson of Market Rasen,B.

Richard, L

Gilbert, L

Sainsbury of Turville, L.

Golding, B.

Sawyer, L.

Goldsmith, L.

Scotland of Asthal, B.

Gordon of Strathblane, L.

Sheldon, L.

Goudie, B.

Simon, V.

Gould of Potternewton, B.

Stallard, L.

Graham of Edmonton, L.

Stone of Blackheath, L.

Gregson, L.

Strange, B.

Grocott, L. [Teller]

Taylor of Blackburn, L.

Harrison, L.

Temple-Morris, L.

Haskel, L.

Thornton, B.

Haskins, L.

Tomlinson, L.

Hayman, B.

Turnberg, L.

Hogg of Cumbernauld, L.

Turner of Camden, B.

Hollis of Heigham, B.

Warner, L.

Howells of St. Davids. B.

Whitaker, B.

Hoyle, L.

Whitty, L.

Hughes of Woodside, L.

Wilkins, B.

Hunt of Kings Heath, L.

Williams of Elvel, L.

Irvine of Lairg, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.1 p.m.
Clause 14 [Authorised services]:
Lord Turnberg Lord Turnberg moved Amendment No. 3:
Page 7, line 15, at end insert—
"and, in deciding how to exercise its functions under this subsection in a case where any of the corporation's hospitals includes a medical or dental school provided by a university, the regulator is to have regard to the need to establish and maintain appropriate arrangements with the university."
The noble Lord said: My Lords, I suspect that this amendment will have a slightly easier ride than the first two. Your Lordships may recognise that, although the words of this amendment have been changed to protect innocent Back-Benchers, they give the same basic message as my two previous amendments, which were moved in Committee and on Report. However, this time I am somewhat more optimistic about their acceptability.
I shall not repeat my speeches from the previous two occasions, save to say that the need to ensure that medical research is fostered and supported in the NHS was well recognised and debated by many who spoke on the previous occasion, including my noble friend the Minister. I am extremely grateful to him for listening so carefully to what was said and for being so actively engaged in the subject of the amendment. I know that it is close to his heart. I believe I am in order in anticipating that the Minister will, indeed, show that his heart is in the right place on this matter. I beg to move.
Lord Clement-Jones: My Lords, I support this amendment. I believe that throughout the country universities and teaching hospitals will be erecting statues of the noble Lord, Lord Turnberg, in years to come, and deservedly so. His persuasive powers are clearly enormous. The subsection itself is so finely crafted that one could not detect the workmanship.
Lord Walton of Detchant: My Lords, I give enthusiastic support to this amendment.
Earl Howe: My Lords, at the risk of adding excessive endorsement—I am told that the word is "cloying"— to the contributions already made, I very warmly support this amendment, which seems to cover exactly the concerns that were raised by so many noble Lords both in Committee and at Report.
Lord Warner: My Lords, noble Lords will be astonished to learn that the Government are minded to accept this amendment. I am extremely grateful to my noble friend for his kind remarks. I compliment him in particular on his persistence in this area. I shall certainly enter into the public subscription for his statue if the noble Lord, Lord Clement-Jones, is to start a fund.
On Question, amendment agreed to.
Clause 15 [Private health care]:
Earl Howe Earl Howe moved Amendment No. 4:
Page 7, line 40, leave out subsections (2) and (3).
The noble Earl said: My Lords, in Committee and at Report, I tabled amendments to remove Clause 15, which we on these Benches view as the single most unnecessary piece of political interference in the Bill. Although our views on the matter have not changed one iota, I have reflected on what it would be best to do at this stage of the Bill bearing in mind that there is a clear divergence of opinion between us and the Minister which we are unlikely to bridge.
I have concluded that the sensible course would be for me to give way to the Government on the main premise of this clause, namely, that the regulator should be allowed to impose a cap on the private patient income of foundation trusts. I do so of course without prejudice to the views which I have just expressed on the over-arching principle.
If the Government are allowed to have their way on the main premise of the clause then they should accept the force of the two points that I have previously tried to put to them. The first is that the clause as it stands is too prescriptive. It proposes that the amount of private patient income permitted to a foundation trust should be calculated by reference to the percentage of its income earned from such sources in 2002–03 and that this base year should apply to every single foundation trust without exception, no matter what its individual circumstances.
That is unreasonable. If the regulator is empowered to impose a cap, let him by all means do so by reference to a base year, if that is what he chooses to do, or by reference to some other benchmark. But the face of the Bill should not dictate to him exactly how the cap is to be calculated. I am sure that I am not the only noble Lord who has been approached by NHS trusts which have expressed grave anxiety about 2002–03 being the base year without any flexibility.
The Nuffield Orthopaedic Centre in Oxford, for example, has told me that in a normal year private patient work accounts for about 10 per cent of its overall income. But in 2002–03 it put in place a building programme specifically designed to enhance its private capacity and at the same time it took a conscious decision to use some of its private beds to treat NHS patients. In other words, 2002–03 was an untypical year for the centre.
I am not in a position to judge whether some other base year would be fairer for the orthopaedic centre or whether it could be allowed to defer the imposition of the cap for a period of time to accommodate its particular circumstances. But I believe that the regulator should be given this discretion. He may decide that hospitals in this sort of predicament will just have to make the best of the cap they are given. He may decide that the interests of the hospital and of the NHS are best served by permitting some measure of flexibility. Either way, it should be his decision. But if he has to apply the provisions of the clause as they stand, which are very strict, then there is no doubt in my mind that perverse and unfair consequences will ensue, which do not benefit anyone.
The second kind of situation which may merit a degree of flexibility is where a hospital wishes to invest in a piece of capital equipment. We need to get away from the mindset of thinking that private work equals private beds. I am not suggesting that foundation trusts should be allowed huge latitude by the regulator to expand their elective bed capacity for private patients. I accept that the term of the licence would need to be clear about that. But I believe that there may be circumstances from time to time where the interests of the NHS would be served by allowing a foundation trust to expand its private patient

1871
income beyond the percentage generated in 2002–03, if it could demonstrate a sound business case for doing so, and if the primary aim was to benefit its NHS patients.
The example 1 gave before was a proposal to invest in a new MRI scanner. It could well be that an investment of that kind could only make sense if a certain level of private patient income was assumed. What often happens as regards scanners is that NHS patients are given exclusive use during normal working hours and private patients are allowed access outside those times. The number of private patients per year need not be very many in comparison to the number of NHS patients, but they will often be enough to ensure that there is an income stream to the hospital which justifies the purchase of the machine. Here again, it should be for the regulator to decide what is or what is not a good business case and whether the NHS would benefit sufficiently from the investment. Each case would have to be judged on its merits. But to say that such special cases could never and should never be considered seems to me to fly in the face of all that is reasonable.
This is where the Liberal Democrat amendment, to which I have added my name, comes in. There is a clear and incontestable case for transparency in reporting if the private patient cap is applied and if it is to be monitored properly. I am also fully in sympathy with the wish of the Liberal Democrats to ensure that costings for private patient work are soundly based and that, where a hospital claims that private work contributes to its bottom line, there really is such a contribution after taking into account all costs that can appropriately be allocated or apportioned to the work in question.
Therefore, I hope that the Minister will feel able to give some ground on this matter. It is possible for us to disagree on the fundamental principle of a clause, but if, for a moment, we can put that matter aside, I hope that we can reach a consensus on how exactly the intention behind the clause can best be made to work for the benefit of the NHS. I beg to move.
Lord Clement-Jones: My Lords, I support Amendment No. 4 and speak to Amendment No. 5. The noble Earl, Lord Howe, spoke extremely cogently about the way in which Amendment No. 5 affects Clause 15. To eliminate the whole clause was a bridge too far, but on these Benches we believe that a cap is necessary. I entirely accept his arguments on the base year and the inflexibility built into the current clause.
I thank the noble Earl for his support for Amendment No. 5. It is designed to achieve transparency about such income. In regard to how trusts derive income from private patients, we see some straws in the wind as currently that is not transparent and the NAO review of UCLH shows that. That may be merely one example of trusts—in many cases through faulty accounting and perhaps even without malice aforethought—not really understanding the true costs attached to providing private care.
1872
On Report, the Minister's main argument against Amendment No. 5 was to the effect that it would require a separate annual report—a kind of anti-bureaucratic argument. It would be perfectly possible to include the figures in the annual accounts of a foundation trust and it would then be treated as complying with this new subsection of Clause 15. Nowhere did the Minister address the point of whether there is a mandatory requirement for the profits and the income attached to private patients to be reported properly. For that reason the amendment is important.
Lord Walton of Detchant: My Lords, I support the amendment. Not many of your Lordships will remember the time, under a previous Labour Administration, when as a result of pressure from the unions in the National Health Service there was a move to remove all private beds from all NHS hospitals. That was when Lady Castle—then Mrs Castle—was Secretary of State for Health. In Newcastle, where I was working as a professor of neurology, there were three private beds in the entire body of NHS hospitals—one in each of the major hospitals.
As everyone knows, under the National Health Service there is an appropriate rule that any patients coming to this country from abroad specifically for medical treatment must, if they are admitted to an NHS hospital, be admitted as private patients. At that time I was in the very curious position of having to refuse admission to two patients from the United States referred to my specialist department for investigation because there were no private beds to which they could be admitted. My problem with Clause 15 is that the restrictions that are likely to be imposed could, at the very worst, result in a similar situation where it might not be possible for patients from overseas referred to this country for specialised care to be admitted to an NHS hospital for private care. For that reason I warmly support the amendment.
One great advantage of having private beds in NHS hospitals is that consultants working in those hospitals, who undertake private work—not all consultants do— are geographically there the whole time. The decision made by that previous Labour Administration gave the single most powerful impetus to the development of private hospitals outside the NHS of any other governmental decision. The result was that quite a number of consultants found themselves occupied in travelling distances between the NHS hospital where they worked primarily and the private hospitals where they saw their private patients. The advantages of having private care in NHS hospitals are profound. For that reason I support the amendment.
4.15 p.m.
Lord Tebbit: My Lords, I support both amendments. On Amendment No. 5, if such information is not known already to any hospital, it should be. It would be wholly right to give a hospital that extra incentive by requiring it to report what are those income and costs. However, I am even more interested in the amendment proposed by my noble friend, particularly because of my association with a hospital that he mentioned, the Nuffield Orthopaedic Centre.

1873
Some 14 years ago, I was approached to see whether I would be willing to help raise money to build a new orthotics unit in the hospital. The existing building was literally falling down. Since then I have had the privilege of chairing a group of men and women who have done great things to help that hospital. Shortly, we will have completed putting into the hospital some £12 million or £13 million over the period. It has made an extraordinary difference to the hospital; £6 million will go into the PFI, currently being undertaken at the Nuffield Orthopaedic Centre. Without that £6 million of free, charitable money, the PFI would not have been possible.
I believe that PFIs are a disaster, but at the moment they are the only way in which so many such schemes can be taken forward. I prefer to refer to them as hire purchase agreements. They have all the evils of hire purchase agreements plus the fact that the hospital has to be serviced by those who sold it to the trust, which was not the case under a hire purchase: agreement on a motor car.
In the base year proposed in the Bill, the Nuffield Orthopaedic Centre was making a great effort to reduce waiting lists. To that end, it reduced the amount of private work undertaken to ensure that it could undertake sufficient of the mainstream NHS work to reduce the waiting lists. As a result its income from private practice in the base year fell sharply below its normal level of income. So, in any event, that base year would be unfair to that hospital. It seems quite wrong that there is no discretion available to deal with matters of that kind.
In addition, the Nuffield has an extra problem. At the same time as the PFI building is being undertaken, and in association with it, the hospital is undertaking a substantial building programme to increase its private-sector capacity. That is a classic example of being hit two ways by this Bill. I do not know what the effect will be on the finances of the hospital were the Bill to be enacted in its present form, but they would be serious, not merely for its private practice, but also for the finances of the hospital as a whole. It is a quite arbitrary, a quite unjust, a quite unfair and an extremely wrong way in which to behave towards a hospital that has a fine reputation and which I believe would be a front-runner in achieving foundation hospital status were that to be available to it.
Baroness Masham of Ilton: My Lords, I too support the amendment, especially as I have seen private patients arrive for very specialised treatment, which is often not available in private hospitals. Not only do they bring income into this country, because they have their entourage with them—their friends and relations—but it is a service that we can give. If it is not available in this country, they will go elsewhere. They will go to France, Switzerland or Germany and we shall lose some of our specialties in these fields.
Lord Warner: My Lords, I remind noble Lords that NHS foundation trusts have a primary purpose under this legislation to provide NHS services to NHS patients, based on need and not on the ability to pay and free at the
1874
point of use. To ensure that foundation trusts continue to focus primarily on servicing the needs of NHS patients, the terms of authorisation of an NHS foundation trust will place strict limits on the extent that it can undertake private patient activity. Amendment No. 4, with which I deal first, would effectively remove a clear basis for placing a cap on private patient activity and is therefore unacceptable to the Government.
The Government believe that income derived from the provision of services to private patients needs to be capped as a percentage of total income from clinical activities. The percentage will be fixed as the percentage that applied for each NHS foundation trust in the financial year ending April 2003. That will prevent NHS foundation trusts from carrying out a higher proportion of private work than they do today.
I believe that the cap on private activity provides NHS foundation trusts with clear parameters within which to plan their services and decide what private healthcare to provide. The existence of a cap based on explicit rules means that NHS foundation trusts will not need to go to the independent regulator for approval each time they propose to vary the amount of private patient work they undertake. I have to remind your Lordships that relying on a permissive power could of course mean—this point is particularly addressed to the Liberal Democrat Benches—that the regulator would impose no limit on private practice at all. Amendment No. 4 has that effect. I am not sure whether, in giving support to the amendment, noble Lords are aware of that.
I say to the Conservative Benches that, having just moved the amendment to give the regulator the right to interfere with regard to the local health economy, the regulator might take the view, armed with Amendment No. 4, that he should be even more rigorous in the capping of private practice than is provided for under the Bill. Noble Lords might like to think about both those issues before they get too carried away with Amendment No. 4.
On Amendment No. 5, as I have said previously, I do of course support the principle that information about income—
Lord Tebbit: My Lords, I am most grateful to the noble Lord for the elegant way he has read his official brief, but will he deal with my point concerning the Nuffield Orthopaedic Centre?
Lord Warner: My Lords, I thought I had made it fairly clear that we believe that this provision, which sets a limit on capping private patients, should be in the Bill. I know the noble Lord does not agree with me on that, but that is the Government's position. It has been our position throughout the proceedings on the Bill and we are not resiling from it.
Lord Tebbit: My Lords, I am most grateful to the noble Lord. Does he agree that the cap should be fair?
Lord Warner: My Lords, yes, I do. We believe that the cap is particularly fair.
Baroness Masham of Ilton: My Lords, perhaps I may ask the Minister what the cap is.
Lord Warner: My Lords, I shall repeat what I said earlier. The income derived from the provision of services to private patients will be capped as a percentage of total income from clinical activities. The percentage will be fixed as the percentage that applied for each NHS foundation trust in the financial year ending April 2003. So that is the base year for which one calculates one's percentage. The percentage is then fixed in accordance with that particular base year's income in relation to clinical activities.
I know that noble Lords do not agree with this policy, but that is the policy of the Government. We are not changing it at this stage of the proceedings on the Bill.
On Amendment No. 5, as I have previously explained, I do of course support the principle that information about income and expenditure from private healthcare must be available and publicly accessible. However, I say again that Amendment No. 5 is unnecessary. This information will be set out in each NHS foundation trust's annual accounts, which must be made publicly available.
I understand that noble Lords may be concerned that information about income and expenditure related to private healthcare may not be set out transparently within NHS foundation trusts' accounts. But I hope it will reassure them if I explain that under provisions in the late lamented Schedule 1, all NHS foundation trusts must keep and prepare their annual accounts in line with directions set out by the independent regulator.
We expect that the regulator will issue an accounting manual for NHS foundation trusts, setting out the form, content, methods and principles to be used in preparing the accounts. That is likely to include detailed provision relating to income and expenditure from private income because the regulator will need this information in order to operate the private patient cap under Clause 15.
There is, therefore, no question of NHS foundation trusts somehow concealing the financial information relating to private activity within their accounts. Furthermore, since this information will be freely available, there is simply no need to duplicate it in a separate report.
Lord Eden of Winton: My Lords, before the noble Lord sits down, perhaps he could clarify a matter. I take the example given by my noble friend Lord Tebbit. No doubt there are other examples, perhaps even worse than the one he gave. Is there to be any provision for the hospital concerned to make an appeal on the ground that the base year provided exceptional circumstances which were not typical in its normal running; and, therefore, further consideration should be given on the grounds of fairness and common justice to the case it made?
Lord Warner: My Lords, I have nothing to add to that which I have already said about how the base year
1876
is decided and the basis on which the cap is decided. I repeat again that I understand that noble Lords do not agree with it, but that is the Government's policy on the Bill and that is the way we have framed the legislation.
Earl Howe: My Lords, I am extremely disappointed by that reply. I thank the noble Lords, Lord Walton and Lord Clement-Jones, and the noble Baroness, Lady Masham, for their support. I thank my noble friend Lord Tebbit for the compelling case he put regarding flexibility for the Nuffield Orthopaedic Centre. The ability for the regulator to impose a cap on private income is, as far as I am concerned, taken as read in this debate. We have got past the hurdle of trying to argue that that should be removed altogether. I am not in the least concerned with disputing the Government's policy in general towards private income, I dispute whether the clause as drafted is right. It seems far too prescriptive.
My contention to the Minister is that the regulator can if he wishes cap the income of a hospital. He can do so if he chooses in relation to the base year 2002–03. Indeed, if he wants to be rigorous towards hospitals he has that ability. The case put by my noble friend Lord Tebbit is absolutely incontestable. By contrast, the Government's position is so unreasonable that I cannot understand how the Minister can articulate it. This is a matter of principle on which I should like to test the opinion of the House.
4.29 p.m.
On Question, Whether the said amendment (No. 4) shall be agreed to?
Their Lordships divided: Contents, 189; Not-Contents, 124.

Division No.3

CONTENTS

Ackner, L.

Campbell of Alloway, L.

Addington, L.

Carnegy of Lour, B.

Alexander of Weedon, L.

Carrington. L.

Allenby of Megiddo, V.

Cavendish of Furness, L.

Alton of Liverpool, L.

Chalker of Wallasey, B.

Anelay of St Johns, B.

Chan, L.

Arran, E.

Chorley, L.

Ashcroft, L.

Clement-Jones, L.

Astor of Hever, L.

Cobbold, L.

Attlee, E.

Coe, L.

Avebury, L.

Colville of Culross, V.

Barker, B. [Teller]

Colwyn, L.

Beaumont of Whitley, L.

Cope of Berkeley, L.[Teller]

Blackwell, L.

Craig of Radley, L.

Blaker, L.

Crickhowell, L.

Blatch, B.

Cumberlege, B.

Bledisloe, V.

Dahrendorf, L.

Bowness, L.

Dean of Harptree, L.

Bradshaw, L.

Denham, L.

Bridgeman, V.

Dholakia, L.

Brooke of Sutton Mandeville, L.

Dixon-Smith, L.

Brougham and Vaux, L.

Eden of Winton, L.

Buscombe, B.

Elles, B.

Byford, B.

Elliott of Morpeth, L.

Caithness, E.

Elton, L.

1877

Emerton, B.

Noakes, B.

Ezra, L.

Northesk, E.

Falkland, V.

Northover, B.

Feldman, L.

Norton of Louth, L.

Ferrers, E.

Oakeshott of Seagrove Bay, L.

Finlay of Llandaff, B.

O'Cathain, B.

Flather, B.

Park of Monmouth, B.

Fookes, B.

Patten, L.

Freeman, L.

Peel, E.

Gardner of Parkes, B.

Peyton of Yeovil, L.

Garel- Jones, L.

Pilkington of Oxenford, L.

Geraint, L.

Plumb, L.

Glentoran, L.

Prashar, B.

Goodhart, L.

Prior, L.

Goschen, V.

Quinton, L.

Gray of Contin, L.

Rawlings, B.

Greaves, L.

Razzall, L.

Greenway, L.

Reay, L.

Hamwee, B.

Redesdale, L.

Hanham, B.

Rees, L.

Harris of Richmond, B.

Rennard, L.

Hayhoe, L.

Renton, L.

Henley, L.

Roberts of Conwy, L.

Higgins, L.

Rodgers of Quarry Bank, L.

Hodgson of Astley Abbotts, L.

Rogan, L.

Holme of Cheltenham, L.

Roper, L.

Howe, E.

Rotherwick, L.

Howe of Aberavon, L.

Russell, E.

Howe of Idlicote, B.

Ryder of Wensum, L.

Howell of Guildford, L.

Saltoun of Abernethy, Ly.

Hunt of Wirral, L.

Sandberg, L.

Hurd of Westwell, L.

Scott of Needham Market, B.

Jacobs, L.

Seccombe, B.

Jenkin of Roding, L.

Selborne, E.

Jopling, L.

Selsdon, L.

Kimball, L.

Sharman, L.

Kingsland. L.

Sharp of Guildford, B.

Knight of Collingtree, B.

Sharples, B.

Laing of Dunphail, L.

Shaw of Northstead, L.

Lamont of Lerwick, L.

Shutt of Greetland, L.

Lester of Herne Hill, L.

Skelmersdale, L.

Lewis of Newnham, L.

Smith of Clifton, L.

Lindsay, E.

Soulsby of Swaffham Prior, L.

Liverpool, E.

Steel of Aikwood, L.

Livsey of Talgarth, L.

Strange, B.

Lucas, L.

Strathclyde, L.

Swinfen, L.

Lyell, L.

Taverne, L.

Mackie of Benshine, L.

Tebbit, L.

Maclennan of Rogart, L.

Tenby, V.

McNally, L.

Thomas of Gresford, L.

Maddock, B.

Thomas of walliswood, B.

Mancroft, L.

Thomson of Monifieth, L.

Mar and Kellie, E.

Tordoff, L.

Marlesford, L.

Trefgarne, L.

Masham of Ilton, B.

Tugendhat, L.

Mayhew of Twysden, L.

Ullswater, V.

Methuen, L.

Vivian, L.

Michie of Gallanach, B.

Waddington, L.

Miller of Chilthorne Domer, B.

Wakeham, L.

Miller of Hendon, B.

Wallace of Saltaire, L.

Monro of Langholm, L.

Walmsley, B.

Monson, L.

Walton of Detchant, L.

Montagu of Beaulieu, L.

Warnock, B.

Montrose, D.

Weatherill, L.

Mowbray and Stourton, L.

Wigoder, L.

Moynihan,L.

Wilcox, B.

Naseby, L.

Williams of Crosby, B.

Newby, L.

Wilson of Tillyorn, L.

Nickson, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Ashley of Stoke, L.

Amos, B. (Lord President)

Ashton of Upholland, B.

Andrews, B.

Bach, L.

Archer of Sandwell, L.

Barnett, L.

1878

Bassam of Brighton, L.

Jay of Paddington, B.

Berkeley, L.

Jeger, B.

Bhatia, L.

Jones, L.

Billingham, B.

Judd, L.

Blackstone, B.

King of West Bromwich, L.

Bragg, L.

Kirkhill, L.

Brennan, L.

Lea of Crondall, L.

Brett, L.

Lockwood, B.

Brookman, L.

Lofthouse of Pontefract, L.

Brooks of Tremorfa, L.

Macdonald of Tradeston, L.

Burlison, L.

McIntosh of Haringey, L.

Campbell-Savours, L.

McIntosh of Hudnall, B.

Carter, L.

MacKenzie of Culkein, L.

Christopher, L.

Mackenzie of Framwellgate, L.

Clark of Windermere, L.

Mason of Barnsley, L.

Clarke of Hampstead, L.

Massey of Darwen, B.

Cohen of Pimlico, B.

Mishcon, L.

Corbett of Castle Vale, L.

Mitchell, L.

Crawley, B.

Morgan, L.

Davies of Coity, L.

Morris of Aberavon, L.

Davies of Oldham,L. [Teller]

Nicol, B.

Dean of Thornton-le-Fylde, B.

Orme, L.

Desai, L.

Ouseley, L.

Dixon, L.

Parekh, L.

Donoughue, L.

Patel of Blackburn, L.

Dormand of Easington, L.

Paul, L.

Dubs, L.

Peston, L.

Elder, L.

Pitkeathley, B.

Evans of Parkside, L.

Plant of Highfield, L.

Evans of Temple Guiting, L.

Portsmouth, Bp.

Falconer of Thoroton, L. (Lord

Prys-Davies, L.

Chancellor)

Radice, L.

Farrington of Ribbleton, B.

Ramasay of Cartvale, B.

Randall of St. Budeaux, L.

Faulkner of Worcester, L.

Rea, L.

Gale, B.

Rendell of Babergh, B.

Gibson of Market Rasen, B.

Richard, L.

Golding, B.

Rooker, L.

Goldsmith L.

Sainsbury of Turville, L.

Gordon of Strathblane, L.

Sawyer L

Goudie, B.

Scotland of Asthal, B.

Gould of Potternewton, B.

Sheldon, L.

Graham of Edmonton, L.

Simon, V.

Gregson, L.

Smith of Leigh, L.

Grocott, L. [Teller]

Stone of Blackheath, L.

Hannay of Chiswick, L.

Taylor of Blackburn, L.

Harrison, L.

Temple-Morris, L.

Haskel, L.

Thornton, B.

Haskins, L.

Tomlinson, L.

Hayman, B.

Turnberg, L.

Hogg of Cumbernauld, L.

Turner of Camden, B.

Hollis of Heigham, B.

Warner, L.

Howells of St. Davids, B.

Warwick of Undercliffe, B.

Howie of Troon, L.

Whitaker, B.

Hughes of Woodside, L.

Whitty, L.

Hunt of Kings Heath, L.

Wilkins, B.

Irvine of Lairg, L.

Williams of Elvel, L.

Islwyn, L.

Williamson of Horton, L.

Janner of Braunstone, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.40 p.m.
Baroness Barker Baroness Barker moved Amendment No. 5:
Page 8, line 7, at end insert—
"( ) Every NHS foundation trust shall publish a statement of its total income and expenditure relating to the goods and services referred to in subsection (4) in each financial year."
On Question, amendment agreed to.
Clause 25 [Dissolution etc. ]:
Baroness Noakes Baroness Noakes moved Amendment No. 6:
Page 11, line 19, at end insert—
"( ) An order may not be made in respect of property and liabilities under subsection (3) if it appears to the Secretary of State that the property remaining in the NHS foundation trust immediately after the transfer will be insufficient to meet the liabilities remaining in the trust at that time unless the Secretary of State has made arrangements which have the effect of leaving the creditors of the trust in no worse a financial position on a dissolution of the trust than if the property and liabilities had not been transferred by the order."
The noble Baroness said: My Lords, this amendment would insert into Clause 25 a new subsection dealing with what happens when a foundation trust is wound up. We had an interesting debate on the financial failure regime on Report. Throughout, we have expressed surprise that foundation trusts, which are classified by the Office for National Statistics as central government, will not be backed by explicit or implicit government guarantees. If NHS foundation trusts have one differentiating characteristic from NHS trusts of the non-foundation variety, that is it.
Accepting that the Government were set upon the policy, our concern shifted to the effect of the Bill, which appeared to leave private sector creditors and lenders to shoulder the whole burden of any financial loss when a foundation trust goes belly up. That would not have been fair. On Report, I thought that I was crying in the wilderness, so little effect did my words appear to have on the Minister. But I am delighted to see that he has tabled other amendments in this group, particularly Amendment No. 28, which will make the first regulations under Clause 26 subject to the affirmative procedure. I shall say no more on my amendment but look forward to the Minister's explanation of his. I fully expect to be able to withdraw my amendment in due course.
When the Minister speaks to his amendments, will he say whether the Government believe that public dividend capital is a liability of a foundation trust? The implication is that the Government would bear loss proportionately with other lenders or creditors. I am not saying that I object to that, but I would like it to be clear, because public dividend capital, throughout its history, which predates its use in the NHS, has always been a form of hybrid financing, not fitting into any private sector pigeonholes. With the use of the private sector insolvency regime proposed in the Bill, it is necessary to be clear.
Clarity is particularly important to lenders and creditors. The Minister said on Report:
"It is clearly very important that the insolvency regime applied to NHS foundation trusts is completely transparent so that those who are thinking of doing business with them can properly assess the risks, particularly should one fail".— [Official Report, 6/11/03; col. 1029.]
We agree, which is why I hope that the Minister will clarify today the status of PDC. I beg to move.
4.45 p.m.
Lord Warner: My Lords, we listened carefully to concerns raised by the noble Baroness that the provisions on dissolution could be applied in a way that was unfair to creditors. Although that was not our intention, we saw that we needed to address legitimate concerns. We therefore propose to introduce safeguards to address those concerns, through Amendment No. 10 and its consequential amendments, Amendments Nos. 7, 8 and 9.
In earlier debate about the failure regime for NHS foundation trusts, we made it clear that the Secretary of State must be able to ensure the continuity of essential NHS services. I do not believe that there is any difference between us and the opposition Front Bench on that. New subsection (4), to be introduced by Amendment No. 10, makes explicit that any transfer of assets made by the Secretary of State must be motivated by the need to ensure continuity of the protected services that the NHS foundation trust is required to provide under its terms of authorisation.
Only property linked to the provision of protected services may be transferred—for example, hospital buildings and equipment—and liabilities may be transferred only to the extent that that is necessary to ensure the continuity of protected services, not simply because they relate to, or arise from, the provision of those services. The intention is that the Secretary of State would transfer only those liabilities that relate to his interest in the failed NHS foundation trust, including public dividend capital, loans made for developments in protected services and contractual liabilities relating to staff, together with any fixed charge on property transferred. He would not selectively transfer liabilities beyond that in a way that would favour some creditors over others.
We have also made it clear that the Secretary of State would not remove valuable assets from an NHS foundation trust without recompense, which could penalise creditors by reducing the funds available for distribution in winding up. New subsection (5) requires the Secretary of State to ensure that any transfer does not result in a net loss of value to the NHS foundation trust. That means that if the value of the assets transferred by the Secretary of State to ensure continuity of protected services is greater than the value of the liabilities transferred, as described above, the Secretary of State will need to fund the difference. He can do that under his powers in Clause 11(2). The funds injected by the Secretary of State would then be available to the NHS foundation trust's creditors for distribution in winding up.
New subsection (5) will have the same effect as intended by opposition Amendment No. 6. I hope that the opposition Front Bench will find it an acceptable alternative to their amendment. Subsection (5) includes a power to make regulations setting out the rules on how the net value is to be calculated. That will include rules on how the assets and financial liabilities are to be valued. As a result of Amendment No. 28, the regulations will be subject to affirmative procedure in the first instance, with subsequent sets of regulations subject to the negative procedure.

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New subsection (6) ensures that the Secretary of State, in applying a modified version of the Insolvency Act 1986 to wind up an NHS foundation trust, cannot modify insolvency law to discriminate between different types of creditor. Once a winding-up procedure has begun under Clause 25(4), the NHS foundation trust's debts must be dealt with according to the same priority that applies in the Insolvency Act.
We intend to ensure that creditors have sufficient information to assess the risk of doing business with an NHS foundation trust—not in the expectation that every small business dealing with an NHS foundation trust would assess its creditworthiness, but because, as a point of principle, it should be no more difficult for potential creditors that wish to make such an assessment than if they were dealing with a company. NHS foundation trusts will, therefore, be required in their accounts clearly to set out the Secretary of State's interests so that creditors can easily see what property and liabilities may be transferred by the Secretary of State when winding-up procedures begin.
No amendment is required to effect that aim; it is secured through the requirement for the Treasury to approve the accounting requirements for NHS foundation trusts that appear in the schedule on the constitution of public benefit corporations. That schedule would need to be re-introduced if NHS foundation trusts are to be established, and we will look to the other place to do so.
In response to the noble Baroness's question, public dividend capital is an asset of the Consolidated Fund. It is issued to NHS organisations on the basis that it can be required to be repaid, and, as such, is a liability.
Baroness Noakes: My Lords, I thank the Minister for that explanation and for taking on board the points made in earlier stages. I still believe that this is a hugely complicated area. I hope that we now have sufficient legislative cover. As the Minister is aware, I am moving from the health brief to pastures new and would like him to know that I am looking forward to the first affirmative regulations under this clause. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 [Sections 23 to 25: supplementary]:
Lord Warner Lord Warner moved Amendments Nos. 7,8,9 and 10:
Page 11, line 31, leave out subsection (1).
Page 11, line 32, at beginning insert "In sections 24 and 25"
Page 11, line 33, at end insert "under section 24(2)"
Page 11, line 39, at end insert—
"(4) The power conferred by section 25(3) is to be exercised with a view to securing the provision of the goods and services which the authorisation requires the trust to provide.
(5) That power is also to be exercised (together, if required, with the power conferred by section 11(2)) with a view to securing that any transfer of property in pursuance of the power does not result in a net loss of value to the trust; and the question whether a transfer would result in a net loss of value is to be determined in accordance with regulations.
(6)The Insolvency Act 1986 may not be modified under section 25(6) so as to alter the priority of debts or the ranking of debts between themselves."
On Question, amendments agreed to.
Clause 31 [Patients' Forums]:
Lord Warner Lord Warner moved Amendment No. 11:
Page 14, line 11, after "each" insert "NHS"
The noble Lord said: My Lords, we accepted the will of the House by accepting amendments on Report to Clause 31 that provide for all NHS foundation trusts to have a patients' forum on the same basis as NHS trusts. The amendments are technical amendments to tidy up Clause 31 and to ensure that the provisions on patients' forums in the 2002 Act apply to NHS foundation trusts in the same way as they apply to NHS trusts. I beg to move.
Lord Clement-Jones: My Lords, I would like to thank the Minister for graciously accepting the will of the House—in his words. He is right to do so, and we fully accept the spirit of the amendments.
On Question, amendment agreed to.
Lord Warner Lord Warner moved Amendments Nos. 12 to 14:
Page 14, line 11, at end insert—
"(b) in subsection (9), in the definition of "relevant overview and scrutiny committee", for "or NHS trust" there is substituted ", NHS trust or NHS foundation trust"."
Page 14, line 15, leave out from "reports)" to "there" in line 18 and insert "in subsection (2)—

(a)in paragraph (c)(ii), after "NHS trust" there is inserted "or NHS foundation trust",

(b) after paragraph (d)"

Page 14, line 26, at end insert ", and
(b) in subsection (4)(a), after "NHS trust" there is inserted "or NHS foundation trust."
On Question, amendments agreed to.
Clause 36 [Offence]:
Lord Warner Lord Warner moved Amendment No. 15:
Page 15, line 30, leave out from "form" to end of line and insert "of the particulars of his qualification to vote as a member of the constituency for which the election is being held"
The noble Lord said: My Lords, the Bill requires members of an NHS foundation trust, when voting, to make a declaration that they are eligible to do so. Amendments Nos. 15, 16 and 17 remove that requirement and replace it with a requirement that voters confirm their details, including their qualification to vote. That provides a mechanism for the NHS foundation trust to make sure it has up-to-date details of all its members. That need not be an onerous requirement for members—there could be two sections on the voting paper, for example, one for voting, and another for members to complete with their details. Amendment No. 18 removes the requirement on staff to make a declaration when they vote, since it seems reasonable to assume that an NHS foundation trust would in any case hold up-to-date details on staff members. In addition, noble Lords will recall that, in response to an amendment tabled by the noble Lord, Lord Hunt, on Report, we indicated that we would consider amending the Bill to give NHS foundation trusts discretion to adopt an opt-out system for membership of the staff and patient constituencies. Such amendments would, however, need to be made to the former Schedule 1, which noble Lords voted to remove

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from the Bill on Report. If we are successful in restoring the Schedule in another place, we may pursue the issue. The amendments would facilitate the introduction of any such provisions. However, I would make the point that they also stand alone, and are not dependent on the making of other amendments in the other place. I beg to move.
On Question, amendment agreed to.
Lord Warner Lord Warner moved Amendments Nos. 16 to 18:
Page 15, line 32, leave out "that he is" and insert "of the particulars of his qualification to vote as"
Page 15, line 37, leave out "that he is" and insert "of the particulars of his qualification to vote as"
Page 15, line 38, at end insert—
"( ) This section does not apply to an election held for the staff constituency."
On Question, amendments agreed to.
Clause 48 [Introductory]:
Baroness Finlay of Llandaff Baroness Finlay of Llandaff moved Amendment No. 19:
Page 19, line 5, at end insert ", and
( ) the implementation of ethical principles in decision making processes"
The noble Baroness said: My Lords, at previous stages of the Bill, we have debated issues surrounding equity and ethics and, on Report, the Minister expressed sympathy with my amendment but pointed out the problem with the wording, which included the word "equity". The Minister said that CHAI judgments could not cut across difficult decisions involving weighing up all relevant factors. This amendment, therefore, uses the words,
"the implementation of ethical principles".
CHAI will not be able to judge on the clinical results alone, but must ensure that the principles are implemented.
The Minister stated that the issues are traditionally left to the General Medical Council and other regulatory bodies—as they should be. I quote briefly from the General Medical Council booklet, Management in Health Care: The Role of Doctors, which is consistent with the guidance set out by the British Association of Medical Managers, the Institute of Health Services Management and the UKCC for Nursing, Midwifery and Health Visiting. It states:
"Conflicts may arise… when the needs of an individual patient and the needs of a population of patients cannot both be fully met. Dilemmas of this kind have no simple solution. When taking such decisions, doctors should take into account the priorities set by Government and the NHS and/or their employing or funding body. But they must also be clear about their own role. As clinicians, doctors must make the care of their patients their first concern, bearing in mind the effects of their decisions on the resources and choices available for other patients. As managers, doctors must allocate resources in the way that best serves the interests of a community or population of patients. In both roles doctors should use evidence from research and audit to make the optimum use of the resources available".
It is precisely the weighing up of decisions and the difficulty behind clinical decisions that demand an ethical approach.
In the Bill as it is worded, CHAI will be charged with the effectiveness of healthcare economy and efficiency and looking at information provided to the public. It will also need to safeguard and promote the rights and welfare of children. However, I am concerned about groups in the population who are vulnerable but are not children. There are issues for those with severe disabilities, communication problems or complex social needs and for those in custody.
The inspectorate of CHAI is charged not only with looking at NHS providers, but non-NHS providers who provide for NHS patients. That is where my greatest concern lies. Where there is pressure on the resources, it is much easier to provide for those patients who will not be disruptive, will not take up a lot of staff time and who will be easier to discharge back into the community when prioritising. However, that may not be to treat on the basis of clinical need. That is the background to those concerns, and I would like CHAI to ensure that the ethical principles of autonomy, beneficence, non-maleficence and justice— justice to the individual and to the population served, as outlined in the GMC booklet and in guidance to the other professions—are being adhered to. If not, we will fail the very population that any NHS service must seek to meet. I beg to move.
Baroness Barker: My Lords, I support the noble Baroness, Lady Finlay of Llandaff, in her excellent argument. Throughout our debate, we have primarily focused on the issue of equity. Today we move away from that—happily, in my view—to examine the far more important element of ethical principles.
On Report, when the Minister addressed these matters, he said:
"As for equity in terms of ethical decision making, we believe that traditionally, many of those issues should be left to the General Medical Council, and to the other regulatory bodies of the healthcare professions".— [Official Report, 10/11/03; col. 1148.]
I believe that that is a mistake on the issue.
While we are not concerned about whether the General Medical Council adheres to, recognises or upholds ethical principles, we are concerned that, in practice, government policy forces clinicians to abandon some of those ethical principles. Therefore, the reason for wanting these words in the Bill is not to put any restraint on the GMC, but to ensure that government policy does not traduce those important fundamental principles.
Throughout the debates, we have talked about the extent to which management measures have been given greater pre-eminence than medical and clinical principles, which we have always believed to be wrong. It is an important protection for the health service that government policy should not produce the kinds of dilemmas about which the noble Baroness, Lady Finlay of Llandaff, spoke.
I do not understand why it has never been explained satisfactorily why economy and efficiency are sufficiently important to be in the Bill, but ethical principles are not. The Minister has one last chance to convince us on this matter, but his track record to date

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does not fill me with great hope. This is a fundamental and important matter. I therefore support the noble Baroness wholeheartedly.
5 p.m.
Baroness Masham of Ilton: My Lords, I, too, support the amendment. Ethical principles written in the Bill would safeguard many very vulnerable people; one has to look only at the huge pressures on the National Health Service as regards the mentally ill, drug abusers and some very unpopular kinds of patients.
Lord Walton of Detchant: My Lords, I, too, support the amendment. It is perfectly true that the General Medical Council gives advice to the medical profession about ethical principles that should be followed. Indeed, so, too, does the British Medical Association, which publishes a very weighty volume on the responsibilities of doctors. But, surely, one of the principles of medical care in the National Health Service must be that ethical principles should be foremost in the minds of every doctor and every healthcare professional in the management of disease and in their treatment of patients. I therefore warmly support the amendment.
Lord Warner: My Lords, indeed, this has been an educational Bill; I have had to brush up my accountancy and now my philosophy and ethics as well. I have a great deal of sympathy with what I think is intended in the amendment, but its practical effect continues to bother me.
As I understand it, ethical principles do not have any set meaning, but would cover issues such as patient consent to treatment and the use of novel drugs or treatments by NHS bodies. On enquiring further into this area, it seems that there are differing views as to which precise ethical principles should be used.
I agree that CHAI has a role in considering ethical matters, but that role is adequately covered already. CHAI must consider whether NHS bodies have appropriate procedures in place to ensure that proper regard is given to ethical considerations by appropriate persons when decisions are taken in individual cases; it must consider whether those procedures are being followed. That is relevant to its consideration of the availability of, and access to, healthcare and the quality and effectiveness of healthcare, which is provided for in the Bill.
CHAI's Vision document makes clear the inspectorate's intention to assess the quality of healthcare provided from the patients' perspective. In doing so, Sir Ian Kennedy, has made clear his intention to take the concerns of current healthcare inspection one step further and reflect, particularly, the rights and entitlements of a myriad of vulnerable people in its assessments and, in doing so, promote the social justice concept of "equal citizenship".
However, we do not envisage CHAI reviewing decisions made by doctors or ethics committees in individual cases. Ethical questions typically involve
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balancing the risks to individuals of particular treatments against the benefits of those treatments for them and the benefits to wider society. Traditionally, that is a matter for doctors, other health professionals and research ethics committees, acting under the guidance of bodies such as the General Medical Council.
As I previously said both in Committee and on Report, the General Medical Council is concerned with giving guidance to doctors on ethical matters. What it considers to be the "duties of a doctor" is already well documented. Furthermore, the council builds on those principles in guidance covering both general aspects of good medical practice and more specific areas, such as confidentiality and consent. In short, it has a long tradition in medical self-regulation, which should continue.
There is a real risk that giving CHAI a core task, which is what the amendment would do, of reviewing the "implementation of ethical principles" would cut right across the remit of the General Medical Council. It could lead to CHAI proposing a set of ethical principles that conflicted with guidance from the GMC. That might be inadvertent, but it could have the same consequence. It could also lead to duplication in inspection activities when we are trying to make the inspection of healthcare more efficient and less burdensome on the professions.
I sympathise with the sentiments behind the amendment, but I continue to believe that it is unnecessary and unworkable. Therefore, with the greatest respect, I ask the noble Baroness to withdraw the amendment.
Baroness Finlay of Llandaff: My Lords, I have listened carefully to the Minister and I am most grateful for the interventions from other noble Lords. The noble Baroness, Lady Barker, was very clear that government policy must not produce dilemmas or pressures which would drive against the interests of the population to be served.
The noble Baroness, Lady Masham, also outlined the pressures on the NHS, particularly from the mentally ill and drug abusers. I am grateful, too, to the noble Lord, Lord Walton, for pointing out that these principles should be at the front of every healthcare professional's mind.
I hear what the Government say about the effect of the amendment and I hear their concerns that it could cut across the remit of professional bodies. I am most persuaded by the argument that there could be a risk of duplication of inspection activities or an increased burden from inspections. As it is, healthcare professionals are already bowed down with the amount of inspections. Perhaps that is the one argument given by the Minister which is beginning to persuade me that giving the task to CHAI may not be helpful.
I am also glad to hear that CHAI will have proper regard to appropriate decisions and procedures being in place for decision making. From the patient's perspective, the quality of healthcare is of concern, as well as their rights to entitlement of healthcare. CHAI

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will have the ability to look at clinical records. With those reassurances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 102 [Transfer of functions to CHAI and CSCI]:
Baroness Barker Baroness Barker moved Amendment No. 20:
Page 44, line 13, after "Part" insert "insofar as they do not carry out excepted treatment"
The noble Baroness said: My Lords, on Report we had a most interesting debate about the interface between CHAI and CSCI. Noble Lords will perhaps recall the noble Baroness, Lady Howarth of Breckland, intervening in that debate. She helpfully enabled us to clarify that the point of most concern to noble Lords was the involvement of CHAI in the inspection of healthcare in settings that are primarily concerned with the provision of social care.
I expect that noble Lords, like me, have received a letter from the shadow chairs of CSCI and the Commission for Healthcare Audit and Inspection, for which I am most grateful. To an extent, they have gone some considerable way towards addressing the fears expressed by noble Lords. However, I am not sure that they have managed to allay them altogether, in that they repeat many of the arguments made on previous occasions by the Minister.
My concern is not that CHAI should assume responsibility for the inspection of social care services; that is not an appropriate use of that body's experience or resources. My concern has always been that it should be involved in the inspection of the medical care given—perhaps not frequently and not to any great extent—in social care settings. The great disappointment of the letter from the shadow chairs of CSCI and CHAI is that they have failed to recognise that point. Had they admitted that, at the moment, there is a considerable problem which is not being addressed, perhaps I would feel more confident.
Only last week, yet another report was published that was almost unchanged from that produced some time ago by my honourable friend in another place, Mr Paul Burstow, about the overuse of sedation in residential homes. I do not believe that the people employed by CSCI will have the wherewithal to recognise or to deal with such issues. The letter goes on to discuss conditions such as diabetes, those which can be managed well and are unlikely to be life threatening. Indeed they are well managed, but it would be an inspection by representatives of CHAI rather than CSCI that would reveal the bad management or mismanagement of a diabetic condition, which could then become life threatening.
I take heart from and cannot ignore the undertaking given by the shadow chairs that they will seek to work together under the powers provided in Clauses 120 and 123, which places a duty on the two bodies to co-operate. However, I would be a great deal more convinced if the shadow chairs had detailed how they will go about doing that, in particular in the circumstances mentioned by noble Lords throughout our debates. There is an existing problem here.
I accept that providers that are principally providers of healthcare not in an acute setting do not wish to be burdened unnecessarily with inappropriate inspections by CSCI, but the lack of detail is what bedevils me. I hope that, in responding to the amendments, the Minister can put to rest some of my fears. I beg to move.
Earl Howe: My Lords, I should like to support the noble Baroness in all she has said. What concerns me most about this issue is that everything rests far too much on chance. Whether a particular clinic is to be regulated by CHAI or by CSCI often has little to do with logic and much more to do with an accident of history. As the noble Baroness pointed out, the dividing line between what is healthcare and what is social care is not one that can be drawn neatly or easily. Some treatment centres will end up being regulated by CHAI, while others will be the responsibility of CSCI. In such circumstances, where the basis of regulation is haphazard, then we must make an effort to introduce some consistency.
The Government favour CSCI as the regulator for the kinds of establishment we have been discussing. The Minister was right to say in Committee that such clinics focus to a great extent on nursing and personal care, but there is also an important element of acute medical intervention by doctors and specialists. If we do not regulate appropriately the medical care element as well as the nursing care element, then the effectiveness of those treatment centres will suffer.
The question is, therefore, which body is better equipped to undertake both kinds of regulation. I do not think that there is any doubt that it is CHAI. If, as we have been told, CHAI is to be the regulator for some of these establishments, then we need to ask whether the principle of consistency is better served by a conscious decision to make CHAI the regulator of them all.
5.15 p.m.
Baroness Finlay of Llandaff: My Lords, I strongly support this group of amendments. I am concerned about the patient who finds himself in the wrong place of care. I refer in particular to the vulnerable patient who develops an acute medical condition which, if treated, is eminently reversible, but if left untreated may be life threatening or, more seriously, may leave the patient with an ongoing disability that worsens their overall condition and leaves them even more vulnerable. The difficulty here is that only a degree of expert knowledge will pick up the elements of clinical mismanagement that may be taking place, and I am not convinced by the previous arguments put forward that a socially orientated inspectorate will have either the background knowledge or the clinical acumen to spot such problems if they arise. I say that bearing in mind in particular those patients who may be languishing in the wrong type of institution because their clinical status has changed.

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We need to see very clearly defined roles and responsibilities for each of the inspectorates, along with working protocols and, I would hope, joint inspections. It is on that basis that I support the amendments.
Lord Warner: My Lords, I must respond to the amendments as they have been tabled on the Marshalled List. However, I do not deny that sometimes there are difficult issues of judgment to be made in relation to the regulatory arrangements about which the noble Baroness, Lady Barker, has expressed her concerns. I have expressed some sympathy for the thinking behind the amendments discussed at earlier stages. However, the amendments before the House do not solve the problem, and I should like to take noble Lords through the arguments.
The amendments would have the effect of giving CHAI the function of regulating under Part 2 of the Care Standards Act 2000 institutions carrying out "excepted treatments". I recall that it was unclear in Committee what the excepted treatments were to be and I am afraid that it remains unclear now. We have debated at length the difficulty in setting boundaries for regulation between health and social care. These amendments would take us no further forward in that debate, but would, if passed, fundamentally undermine the regulation of social care services to the detriment of service users. I shall come back to the letter which has been sent to noble Lords by the shadow chairs of the two inspection bodies.
The intended effect of the amendments is to make CHAI the regulator in the case of all services providing support to people with long-term conditions. I do not doubt the sincerity of noble Lords, but I believe that it would be fundamentally wrong and detrimental to the welfare of many thousands of people using these services to take such a step. To agree to the amendments would be, in effect, to wreck Part 2 of the Bill because they would drive a coach and horses through the system of registration set out in Part 2 of the Care Standards Act 2000.
This system of registration is based on the premise that establishments of a particular type must register as such before they may lawfully operate. Any relevant establishment which does not register will be operating unlawfully and its managers liable to prosecution. Accepting the amendments would mean that the identity of the commission with which the establishment in question was required to register could change on a regular basis, leading to complete confusion and making the registration system established by the Care Standards Act 2000 effectively inoperable.
I shall explain why this is so. Amendment No. 22 would defined "excepted treatment" as the,
"treatment of long-term conditions and substance and addictive behaviour treatment".
This is fraught with difficulties, as we discussed in some detail in Committee. The effect of the amendment is that a care home which has residents with long-term conditions would be regulated by CHAI rather than CSCI. That would be contrary to
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what all sides have previously accepted as "social care". The Bill does not define a "long-term condition" and so our advice is that it would most likely be interpreted by the courts to mean any medical condition, however manageable, which cannot be cured in the short to medium term, but can be managed with medication.
Let me give one or two examples to illustrate the concerns. There might be in a care home a resident over 65 who has mild diabetes—or, indeed, Parkinson's, as my mother has. These conditions are easily treated by self-medication, with or without the assistance of care home staff, but they are long-term conditions. Treatment for these kinds of conditions may require only intermittent intervention from a GP or other health professional but, on the other hand, because of their general age and infirmity, such persons might need constant personal care. Which is the prime need? In this instance, I would suggest it was personal care rather than healthcare and that CSCI should inspect.
Another example is that of people in care homes who are receiving services for alcohol or drug abuse. They may need some healthcare input but in the majority of cases counselling and support about their life circumstances and lifestyles will be equally important. Such counselling, as well as other support with personal care needs, is as fundamental to the successful treatment of substance abuse as any health support. This kind of counselling has always been considered as part of the social care provision of such services and I find it hard to see how these amendments would ensure the proper regulation of such provision. I could give many more examples but the two that I have given will suffice to support the point that I am trying to make.
I do not believe that it was the intention of noble Lords to bring the regulation of such services within the responsibility of CHAI, given that we are establishing CSCI and taking over responsibilities in social care. But that is the effect of the amendments. They call into question the legal basis of regulation currently applied under the Care Standards Act in a large array of cases. This would have truly perverse consequences and cause great confusion in the services.
There are more than 10,000 care homes in England providing homes to many tens of thousands of older people and adults. As I have explained, the amendment could also have implications for other types of registered services such as children's homes or domiciliary care agencies. I find it hard to believe that, in spite of the potential harm this would cause, especially to older people, noble Lords would want to throw the system of registration established by the Care Standards Act into such array.
The chairs of CSCI and CHAI have written to noble Lords to express their concerns about the amendments. It was their decision to do so. They were not put up to it by the Government. They have made those representations because of their concerns about

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the disarray that might be caused in this area. I hope that noble Lords will heed their concerns, even if they will not heed me.
As I stated in Committee, the Bill provides in Clauses 120 to 123 for co-operation and joint working between CSCI and CHAI. The intention is that the commissions should be able to plan to work together, to review the quality of any joint services provided by or for the NHS and local authorities and to share expertise where services regulated by either commission have substantial health or social care aspects. This allows, for example, CSCI to seek the assistance of CHAI when inspecting care homes or other social care services providing nursing or associated health services so that professional issues can be appropriately covered.
I ask the House to reconsider the issue very carefully. This is a potentially extremely damaging amendment, as the shadow chairs of both CHAI and CSCI have expressed to your Lordships.
Baroness Barker: My Lords, I thank all noble Lords who have contributed to the debate. On behalf of all noble Lords, I should like to place on record our thanks to the shadow chairs of the two bodies for their letters and for their appreciation of the reasoning and concerns behind the amendments. It is heartening to know that there will be a commitment to co-operation from the chairs of those bodies.
I remain in great sympathy with the noble Earl, Lord Howe. The role that chance plays in the places in which people find themselves and the kinds of services they receive is immense. The blurring between nursing care and residential care is getting greater and greater all the time. There will have to be a step change in the degree of co-operation between CSCI and CHAI if we are ever to have the kind of system we need where the amount of inspection and regulation from each body can vary but is appropriate to the needs of patients. I continue to retain a great fear that people who are receiving what is primarily social care are being subjected to inappropriate medical procedures.
I have listened with great care to what the Minister said about the effect of the amendment on the implementation of the Care Standards Act and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 21 and 22 not moved. ]
Baroness Barker Baroness Barker moved Amendment No. 23:
Before Clause 113, insert the following new clause—
"COMPLAINTS

(1) Complaints under this Act may be made by an individual or a body of persons, whether incorporated or not, as specified in section 3.

(2) A complaint may be submitted in respect of—

(a) the exercise by an NHS body of any of its functions;

(b) the provision by any person of health care for which the body is responsible;

(c) the provision of an NHS service by a health professional supplied under private contract; and

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(d) the provision of services by the body or any other person in pursuance of arrangements made by the body under section 31 of the Health Act 1999 (c. 8) (arrangements between NHS bodies and local authorities) in relation to the exercise of the health-related functions of a local authority.

(3) A complaint may be initiated by—

(a) the aggrieved patient, or

(b) on behalf of the patient by—

(i) his personal representative;

(ii) a member of his family;

(iii) an independent advocate; or

(iv) some body or individual suitable to represent him.

(4) Where the patient lacks capacity, a complaint may be initiated independently by any person able to exercise an enduring power of attorney for the patient under the Enduring Powers of Attorney Act 1985 (c. 29) or successor legislation, or the patient's carer under the Carers (Recognition and Services) Act 1995 (c. 12) or the Carers and Disabled Children Act 2000 (c. 16) (or both), or their Guardian under the Mental Health Act 1983 (c. 20) or successor legislation."

The noble Baroness said: My Lords, I return, I hope for the last time, to the subject of complaints—a subject which is close to my heart. On Report, the noble Baroness, Lady Andrews, made a characteristically thorough demolition of the amendments that I had brought forward on this subject. She will be delighted to know that I listened to every word she said and that I have come back with a carefully crafted amendment that addresses every point she put forward.
Why do I bother at this late stage of the debate? Because complaint procedures are an important part of patient protection and patient involvement in the healthcare system. While the noble Baroness, convincingly and at length, spoke about the benefits of having complaint procedures in regulations so that they can be changed, there is nothing on the face of the Bill which provides an enabling power to establish a complaints procedure. We believe that to be a major deficiency. The existing NHS complaints procedure is fraught with inefficiencies and does not work. When we move to the new system, as we will, it is important that we do so on the basis of a procedure that does work.
We have tried to address many deficiencies in the amendment. We referred to the role of CHAI. The Minister expressed concerns at an earlier stage that our amendment widened the field of complaint beyond individual patients, and so we have changed it to specify in subsections (3) and (4) who can make a complaint.
We spoke about how CHAI should take over responsibility for second stage health complaints and we have attempted to put right a number of the problems in the existing procedures. We want to ensure the independence of complaints procedures; we want to provide a mechanism for ensuring that feed-back is given to people who make complaints; and we want to drive up standards.
We have spoken about the need to integrate complaints procedures with ICAS and the Commission for Patient and Public Involvement in Health proposals,

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which, I am delighted to report, are now known on the ground as "Chippy" proposals. We have spoken about fast-track procedures for the ombudsman stage of complaints where CHAI deems that to be appropriate and, crucially, we have spoken about harmonisation between health and social services complaints procedures.
One has only to talk to users out there for not a very long time to find that there are people who are battered back and forth between the two different parts of the complaints procedure and never get a satisfactory answer. It is the potential for being battered between different bodies—between CHAI and local complaints procedures—that may be a possible cause of huge dissatisfaction with the complaints procedure.
We talked again about the need for oral hearings. When people have complaints or, more than that, are simultaneously dealing with matters such as bereavement, the right to have an oral hearing can be extremely important to everyone concerned. So far, we believe that the Minister's promises about regulations have addressed some of our complaints. However, without that power in the Bill, we believe that there is a deficiency.
Finally, the legislation so far includes only complaints about NHS bodies; it does not refer to complaints procedures as they might apply to private contractors when services are contracted out.
For all those reasons, I hope that the Minister accepts that I have gone away and done my homework and presented her with a perfect amendment. I beg to move.
5.30 p.m.
Baroness Andrews: My Lords, I share the sense of déjà vu that the noble Baroness clearly demonstrated. I was obviously far too helpful on Report. Her amendment is a good one but, I am afraid, not good enough. I want to explain why that is so, and to reiterate how much we share her concern that the process should be as robust, sensitive and effective as she said that it should be—and I could not improve on the way in which she said that. The complaints procedure needs to do exactly what it intends to do.
Clause 113(1) is intended to set out in general terms what a complaint under regulations may be about. Clause 115 expands on the types of provision that can be made in regulations. Amendment No. 23 would place a detailed provision in the Bill, stipulating precisely who might make a complaint under the regulations, while stating in slightly more detailed terms what a complaint may be about. I was hoping that I had been able to reassure noble Lords in Committee and on Report that the concerns they are raising through this amendment would be dealt with, and better dealt with, through regulations. This is not a question of the Government being perverse or obstructive; we are convinced of this case, and I shall say again why I believe that.
The amendment has attempted to address one of the deficiencies that I highlighted. The previous version did not address the question of capacity. However, the
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added wording on capacity highlights the fundamental problem with the amendment, because it adds too much detail. Subsection (4) of the amendment is over-prescriptive, and is not helpful about the persons who may make a complaint on behalf of a person who lacks capacity. Precisely because it would not be possible to modify provisions should circumstances change, the danger is that by having that in the Bill, we would make the system less rather than more accessible to such a person.
The regulation-making power in Clause 115 already allows the Secretary of State to make appropriate provision for persons making a complaint. Subsection (2) of the amendment adds nothing of substance to the existing provision in Clause 113(1). Subsection (l)(b) already covers all healthcare by or for an NHS body, including services commissioned from the independent sector. Therefore, I believe that the noble Baroness's point is covered.
With regard to the specific content of subsections (3) and (4) of the amendment, I assure the noble Baroness, as I did in Committee and on Report, that it is our intention that regulations will make provision to enable the types of person listed in those subsections to assist a complainant in bringing a complaint or, where appropriate, to bring a complaint on their behalf. We intend to consult fully on those regulations to ensure that they are as full and complete as possible. I must repeat again what I said in Committee and on Report—that subsection (3) of the amendment is not detailed enough. It makes little reference to the patient himself or herself, to his or her consent to having the complaint made, or the involvement that he or she might have in the process, despite the fact that the noble Baroness is a great champion of the consent process. We can do all that in regulations; that is the genius of the regulatory system.
Meanwhile, the relationship between subsections (3) and (4) of the amendment is not clear. It is unclear whether a member of a patient's family may initiate a complaint on behalf of a patient without capacity, as such a person, although specified in subsection (3), is not specified in subsection (4). That would create more problems than it solved. Subsection (4) sets out a precise list of which persons may make a complaint on behalf of someone who lacks capacity but does not allow scope for the list to be expanded or contracted, or for the person handling the complaint to exercise discretion over which persons should be allowed to act as representatives. That is why a broad regulation-making power such as is contained in Clause 115 will allow the Secretary of State scope to deal with the very complex issues of patient consent and incapacity in an appropriate way. It also means that the class of persons who may bring a complaint is appropriate and flexible, and not too narrow or too wide.
I reiterate that consultation is very important and that we have to get the process right. I conclude with a positive restatement of that. It is our role to ensure that the complaints procedures that we adopt truly reflect the needs of patients, service users and others who have an interest in the consideration of complaints. The Bill provides us with an opportunity, and we want to make the best possible use of that opportunity. To

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do that, we must consult widely on the content of the regulations so that we can be in a position to respond to comments received. It would be nonsense not to be able to do so. We must make changes when people come up with sound reasons for doing so. It would be a betrayal of what we were trying to do if we were not in a position to do that. Having the detail in the Bill suggested by the amendment would restrict our ability to respond to the results of the consultation. Indeed, we would have to amend primary legislation if specific changes were required. It would also disable us from dealing with future changes.
I do not really need to add the following, but I shall. At this stage in the parliamentary process, we could not be sure that any detailed provision we produced would be sufficient to cover all possible eventualities— for much the same reasons as I have had difficulties with the noble Baroness's amendment. I agree that the Government have the huge benefit of parliamentary counsel on their side, and the noble Baroness has shown enormous resilience and resourcefulness in returning again with the amendment. I wish that I could accept it, but I hope that she is finally persuaded by my arguments that the provisions are better done by regulation.
Baroness Barker: My Lords, I would never accuse the Minister of being perverse or obstructive. I accept her argument. I believe that the discussion has been helpful and that, in fact, it has been helpful to have it repeatedly and in detail, because there is a great deal of concern out there about the scope and extent of the procedures. At this stage, I shall not treat the House to a summary of the upheaval going on around the ICAS project or the Commission for Patient and Public Involvement in Health. There is a great deal of uncertainty out there about how complaints systems will work in practice. It has been good to hear the Minister's statements about the extent of the consultation and of the involvement that different people will have in the process.
Fair game to the Minister—she has parliamentary counsel on her side and I do not. Several noble Lords in the past few weeks have talked about the rugby, but those of us who are Scots or Welsh are far more interested in the football this week. Therefore, on that note, I shall say that it is a score draw to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 145 [Co-operation between Assembly and CHAI]:
The Deputy Speaker (Baroness Lockwood): My Lords, I should point out that, if Amendment No. 24 is carried, I cannot call Amendment No. 25, under the pre-emption rule.
Baroness Andrews Baroness Andrews moved Amendment No. 24:
Page 65, line 7, leave out from "other" to "for" in line 8.
The noble Baroness said: My Lords, I am pleased to speak to government Amendment No. 24 and to respond, at the same time, to Amendment No. 25, standing in the name of the noble Earl, Lord Howe.
When I spoke on Report to an earlier amendment of similar intent tabled by the noble Earl, I undertook to return with a government amendment to meet concerns expressed by him, by the noble Baroness, Lady Finlay, and by other Members of your Lordships' House. Concerns were expressed that English NHS bodies that provided services to Welsh patients under commissioning arrangements made by Welsh NHS bodies—or, indeed, Welsh bodies providing services to English patients—might be the subject of conflicting or duplicated reviews or inspections by both CHAI and the Assembly and that none of that would be in the interests either of those running the health service or the patients themselves.
Government Amendment No. 24 meets the obligation I gave. It strengthens the duty of co-operation between the Assembly and CHAI in Clause 145 by removing all the qualifications. In that way, we are making it absolutely clear that CHAI and the Assembly must co-operate with regard to their relevant functions at all times and in all circumstances in order to avoid unnecessary overlaps or duplication. That will ensure that joint working and mutual support are in place, ensuring that patients' interests are served as well as they can be.
In effect, the government amendment goes rather further than the amendment tabled by the noble Earl, Lord Howe. Clause 145, as it would be amended by the government amendment, requires, as I said, the Assembly and CHAI, without qualification,
"to co-operate with each other for the efficient and effective discharge of any relevant function".
They will be under an unequivocal duty to co-operate with respect to all their functions.
The amendment tabled by the noble Earl would seem to oblige the bodies to consult the other body on each occasion that it exercises a function that affects an English or Welsh body, as the case may be. Our amendment goes further. I would expect CHAI and the Assembly to co-operate with each other on the inspection planning process and as regards their general work plans for their proposed activities over a particular period, in order to anticipate and prevent things going wrong. So it is very much a positive and proactive power rather than a reactive power. We believe that it is preferable to give CHAI and the Assembly the widest scope to determine the precise method of co-operation. The Bill will be extremely clear on those points. I think that that is important as they are new bodies. HIW, in particular, is very much in its formative stage. The government amendment sends a crystal clear signal that that is what we expect to happen. As I believe that our amendment is preferable, I invite the noble Earl not to press his amendment. I beg to move.
Earl Howe: My Lords, very briefly, this seems to me a neat amendment, and I welcome it. I agree that it is superior to the amendment that I tabled, for the reasons that the Minister gave. I certainly will not move my amendment.
We had a useful debate on Report in which the noble Baroness, Lady Finlay, and I raised separate but related concerns on cross-border issues. I know that

1897
the House was grateful to the Minister for saying that she would look at ways of strengthening the duty of co-operation contained in Clause 145. It has always seemed to me that, with the duty qualified as it is, the success of cross-border collaboration and the avoidance of duplication would depend on the extent to which CHAI and the Welsh inspectorate applied themselves to those issues. With the qualification removed, we can all have a lot more confidence that the potential problem areas will be eliminated or at least minimised.
I thank the noble Baroness for recognising the worries that I and a number of others have raised and for addressing them in the amendment.
Baroness Finlay of Llandaff: My Lords, I feel that the noble Baroness, Lady Andrews, deserves congratulations on the way in which she has listened carefully to all the points and negotiated with both CHAI and the Assembly inspectorates. She has given a crystal clear signal that there must be collaboration and co-operation. All we can do now, other than support her amendment, is to wish those inspectorates well in the task that lies ahead of them. There has been a huge amount of work behind the scenes. I think that the amendment neatly addresses the concerns about the future direction which needed to be addressed.
Baroness Carnegy of Lour: My Lords, if I may, I should like to use this debate on cross-border co-operation to thank the noble Lord, Lord Warner, for a helpful letter he wrote in response to a question that I asked about whether Scottish-based patients would be able to use foundation hospitals in England. It was explained to me that, provided the Scottish health body commissioned work from a foundation hospital, that could take place, and that any Scottish-based patient who required accident and emergency help could receive it from an English hospital. I was grateful for that. Although it does not impinge upon CHAI, I hope that I will be forgiven for saying that.
On Question, amendment agreed to.
[Amendment No. 25 not moved. ]
5.45 p.m.
Clause 185 [Replacement of the Welfare Food Schemes: Great Britain]:
Baroness Andrews Baroness Andrews moved Amendment No. 26:
Page 104, line 39, at end insert—
"( ) The Secretary of State may not make a statutory instrument containing the first set of regulations made under subsection (1) unless a draft of the instrument has been laid before, and approved by resolution of, each House of Parliament."
The noble Baroness said: My Lords, I am pleased to move this amendment, which was anticipated on Report. We appreciate that noble Lords felt that there was insufficient detail about our proposals for reform of the Welfare Food Scheme to enable them to be confident that it was appropriate for regulations made under subsection (1) to be subject to negative, rather than affirmative, resolution. We had good debates in Committee and on Report about the emerging scheme.
As I promised on Report, we have considered again the level of parliamentary scrutiny that should be applied to the regulations.
Our amendment will require the first set of regulations made under subsection (1) to be laid before, and approved by resolution of, each House of Parliament. That will ensure that each House has full opportunity to consider carefully the regulations and to debate them. Of course—it goes without saying, but I shall say it—it is still our intention to consult fully all those with an interest in the content of the regulations before they are laid. I hope that noble Lords will find that acceptable. I look forward to our first debate on the affirmative regulations. I beg to move.
Earl Howe: My Lords, it is with much pleasure that I thank the noble Baroness for listening to the concerns raised at earlier stages of the Bill and for fulfilling her undertaking to table the amendment, which I warmly welcome.
On Question, amendment agreed to.
Clause 187 [Appointments to certain health and social care bodies]:
Lord Warner Lord Warner moved Amendment No. 27:
Page 106, line 25, at end insert—
"( ) Nothing in this section applies in relation to the Commission for Healthcare Audit and Inspection or the Commission for Social Care Inspection."
The noble Lord said: My Lords, I wish to speak to all the government amendments in the group. Amendments Nos. 44 to 46, 48 to 50, 53 to 59, 61 and 64 in this group were tabled following your Lordships' decision on Report. They ensure that a special health authority rather than the Secretary of State will be responsible for appointing the chair and members of CHAI and CSCI. In practice, we intend to give that task to the NHS Appointments Commission, which, at present, is the special health authority charged with the making of appointments to NHS bodies. I will return presently to the issue of why we have not named the NHS Appointments Commission in the Bill.
Given the amendments we are proposing in relation to the role of the Secretary of State, Assembly officials have agreed that it would be inappropriate for the Assembly to continue to maintain the power to appoint a member to the board of CHAI. Consequently, the amendments make similar provision in relation to the Assembly's powers to appoint a member of CHAI. We have also provided that other functions of the Secretary of State relating to appointment or removal may be delegated to the special health authority. That was previously dealt with in Clause 187, but it seemed more logical to deal with the entire position concerning those functions in Schedules 5 and 6, rather than partly in Clause 187 and partly in the schedules.
Amendment No. 27 is a technical amendment that clarifies that Clause 187, which gives the Secretary of State a general power to delegate appointment functions in relation to health and social care bodies to a special health authority, does not apply to CHAI and

1899
CSCI, as the exercise of such functions in relation to CHAI and CSCI is now dealt with in Schedules 5 and 6.
We are also proposing Amendments Nos. 51, 52, 62 and 63, which are technical in nature. The amendments clarify that the Secretary of State or the Assembly, in the case of CHAI, may remove a member from office where it comes to light after he has been appointed that he was disqualified from appointment at the time he was appointed.
It may be for the convenience of the House if I give a clarificatory explanation in relation to why the NHS Appointments Commission is not named specifically, which I think is probably the intention behind Amendments Nos. 43 and 60 in the name of the noble Earl, Lord Howe, and the noble Baroness, Lady Noakes. However, the noble Baroness shakes her head so I shall not delay the House further. I beg to move.
Earl Howe: My Lords, it is very good of the Minister to offer to give that explanation. However, in view of the Minister's earlier remarks, I am perfectly prepared to accept not only the letter but also the spirit of the amendments that he has tabled. I thank him for responding in this way to the decision of the House on Report. I am sure that the amendments will be extremely welcome to noble Lords on all sides of the House.
On Question, amendment agreed to.
Clause 195 [Orders and regulations]:
Lord Warner Lord Warner moved Amendment No. 28:
Page 109, line 20, after "section" insert "26,"
On Question, amendment agreed to.
Clause 199 [Commencement]
Lord Warner Lord Warner moved Amendment No. 29:
Page 110, line 22, leave out "section 57" and insert "sections 57 and 61"
The noble Lord said: My Lords, in moving Amendment No. 29, I wish to speak also to Amendment No. 30. As a consequence of the removal or addition of clauses to Part 2 I am tabling consequential amendments to the commencement of Part 2 provisions under Clause 199. These are technical amendments being made for purely practical purposes to ensure that the revised Bill can be commenced in the appropriate manner. I beg to move.
On Question, amendment agreed to.
Lord Warner Lord Warner moved Amendment No. 30:
Page 110, line 23, leave out "and 139" and insert", 139 and 141"
On Question, amendment agreed to.
Schedule 1 [Independent Regulator of NHS Foundation Trusts]:
Lord Warner Lord Warner moved Amendment No. 31:
Page 114, line 5. leave out sub-paragraph (2).
The noble Lord said: My Lords, in moving Amendment No. 31, I wish to speak also to Amendments Nos. 32, 33, 34, 35, 36, 37 and 65.
Amendments Nos. 32 and 35 are technical amendments. They ensure that the chair of the Office of the Independent Regulator will have access to the Principal Civil Service Pension Scheme (PCSPS) if he has previously been a member of that scheme. The wording is taken from the Pensions Act 1995. Without this amendment there would have been doubt over his eligibility for the scheme if he were not already an active member on becoming the chair.
Amendment No. 37 amends the Superannuation Act 1972 by adding the Office of the Independent Regulator to the list of bodies that can admit employees to the Principal Civil Service Pension Scheme. Under the current arrangements in the Bill, staff transferring to the Office of the Independent Regulator who were already members of the scheme would be able to remain members of that scheme upon transfer. This amendment will ensure that all staff members will be able to join the Principal Civil Service Pension Scheme irrespective of whether they have previously contributed to the scheme.
Amendment No. 37 also ensures that the Minister for the Civil Service is reimbursed for expenses incurred in the participation of his staff in the Principal Civil Service Pension Scheme. Amendment No. 65 makes similar provision in respect of CHAI and CSCI. These are technical amendments and introduce standard wording for bodies that can admit members to the Principal Civil Service Pension Scheme.
Amendments Nos. 31, 33, 34 and 36 are consequential to Amendment No. 37. I beg to move.
On Question, amendment agreed to.
Lord Warner Lord Warner moved Amendments Nos. 32 to 37:
Page 114, line 12, leave out "a participant in" and insert "an active or deferred member of"
Page 114, line 14, leave out from "chairman" to end of line.
Page 114, line 16, leave out from "chairman" to end of line.
Page 114, line 18, leave out "was a participant" and insert "is a member"
Page 114, line 19, leave out "or 4(2)"
Page 114, line 19, at end insert—
"(3) Employment with the regulator is to be included among the kinds of employment to which a scheme under section 1 of the Superannuation Act 1972 (c.ll) can apply; and accordingly in Schedule 1 to that Act (in which those kinds of employment are listed), at the end of the list of Other Bodies there is inserted—
"The Independent Regulator of NHS Foundation Trusts".
(4) The regulator must pay to the Minister for the Civil Service, at such times as the Minister may direct, such sums as he may determine in respect of any increase attributable to sub-paragraph (2) or (3) in the sums payable out of money provided by Parliament under the Superannuation Act 1972 (c. 11)."
On Question, amendments agreed to.
The Deputy Speaker: My Lords, I have to point out that if Amendment No. 38 is agreed to, I cannot call Amendment No. 39 under the pre-emption rule.
Lord Warner Lord Warner moved Amendment No. 38:
Page 115, line 11, leave out from "year" to end of line 13.
The noble Lord said: My Lords, we listened to the persuasive arguments of the noble Baroness, Lady Noakes, in Committee on the importance of a summarised account of NHS foundation trusts and responded by introducing amendments to this effect on Report.
However, the noble Baroness spotted a technical error in the government amendments—I am sure that my noble friend Lord McIntosh will look forward to her spotting similar amendments when she moves jobs—which meant that the summarised accounts of NHS foundation trusts would be one year in arrears. I should like to take this opportunity to thank the noble Baroness for her attention to detail.
Amendments Nos. 38, 40, 41 and 42 replace those made on Report, and ensure that the summary of NHS foundation trust accounts is prepared as soon as the regulator receives the accounts from individual NHS foundation trusts. Given that we have tabled these amendments which have a similar effect to Amendment No. 39, I hope that the noble Baroness will feel able to accept these amendments. I beg to move.
Baroness Noakes: My Lords, I just say thank you.
On Question, amendment agreed to.
Baroness Andrews Baroness Andrews moved Amendments Nos. 40 to 42:
Page 115, line 15, leave out "each" and insert "the"
Page 115, line 16, leave out "them" and insert "it"
Page 115, line 16, at end insert—
"( ) The regulator must in respect of each financial year prepare a report which provides an overall summary of the accounts of NHS foundation trusts.
( ) The report must be prepared as soon as possible after the regulator has received the accounts of all NHS foundation trusts for the relevant financial year.
( ) The regulator must—

(a) lay a copy of the report before Parliament, and

(b) once it has done so, send a copy of it to the Secretary of State."

On Question, amendments agreed to.
Schedule 5 [CHAI: supplementary]:
The Deputy Speaker: My Lords, there is a printing error in Amendment No. 44. The amendment should refer to line 28 and not line 29. I shall therefore call Amendment No. 44 next. I shall then call Amendment No. 43.
Lord Warner Lord Warner moved Amendment No. 44:
Page 131, line 29, leave out "body specified in section 187(3)" and insert "relevant Special Health Authority"
On Question, amendment agreed to.
[Amendment No. 43 not moved. ]
Baroness Andrews Baroness Andrews moved Amendments Nos. 45 and 46:
Page 131, line 30, leave out from first "the" to end of line and insert "relevant Special Health Authority who appears to that Authority"
Page 131, line 32, leave out "Secretary of State" and insert "relevant Special Health Authority"
On Question, amendments agreed to.
[Amendment No. 47 not moved. ]
Lord Warner Lord Warner moved Amendments Nos. 48 to 58:
Page 131, line 32, at end insert—
"(1A) In paragraph (a) and (c) of sub-paragraph (1), "relevant Special Health Authority" means the Special Health Authority which is directed by the Secretary of State to exercise the function of appointment under that paragraph.
(1B) In paragraph (b) of sub-paragraph (1), "relevant Special Health Authority" means the Special Health Authority which is directed by the Assembly to exercise the function of appointment under that paragraph.".
Page 131, line 34, leave out "by him"
Page 131, line 38, leave out "by it"
Page 132, line 5, leave out "has become disqualified from holding office" and insert "is disqualified from holding office (or was disqualified at the time of his appointment)"
Page 132, line 12, leave out "become" and insert "are"
Page 132, line 18, at end insert—
"( ) The Secretary of State may direct the Special Health Authority referred to in sub-paragraph (1 A) to exercise so much of any function of his under sub-paragraph (2) or under regulations under sub-paragraph (5) as may be specified in the direction.
( ) The Assembly may direct the Special Health Authority referred to in sub-paragraph (1B) to exercise so much of any function of the Assembly under sub-paragraph (?) or under regulations under sub-paragraph (5) as may be specified in the direction.
( ) The Special Health Authority referred to in sub-paragraph (1A) must consult the Assembly before exercising the function of appointment under sub-paragraph (l)(a) or (c); and the Special Health Authority referred to in sub-paragraph (1B) must consult the Secretary of State before exercising the function of appointment under sub-paragraph (l)(b)."
Page 132, line 20, leave out "this paragraph" and insert "sub-paragraph (2) or (5)"
Page 132, line 22, leave out "the preceding provisions of this paragraph" and insert "sub-paragraph (3) or (5)"
Page 132, line 23, leave out sub-paragraph (9).
Page 132, line 25, leave out "If directions are given under sub-paragraph (9)" and insert "Where directions are given under this paragraph to a Special Health Authority"
Page 132, line 30, at end insert—
"( ) Subsections (4) and (5) of section 187 apply in relation to directions under this paragraph as they apply in relation to directions under subsection (2) of that section."
On Question, amendments agreed to.
Schedule 6 [CSCI: supplementary]:
Lord Warner Lord Warner moved Amendment No. 59:
Page 135, line 13, leave out "body specified in section 187(4)" and insert "relevant Special Health Authority."
On Question, amendment agreed to.
[Amendment No. 60 not moved. ]
Lord Warner Lord Warner> moved Amendments Nos. 61 to 64:
Page 135, line 13, at end insert—
"(1A) In sub-paragraph (1), "relevant Special Health Authority" means the Special Health Authority which is directed by the Secretary of State to exercise the function of appointment under that sub-paragraph.".
Page 135, line 19, leave out paragraph (c) and insert—
"(c) is disqualified from holding office (or was disqualified at the time of his appointment)."
Page 135, line 26, leave out "become" and insert "are"
Page 135, line 31, at end insert—
"( ) The Secretary of State may direct the Special Health Authority referred to in sub-paragraph (1 A) to exercise so much of any function of his under sub-paragraph (2) or under regulations under sub-paragraph (3) as may be specified in the direction.
( ) Where directions are given under this paragraph to a Special Health Authority, the 1977 Act has effect as if—

(a) the directions were directions under section 16D of that Act for the exercise of functions relating to the health service, and, accordingly,

(b) the functions were exercisable by the Special Health Authority under that section.

( ) Subsections (4) and (5) of section 187 apply in relation to directions under this paragraph as they apply in relation to directions under subsection (2) of that section."
On Question, amendments agreed to.
Schedule 8 [Part 2: minor and consequential amendments]:
Lord Warner Lord Warner moved Amendment No. 65:
Page 140, line 16, at end insert—
"5A The CHAI and the CSCI must each pay to the Minister for the Civil Service, at such times as the Minister may direct, such sums as he may determine in respect of any increase attributable to paragraph 5 in the sums payable out of money provided by Parliament under the Superannuation Act 1972 (c. 11)."
On Question, amendment agreed to.
Schedule 13 [Repeals and revocations]:
Baroness Andrews Baroness Andrews moved Amendment No. 66:
Page 168, line 26, at end insert—

"National Health Service Reform and Health Care
Professions Act 2002 (c. 17)

In section 15(1), the "and" before paragraph (b)."

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

Business
Lord Grocott: My Lords, before the next business, I want to make a brief announcement about proceedings tomorrow. As your Lordships will know, the House of Commons is currently considering our amendments to the Criminal Justice Bill, and a list of Commons reasons and amendments will be available in the Printed Paper Office tomorrow morning from nine o'clock. Peers who wish to table amendments or motions for tomorrow's consideration of Commons amendments on the Criminal Justice Bill should do so in the Public Bill office before noon tomorrow.

Extradition Bill
6 p.m.
Baroness Scotland of Asthal: My Lords, I beg to move that the Commons amendments and reason be now considered.
Moved, That the Commons amendments and reason be now considered.—(Baroness Scotland of Asthal. )
On Question, Motion agreed to.
COMMONS AMENDMENTS TO CERTAIN LORDS
AMENDMENTS, COMMONS REASON FOR
DISAGREEING TO A LORDS AMENDMENT AND
COMMONS AMENDMENTS IN LIEU OF CERTAIN
OTHER LORDS AMENDMENTS
[The page and line refer to HL Bill 50 (Rev) as first printed for the Lords. ]

LORDS AMENDMENT
3 Clause 2, page 2, line 12, leave out from "including" to end of line 14 and insert "a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person, the nature and legal classification of the offence and the applicable statutory provision;"
The Commons agree to this amendment with the following amendments—
3A Line 1, leave out "a description of the circumstances in which the offence was committed, including' and insert 'the conduct alleged to constitute the offence,"
3B Line 3, after "time" insert "and"
3C Line 3, leave out "and degree of participation in the offence by the requested person' and insert 'at which he is alleged to have committed the offence and"
3D Line 4, leave out "the nature and legal classification of the offence and the applicable statutory provision' and insert 'any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence"
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 3A to 3D to Lords Amendment No. 3.
I invite your Lordships to agree to amendments which another place made to the amendment that was pressed in this House on Report. The other place was happy to accept the Government's proposals in that regard, and I hope that noble Lords will take a similar approach.
In putting forward our proposals, the Government sought to try to preserve the spirit of the amendment that your Lordships made while using language suitable for a piece of UK legislation. What we are concerned with is the information that an incoming Part 1 warrant should contain. In the Government's view, the Bill was already explicit on that point, but we appreciate that noble Lords took a different view.
In particular, your Lordships decided to import some wording from the framework decision on the European arrest warrant directly into the Bill. We have no objection to the principle, but it seemed much more sensible to use language which would be readily understood by people in this country and which has been prepared by our expert Parliamentary Counsel.

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The amendments to the amendment which were made in another place remove the requirement that the warrant should contain details of,
"the nature and legal classification of the offence and the applicable statutory provision".
That was replaced by,
"any provision of the law of the category 1 territory under which the conduct is alleged to constitute an offence".
I hope that your Lordships will recognise that as a slightly neater and more straightforward formulation. I should make it clear, for the avoidance of doubt, that there is already a separate requirement to give details of the sentence that could be passed.
Similarly, the amendments in another place replaced,
"a description of the circumstances in which the offence was committed",
with details of,
"the conduct alleged to constitute the offence".
Again, it is the same requirement but simply expressed rather more neatly and in keeping with how our legislation is normally drafted.
One part of the amendment passed by your Lordships was removed without replacement in another place, which was that a warrant should contain information about the,
"degree of participation in the offence by the requested person".
We did not really understand what was meant by that or its relevance. For extradition purposes, it does not matter if the person is the ringleader or an accomplice, provided that the person is alleged to have committed an extradition crime. To use the example used by my honourable friend Caroline Flint in the other place, does it matter whether the person was waving the sawn-off shotgun at the bank teller or driving the getaway car? Clearly, that may be an important consideration at the eventual trial and in determining sentences to be imposed, but for the purposes of extradition to another EU country we do not think it of the first importance.
As I have tried to indicate, the Government sought, so far as possible, to accept the spirit of the amendment. I am pleased to say that that was accepted in its entirety by Members of another place without dissension or division. I very much hope that noble Lords will similarly give the amendments a warm welcome.
Moved, That the House do agree with the Commons in their Amendments Nos. 3A to 3D to Lords Amendment No. 3.—(Baroness Scotland of Asthal. )
On Question, Motion agreed to.

LORDS AMENDMENT
26 Clause 20, page 10, line 26, at end insert—

"(8) For the purposes of subsection (5), the judge should not regard as a retrial or (on appeal) a review amounting to a retrial, any proceedings that do not in particular include provision for—

(a) the suspect to be present at the retrial;

(b) the suspect to have like rights to hear and examine witnesses as he would have done at the original trial;

1906

(c) the suspect to have the same right to publicly funded legal services as any suspect or defendant."

The Commons disagree to this amendment but propose the following amendment in lieu—
26A Clause 20, page 10, line 26, at end insert—

"(8)The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—

(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 26 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 26A in lieu thereof.
Your Lordships will have seen that all the amendments are concerned with convictions in absentia. The Bill provides that, in a case where the person has been convicted in absentia and did not deliberately absent himself, we cannot extradite unless the person is guaranteed a retrial or a review amounting to a retrial on his return. The amendments were agreed on Report in the Lords to try to make that clear in the Bill. We are again broadly accepting the spirit of the amendments, but using different wording that draws more closely on the wording of the ECHR.
We are not accepting one element of the amendments, as they would have given the person an entitlement to be present at the retrial. Although that appears unobjectionable, we have to recognise that the court must have the right to remove an abusive or disruptive person, so we do not believe that we can grant an automatic entitlement.
The wording that we have adopted has been drawn straight from Article 6.3 of the European Convention on Human Rights, so it certainly has impeccable pedigree, although I should repeat my concern about it being seen to highlight particular parts of the ECHR. I want to make it plain that we consider that all parts of the ECHR bite on the provisions of the Bill, and that nothing contained in it dilutes that reality.
I thank the noble Lord, Lord Goodhart, for giving such clear direction to his colleagues in the other place in relation to other matters.
Moved, That the House do not insist on its Amendment No. 26 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 26A in lieu thereof.— (Baroness Scotland of Asthal. )
Baroness Anelay of St Johns: My Lords, I thank the Minister for the amendments on retrial. I accept the Government's reasons for omitting the section that does not appear in their redrafted amendments, where we required the defendant to be present. We discussed that at some length in Committee and on Report. I

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certainly appreciated the comments made by the noble Viscount, Lord Bledisloe, in particular, with regard to the practical difficulties that can ensue if one has an obstreperous defendant. It might appear in that person's interests to ensure that he is not present, as it might scuttle what is otherwise a very proper trial.
We also were concerned to find some way to redraft the retrial provisions so that they preserved the proper fairness and equitable procedure that one would want at a retrial, without in any way making provisions that would jeopardise that trial. The Government have achieved that. I note precisely what the Minister said with regard to the way in which all the articles on human rights are to be taken seriously. We, too, take them all seriously but it was right to focus on the particular explanation of retrial. I certainly welcome the amendments.
Lord Goodhart: My Lords, the provisions were moved in an amendment by the noble Baroness, Lady Anelay, but we supported them. We on these Benches are also happy with the version of the amendment now proposed by the Government.
On Question, Motion agreed to.

LORDS AMENDMENT
27 After Clause 21, Insert the following new Clause—
"Minimum procedural rights

(1) In reaching a decision under section 21(1) the judge shall have particular regard to the person's Convention rights under Article 6.3 of the European Convention on Human Rights.

(2) For the purposes of subsection (1), the judge may accept a written assurance from an appropriate authority in the category 1 territory in which the warrant was issued that the person's Convention rights under Article 6.3 will be observed.

(3) Where a written assurance has been given under subsection (2), the Secretary of State shall make arrangements to monitor the subsequent conduct of the proceedings against the person in the territory to which he has been extradited.

(4) If the Secretary of State believes as a result of monitoring under subsection (3) that a person's Convention rights under Article 6.3 have not been observed, he may draw that conclusion to the attention of a judge acting under section 21 in relation to any proceedings for the extradition of any other person to the same category 1 territory."

The Commons disagree to this amendment for the following reason—
27 A Because it would not be appropriate to provide for the giving of an assurance, or for monitoring, of the kind described in the Lords Amendment.
Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 27 to which the Commons have disagreed for their reason numbered 27A.
The new clause was inserted on a very narrow vote, as noble Lords will remember, by your Lordships on Report. I said on that occasion that I thought the clause unworkable and inappropriate, which is the very term which the Members of the other place use in their reason. I regret to tell the House that that remains the Government's view.
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I can be fairly brief because, on consideration of Lords amendments in the Commons on 13th November, my honourable friend Caroline Flint demonstrated in a masterly exposition precisely the difficulties attendant on the new clause. If your Lordships wish further enlightenment, by reading Hansard they will see that she went through every subsection and explained why it would not sit well in the Bill. For that reason, I do not intend to entertain your Lordships today with a recitation.
My honourable friend set out why it was inadvisable to single out one particular sub-article of the ECHR. She showed why we should not give my right honourable friend the Secretary of State, or any other Secretary of State who follows him, the monitoring role for which the amended Bill would have provided. She enumerated all the dangers that would flow from making the Secretary of State effectively a party to extradition proceedings.
However, I hope that your Lordships will be comforted to know that you do not have to rely on my logic or that of my honourable friend. During Commons consideration of Lords amendments, Mr Alistair Carmichael, the Liberal Democrat spokesman, revealed the contents of a memorandum which he had been sent by the noble Lord, Lord Goodhart. Apparently in respect of this amendment, the noble Lord, Lord Goodhart, had written:
"The Government says that the new clause is unworkable (probably correctly!)".— [Official Report, Commons, 13/11/03; col. 446.]
I unreservedly agree with the noble Lord's assessment. I am grateful that Mr Carmichael decided to put this in the public domain, even if I can appreciate that the noble Lord would have preferred that he remained silent on the issue.
When your Lordships passed the amendment, the Government did, of course, look very hard to see whether any kind of compromise was possible, but I regret to say that, like the noble Lord, Lord Goodhart, we concluded that none could be forthcoming. The Bill already provides that the judge is required to consider whether extradition would be compatible with the person's ECHR rights, and that relates to all articles of the ECHR and not just Article 6.3.
It would simply be impossible to provide for the Secretary of State to undertake a monitoring role of trials held overseas, to say nothing of the potential abuse of sovereignty that that would entail. However, most seriously of all, the new clause sought to require the Secretary of State to intervene in, and become a party to, extradition cases. Under our current arrangements, the Secretary of State very deliberately acts in a quasi-judicial capacity in extradition cases and to depart from that would be dangerous.
The UK has had extradition relations with a variety of countries throughout the world for more than 100 years. We conduct a large proportion of our total extradition traffic with EU member states and we have not previously thought it necessary for the Secretary of State to monitor their internal systems.

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Ultimately, we have to decide whether or not we trust our extradition partners. We have had that trust in other European countries for more than 100 years. If we do trust them, we should be prepared to extradite to them without putting in place a complicated monitoring system, as envisaged by this new clause.
It was for those reasons that the other place decided to remove the new clause and I hope that your Lordships will see the wisdom of their decision and agree with them. I am confident of the position expressed by the noble Lord, Lord Goodhart, and I believe that I can have similar confidence in the noble Baroness, Lady Anelay.
Moved, That the House do not insist on its Amendment No. 27, to which the Commons have disagreed for their reason numbered 27A.—(Baroness Scotland of Asthal. )
Lord Goodhart: My Lords, I have a certain regret at seeing the last of this new clause and at some suitable time I may have words with my honourable friend for being perhaps a little too frank about what I had passed to him in an e-mail.
Undoubtedly, the real protection for people against whom extradition is sought is Clause 21. That makes it a ground that to order extradition would involve a breach of the person's convention rights under the ECHR. Those include rights under Article 6.3. The purpose of the new clause was to simplify the matter and avoid some of the problems. In my view, it is clear that defendants against whom extradition is sought will rely strongly on Clause 21 as grounds for objecting to extradition. I therefore suggested that matters might be simplified and speeded up if it were possible for an overseas territory seeking extradition to say, "You do not need to go into the whole question of whether our procedures generally meet up with the rights because we will give an undertaking that in this case the rights will be fully observed.".
It is fair to say that not many states would have done that because, by implication, it suggests that their proceedings in general do not meet up with convention standards. It may be that most of the other territories would have been unwilling to accept that implication. However, I do not see that that would have involved the Secretary of State as a party to proceedings because his role would have come in only at a later stage and only if the overseas territory had chosen to rely on subsection (2).
However, I see—and I have from the beginning—that there are certain practical difficulties in the clause and on the balance of what the Government have done it is not an issue I would want to press. I want to draw attention to the fact that the Government have not chosen to reverse what I regard as the more important amendments we made to the Bill; those leaving out the gold plating and the abolition of the dual criminality rule. They are important amendments and I am pleased that the Government have allowed them to stand. In those circumstances, I have no wish to press further the retention of Clause 22.
Baroness Scotland of Asthal: My Lords, I thank the noble Lord, Lord Goodhart, for his generosity in highlighting what we have achieved together. I want also to thank the Front Bench of Her Majesty's Loyal Opposition and in particular the noble Baroness, Lady Anelay, for the way in which she has done the job so well. I thank, too, the noble Lord, Lord Hodgson. I hope that your Lordships will forgive me if I also thank my noble friends Lord Bassam and Lord Filkin for the sterling way in which they have supported me with the Bill.
On Question, Motion agreed to.

LORDS AMENDMENT
111 Clause 84, page 45, line 7, at end insert—

"(8) For the purposes of subsection (5), the judge should not regard as a retrial or (on appeal) a review amounting to a retrial, any proceedings that do not in particular include provision for—

(a) the suspect to be present at the retrial;

(b) the suspect to have like rights to hear and examine witnesses as he would have done at the original trial;

(c) the suspect to have the same right to publicly funded legal services as any suspect or defendant."

The Commons disagree to this amendment but propose the following amendment in lieu—
111A Clause 84, page 45, line 7, at end insert—

"(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights—

(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;

(b) the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

Baroness Scotland of Asthal: My Lords. I beg to move that the House do not insist on its Amendment No. 111 to which the Commons have disagreed and do agree with the Commons in Amendment No. 111A in lieu thereof. I have spoken to this amendment with Amendment No. 26A.
Moved, That the House do not insist on its Amendment No. 111 to which the Commons have disagreed and do agree with the Commons in their Amendment No. 111A in lieu thereof.—(Baroness Scotland of Asthal. )
On Question, Motion agreed to.
Lord Grocott: My Lords, I mentioned earlier that it was hoped we would be able to begin consideration of Commons amendments to the Sexual Offences Bill at 6.45 p.m. That remains the position and I therefore beg to move that the House do now adjourn during pleasure until that time.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 6.19 to 6.45 p.m. ]

Sexual Offences Bill [H.L.]
A message was brought from the Commons, That they agree to certain Lords amendments to Commons amendments without amendment; they do not insist on a certain Commons amendment to which your Lordships have disagreed and agree to your Lordships' amendment in lieu thereof without amendment; they do not insist on a certain other Commons amendment to which your Lordships have disagreed but propose an amendment in lieu thereof to which they desire the agreement of your Lordships; and they disagree to the remaining amendment made by your Lordships in lieu of words left out of the Bill by a Commons amendment for which they have assigned a reason.
Baroness Scotland of Asthal: My Lords, I beg to move that the Commons message be considered forthwith.
Moved accordingly, and, on Question, Motion agreed to.
COMMONS REASON FOR DISAGREEING TO A LORDS AMENDMENT, AND A COMMONS AMENDMENT IN LIEU OF A COMMONS AMENDMENT NOT INSISTED UPON
[ The page and line refer to HL Bill 128 as first printed for the Commons. ]

LORDS AMENDMENT
1A Clause 2, Insert the following new clause—
"Anonymity of suspects and defendants in certain cases (No. 2)

(1) Subject to subsection (3), where an allegation has been made that a person has committed an offence listed in Schedule 3, no matter relating to that person shall be included in any publication if it is likely to lead members of the public to identify that person as the person who is alleged to have committed the offence, until and unless that person is charged.

(2) If any matter is published or included in a relevant programme in contravention of subsection (1), the following persons, namely—

(a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) in the case of any other publication, the person who publishes it; and

(c) in the case of a matter included in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper;

shall be guilty of an offence.

(3) Subsection (1) shall not apply—

(a) if the person against whom the allegation has been made waives his right to anonymity; or

(b) if it is disapplied in relation to a specific person by a magistrates' court on application by a police officer of at least the rank of inspector."

The Commons disagree to the amendment proposed by the Lords in lieu of the words left out of the Bill by Commons Amendment No. 1 for the following reason—
1B Because it is unnecessary to make provision for the anonymity of suspects and defendants.
Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on their Amendment No. 1A to which the Commons have disagreed for their reason numbered 1B.
We recognise the difficulties associated with this area of law. Being accused of a sex offence often carries with it great social stigma, and the adverse publicity that often results from being linked to such an allegation can have serious consequences for a person's status and reputation.
Amendment No. 1C in the name of the noble Lord, Lord Thomas, seeks to provide anonymity to a person suspected of an offence under this Bill up to the point of charge. It also provides for circumstances whereby the reporting restrictions can be lifted either by the suspect or by a magistrates' court, including a single justice, upon application by a police officer of the rank of inspector or above or an equivalent Customs and Excise officer. It provides for a penalty of a fine not exceeding level 5 on the standard scale. There are definitions of "publication" and "relevant programme" which follow those set out in the Youth Justice and Criminal Evidence Act 1999.
There are a number of deficiencies in relation to this amendment. It limits its scope to sexual offences under the Bill. That statement is ambiguous. It is not clear whether it is intended to cover offences in Part 1 of the Bill only or to include those set out in Part 2 as well. It also does not make clear whether it includes offences of aiding, abetting and counselling, and so on. If the provision is limited to offences in Part 1 of the Bill, that means that sexual offences set out in previous Acts will not be covered by reporting restrictions and nor will offences relating to child pornography under the Protection of Children Act 1978, with no obvious reason why that is so.
There is no defence for the commission of the offence, except where a relevant programme is broadcast live. Therefore, the proprietor of a newspaper would commit an offence if one of his staff revealed a suspect's identity, even if he had no knowledge of that whatever. It might be said that the penalty is only a fine and that therefore it is justifiable to create a strict liability offence in those circumstances. Regrettably, we do not agree. It should not be forgotten that the result would be that the proprietor would have a criminal record.
Amendment No. 1C provides that anonymity can be lifted by the court only on application of the police at the rank of inspector or above or an equivalent Customs and Excise officer. That would place an undue burden and difficulty on the enforcement authority investigating the crime. It would also mean that the victim or the press would not be able to apply for the defendant's anonymity to be lifted. It would also be most unfortunate for any amendment on anonymity to be made to Clause 2. Such provisions immediately following a clause on the matter of rape would fail to show sensitivity to the victim of such a crime and would give undue prominence to this issue. The clause seems properly to belong at the beginning of Part 3 of the Bill.

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We have listened very carefully to the representations from those concerned about the real harm that can be caused by the reporting of defendants' details. We also recognise that much concern in such cases arises from the damaging publicity that is often generated pre-charge. We believe that informed and strengthened guidance to the police and the media is preferable to any change in legislation.
Agreement has been reached with ACPO that it will amend its media and disciplinary guidelines to all forces to give greater prominence to the rules that govern the release of information about anyone suspected of, but not yet charged with, an offence. That stronger guidance has already been put into effect, bringing the importance of the issue to the attention of police officers.
The Government have held creative and constructive discussions with the chairman of the Press Complaints Commission. As a result, the press is now looking at its code of conduct to see how it can be strengthened to ensure that those suspected of but not yet charged with offences are not named in the media. The Government have gone much further than the proposed amendment.
We have made it clear in our dealings with the police and the media that we expect them to apply such self-regulation in relation to all offences, including the heinous crime of murder. The Government have never been of the view that sexual offences should be singled out in the way proposed by the amendment.
We understand why the noble Lord, Lord Thomas of Gresford, has sought—properly, in his view—to press the amendments. We understand, too, the mischief that he wishes to see cured. We clearly wish to address that ourselves. We will address it through the regulation that will be put in place. The Government will continue to work positively with the media and ACPO to ensure that self-regulation is adhered to.
Notwithstanding the unkind analysis that I have had to make of the amendment, I assure the noble Lord that I understand why he sought to craft something that might be a little better than that brought forward before. I am so sorry that he does not appear to have succeeded.
Moved, That the House do not insist on its Amendment No. 1A to which the Commons have disagreed for their reason 1B.— (Baroness Scotland of Asthal. )
Lord Thomas of Gresford Lord Thomas of Gresford rose to move, as an amendment to the Motion, That the House do not insist on its Amendment No. 1A to which the Commons have disagreed for their reason numbered 1B, at end insert "but do propose the following amendment in lieu of Lords Amendment No. 1A—
1C Clause 2, Insert the following new Clause—
"Anonymity of suspects in certain cases

(1) This section applies (subject to subsection (5)) where an allegation has been made that a sexual offence under this Act has been committed by a person, the disclosure of whose identity is not otherwise restricted by law.

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(2) No matter relating to that person shall be included in any publication if it is likely to lead members of the public to identify that person as the person who is alleged to have committed the offence, until that person is charged or the criminal investigation has been completed and a decision not to charge the person has been made.

(3) If any matter is published or included in a relevant programme in contravention of subsection (2), the following persons, namely—

(a) the author or broadcaster, if the publication or relevant programme took place with their consent,

(b) in the case of a publication in a newspaper or periodical, any proprietor, editor and publisher of such newspaper or periodical,

(c) in the case of any other publication the person who publishes it, and

(d) in the case of a matter included in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor ofa newspaper,

shall be guilty of an offence triable summarily and punishable by a fine not exceeding level 5 on the standard scale.

(4) Where a relevant programme is broadcast live, it shall be a defence for any body corporate or editor referred to in subsection (3)(d) to show on the balance of probabilities that it took such steps as were reasonably practicable to ensure that no matter was included in the programme in contravention of subsection (2).

(5) Subsection (1) shall not apply—

(a) if the person against whom the allegation was made waives his right to anonymity; or

(b) if it is disapplied in relation to a specific person by a magistrates' court on application by a police officer of at least the rank of inspector, or a customs and excise officer of equivalent rank.

(6) The power under subsection (5)(b) of a magistrates' court in England and Wales may be exercised by a single justice.

(7) In this section the expressions "publication" and "relevant programme" have the same meaning as that given to them in section 63(1) of the Youth Justice and Criminal Evidence Act 1999.""

The noble Lord said: My Lords, the Minister referred to an unkind analysis of my amendment. Her analysis is not simply unkind, but wrong. I propose to set out why I believe that.
The reason given by the Commons for disagreeing to the amendment was that it was unnecessary to make provision for the anonymity of suspects and defendants. We totally disagree with that. The press codes that have applied in the past have failed to work, and it is time that Parliament took the responsibility of ensuring that people who may very well be innocent and never be charged enjoy anonymity in respect of terrible allegations made against them. The noble Baroness said that it applied only to sex cases. We say that such cases attract the most publicity, and, whether the allegation is established or a charge brought, such publicity results in considerable pain and anguish to a suspect. It can result in the ruination of his reputation and the destruction of his family life. Therefore, sexual offences are distinct for that reason.
They are distinct for a second reason. As we said in earlier debates on these provisions, the complainant who may well be lying, as happens in sex cases, is granted anonymity throughout, no matter the result of

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the case. So a person who is acquitted at the end of a trial, or who is never charged, may go through pain and anguish while the complainant herself has the cloak of anonymity.
I turn to the specific criticisms made of the Bill. In subsection (1) of my amendment to the Motion, we have made it clear that an allegation may refer to any sexual offence in the Bill. The noble Baroness said that we had not made it clear whether that covered Part 1 or Part 2. A sexual offence under this Bill clearly covers both Part 1 and Part 2.
The second criticism was that the author, publisher or programme editor, if it is a broadcast, will be punished and that they cannot be held responsible for faults of people under them. At the same time, the Government talk about introducing manslaughter against the directors and controllers of a company to make people responsible for the deaths of victims who may die as a result of negligence that has nothing to do with the management or the people who are charged. So the Government speak with one voice in that area and with another voice in this area. It is perfectly right that a publisher, an editor, or the person in control of a programme or the body that produces a television programme should be made responsible for offences of this nature, because unless the people at the very top carry that responsibility, nothing will be done to put in place the controls.
In our subsection (4) we have recognised that, with a live broadcast, a defence for such a person could be to show, on the balance of probabilities, that the body corporate or the editor took such steps as was reasonably practicable to ensure that no matter was included in the programme in contravention of the subsection. That provision has been put in for the reason mentioned by the noble Baroness, Lady Scotland, on the previous occasion that we discussed the matter; that in the course of a live broadcast—as happened in one very well publicised case—a guest may say something that indicates the identity of a person charged with an offence. In those circumstances it would be unfair for a television company, a radio company or an editor of a programme to carry the can.
We recognise that, but in relation to those within the chain of command, headed up by the editor and by the publisher, we believe that the responsibility has to lie with them. I will be interested to see whether the noble Baroness can justify in any way the Government's policy in seeking to make the heads of companies liable for manslaughter and at the same time make the argument that she has made in this case.
The noble Baroness also criticises this amendment for not referring to aiders and abettors. She knows that it is possible to charge anyone with aiding and abetting an offence. I considered that point. I am aware of the aiders and abettors Act; I cannot give the date of it but it is very familiar to me. It is certainly perfectly possible for a person to be charged with aiding and abetting an offence of this kind and to stand trial for that. The kind of person whom I have in mind is the police officer who leads an investigation and leaks to the press, as has happened, the details of a person who is a suspect. The
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noble Baroness says that they will put in place the press code although, interestingly, she said that they had not finally agreed on it. So the amendment is rejected without our knowing what will be put in its place.
Finally, a criticism made on the last occasion was that an application to a magistrates' court would involve some delay. For that reason, we have included subsection (6) so that an application by a police officer of the rank of at least an inspector can be made to a single justice, if necessary in his own home. It is not necessary to convene the court within the precincts of a magistrates' court for a magistrate to make an order. So the criticism of delay made the last time can no longer be made of this amendment.
I do not know why the Government take the attitude they do. It may be that they are in thrall to the tabloid press and simply dare not take a lead on such an issue. They simply fear the fact that there are newspaper proprietors who are making money from leaks, and they cannot face it. That is typical of how the Government have acted regarding the tabloid press. I think that we shall probably hear a little more about that issue before we finally finish the Session.
So, my Lords, I strongly support the amendment put down in the name of the Liberal Democrats. It is a very liberal point we make. It is met with hostility by the Government. That just indicates that any credentials they ever had for a liberal approach to matters of this kind have been lost and were lost years ago. I shall wait to hear the Minister's response before I decide what to do. I beg to move.
Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 1A to which the Commons have disagreed for their reason numbered 1B, but do propose Amendment No. 1C in lieu of Lords Amendment No. 1A.— (Lord Thomas of Gresford. )
7 p.m.
Baroness Noakes: My Lords, the noble Lord, Lord Thomas of Gresford, said that the Minister's analysis was unkind. I shall not accuse the noble Baroness of being unkind, but I have noticed, both today and last week, that she has taken an undue pleasure in criticising the very earnest attempts from these and the Liberal Democrat Benches, both in this House and in another place, to find a solution to what I thought was a common cause on a very real problem.
There have been many attempts to find a good legislative solution to the problem. All attempts have been comprehensively rejected by the Government. We continue to believe that these issues are important. Defendant anonymity is important, especially in cases of sexual offences. We are genuinely disappointed that the Government have failed to find a solution with us to those very real issues. If the Government had wanted to find a technically competent solution one could have been found, but they did not.
We on these Benches have throughout supported defendant anonymity on a pre-charge basis. We were minded to continue to support that this evening. However, the Minister in another place made it very

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clear earlier today that the Government will not change their mind if the Bill returns. That threat raises the prospect of the Bill being lost for the sake of defendant anonymity. We on these Benches are not prepared to let all the good things in the Bill be lost. So it is with very great regret that we find ourselves unable to support the amendment of the noble Lord, Lord Thomas of Gresford.
The Government have made it plain—and the Minister again made it plain this evening—that their hopes are pinned on a self-regulatory solution. We believe that effective self-regulation would be ideal. But if self-regulation does not work, more innocent lives will be ruined. I hope the Minister will at least make a clear commitment to using one of the very many legislative opportunities that I am sure her department will have at its disposal to act decisively if a regulatory regime is not agreed or, if having been agreed, proves to be unsatisfactory.
Lord Monson: My Lords, I previously rose to support the amendment of the noble Lord, Lord Thomas of Gresford, in principle although, even as a mere layman, I felt that as drafted it contained imperfections, omissions and ambiguities. The noble Lord has now vastly improved his proposed new clause. Although, as the Minister argues, it may still not be 100 per cent perfect, it is still preferable to leaving the law as it is. Therefore, if the noble Lord decides to press the amendment to a Division, I shall certainly support him.
Lord Wedderburn of Charlton: My Lords, it is necessary that some voice be raised from these Benches. There have been many claims for originality in the defence of the anonymity of persons who have not even been charged. It is traditional to our party to take up such a stance; it is not for want of belief that many in our party would support such a position. As I have heard the criticisms of the amendment, they have been answered point by point. The fact that this is populist stuff and a genuflection—with a liberal face— to the tabloid press is obvious. My party had better get used to the fact that, with the co-operation of the Official Opposition, the next election will be fought on a competition on who can "bang 'em up" most and who can make heavy petting at 15 illegal—which is what the Bill does and why, the Opposition seem to think, it cannot be lost.
It is incredible to many members of my party—few of whom are in the Chamber; a dozen people will have heard the argument but many will be brought to troop, lemming-like, through the Lobby—who know well that without the defence by way of mutual anonymity in highly sensitive cases, the tabloid press and even television will put them to a malign use, to the disadvantage of people who, as the noble Lord, Lord Thomas, said, may well be innocent. Codes of conduct; practice directions from the Government; or suggestions? What guarantee does the noble Baroness give us that that will produce any change of character in the media? None.
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I am driven to say that if the amendment is pressed to a vote, I shall be bound in conscience to vote for it.
Baroness Scotland of Asthal: My Lords, with the greatest clarity at my disposal, I say that this is not a populist move; neither are we genuflecting towards the tabloid press. Of course I hear what the noble Lord, Lord Thomas of Gresford, said about that. I also heard his exhortation to liberality, but that sits ill when we consider the amendment, because one tenet of our democracy is freedom of the press. That is something that we have always honoured; I had always believed that was dear to the hearts of Liberal Democrats as well. I am sure that it remains so.
The Government's stance represents a proportioned and reasoned response. We have been clear and robust with both ACPO and the media through the complaints council. We have made clear that we have identified a mischief that needs to be cured. The noble Baroness, Lady Noakes, was right when she said that if self-regulation can work well, efficiently and properly, that is the better course. We agree. We have also made it clear that the Government wish the police and the media to adhere to self-regulation, and that self-regulation is a privilege, not a right. If that privilege is abused, the Government will have to think about what alternative measures may be necessary to bring about compliance with what all sides of the House believe is proper. That is a moderate, proper approach, but it does not lack rigour.
My noble friend Lord Wedderburn—he remains my noble friend—could not be more wrong when he casts aspersions on the honour of this party and the Government. Having had the privilege and joy to deal with this Bill, the Criminal Justice Bill, the Anti-social Behaviour Bill and the Extradition Bill, I can reassure my noble friend that I have seen no lemmings yet, certainly not on our Benches. Our Benches have demonstrated their usual robust independence, as doubtless the Whips will demonstrate, and as my noble friend has demonstrated on occasions too numerous to particularise.
This is a proportionate response—the noble Baroness, Lady Noakes, is right. I commend the noble Lord, Lord Thomas of Gresford, on his tenacity, but, on this occasion, tenacity to press the amendment is not necessary. In response to the noble Baroness, the flaws that I have identified are real. 1 try to do that as gently as I can, but the flaws are patent. During the previous debate, I gave every opportunity to take guidance on how to address the matter, but it has not borne the fruit that others seek. I invite the noble Lord, Lord Thomas, not to press his amendment.
Lord Thomas of Gresford: My Lords, as I listened to the noble Baroness, the explanation by Sir John Falstaff in Verdi's opera "Falstaff", "L'onore!", flashed across my mind. I wish that I could play it over loudspeakers to the Cabinet room at full volume, so that the Cabinet could have some comprehension of what honour really is.

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As the noble Baroness recognised, the Liberal Democrat Benches, in co-operation with the noble Baroness, Lady Noakes, have worked very hard on the Bill. I pay tribute to her efforts. We have fashioned, in many parts of the Bill, a workable solution to what started off as something totally unworkable and that would have caused huge problems in the criminal justice system where sexual offences were involved. We have improved the Bill, and we have done it in this House.
So, when the Official Opposition are threatened by the Government that the whole Bill, which we have worked so hard to improve, will be lost on this amendment, I understand why they hold their current position. I do not blame them. As I have told noble Lords many times, my family motto is "Ar Bwy Mae'r Bae?"—"Who can we blame?". In this instance, the blame rests with the Government.
Baroness Scotland of Asthal: My Lords, no such threat has been made. It is for the noble Baroness and her party to decide whether they wish to have the Bill. We have made no threat about the Bill, and it is wrong to suggest that we put it at risk. Each party must choose how it wishes to deal with the matter. We have made plain our policy. The choice has been exercised; please do not blame us.
Baroness Noakes: My Lords, will the Minister agree that her honourable friend in another place made it clear that, if this House sent the Bill back amended again, the amendment would be comprehensively rejected, thereby imperilling the passage of the Bill.
Baroness Scotland of Asthal: My Lords, I have made it absolutely clear. We have stated our position and we have said that that position is not going to change. We do not imperil the Bill thereby. We have set and adhered to government policy and it is for Her Majesty's loyal Opposition to decide what they wish to do in response. That is not a matter for us. It is a privilege and joy for the Opposition to decide whether they wish to put the interests of the country first, or other matters.
Lord Thomas of Gresford: My Lords, I always admire the way that the noble Baroness, Lady Scotland, presents her case. She does it extremely well. However, we know and the people of this country will know when a threat is a threat and a positive threat was made in this place that the Bill would be lost if this amendment went back to the Commons. I have that in mind. I also have in mind that I cannot, because it has happened so often in these past few weeks, again watch the lemmings go over the cliff. The sight is too sad, so I will spare the Government in this case. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.

COMMONS AMENDMENT
261 After Schedule 3, Insert the following new Schedule—
"PROCEDURE FOR ENDING NOTIFICATION REQUIREMENTS FOR ABOLISHED HOMOSEXUAL OFFENCES
Scope of Schedule

1 This Schedule applies where a relevant offender is subject to the notification requirements of this Part as a result of a conviction, finding or caution in respect of an offence under—

(a) section 12 or 13 of the Sexual Offences Act 1956 (c. 69) (buggery or indecency between men), or

(b) section 61 of the Offences against the Person Act 1861 (c. 100) or section 11 of the Criminal Law Amendment Act 1885 (c. 69) (corresponding Northern Ireland offences).

Application for decision

2

(1) The relevant offender may apply to the Secretary of State for a decision as to whether it appears that the person with whom the act of buggery or gross indecency was committed—

(a) where paragraph l(a) applies, was aged 16 or over at the time of the offence,

(b) where paragraph l(b) applies, was aged 17 or over at that time,

and that that person consented to the act.

(2) An application must be in writing and state—

(a) the name, address and date of birth of the relevant offender,

(b) his name and address at the time of the conviction, finding or caution,

(c) so far as known to him, the time when and the place where the conviction or finding was made or the caution given and, for a conviction or Finding, the case number,

(d) such other information as the Secretary of State may require.

(3) An application may include representations by the relevant offender about the matters mentioned in sub-paragraph (1).

Decision by Secretary of State

3

(1) In making the decision applied for, the Secretary of State must consider—

(a) any representations included in the application, and

(b) any available record of the investigation of the offence and of any proceedings relating to it that appears to him to be relevant,

but is not to seek evidence from any witness.

(2) On making the decision the Secretary of State must—

(a) recordd it in writing, and

(b) give notice in writing to the relevant offender.

Effect of decision

4

(1) If the Secretary of State decides that it appears as mentioned in paragraph 2(1), the relevant offender ceases, from the beginning of the day on which the decision is recorded under paragraph 3(2)(a), to be subject to the notification requirements of this Part as a result of the conviction, finding or caution in respect of the offence.

(2) Sub-paragraph (1) does not affect the operation of this Part as a result of any other conviction, finding or caution or any court order.

Right of appeal

5

(1) If the Secretary of State decides that it does not appear as mentioned in paragraph 2(1), and if the High Court gives permission, the relevant offender may appeal 10 that court.

(2) On an appeal the court may not receive oral evidence.

(3) The court—

(a) if it decides that it appears as mentioned in paragraph 2(1), must make an order to that effect,

(b) otherwise, must dismiss the appeal.

(4) An order under sub-paragraph (3)(a) has the same effect as a decision of the Secretary of State recorded under paragraph 3(2)(a) has under paragraph 4.

(5) There is no appeal from the decision of the High Court.

Transitional provision
6 Until the coming into force of the repeal by this Act of Part 1 of the Sex Offenders Act 1997 (c. 51), this Schedule has effect as if references to this Part of this Act were references to Part 1 of that Act."
The Commons do not insist on their Amendment No. 261 to which the Lords have disagreed, but propose the following Amendment to the Bill in lieu of the Amendment not insisted upon—
261B Page 86, Line 32, at end insert—

SCHEDULE
PROCEDURE FOR ENDING NOTIFICATION REQUIREMENTS FOR ABOLISHED HOMOSEXUAL OFFENCES
Scope of Schedule

1 This Schedule applies where a relevant offender is subject to the notification requirements of this Part as a result of a conviction, finding or caution in respect of an offence under—

(a) section 12 or 13 of the Sexual Offences Act 1956 (c. 69) (buggery or indecency between men), or

(b) section 61 of the Offences against the Person Act 1861 (c. 100) or section 11 of the Criminal Law Amendment Act 1885 (c. 69) (corresponding Northern Ireland offences).

Application for decision

2

(1) The relevant offender may apply to the Secretary of State for a decision as to whether it appears that, at the time of the offence, the other party to the act of buggery or gross indecency—

(a) where paragraph l(a) applies, was aged 16 or over,

(b) where paragraph l(b) applies, was aged 17 or over, and consented to the act.

(2) An application must be in writing and state—

(a) the name, address and date of birth of the relevant offender,

(b) his name and address at the time of the conviction, finding or caution,

(c) so far as known to him, the time when and the place where the conviction or finding was made or the camion given and, for a conviction or finding, the case number,

(d) such other information as the Secretary of State may require.

(3) An application may include representations by the relevant offender about the matters mentioned in sub-paragraph (1).

Decision by Secretary of State

3

(1) In making the decision applied for, the Secretary of State must consider—

(a) any representations included in the application, and

(b) any available record of the investigation of the offence and of any proceedings relating to it that appears to him to be relevant,

but is not to seek evidence from any witness.

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(2) On making the decision the Secretary of State must—

(a) record it in writing, and

(b) give notice in writing to the relevant offender.

Effect of decision

4

(1) If the Secretary of State decides that it appears as mentioned in paragraph 2(1), the relevant offender ceases, from the beginning of the day on which the decision is recorded under paragraph 3(2)(a), to be subject to the notification requirements of this Part as a result of the conviction, finding or caution in respect of the offence.

(2) Sub-paragraph (1) does not affect the operation of this Part as a result of any other conviction, finding or caution or any court order.

Right of appeal

5

(1) If the Secretary of State decides that it does not appear as mentioned in paragraph 2(1), and if the High Court gives permission, the relevant offender may appeal to that court.

(2) On an appeal the court may not receive oral evidence.

(3) The court—

(a) if it decides that it appears as mentioned in paragraph 2(1), must make an order to that effect,

(b) otherwise, must dismiss the appeal.

(4) An order under sub-paragraph (3)(a) has the same effect as a decision of the Secretary of State recorded under paragraph 3(2)(a) has under paragraph 4.

(5) There is no appeal from the decision of the High Court.

Interpretation

6

(1) In this Schedule a reference to an offence includes—

(a) a reference to an attempt, conspiracy or incitement to commit that offence, and

(b) a reference to aiding, abetting, counselling or procuring the commission of that offence.

(2) In the case of an attempt, conspiracy or incitement, references in paragraph 2 to the act of buggery or gross indecency are references to the act of buggery or gross indecency to which the attempt, conspiracy or incitement related (whether or not that act occurred).

Transitional provision
7 Until the coming into force of the repeal by this Act of Part 1 of the Sex Offenders Act 1997 (c. 51), this Schedule has effect as if references to this Part of this Act were references to Part 1 of that Act."
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 261B in lieu of the Commons Amendment No. 261 to which the Lords have disagreed.
I hope that, in relation to this amendment, I will be able to give the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Noakes, a little more pleasure than I could on the previous amendment.
The House will be aware that, in the other place, the Government introduced to this Bill a schedule that provided for a procedure for the removal of the notification requirements from offenders convicted of buggery and indecency between men when the activity was consensual and the victim was aged 16 or 17. However, it came to my attention, shortly before your Lordship's House was due to consider this amendment, that the procedure provided for was insufficient. This was because it referred only to the offences of buggery and indecency between men and

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omitted to include an attempt, conspiracy or incitement to commit these offences or aiding, abetting, counselling or procuring the commission of the offences.
I am pleased to say that that omission has now been rectified by my honourable friend Paul Goggins in the other place. I am therefore seeking agreement to Amendment No. 261B, which provides for a suitably revised procedure, with the relevant new paragraph at paragraph 6. I hope that the noble Lord, Lord Thomas of Gresford, will agree with the liberality of this amendment and, if it were put to a Division, would be more than content to see every lemming in this House go through the Lobby, because they would not be lemmings they would be discharging their duty. I beg to move.
Moved, That the House do agree with the Commons in their Amendment No. 261B in lieu of the Commons Amendment No. 261 to which the Lords have disagreed.—(Baroness Scotland of Asthal. )
Baroness Walmsley: My Lords, we have just been talking about the workable solution that we have been trying to insert into the Bill. I agree with the regret expressed by the noble Lord, Lord Wedderburn, that we were unable to find a workable solution to the issue of criminalising half the teenage population of this country. However, the amendments are a workable solution. Little did I know, when I raised this issue at an earlier stage of the Bill as it passed through this House, that it would take right up until the last minute to find the perfect and accurate workable solution.
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I am delighted that a workable solution has been found. I thank the Minister for her tenacity in ensuring that this has come back in a form which I think that we all intended from the outset. The notification procedures cast such a shadow across the lives of those people put under it. It would be regrettable if the notification procedures had to be applied to those who committed acts which are no longer offences under the law. I am grateful to the Minister and, of course, we support the amendment.
Baroness Scotland of Asthal: My Lords, I therefore take this opportunity to thank noble Lords on all Benches who have supported me and the noble and learned Lord, Lord Falconer, who held the brief before me. I thank the noble Baronesses, Lady Noakes and Lady Walmsley, and the noble Lord, Lord Thomas of Gresford, for their energy and tenacity in ensuring that the Bill is now in very good order.
On Question, Motion agreed to.

Transas Group Bill
Returned from the Commons with the amendments agreed to.
Anti-social Behaviour Bill
Returned from the Commons with the amendments agreed to.

Courts Bill [H.L.]
Returned from the Commons with the amendments agreed to.
House adjourned at twenty two minutes past seven o'clock.